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 1480 a bona fide offer in writing to arbitrate, shall constitute conditions precedent to the right to sue for such damages : Provided, That noth- ing herein contained shall preclude the institution of any such suit in a Federal court having jurisdiction thereof, or the removal to said court of any such suit brought in the State court, which under Federal law may be removed to the Federal court : Provided further, That nothing herein shall be construed to limit the time for any action to be filed to less than ninety days ." SEC . 3 . That section 1 of the Act of Congress of February 27, 1925 (Forty- third Statute s at Large, pa ge 1008), is hereby amended by adding there to the follow ing " The Secretary of the Interior be, and is hereby, authorized, in his discretion, under such rules and regulations as he may prescribe, upon application of any member of the Osage Tribe of Indians not having a certificate of competency, to pay all or any part of the funds held in trust for such Indian : Provided, That the Secretary of the Interior shall, within one year after this Act is approved, pay to each enrolled Indian of less than half Osage blood, one-fifth part of his or her proportionate share of accumulated funds. And such Secretary shall on or before the expiration of ten years from the date of the approval of this Act, advance and pay over to such Osage Indians of less than one-half Osage Indian blood, all of the balance appearing to his credit of accumulated funds, and shall issue to such Removal of res tri c- Indian a certificate of competency : And provided further, That nothing herein contained shall be construed to interfere in any way with the removal by the Secretary of the Interior of restrictions from and against any Osage Ind ian at any ti me. " SEC. 4. That section 2 of the Act of Con gress approve d February 27, 1 925 (Forty-third Statutes at Large, page 1011), being an Act to amend the Act of Congress of March 3, 1921 (Forty-first Statutes at Large, page 1249), be, and the same is hereby, amended to read as follows " Upon the death of an Osage Indian of one-half or more Indian blood who does not have a certificate of competency, his or her moneys and funds and other property accrued and accruing to his or her credit and which have heretofore been subject to supervision as provided by law may be paid to the administrator or executor of the estate of such deceased Indian or direct to his heirs or devisees, or may be retained by the Secretary of the Interior in the discretion of the Secretary of the Interior, under regulations to be promulgated by him : Provided, That the Secretary of the Interior shall pay to administrators and executors of the estates of such deceased Osage Indians a sufficient amount of money out of such estates to pay all law ful indebtedn ess and costs and expenses of administra tion when approved by him ; and, out of the shares belonging to heirs or devisees, above referred to, he shall pay the costs and expenses of such heirs or devisees, inc luding attorn ey fees, when approved by him, in the determination of heirs or contest of wills. Upon the death of any Osage Indian of less than one-half of Osage Indian blood or upon the death of an Osage Indian who has a certificate of competency, his moneys and funds and other property accrued and accruing to his credit shall be paid and delivered to the admin- istrator or executor of his estate to be administered upon according to the laws of the State of Oklahoma : Provided, That upon the settlement of such estate any funds or property subject to the control or supervision of the Secretary of the Interior on the date of the approval of this Act, which have been inherited by or devised to any adult or minor heir or devisee of one-half or more Osage Indian Provisos. Suit in Federal court allowed. Time for filing. Vol . 43, p. 1010, amended. Payments fr om in- come . Ind ians without com- petency certificate . Proviso. Payme nts here after to enrolled Indians of less than one-half Osage blood. tions at any time. Vol . 43, p. 1010, amended. Disposition of prop- erty, etc ., to estates of In dians withou t com- petency certificates . Provisos. Payment of ind ebt- edness, administration expenses, etc. Delivery of property to admi nist rator of In- dian with less than one. half Osage blood, and having competency cer- tificate. Fu nds from the es- tate, for Indians with- out competency certifi- cate, to be delivered to Se creta ry o f Int erior for dispo sition. SEVENTIETH CONGRESS. SESS. II. Cu. 493. 1929.

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United States ex rel. Crawford v. Addison/Opinion of the Court

I propose, then, to show that there is no supersedeas, because no writ of error lies in such a case.

It professes to be sued out under the act of April 2, 1816, (3 Stat., 261.)

The section has been already recited.

Its language does not differ substantially from that of the 22d section of the act of 1789.

So far as it differs at all, it is more stringent and explicit. The original act was that of 27th February, 1801, (2 Stat., 106,) which uses affirmative language, allowing appeals, &c. This is negative, 'that no cause shall, &c., unless, &c.'

What is the 'matter in dispute' in this cause? And what is 'its value?'

It is a public office of personal trust and confidence.

It is not property in any sense of the term. It can neither be bought, nor sold, nor mortgaged, nor assigned. It cannot be aliened absolutely, or in any qualified form. It has none of the attributes which are inseparable from property. The proceeding below did not in any degree depend upon any profits to be earned in the office, or in any manner to arise out of it. The information would lie in the name of the United States, if the office were purely honorary, (as it is in effect, the salary being small,) it being an office of public trust, touching the rule and government of a city. It would lie as well on the relation of any private citizen and voter in the town, as on the relation of the true incumbent de jure.

Again: The record shows, by stipulation, that in fact there is an annual salary annexed to the office, payable month by month, as earned. This salary, if earned, for a whole year, would be one thousand dollars. Is a year's salary, or the salary for the whole term of two years, the matter in dispute here, or is the matter in dispute of that value? Clearly not. The judgment of ouster neither gives nor takes away the salary for the whole term, or for any part of it. When the information was filed, two months' salary had accrued; when the judgment was rendered, nine months' salary had accrued. During all this time, the defendant, as mayor de facto, received his salary, and the judgment could not deprive him of it. For the unexpired term, who will say, that if he be not ousted, he will live and earn the salary for any single month or day of it? And unless he live, and earn it, it matters not to him whether the judgment be reversed or not.

There is no value in dispute; for the services to be rendered by the defendant are to be taken as a full equivalent for the salary to be paid.

There is a wide difference between this case and that of a life estate in lands, or chattels, which, though it depend on life, is yet the subject of sale-is property-and its value in market may be ascertained.

With these principles in view, the following cases are referred to:

Ritchie v. Mauro, 2 Pet., 243.

Barry v. Mercein, 5 How., 103. (Op. Taney, C. J., 118.)

Scott v. Lunt, 6 Pet., 349, case of the rent charge of $73 per annum.

See the Argument of Swann, and the Op. of Marshall, C. J.

Grant v. McKee, 1 Pet., 248, where it was argued, that in substance and effect, a very large property was involved.

To the same effect is Ross v. Prentiss, 8 How., 772, and numerous other cases which might be cited.

Against these cases I am not aware of any which may be relied on by the other side, except the Col. Ins. Co. v. Wheeling, 7 Wheat., 534; and Lee v. Lee, 8 Peters, 44.

So far as these cases may be thought inconsistent with those cited by us, they are overruled by the latter.

The case in 7 Wheat. (decided in 1822) has been steadily adhered to by the court upon the principal point determined by it, and the only one which appears to have been argued, viz: that a judgment for mandamus is a final judgment. It was cited and reaffirmed for the purpose in the case of United States v. Kendall, and in the case of Holmes v. Jennison.

Having decided this point, the court directed the counsel for the plaintiff in error to produce affidavits of the value of the salary attached to the offices of directors of the company. But upon the production of them, the writ was quashed for want of jurisdiction.

In the case of Mauro v. Ritchie, 2 Peters, (1829,) the very question of value was the whole question. The court there, instead of directing affidavits, lay down the principle that an office which is of no value except so far as it affords compensation for labor and services, thereafter to be earned, is not the subject of a writ of error from the Circuit Court of this District.

And as to the case of Lee v. Lee, it is an exceptional case, which does not seem to be reconcilable with the uniform current of decisions in this court. It was decided in 1834, and there is only one member of the court (Mr. Justice McLean) who was then on the bench, and he appears to have concurred in its decision of Barry v. Mercein.

It is curious to contrast the conclusion announced in the case of Lee v. Lee with that of the latter case. In the former. the court took jurisdiction because liberty was 'not susceptible of pecuniary estimation;' in the latter they disclaimed it, because the paternal rights, duties, and affections, were in like manner 'utterly incapable of being reduced to any pecuniary standard of value, as it rises superior to money considerations.'

1. The office of mayor of Georgetown is elective for two years; the salary is fixed by law at $1,000 a year, payable monthly.

2. By the act of 1816, 3 Stat., 261, sec. 1, this court has jurisdiction in cases where the pecuniary value of the thing in controversy is $1,000.

The value of an office is fixed by the salary annexed to it.

Wheelright v. Columbian Ins. Co., 7 Wheat., 534.

3. The writ of mandamus is a high prerogative writ, and never to be used except where there is no other adequate legal remedy, and never where it would be nugatory.

Tappan on Mandamus, p. 15, and cases in notes.

The record and the return to the certiorari show that the jury first rendered a verdict, in substance, that neither of the candidates had the greatest number of legal votes, but it was a tie vote.

By the amended act of incorporation, 4 Stat., it is provided, in such case, that the councils of Georgetown shall in joint meeting elect a mayor from those having an equal number.

Therefore it is material that this court shall see upon what facts the jury passed, when they responded to the fourth issue, that Addison had not a majority of the legal votes.

And for this purpose it is competent to look behind the judgment and verdict.

1 Green. Evi., sec. 532, and notes.

The councils of Georgetown, as has been conceded in the argument, in point of fact, having been furnished with a copy of the verdict so returned by the jury in writing, proceeded to elect Mr. Addison in joint meeting, &c.

The mandamus, therefore, prayed for by this motion, would be nugatory—

Because it is clear, as between the real parties to this controversy, it has been ascertained by a competent authority that there was an equality of votes; and

Because the election subsequent to that finding is pursuant to the charter; and, Addison being rightfully in under this election, the writ of ouster could not remove him from the said office.

Mr. Justice McLEAN delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of Columbia.

Richard R. Crawford, of the city of Georgetown, in the District of Columbia, states, that on the fourth Monday of February, 1857, in pursuance of an act of Congress to amend the charter of Georgetown, approved the 31st May, 1830, and an act to amend the same charter, approved the 11th August, 1856, by ballot to elect some fit and proper person, having the qualifications required by law, to be mayor of the corporation of Georgetown, to continue in office two years, and until a successor shall be duly elected, said Crawford, being duly qualified, received the greatest number of legal votes, and was elected mayor of the said corporation, and took the oath as mayor, and continued to discharge the duties for two years.

On the fourth Monday of February, 1859, another election was held for mayor, at which he received the greatest number of legal votes, and was by the judges declared to be duly elected; on which he presented himself in the presence of the two boards of the common council of the said corporation, and claimed that the oath should be administered; but the said two boards, alleging that there was a mistake in the returns, and that there was in fact a majority of one vote in favor of Henry Addison, who was the opposing candidate, and to whom the oath of office was administered, and who took possession of the office, and continues to exercise the duties of the same.

And your petitioner represents, that at the ensuing term of the Circuit Court of the District of Columbia, being the court then and still having jurisdiction in the premises, an information, in nature of quo warranto, upon the relation of your petitioner, was filed in the said court by Robert Ould, Esq., the attorney of the United States for the District of Columbia, on which due process was issued against the said Henry Addison, requiring him to answer before the said court by what warrant he claimed to exercise the said office of mayor of the corporation of Georgetown.

And the said Addison having pleaded to the said information, and certain replications having been made to said plea by the said attorney of the United States, certain issues were joined thereon at the October term, 1859, of the said court, and amongst others the issue to try whether the said Henry Addison had, as alleged by him in his plea, received the greatest number of legal votes for mayor at the said last-mentioned election; and upon the issue it was found by the jury, duly empannelled and sworn to try the same, that the said Henry Addison did not receive the greatest number of legal votes for mayor at the said election; and thereupon the said court rendered judgment of ouster against the said defendant, and for the costs of your petitioner, as relator in the said proceeding, to wit, on the ___ day of December instant.

Whereupon due process for the execution of the said judgment, to remove the said defendant and for the recovery of the costs aforesaid, was duly prayed of the said court; but the said Henry Addison, pretending that the proceedings upon the said information in matter of law may be reviewed by this honorable court upon writ of error, sued out such writ of error, filed a bond, and caused a citation to be issued and served upon your petitioner, to appear and answer to the said writ of error on the return thereof, to wit, at the December term, 1860. And thereupon the said Circuit Court, for the express and sole reason that such writ of error and bond operated as a supersedeas, (which is expressed in their order in that behalf,) refused to execute the said judgment, or to issue any process to remove the said defendant or for the recovery of the costs aforesaid.

Your petitioner is advised, and humbly submits, that this honorable court hath no jurisdiction of the matter of the said writ of error, and that the same must be dismissed on the return thereof. But, as hereinbefore stated, the said writ is not returnable until December term, 1860, and the term of office for which your petitioner was elected as aforesaid will then be about to expire.

Your petitioner is advised that his only adequate and proper remedy is by a mandamus from this honorable court, directed to the judges of the said Circuit Court of the District of Columbia, commanding them to issue process for the execution of the judgment aforesaid. And for that the transcript of record herewith filed plainly expresses on its face the sole cause for the refusal of such process, so as distinctly to present the whole matter of law for the consideration of the court, he prays that a peremptory mandamus may issue, or, in the alternative, that such interlocutory order may be passed to that end, as this court may direct.

Under the thirteenth section of the judiciary act of 1789, the Supreme Court has 'power to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the United States.' The power of the Circuit Courts to issue the writ of mandamus is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. Kendall v. United States, Curtis, 12th vol., 851.

On a mandamus, a superior court will never direct in what manner the discretion of an inferior tribunal shall be exercised; but they will, in a proper case, require the inferior court to decide. Life Insurance Company v. Wilson's Heirs, 8 Peters, 294. It has repeatedly been declared by this court that it will not by mandamus direct a judge as to the exercise of his discretion; but it will require him to act. 13 Pet., 279.

A mandamus is a remedy where there is no other appropriate relief, and it is only resorted to on extraordinary occasions.

The writ of error is a common law writ, and is almost as old as the common law itself. This writ, to operate as a supersedeas, must be issued within ten days after the rendition of the judgment, and on security being given for a sum exceeding the amount of the judgment. Where no supersedeas is required, security for the costs of the Supreme Court must be entered. So that, in these respects, the writ of error is said to be a writ of right, though regulated by statute.

The condition on the supersedeas bond is: 'that the said Henry Addison shall prosecute the said writ of error to effect, and answer all damages and costs if he shall fail to make his plea good; then the above obligation to be void; otherwise to be and remain in full force and virtue.'

In the Columbus Insurance Company v. Wheelright and others, 7 Wheat., 534, it was held that a writ of error will lie from this court upon the judgments of the Circuit Courts awarding a peremptory mandamus, if the matter in controversy is of sufficient value. But in that case, it did appear that the office of director of the insurance company, which was the matter in controversy, was of less value than one thousand dollars, and that its value was to be ascertained by the salary paid; the court held it had no jurisdiction.

The weight of this authority is not lessened by the fact on which the question of jurisdiction turned. The salary of the mayor of Georgetown was established by law at one thousand dollars per annum; and if this be the matter of controversy it settles the jurisdiction.

But it is contended that a year's salary cannot be regarded as the amount in controversy, as the salary is paid monthly or quarterly, as may be most convenient to the mayor. The law regulates the pay of all salaried officers by the year, and the estimates are so appropriated in the reported bills. Any departure from this annual allowance would derange, more or less, the fiscal action of a Government or corporation.

But it is said that the remedy by writ of error is inappropriate and ineffectual, as the office of the relator will expire about the time the writ of error is made returnable. This may be a defect in the law, which the legislative power only can remove. A writ of error returnable instanter would give more speedy relief, and might be more satisfactory, but we must administer the law as we find it.

The bond and security given on the writ of error cannot be regarded as an idle ceremony. It was designed as an indemnity to the defendant in error, should the plaintiff fail to prosecute with effect his writ of error.

We can entertain no doubt that the writ of error is the legal mode of revising the judgment of the Circuit Court in this case; and that security having been given on the judgment, as the law requires, it is superseded.

Mr. Justice WAYNE and Mr. Justice GRIER dissented.


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 SEVENTIETH C ONGRESS. SEss. II. CH. 493. 1929 . 1481 blood who does not have a certificate of competency, and which have been paid or delivered by the Secretary of the Interior to the administrator or executor shall be paid or delivered by such admin- istrator or execut or to the Secretar y of the Interior for the b enefit of such Indian and shall be subject to the supervision of the Secretary as provided by law ." SEC . 5 . The restrictions concerning lands and funds of allotted b1Ro tr j iotteapli c Osage Indi ans, as p rovid ed in thi s Act and all p rior Acts now in born since July 1, 1907, force, shall apply to unallotted Osage Indians born since July 1, and their heirs . 1907, or after the passage of this Act, and to their heirs of Osage Validity of co ntracts Indian blood, except that the provisions of section 6 of the Act of for debt . Congress approved February 27, 1925, with reference to the validity Vol.43, p.1011. of contr acts f or deb t, sha ll not apply to any allot ted or unall otted Osage Indian of less than one-half degree Indian blood : Provided, Provisos . That the Osage lands and funds and any o ther property which I n di a ns in ess than has heretofore or which may hereafter be held in trust or under one-half Osage blood, etc ., not subject to su pervis ion of the U nited States for s uch Osa ge Ind ians o f less than for ced sale, etc ° one-half degree Indian blood not having a certificate of competency shall not be subject to forced sale to satisfy any debt or obligation contracted or incurred prior to the issuance of a certificate of com- petency : Provided further That the Secretary of the Interior is Certificate of compe y tency granted to unal- hereby authorized in his discretion to grant a certificate of coin- lotted Osage Indian, at Se e- petency to any unallotted Osage Indian when in the judgment of retary'on of the see- the said Secretary such member is fully competent and capable of transacting his or her own affairs. SEC. 6 . All just existing obligatio ns of res tricted O sage Indi ans out- ous of restric ted In- standing January 1, 1929, when approved by the Superintendent dians to be paid from of the Osage Agency, shall be paid out of the money of such Indian funds thereof. appearing to his credit, in addition to his quarterly allowances Proviso. And provided further, That nothing herein contained shall be Competency certifi- ca tes may be g ranted construed to interfere in any way with the granting of a certificate after payments of all of competency by the Secretary of the Interior, as provided for debts* by existing law, at any time after the payment of all of his or her just debts which have be en presented to and approved by the Su'perintendent of the Osage Indian Agency. Vol. 34, p, 545. amend. EEC. 7 . That section 9 of the Act of Congress approved June 28, ed. 1906 (Thirty-fourth Statutes at Large, page 539), be, and the same T ribal offi cers, etc. is hereby, amended to read as follows " That there shall be a quadrennial election of officers of the Osage of Quadrennial c and Tribe as follows : A principal chief, an assistant principal chief, and -embers of tribal couu- eight members of the Osage tribal council, to succeed the officers elected in the year 1928, said officers to be elected at a general election to be held in the town of Pawhuska, Oklahoma, on the first Monday in June, 1930, and on the first Monday in June each four years thereafter, in the manner to be prescribed by the Commissioner of In dian Affa irs, and said offi cers shal l be ele cted for a period of four years commencing on the 1st day of July following said elections, and in case of vacancy in the office of principal chief or other such of ficer by death, re signation, or othe rwise, t he vacanc ies of th e Osage Filling vacanclea' tribal council shall be filled in a manner to be prescribed by the Osage tribal council, and the Secretary of the Interior is hereby auth orized to remove fro m the council any me mber or members thereof for good cause, to be by him determined, after the party involved has had due notice and opportunity to appear and defend himself, and said tribal government so constituted shall continue in full force and effect to January 1, 1959." Approved, March 2, 1929.

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 1482 March 2, 1929. [S. 2410 .] [Public, No . 920.] Navy. Appointment of offi- cers in diplomatic ser- vice forbidden. R.S.see.1440, p.253, amended . Not appli cabl e to re- tired list. March 2, 1929. [S. 5708 .] [Public, No. 921 .] CHAP. 495.-An Act Authorizing Frank A. Augsbury, his heirs, legal represent atives, and assigns, to construct, ma intain, and operate a br idge across the Saint Lawrence River at or near Morristown, New York. Be it enacted by the Senate and House of Representatives of the Se Lawrence River. United States of America in Congress assembled, That in order to Frank may bridge; a"gio~s facilitate international commerce, improve the postal service, and town, N. Y., and provide for military and other purposes, Frank A . Augsbury, his Canadaille, Ontario, heirs, legal re presentat ives, and assigns, be, and is hereby, authori zed to construct, maintain, and operate a bridge and approaches thereto j across the Saint Lawrence River, so far as the United States has urisdiction over the waters of said Saint Lawrence River, at a point suita ble to the i nteres ts of navigat ion at or ne ar Mor ristow n, Saint Lawrence County, New York, to some suitable or convenient Construction . point at or near Brockville in the Province of Ontario, in the Dominion of Canada, in accordance with the provisions of the Act entitled "An Act to regulate the construction of bridges over navi- Subject to approval gable waters," approved March 23, 1906, subject to the conditions of Canada . and limitations contained in this Act, and subject to the approval of the proper authorities in the Dominion of Canada . SEC . 2. There is hereby conferred upon Frank A . Augsbury, his heirs, legal representatives, and assigns, all such rights and powers to enter upon lands and to acquire, condemn, occupy, possess, and use real estate and other property in the State of New York needed for the location, construction, operation, and maintenance of such bridge and its approaches as are possessed by railroad corporations for railroad purposes or by bridge corporations for bridge purposes in the State of New York, upon making just compensation therefor to be ascertained and paid according to the laws of such State, and the proceedings therefor shall be the same as in the condemna- tion and expropriation of property for public purposes in such State. SEC. 3 . The said Frank A. Augsbury, his heirs, legal representa- tives, and assign s, is hereby autho rized t o fix and ch arge t olls f or transit over such bridge in accordance with any laws of New York applicable thereto, and the rates of tolls so fixed shall be the legal rates until changed by the Secretary of War under the authority contained in the Act of March 23, 1906. SEC. 4 . The right to sell, assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to Frank A. Augsbury, 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. 5 . The right to alter, amend, or repeal this Act is hereby expre ssly r eserve d. Approved, March 2, 1929. Vol.34,p.84. Right to acquire real estate, etc ., in New York, for loc ation, ap- proaches, et c. Cond emna tion ceedings. pro. Tolls authorized. Vol.34,p.85. Right to conferred. etc., Amendmen t. SEVENTIETH CONGRESS. SEss. II. Cxs. 494, 495. 1929. CHAP. 494 .- An Act To amend section 1440 of the Revised Statutes of the United States. . Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1440 of the Revised Statutes of the United States be amended by adding at the end thereof the following new sentence : " Provided, however, That the foregoing provision shall not apply to any officer of the Navy on the retired list ." Approved, March 2, 1929.

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 SEVENTIETH CONGRESS. SESS. II. CHs. 496, 497. 1929 . 1483 CHAP. 498.-An Act To legalize the sewer outlet in the Allegheny Riv er March 2,1929 .	[S . 6746 .]	[P ubli c, No . 922.] Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the sewer Allegheny River. outlet constructed in the Allegheny River at Thirty-second Street, Pittsburgh outlet in, legal . Pitt sbur gh, P ennsy lvan ia, b y the city of Pitts burgh, be , and the ized. same is her eby, l egaliz ed to the sa me exte nt and with like e ffect as to all existing or future laws and regulations of the United States as if,the permit required by the existing laws of the United States in such cases made and provided had been regularly obtained prior to the construction of said sewer outlet. SEC. 2 . That any changes in said sewer outlet which the Secretary A ange y s to bcessa necessary of War may deem necessary and order in the interest of navigation shall be promptly made by the owner thereof. SEC. 3 . That the right to alter, amend, or repeal this Act is hereby expre ssly r eserve d. Approved, March 2, 1929. at Thirty-second Street, Pittsburgh, Pennsylvania. Amendme nt. March 2, 1929. CHAP. 497 .-An Act Authorizing Maynard D. Smith, his heirs, successors,	[S.6847.] and assigns, to construct, maintain, and operate a bridge across the Saint Clair [Public, No. 923.] River at or near Port Huron, Michigan. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That in order to facilitate international commerce and improve the postal service, Maynard D. Smith, of Port Huron, Michigan, his heirs, successors, and assigns, be, and is hereby, authorized to construct, maintain, and operate a bridge and approaches thereto across the Saint Clair River, so far as the United States has jurisdiction over the waters of such river, at a point suitab le to the in terests of na vigati on, be tween a point at or near the city of Port Huron, Saint Clair County, State of Michigan, and a point at or near the city Sarnia, Province of Ontario, Dominion of Canada, in accordance with the provisions of the Act entitled "An Act to regulate the construction oof bridges over navigable waters," approved March 23, 1906, subject to the conditions and limitations contained in this Act, and in so far as Maynard D. Smith, his h eirs, succes sors, or ass igns, m ay act in th e Domi nion o f Canada, subject also to the approval of the proper authorities thereof. SEC. 2 . There is hereby conferred upon the said Mayna rd D. Smith, hi s heirs, successor s, and as signs, al l such ri ghts and powers to enter upon hands and to acquire, condemn, occupy, possess, and use real estate and other property in the State of Michigan needed for the location, construction, operation, and maintenance of such bridge and its approaches as are possessed by railroad corporations for rail- road purposes or by bridge corporations for bridge purposes in the State of Michigan, upon making just compensation therefor to be ascertained and paid according to the laws of such State, and the proceedings therefor shall be the same as in the condemnation or expropr iation of pr operty for p ublic purpose s in s uch St ate. SEC. 3 . The said Maynard D. Smith, his heirs, successors, and assigns, is hereby authorized to fix and charge tolls for transit over such bridge, and the rates of toll so fixed shall be the legal rates until changed by the Secretary of War under the authority contained in the Act of March 23, 1906. Snc. 4 . Such bridge shall be constructed in accordance with the standar d spec ificat ions a dopted by th e Ameri can As sociat ion of State Highway Officials. During the construction of such bridge all work thereon shall be subject to inspection and approval by the State highway department of Michigan. 54835•-29-PT 1-97 Saint Clair River. Maynard D. Smit h may bridge, between Po rt Huron, Mich ., and Sarn ia, Ontario, Can ada. Construct ion. Vol. 34, p. 84. Subject to approval of Canada. Righ t to acqu ire real estate, etc ., in M ichi. gan for location, ap. preaches, et c. Condemnation pro. ceedings. Tolls authorized. Vol.34,p.85. Standard speeiSca- tions requir ed. Inspection by State authorities

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 1484 Limitationonindebt- edn ess. Post, :1485. Limit ation on all e n- cumbrances. Sale price of bonds and debentures. Preferred stock. Proce eds f rom tolls . Use for operation, dividends or interest on obligations . Application to use of grantee, retiring obliga- tions, etc. On retiring all bonds, etc ., brid ge property, etc., in United States to be conveyed to Michi- gan, etc. Property in Canada to be conveyed thereto. Disposal of r evenues thereafter . Rates of toll to pro- vide for o pera tion . Acquisition author- ized by Michigan and Canada, etc ., after com- ple tio n. SEVENTIETH C ONGRESS. SESS. II. CH. 497 . 1929 . SEC. 5. The said Maynard D. Smith, his heirs, successors, and assigns, shall not encumber said bridge by the issue of stocks, bonds, notes, mortgages, debentures, or other evidences of indebtedness in an am ount w hich, inclu ding a ll pre vious encum brance s, whe ther retired or still outstanding, shall at any time exceed in the aggre- gate the cost as reported to and determined by the Secretary of war in accor dance with se ction 8 hereo f . Not less than two-thirds of all encumbrances or securities other than preferred stock issued against said bridge shall be first mortgage bonds, and not more than one-third may be debentures. None of said bonds issued against said bridge shall be sold for less than 92 per centum of their par value no r bear intere st at a fixed rate in exces s of 61/2 pe r centum per annum. None of said debentures issued against said bridge shall be sold for less than 90 per centum of their par value nor bear interest at a fixed rate in excess of 7 per centum per annum. Any preferre d stock issue d shall be at par plus accr ued dividend, shall represent value, and shall be entitled to accumulative dividends at not to exceed 7 per centum per annum. SE C. 6. The proceeds from tolls charged for the use of such bridge shall be used : First, to pay the maintenance, repair, and operation costs ; second, to pay dividends or interest on outstanding preferred stocks, bond s, notes, mor tgages, deben tures, or othe r obligations issued by the said Maynard D. Smith, his heirs, successors, and assigns ; and, third, 20 per centum of any funds then remaining shall be retained by the said Maynard D. Smith, his heirs, successors, and assigns, and the othe r 80 per cent um thereof sha ll be applied by said Maynard D. Smith, his heirs, successors, and assigns, in the purchase and retirement in accordance with section 5 hereof of said bonds, debentures, preferred stock, or other outstanding obligations legally incurred against said bridge. At the close of the fiscal year, when all bon ds, debenture s, preferred stock, or othe r obligations legally incurred against said bridge shall have been retired in accord- ance herewith, such bridge and the approaches thereto and all structures, property, property rights, and franchises, so far as the same are located within the United States, shall be conveyed by the said Maynard D. Smith, his heirs, successors, and assigns, without cost or expense, to the State of Michigan or to such municipality or agency of the State of Michigan as the legislature of said State may designate, and, so far as the same is situated within the Dominion of Canada, shall be conveyed, without cost or expense, to the Dominion of Canada or to such Province, municipality, or agency thereof as the Domin ion of Canad a may desig nate ; an d all right, title, and interest of said Maynard D. Smith, his heirs, successors, and assigns, therein shall then cease and determine. After said outstanding obligations of the said Maynard D. Smith have been retired, said 80 per centum of the net earnings shall be held by said Maynard D. Smith, and half thereof shall be turned over to the State of Michigan, or its designated municipality or agency, and half to the Dominion of Canada, or its designated municipality or agency, at the same time as the bridge is turned over. The rates of toll, if any, shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for' the proper maintenance, repair, and operation of the bridge and its approaches under economical management. If said bridge shall not have become the property of the State of Michigan and the Domi nion of Canad a, or such ag encies as may be authorized by them, in accordance with the provisions of this section, within twenty years after the date that it is completed and formally opened to traffic, the said State of Michigan and the Dominion of Canada, or such agencies as may be authorized by them, shall have the additional r ight at any t ime thereafte r to acquire s aid bridge by

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Maxwell v. Moore

THIS case was brought up from the Supreme Court of the State of Arkansas by a writ of error issued under the 25th section of the judiciary act.

Maxwell and Watkins brought an ejectment against Moore and others, to recover the northeast quarter of section ten, in township seven north, range seven west, containing 160 acres of land, in the county of White, and State of Arkansas. The plaintiffs claimed under the heirs of one McVey, upon the ground that, under the two acts of Congress of 1812 and 1826, McVey could not alienate his land, or covenant to convey it away before the issuance of a patent. There were other points involved in the trial in the State courts, as will be seen by a reference to 18 Arkansas Rep., 475. But the above was the only point before this court.

It was submitted on printed arguments by Mr. Fowler for the plaintiffs in error, and Mr. Watkins for the defendants.

Mr. Fowler contended, on the part of the plaintiffs in error, that the several amendatory acts engrafted on the act of May 6, 1812, continue also in force the prohibitory clause, declaring all sales, contracts, &c., void, where they are made before the patent issues. And, if so, the contract of sale made by McVey to Pelham was null and void; and the land, entered and patented in McVey's name, enured to the benefit of his heirs and their assignees, after the patent was issued, and not to Pelham, or his assignees, under such void contract.

The Circuit Court twice expressly decided that the contract of sale from McVey to Pelham was valid, denying distinctly the rights of McVey's heirs and their assignees, under these acts of Congress; which the Supreme Court of the State broadly affirmed. See the bill of exceptions, the judgment of the Supreme Court, and its opinion, in 18 Ark. Rep., p. 475 to 480.

Hence, the plaintiffs have a right to a revision of the judgment, under the 25th section of the judiciary act of 1789.

The whole legislation upon these bounty lands, especially the acts above referred to, shows conclusively the intention of Congress to guard and protect the rights of the soldier and his heirs, and to prevent speculation in the lands.

And in all such cases, the courts construe such acts favorably and liberally, for the protection of the recipients of the bounty of the Government, and against the speculators in such bounty.

See 2 Laws, Instr., and Opin., p. 177, Opinion of Attor-General Taney, No. 115.

4 Ark. Rep., 279, Nicks's Heirs v. Rector.

1 Pet. Rep., 667, Ross v. Doe, ex dem. Barland et al.

16 Ark. Rep., 462, Wynn v. Garland.

2 Porter (Ala.) Rep., 152, McElyea v. Hayter.

The established rule of construction, and which is insisted, on the part of the plaintiffs in error, is applicable to and protects them in this case, is:

That where there are several legislative acts, in pari materia, relating to the same subject matter, as these are, they must be taken and compared together, in their construction, as one act, because they are considered as having one object in view, and as acting upon one system. And they must be considered as all governed by one spirit and policy, and intended to be consistent and harmonious in all their parts and provisions.

See 1 Kent's Com., (5th ed.,) 463.

23 Miss. Rep., 74, White v. Johnson.

1 Burr. Rep., 447, Rex v. Loxdale et al.

1 Dougl. Rep., 30, Ailesbury v. Pattison.

Smith's Com. on Stat. and Const. Construction, secs. 636, 637, 638, 639, 642, 643.

And the foregoing rule applies, although some of the statutes may have expired, or are not referred to in the subsequent acts.

See 1 Kent's Com., (5th ed.,) 463.

1 Burr. Rep., 447, Rex v. Loxdale et al.

Smith's Com. on Stat. and Const. Construction, secs. 637, 638.

Even a subsequent and amendatory act of limitations, not providing for a case specified in the former act, it will by the court be intended and presumed that the Legislature designed the latter to be governed by the previous act.

See 23 Miss. Rep., 301, Robertson v. De Moss.

See, also, on this point, Smith's Com. on Stat. and Const. Construction, secs. 638, 643.

The intention of Congress, from a fair construction of the several acts on the subject, was manifestly to protect the soldier in his float, as much as in his original warrant, and in either case to make all contracts of sale before the issuing of the patent void. And an object or thing which, within the intention of the Legislature in making a statute, is as much within the statute as if it were within the letter.

15 Johns. Rep., 380, 381, People v. Utica Ins. Co.

Smith's Com. on Stat. and Const. Construction, sec. 510.

Mr. Watkins said:

It is true that the military bounty act of 1812 contained a prohibition against any sale or assignment by the soldier of his bounty, until after the issuance of the patent, and declaring all such assignments void. Such restrictions are of very questionable utility, either by way of benefit or protection to the soldier, as all past experience has proved; are contrary to the almost universal policy of our laws, to allow, if not to favor, the right to free alienation of property, real as well as personal. As it regards that particular enactment, however, there was a motive, as expressed in the act itself, which was to prevent the land, so long as the title remained in the Government, from being subject to the debts of the soldier. And the reason of the law was to take away from the soldier the temptation of selling his equitable interest in a tract of land, drawn for him in the wheel, situate in a new and wild region of country, at a great distance from the soldier, and which he had never visited, and had no opportunities for judging of its value. There was also a reason, with perhaps the additional one of preventing frauds on the Government, for the analogous restriction (and that of short duration) in the first general pre-emption act of 1830, because it was supposed that, in many instances, the settlers in remote and frontier regions of country might sell their improvements or settlement rights, in ignorance of the terms and provisions of the act for their protection, or even of the passage of such an act.

But, as those military bounties were selected by lottery, it inevitably resulted, that in many instances the lands proved unfit for cultivation, and worthless. And on the 22d May, 1826, and act of Congress was passed, authorizing the soldier to surrender and reconvey to the United States the bounty tract which had been patented to him, and to locate in lieu of it a like quantity of the public land within the military district, on proof, to the satisfaction of the proper register and receiver, that the tract originally patented to him was unfit for cultivation, and that his right to it had not been divested or encumbered by sale or otherwise; and in order to entitle himself to the benefits of the act, the soldier must have removed to the Territory of Arkansas, with a view to actual settlement on the land drawn by him. This act was revived and extended by various acts, until the act of 27th of May, 1840, which revived and extended it for five years from that date. Such rights to locate were called 'floats,' and, as proved in this case, and indeed a part of the public history of Arkansas, were the common subject of sale and transfer. Neither the act of 1826, nor any of the subsequent acts extending it, contained any restriction whatever against alienation; and no presumption ought to be indulged in favor of a restraint on alienation, when no conceivable reason continued to exist, which might be supposed to have influenced the prohibition in the first instance. The soldier had become a settler, fully cognizant of all his rights, receiving his certificate of a floating right, not as a mere gratuity, but upon consideration of reconveying to the Government the land originally patented to him. At the time McVey sold his right of float to William Pelham, the act of 1840, authorizing such floats, was in force. If it was a power coupled with an interest, it did not cease after McVey's death. But if it was a mere naked power, it did cease, and the location, &c., was void; and the plaintiffs, as heirs of McVey cannot claim under it. But the plaintiffs are bound to claim under the patent, and so recognise the validity of Pelham's acts, and, as a consequence, the validity of his title, because, unless he acted for himself, and not as the mere naked agent of McVey, he had no power to act.

This restriction against assignment in the bounty act of 1812 is not included within the terms, spirit, or policy, of the acts of 1826, 1830, and 1840, allowing floats. Here, the sale was not of the land drawn by the soldier, but of his floating right, a mere chose in action, (Mulhollan v. Thompson, 13 Ark., 232,) and after all the purposes of the act of 1812 had been accomplished. McVey, in receiving pay for the sale of his float, would be guilty of an immoral and fraudulent act, to attempt to repudiate it. His supposed heirs, or rather those who tampered with them, stand in no better situation. Besides, according to the whole theory of our Government, laws restricting alienation are to be strictly construed, and not extended without an express intention appears. It is inconsistent with the nature of property, if the individual owning property, or a right to property, has not the power to alienate it.

4 Kent Com., 479.

Mr. Justice CATRON delivered the opinion of the court.

title: Maxwell v. Moore


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1536

 SEVENTI ETH CON GR ES S. SEss. II. CH. 497. 1929 . purchase and retirement, at par plus accrued interest or dividends, of the legally authorized obligations then outstanding against same. SEC. 7. The said Maynard D. Smith, his heirs, successors, and assi gns, sha ll keep an accur ate reco rd of th e cost of the bri dge and its approach es, the expendit ures for operati ng, repai ring, an d main- taining the bridge, the daily traffic, and the tolls collected, and shall annually submit to the State highway department of Michigan and to the department of public highways of the Province of Onta rio a sworn itemized statement showing the traffic, the tolls collected, the maintenance, repair, and operation costs, the net earnings, interest and dividend payments, and the stock, bonds, notes, mort- gag es, debe ntures, or other obligat ions ret ired dur ing the precedin g fiscal year. The State highway department of Michigan and the department of public highways of Ontario shall have ac cess at any time to all records, files, and books of the said Maynard D. Smith, his heirs, successors, and assigns. The mayor of the city of Port Huron, State of Michigan, and the mayor of the city of Sarnia, Province of Ontario, Dominion of Canada, ex officio, shall be entitled to receive notice of and attend meetings of the board of directors of any company or corporation now existing or hereafter organized and havi ng the c ontrol a nd opera tion of said bri dge. SEC. 8. The said Maynard D. Smith, his heirs, successors, 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 Michigan a sworn itemized statement showing the actual original cost of constructing the bridge and its approaches ; the actual cost of acquirin g any in terest i n real o r other property ; interest during construction ; and the actual financing costs, not to exceed 10 per centum of the total of said items. The Secretary of War may, and upon request of the highway department of the State of Michi gan shall, at any time within three year s after the co mple tion of such bri dge, inv esti gate suc h co sts and determine the accuracy of the costs alleged in the statement of costs so filed, and shall make a finding of the actual costs of constructing and financing such bridge ; fo r th e pu rpos e of suc h in vest igat ion the said Maynard D. Smith, his heirs, successors, and assigns, shall make available all of its records in connection with the construction and financing thereof. The findings of the Secretary of W ar as to the costs of the construction and financing of the bridge shall be conclusive for all purposes mentioned in this Act, subject only to review in a co urt of equity for fraud or gross mistake. A report of the main tenance, repair, and ope ration c osts of said bri dge shal l be submitted by the said Maynard D. Smith, his heirs, successors, and assigns, at the end of each six-month period to the State high- way department of Michigan and to the department of public high- ways of the Province of Ontario, Dominion of Canada. If any class of expenditures therein is disapproved by said highway depart- ments, or either of them, such class of expenditures shall not there- after, without approval, be an obligation payable out of the pro- ceeds of tolls collected for the use of such bridge. Reconstruction or betterment costs in excess of $10,000 in any fiscal year must be submitted to and be approved as necessary and reasonable by the State highway department of Michigan and the departmen t of public highways of th e Province of Ontario prior to incurring the expen- ditures therefor, and all betterment and reconstruction costs, duly approved if such approval is required, and actually made, may be added to the cost of the bridge, as determined by the Secretary of War in accordance with the provisions of this section, and in order to meet the co st thereof additional obligations or encumbrances not in excess of the amount approved for such reconstruction and 1485 Record of expendi- tures and receipts. Annu al itemiz ed statements to highway de partments of Mich- igan and Canada. Access to records, etc. M ayors of Port Hu- ron, Mich ., and Sarnia, Canada, to attend meetings of directors of operating company, S worn stat emen t of con struction cos t, etc ., to be filed after comple- tion. Examination by Sec. retary of War. Findings of Secretary conclusive. S emian nual rep orts of maintenance, etc ., to highway departments. A ction on expe nses not approved. Submission of recon- struction and better- ment costs for approv- al, etc.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1537

 1486 SEVENTIETH CONGRESS. SESS. II. Cils. 497-500 . 1920 . betterments actually made plus necessary financing costs, not exceeding 10 per centum, may be issu ed against sa id bridge. coRghetd to sell, etc ., SEa. 9. The right to sell, assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to the said Maynard D. Smith, his heirs, successors, 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, subject to the terms and conditions of this Act, -as fully as though conferred herein directly upon such corporation or person. Amendment. SEC. 10. The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929. March 2,1999 . [S .5880.] CHAP. 498.-An Act To provide for the preservation and consolidation of [Public, No. 924.] certain timber stands along the western boundary of the Yosemite National Park, and for other purposes. Yosemite National Be it enacted by the Senate and House of Representatives of the famat Park. United States o f America in Congress assembled, That for the pur- onO nof o'adjacent pose of preserving and consolidating certain timber stands along timber stands. the weste rn boundary of the Yosemite National Par k, the Preside nt of the United States is hereby authorized, upon the joint recommen- dation of the Secretaries of the Interior and of Agriculture, to add Descr ipti on. to said park by Executive proclamation any or all of the following described lands : Sections 19, 20, 29, 30, 31, and 32, township 1 south, range 20 east, Mount Diablo meridian; east half section 1; east half section 12; southeast quarter section 24, township 2 south, range 19 east, Mount Diablo meridian; sections 4, 5, and 6; north half section 7; sections 8 and 9, and 19 and 20 township 2 south, range 20 east, Mount Diablo meridian, ap proximately n ine thousand a cres. Approved, March 2, 1929. March 2,1929. [n .R. 16791 .]	CHAP. 499.-An Act To extend the times for commencing and completing [Public, No. 925.] the construction of a bridge across the Monongahela River at or near Point Marion, Pennsylvania. Be it enacted by ° the Senate and House of Representatives of the Monongahela River. United States of America in Congress assembled, That the times for Time extend ed for t bridg ing, at P commencing and completing the construction of the bridge across the Marion, Pa. Monorlgahela River, at or near Point Marion, Pennsylvania, author- ized to be built by the Point Marion Community Club of Point ante, p . 399 . Marion, Pennsylvania, by the Act of Congress approved March 29, 1928, are he reby extended one and thre e years, respe ctively, from March 29, 19 29. Amendment. SEC. 2 . The right to alter, amend, or repeal this act is hereby expressly reserved. Approved, March 2, 1929. March 2,1 929 . [n.R.8223.] CHAP. 500.-An Act To authorize the sale of certain buil dings at United [Public, No. 926.] States Veterans' Hospital Numbered 42, Perry Point, Maryland. Be it enacted by the Senate and House of Representatives of the Perry Point, Md . United State s of America in Congress a ssembled Buildings on Vet- Tha t the Directo r erans' Hospitall at, to of the United States Veterans' Bureau be, and he hereby is, author- be disposed of. ized to sell or otherwise dispose of the following-described buildings now situated on the reservation of the United States Veterans' Hos- pital, Perry Point, Maryland, which are of wooden construction and

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1538

 SEVENTIETH CONGRESS. SEss. IL CHs. 500-502 . 1929 . 1487 are unsuitable for the hospitalization of beneficiaries of the United States Veterans' Bureau : Fifty-seven two-story frame dwellings, designated as types, D-1, D-2, D-5, D-6, D-8, and D-10, and num- bered 1001 to 1040, inclusive ; 1189 to 1192, inclusive ; 1194 to 1203, inclusive ; 1205, 1207, and 1208. SEC. 2 . In addition to the foregoing, the director is further authorized to sell or otherwise dispose of seven two-story frame dormitory buildings and one two-story frame kitchen and mess building, numbered as follows : 23, 46, 46-A, 46-B, 46-C, 46-D, 46-E, and 47. SEC. 3 . The net proceeds of such sale shall be covered into the Treasury of the United States as miscellaneous receipts. Approve d, March 2, 1929. Other dwellings, etc. Proceeds covered in as miscellaneous re- ceipts . March 2, 1929. CHAP. 501 .-An Act Authorizing acquisition of a site for the farmers' pro-	[n . R. 8298.] duce market, and for other purposes. [Public, No. 927.] Be it enacted by the Senate and House of Representatives of the United States o Amer ica in Cong ress ass embl ed That the COm- District of Columbia. f Acquisition author- missioners of the District of Columbia be, and they are hereby, 355 of squares 354 and authorized and directed to acquire by purchase or by condemnation, or partly by purchase and partly by condemnation, as they may deem best, the whole of squares numbered 354 and 355, as shown on the plat books in the office of the surveyor of the District of Columbia, and when same shall have been acquired to close to public occupation and use as a street all of F Street southwest, within the adja cent curb lines of Tenth and Elev enth Stree ts s outhw est, the Ar ea for wholesale area of said squares and the portion of F Street southwest, when ke mers same shall have been acquired and closed, to be used and occu- pied by the District of Columbia as and for the purposes of a wholesale farmers' produce market. Sum authorized for For the purposes of such acquisition, including all necessary all expenses. expenses incident thereto and for the clearing and leveling of the grounds and the erection thereon of protecting sheds, and suitable stands and s talls, and t he ins tallat ion of sanita ry con venien ces an d necessary heating and telephone service, the sum of $300,000, or so much thereof as may be necessary, is hereby authorized to be appro- priated out of and charged against the general funds not otherwise appropriated in the Treasury of the United States and against the revenues of the District of Columbia in the same proportion and to be paid in the same way and manner as are other appropriations to cover the expenses of operation and government of the District of Columbia. And the said Commissioners of the District of Columbia are hereby authorized to make, promulgate, and enforce all appropriate rules and regulations for the control and operation of such market when established, and may establish a reasonable scale of charges to be paid by farmers and others making use of the market or of any of its appurtenant facilities. Approved, March 2, 1929. CHAP. 502 .-An Act To authorize an appropriation to pay one-half the cost of a bridge on the Cheyenne River Indian Reservation in South Dakota. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That $9,000 is hereby authorized to be appropriated, out of any money in the Treasury to the credit of the Cheyenne River Indians of South produce mar- Rules, etc ., for oper- atio n, e tc ., when estab- lished. March 2,1929. [II. R. 16660.] [Public, No. 928 .] Cheyenne River In- dian Reservation, S. Dak.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1539

 1488 Moreau River. Dakota not otherwise appropriated, to pay not to exceed one-half One-half of cost of bridge across, at white the cost of the construction of a bridge and approaches thereto tthorse ,from aan across the Moreau River at or near the White Horse Indian Sub- funds, agency on the Cheyenne River Indian Reservation in the State of South Dakota, including the cost of surveys, plans, estimates, and specifications, and other necessary expenses connected therewith, on Remainder by State, condition that the State of South Dakota or the county of Dewey etc ° provide the remainder of the cost, under rules and regulations pre- Proviso. scribed by the Secretary of the Interior, who shall also approve the ast a in teIIa nc eea y plans and specifications therefor : Provided, That before any money Is spent h ereunder, the State or coun ty shall agre e in writing t o maintain the bridge and approaches without expense to the said Indians or the United States. Approved, March 2, 1929. March 2,1929 . [H. R. 16382.] [Public, No. 929.1 CHAP. 503.-An Act To extend the times for commencing and completing the construction of a bridge across the Cumberland River at or near Burnside, Pula ski Count y, Ke ntuc ky. Be it enacted by the Senate and House of Representatives of the Cumberland River. United States o f America in Congress assembled, That the times for Tfme exte nded for bridging, at Burnside, commencing and completing the construction of the bridge across the Ky. Cumberland River, at or near Burnside, Fulaski County, Kentucky, authorized to be built by State highway commission, Commonwealth of Kentucky, by the Act of Congress approved May 18, 1928, are hereby extended one and three years, respectively, from May 18, 1929. SEC. 2 . The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929. Ante, p. 615. Amendment. March 2, 1929. [11 . R. 16659 .] [Public, No. 930 .] Cheye nne Rive r In- dian Reservation, S. Dak . Cherry Creek . One-half of cost of bridge across, author- ized, fr om Indian funds. Remainder by State, etc. Proviso. Mai nt ena nce by State, etc ., required. March 2,1929. [H. R. 16205.] [Public, No . 931 .] SEVENTIETH CONGRESS. SEss. II. CHs. 502-505 . 1929 . CHAP. 504 .-An Act To authorize an appropriation to pay half the cost of a bridge across C herry Creek on the C heyenne River Indian Reservation, South Dakota. Be it enacted b y the Senate and House of Representatives of the United States o f America in Congress assembled, That $9,000 is hereby authorized to be appropriated, out of any money in the Treasury to the credit of the Cheyenne River Indians of South Dakota not otherwise appropriated, to pay not to exceed one-half the cost of the construction of a bridge and approaches thereto across Cherry Creek at or near t he subagency of that name, including the cost of surveys, plans, estimates, and specifications, and other neces- sary expenses connected herewith, on condition that the State of South Dakota or the county of Ziebach, or both, provide the remain- der of the cost, under rules and regulations prescribed by the Secre- tary of the Interior, who shall also approve the plans and specifica- tions therefor : Provided, That before any money is spent hereunder the State or county shall agree in writing to maintain the bridge and approaches without expense to the said T.u&ans or the United States. Approved, March 2, 1929. CHAP. 505.-An Act Authorizing the Fayette City Bridge Company, its successors and assigns, to construct, maintain, and operate a bridge across the Monongahela River at or near Fayette City, Fayette County, Pennsylvania. Be it enacted by the Senate and House of Representatives of the Monongahela River. U,iited States of America in Congress assembled, That in order to

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text: Talk:Maxwell v. Moore

title: Talk:Maxwell v. Moore


text:
Maxwell v. Moore/Opinion of the Court

This cause is brought before us by writ of error to the Supreme Court of Arkansas, and presents a single question for our consideration.

Allen McVey served as a regular soldier in the war of 1812, and was entitled to a tract of 160 acres of land as a bounty for his services. The land was located and granted in what is now the State of Arkansas. By the act of May 6, 1812, which granted the bounty lands, all sales or agreements made by a grantee of these lands before the patent issued were declared to be void.

Many tracts of the lands granted turned out to be unfit for cultivation, so that the soldier took no benefit; and, as compensation, the act of May 22, 1826, declares that the soldier, or his heirs, to whom bounty land has been patented in the Territory of Arkansas, and which is unfit for cultivation, and who has removed or shall remove to Arkansas with a view to actual settlement on the land, may relinquish it to the United States, and enter a like quantity elsewhere in the district, which may be patented to him. This act was continued in force by that of May 27th, 1840.

McVey surrendered his first patent according to the act of 1826, and in 1842 another issued in his name for the land in dispute.

In 1834, McVey gave William Pelham a bond to convey to him the land that might be entered on his certificate of surrender, (known as a float,) and a power of attorney to locate the same, and obtain the patent. McVey died in 1836. In 1842, Pelham entered the land in controversy in McVey's name.

A special act of the Legislature of the State of Arkansas was passed, authorizing McVey's administrator to convey the land to Pelham, which was done.

Afterwards, the plaintiffs in error obtained a conveyance from the heirs of McVey, on which their action of ejectment is founded. As the title vested in Allen McVey's heirs by the patent of 1842, they could well convey the land unless the administrator's deed stood in the way. Galloway v. Findley, 13 Peters, 264. That the special act of Assembly authorized the administrator to make a valid deed, and divest the title of the heirs, was decided in this case by the Supreme Court of Arkansas, and which decision on the effect of the State law is conclusive on this court. We exercise jurisdiction to revise errors committed by State courts, where the plaintiff in error claims title by force of an act of Congress, and the title has been rejected on the ground that the act did not support it. And this raises the question, whether the act of 1826, allowing the soldier to exchange his land, carried with it the prohibition against alienation contained in the act of 1812.

The court below held that it did not, and that Allen McVey did lawfully bind himself to Pelham for title.

It is insisted that the acts of 1812 and 1826 are on the same subject, must stand together as one provision, and the last act carry with it the prohibition found in the first. We are of the opinion that the acts have no necessary connection; that there was no good reason why the soldier who removed to Arkansas, and inspected his tract of land, then patented, and alienable, should not contract to convey the tract he might get in exchange. We can only here say, as we did in the case of French v. Spencer, (21 How., 238,) that the act of 1826 is plain on its face and single in its purpose; and that in such cases the rule is, that where the Legislature makes a plain provision, without making any exception, the courts of justice can make none, as it would be legislating to do so.

There being no other question presented by the record within the jurisdiction conferred on this court by the 25th section of the judiciary act, we order that judgment of the Supreme Court of Arkansas be affirmed.

title: Maxwell v. Moore/Opinion of the Court


text: Talk:Maxwell v. Moore/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1540

 SEVENTIETH CONGRESS. SEss. II. Cii. 505. 1929 . 1489 vide for military and other purposes, the Fayette City Bridge co ayettte may Bridge Company, its successors and assigns, be, and is hereby, authorized to at Fayette City, Pa. construct, maintain, and operate a bridge and approaches thereto across the Monongahela River, at a point suitable to the interests of navigation, at or near Fayette City, Pennsylvania, in accordance co nstructi on. with the provisions of the Act entitled "An Act to regulate the con- vol .34,p.84. struction 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 Ac quisition author- ed,after completion, Secretary of War, either the Commonwealth of Pennsylvania, any by Pennsylvania, etc ° political subdivision thereof within or adjoinin g 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 neces- sar y therefor ,byp urchase or b condemnation or expropriation > in Condemnatio n pro- y y ceedings. accordance with the laws of the Commonwealth of Pennsylvania governing the acquisition of private property for public purposes by compensation if ao- condemnation or expropriation. If at any time after the expiration oohed b y condemna- of five years after the completion of such bridge the same is acquired tiony by condemnation or expropriation, the amount of damages or com- pensation to be allowed shall not include good will, going value, or Limit ation s, et c. prospec tive re venues or pro fits, b ut shal l be l imited 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) 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 expenditures for necessary improvements. SEC. 3 . That if such bridge shall at any time be taken over or Toes under state, etc., operation. acquired by, th e Comm onweal th of Penns ylvani a or b y any munic i- pality or other political subdivision 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 Rates applied to op- to provide a fund sufficient to pay for the reasonable cost of main- eration, sinking fund, taming, repairing, and operating the bridge and its approaches under economical man agement and t o provide a s inking fund su fficient 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 amorti- Mai nte nanc e as free g bridge, etc ., after amor- zation shall have been so provided, such bridge shall thereafter be tiling costs. maintained and operated free of tolls, or the rates of toll shall there- after be so adjusted as to provide a fund of not to exceed the amount necessary for the proper maintenance, repair, and operation of the bridge and its approaches under economical management. An Record of eapendi- totes and receipts. 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 ava ilable for th e infor mation of all person s inte rested. Swo rn sta tem ent of SEC. 4 . That F ayette City Bridg e Comp any, i ts su ccesso rs and construction costs, etc ., assigns, shall, within ninety days after the completion of such bridge, to e filed after comple file with the Secretary of War, and with the Highway Department of the Commonwealth of Pennsylvania, 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 necess ary the refor, financing and the actual financing and promotion costs. The retary war . oyoofwar f by See- Secretary of War may, and at the request of the Highway Depart- ment of the Commonwealth of Pennsylvania shall, at any time within

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1541

 1490 SEVENTIETH CONGRESS. SESs. II. Cns. 505, 506. 1929 . 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 investigation the said Fayette City Bridg e Comp any, i ts suc cessor s and assigns, shal l make avail able a ll Findings of secretary of its records in connection with the construction, financing, and pro- conclusive. motion thereof. The findings of the Secretary of War as to the reasonable costs of the construction, financing, and promotion of the b ridge shall be con clusiv e for the pur poses mentio ned in secti on 2 of this Act, subject only to review in a court of equity for fraud or Right to sell, etc ., gross mistake. conferred. SEC. 5. That the right to sell, assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to the Fayette City Bridge Company, its successors 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 Construct ion con- conferred herein directly upon such corporation or person. tracts to be let to lowest SEC. 6 . All contracts made in connection with the construction of bidder. the bridge authorized by this Act and which shall involve the ex- penditure of more than $5,000, shall be let by competitive bidding. Advertisin g, etc. Such contracts shall be advertised for a reasonable time in some news- paper of general circulation published in the State in which the bridge is located and in the vicinity thereof ; sealed bids shall be required and the contracts shall be awarded to the lowest responsible bidder. Veri- fied copies or abstracts of all bids received and of the bid or bids Contracts void for accepted shall be promptly furnished to the highway department of violations . the State in which such bridge is located. A failure to comply in good faith with the provisions of this section shall render null and void any contract made in violation thereof, and the Secretary of War may, after hearings, order the suspension of all work upon such bridge until the provisions of this section shall have been fully complied with. Amendment. SEC. 7. The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929. March 2, 1929. [$ .R. 16170.1 CHAP. 508 .-An Act Authorizing Walter J. Mitchell, his heirs, legal repre- [Public, No. 932.1 sentatives, and assigns, to construct, maintain, and operate a bridge across the Patuxent River, south of Burch, Calvert County, Maryland. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That in order to promot e inte rstate comme rce, i mprove the po stal s ervice, and provid e for military and other purposes, Walter J. Mitchell, his heirs, legal repres entati ves, a nd ass igns, be, and is he reby, author ized t o construct, maintain, and operate a bridge and approaches thereto across the Patuxent River, at a point suitable to the interests of navigation, at or near Hallowing Point, approximately one-eighth mile south of Burch, Calvert County, Maryland, in accordance with the provisions of the Act entitled "An Act to regulate the construc- tion of bridges over navigable waters," approved March 23, 1906, and su bject to the condi tions and li mitatio ns con tained in th is Act. SEC. 2 . After the completion of such bridge, as determined by the Secre tary o f War, eithe r the State of Mary land, any po litica l subd i- vision thereof within or adjoining which any part of such bridge is locate d, or any tw o or m ore of them jointly, may at any time acquir e Patuxent River. Walter J. Mitchell may bridge, near Burch, Md. Construction . Vol.34, p.84. Acquisition author- ized, after completion, by Maryland, etc.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1542

 SEVENTIETH CONGRESS. SEss. II. Cu. 506 . 1929 . 1491 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 cond emna tion p ro- purchase or by condemnation or expropriation, in accordance with ceedings. the laws of such State governing the acquisition of private property for public purposes by condemnation or expropriation. If at any Compensation if ac- cluired by condemns- time after the expiration of five years after the completion of such tion. bridge the sam e is acquired by condemnat ion or expropr iation, the amount of dama ges or compen sation 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 constr ucting such Limitations. bridge and its approaches, less a reason able deduction for actual depreciation in value ; (2) the actual cost of acquiring such interests in r ea l pr op er ty ; (3) actual f inancing and promotion cos t, 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 prop- erty ; and (4) actual expenditures for necessary improvements. SEC. 3 . If such bridge shall at any time be taken over or acquired etc .olls under State, by the State of Maryland, or by an municipality or other political subdivision or public agency thereof, under the provisions of section 2 of this Act, and if tolls are thereafter charged for the use thereof, Rates applied to op. the rates of toll shall be so adjusted as to provide a fund sufficient eration, sinking fund, to pay for the reasonable cost of maintaining, repairing, and oper- ating, the bridge and its approaches under economical management 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 not to exc eed tw ent yy ears from the date of acquiring uiring the same. After Maintenance as free bridge, etc., after amore a sinking fund sufficient for such amortization shall have been so tilin g costs. pro vided, such b ridge shall t hereafter be m aintained 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 necessary for the proper maintenance, repair, and operation of the bridge and its a pproac hes management. receipts. tares and recei the amount paid for acquiring the bridge and its approaches, the actual expendi tures for mai ntaining, rep airing, and op erating the same, and of the daily tolls collected shall be kept and shall be avail- able for the information of all persons interested. SEC. 4. Walter J. Mitchell, his heirs, legal representatives, and Sworn statement of construction costs, etc ., assigns, shall, within ninety days after the completion of such bridge, to be filed after comple- fil e with the Se cretary of Wa r and with the highway depa rtment of t'en. t he Sta te of Maryla nd, a sworn itemi zed s tateme nt sho wing t he 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 Secre- re wryni `item by Sec- tary of War may, and at the request of the highway department of the State of Maryland shall at any time within three years after the completion of such bridge, investigate such costs and determine the accuracy and 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 investigation the said Walter J. Mitchell, his heirs, legal representatives, and assigns, shall make available all of his records in connection with the construction, financing and pro- motion thereof. The findings of the Secretary of War as to the coFin i e sofSecretary 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.

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text:
Verden v. Coleman (63 U.S. 192)

THIS was an appeal from the Supreme Court of the State of Indiana, purporting to be brought up under the twenty-fifth section of the judiciary act.

It was a case of foreclosure of a mortgage brought in the Benton Circuit Court, (State court.) In the progress of the trial, there was a bill of exceptions signed and sealed by the presiding judge, and the case then carried up by appeal to the Supreme Court of the State. That court affirmed the judgment of the court below, upon which an appeal was prayed to the United States Supreme Court, which prayer was granted. The appeal bond recited that Samuel Verden hath 'prosecuted a writ of error to the Supreme Court of the United States,' &c., but no writ of error was sued out.

It is not necessary to notice the nature of the case any further.

Mr. Justice CATRON delivered the opinion of the court.

title: Verden v. Coleman (63 U.S. 192)


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1543

 1492 SEVENTIETH CONGRESS. SESS. II. CHS. 506-508 . 1929 . conferred. sell, etc., SEC. 5 . 'The right to sell, assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to Walter J. Mitchell, 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. . Constr uction con - tracts to be let to lowest SEC. 6. All contracts made in connection with the construction of bidder . the bridge authorized by this Act and which shall involve the expenditure of more than $5,000, shall be let by competitive bidding. Advertising, etc. Such contracts shall be advertised for a reasonable time in some newspaper of general circulation published in the State in which the bridge 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 Contracts void for bid or bids accepted shall be promptly furnished to the highway violations. department of the State in which such bridge is located. A failure to comp ly in good fa ith with the p rovisions of this section s hall render null and void any contract made in violation thereof, and the Secreta ry of War may, after hearin gs, 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, ame nd, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929. Amendment. March 2, 1929. [H. R. 15916 .1 [Public, No. 933.1 Mississippi River. Bridge to be buil t across South Branch of, from Moline, Ill ., to Rock Island Arsenal. Removal of existing bridge. Proviso. Lands from local in- teres ts. Neces sary sum s au- thorized. March 2, 1929. [S. 1781.] [Public, No. 934.] Shipping. Load lines estab- lished. For merchant vessels loading in United States for sea, except the Great Lakes. CHAP. 507 .=-An Act To provide for the construction of a new bridge across the South Branch of the Mississippi River from Sixteenth Street, Moline, Illinois, to the east end of the island occupied by the Rock Island Arsenal. Be it enacted by the Senate and House o f Representatives o f the United States of America in Congress assembled, That the Secretary of War be, and he is hereby, authorized to cause to be constructed a bridge across the South Branch of the Mississippi River from Sixteenth Street in the city of Moline, Illinois, to the east end of the island occupied by the Rock Island Arsenal ; and upon completion of said new bridge he shall cause the existing bridge located at Fifteenth Street in the city of Moline to be entirely removed from the waterway : Provided, That any additional lands or rights of way needed for the construction of said new bridge shall be furnished by loc al inte rests without cost t o the United States. SEC. 2 . There is hereby authorized to be appropriated, out of any money in the Treasury not otherwise appropriated, such sums as may be necessary, to be expended under the direction of the Secretary of War, in carrying out the provisions of this Act, and to remain avai labl e un til expe nded. Approved, March 2, 1929. CHAP. 508 .-An Act To establish load lines for American vessels, and for other purposes. Be it enacted by t he Senate and House of Repr esentatives of the United States o f America in Congress assembled, That load lines are hereby established for the following vessels (a) Merchant vessels of two hundred and fifty gross tons or over, loading at or proceeding to sea from any port or place within the United States or its possessions for a foreign voyage by sea, the Great Lakes excepted.

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text: Talk:Verden v. Coleman (63 U.S. 192)

title: Talk:Verden v. Coleman (63 U.S. 192)


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1544

 SEVENTIETH C ONGRESS. SESS. II. CH. 508. 1929. 1493 (b) Merchant vessels of the United States of two hundred and Amer ican vesse ls loading at foreign ports, fifty gross tons or over, loading at or proceeding to sea from any the Great Lakes ex- fore ign po rt or place for a voyage by sea, the Great Lakes except ed. SEC. 2. The Secretary of Commerce is hereby authorized and Lo ad water lines and directed in respect of the vessels defined in section 1 (a) and (b) to loa ding dep ths maximum be establish by regulations from time to time the load water lines and established by regula- marks thereof indicating the maximum depth to which such vessels may safely be loaded and in establishing such load lines due con- sideration shall be given to, and differentials made for, the various types and character of vessels and the trades in which they are engaged : Provided, That no load line shall be established or marked of~ Sabove line of on any vessel, which load line, in the judgment of the Secretary of safety. Commerce, is above the actual line of safety. Such regulations Regulations to have shall have the force of law. force of law. SEC. 3. It shall be the duty of the owner and of the master of Marking required. every vessel subject to this Act and to the regulations established thereunder to cause the load line or lines so established to be per- manently and conspicuously marked upon the vessel in such manner as the Secretary of Commerce shall direct, and to keep the same so Appointment of marked. The Secretary of Commerce shall appoint the American American Bureau of Shippin g, etc ., to su r- Bureau of Shipping, or such other American corporation or asso- vey and determine if ciation for the survey or registry of shipping as may be selected by marking, etc ., c orrec t. him, to determine whether the position and manner of marking on suc h vess els th e load line or lin es so establi shed a re in accord ance with the provisions of this Act and of the regulations established thereunder : Provided, however, That, at the request of the ship- Proviso. co rpora tion, at owner, the Secretary of Commerce may appoint, for the purpose afore- request of shippers, of said, any other corporation or association for the survey or registry Government ofcer. of shipping which the Secretary of Commerce may approve ; or the Secretary of Commerce may appoint for said purpose any officer of the Government, who shall perform such services as may be directed by the Secretary of Commerce. The Secretary of Com- merce may, in his discretion, revoke any appointment made pursuant Certificate from ex- to this section. Such corporation, association, or officer shall, upon aminers, approving approving the position and manner of marking of such load line marking, etc. or lines, issue a certificate, in a form to be prescribed by the Sec- retary of Commerce, that the same are in accordance with the pro- visions of this Act and of the regulations established thereunder, and Copy of, to master of vessel. shall deliver a copy thereof to the master of the vessel. It shall Departure wi th out be unlawful for any vessel sub j ect to this Act and to said regula- c c ma rkt and y ~ b copy of certificae, un- tions to depart from any port or place designated in section (1) lawful. without bearing such mark or marks, approved and certified by such corporation, association, or officer, and without having on board a co ny of sai d certifi cate. ~JEC. 4. It shall be unlawful for any vessel subject to this Act and meLoading oasofb to the regulations established thereunder to be so loaded as to sub- lines, unlawful. merge, in sea water, the load line or lines marked pursuant to this Act and to the regulations established thereunder applicable to her Submer g in g the voyage ; or so as to submerge under like conditions the point where point where load lines such load line or lines ought to be marked pursuant to the provisions should be marked. of this Act and of the regulations established thereunder ; or so as in any manner to violate the said regulations. SEC. 5. Whenever the Secretary of Commerce shall certify that E xempt ions of ves- sels of any foreign coun- the laws and regulations in force in any foreign country relating ~ry,sof all iin gtoioth to load l ines a re equ ally e ffecti ve wit h the r egulat ions e stabli shed lines. under this Act, the Secretary of Commerce may direct, on proof that a vessel of that country has complied with such foreign laws and regulations, that such vessel and her master and owner shall be exempted from compliance with the provisions of this Act, except

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text:
Verden v. Coleman (63 U.S. 192)/Opinion of the Court

Coleman sued Verden in a State court of Indiana, on a note of hand, and a mortgage of lands, to secure its payment. On various pleadings and proofs, the cause was submitted for judgment to the court, the parties having dispensed with a jury. Judgment was rendered against Verden, who appealed to the Supreme Court of Indiana. There the judgment of the circuit was affirmed.

This occurred on the 26th day of June, 1858. And then we find the following entry of record: 'And afterwards, to wit, at a court began and held on the 24th of May, 1858, and continued from day to day till July 16th, 1858, at which time come the appellant, by Hon D. Mace, his attorney, and prays an appeal to the United States Supreme Court, which prayer is granted.' Bond was given to prosecute the appeal, and the clerk certifies the record to be a true copy of the proceedings.

No appeal can be taken from the final decision of a State court of last resort, under the twenty-fifth section of the judiciary act, to the Supreme Court of the United States. A writ of error alone can bring up the cause. We refer to the appendix of Curtis's Digest for the mode.

It is ordered that the case be dismissed.


text: Talk:Verden v. Coleman (63 U.S. 192)/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1545

 1494 SEVENTIETH C ONGRESS. SEss. II. CH. 508. 1929 . Proviso. applicable if as hereinafter provided : Provided, That this section shall not apply Not country does not simi- to the vessels of any foreign country which does not similarly recog- larly recognize these nize the load lines established under this Act and the regulations m load li nes. ade thereunder. beforer departing, of SEC. 6. It shall be the duty of the master of every vessel subject position of load line to this Act and to the regulations established thereunder and of mark, etc. every foreign vessel exempted pursuant to section 5, before depart- ing from her loading port or place for a voyage by sea, to enter in the official log book of such vessel a statement of the position of the load-line mark applicable to the voyage in question and the actual drafts forward and aft at the time of departing from port as nearly as the same can be ascertained. SEC. 7. If any collector of customs has reason to believe, on com- pla int or otherw ise, that a v essel subject to this Act a nd to the regulations established thereunder is about to proceed to sea from a port in the United States or its possessions within his district when loaded in violation of section 4, or that any vessel exempted pursuant to section 5 is about to proceed to sea from such port when loaded in violation of the laws and regulations of her country with respect to load line, he may by written order served on the master or officer in cha rge of such v essel detain her provisiona lly for the p urpose of being surveyed. The collector shall then serve on the master a written sta tement of the grounds of h er detention a nd shall appo int three disinterested surveyors to examine the vessel and her loading and to rep ort to him, w hereupon the said collector may release or may by written order served on the master or officer in charge of such vessel det ain the vesse l until she h as been reload ed in whole o r in part so as to conform to section 4 ; or, in case of a vessel exempted pursuant to section 5, so as to conform to the laws and regulations of her own Appeal to secretary of Comme rce by m as- country with respect to load line. If the vessel be ordered detained, ter, and further survey may be ordered, etc. the m aster may, wi thin five days, appeal to t he Secretary of Com- merce, who may, if he desires, order a further survey, and may Clearance refused to affirm set aside, or modify the order of the collector. Clearance shall vessel detained . > > y Penalty for permit- refused to any vessel which shall have been ordered detained. tin g departure without SEC. 8 . (a) If the owner or master of any vessel subject to this certified marking, etc. Act and to the regulations established thereunder shall permit her to depart from her loading port or place without having complied with the provisions of section 3, lie shall for each offense be liable to the United States in a penalty of $500. If the owner or master of any vessel exempted pursuant to section 5 shall permit her to depart from her loading port or place without having the load line or lines required by the laws and regulations of the country to which she belongs marked upon her as required by said laws and regula- tions, he shall for each offense be liable to the United States in a penal ty of $500. The Secret ary of Comm erce m ay, in his d iscre - tion, r emit or mitig ate any penalt y imposed und er this paragr aph, or discontinue prosecution therefor on such terms as he may deem proper. (b) If the master of any vessel subject to this Act and to the regulations established thereunder, or of any foreign vessel exempted pursuant to section 5, shall fail, before departing from her loading port or place, to enter in the official log book of such vessel the statement required by section 6, he shall for each offense be liable to the United States in a penalty of $100. The Secretary of Com- merce may, in his discretion, remit or mitigate any penalty imposed under this paragraph. (c) If any person shall knowingly permit or cause or attempt to cause any vessel subject to this Act and to the regulations esta'b- lislled thereunder to depart, or if, being the owner, manager, agent, or master of such vessel, he shall fail to take reasonable care to Detenti on by collec - tor of customs, of ves- sels about to de part loaded in violat ion herewith, etc. Examination and re- port by disinterested surveyors , Release or detentio n until reloaded. Penalty for permit- ting foreign vessel to depa rt w itho ut lo ad line s ma rked as re- quired by laws of its country. Discretio nary remis- sion, etc ., by the Sec- ret ary. Penalty for failing to make requ ired entr y in log book before depart- ing. Disc retio nary remi s- sion, etc., by the Sec- ret ary. Permitting vessel to depart, or owner, etc ., failing to take care to preventdeparture, with submerged load line, etc ,

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