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law in allowing the verdict for the plaintiff work. See New York C. & H. R. R. Co. to stand.

v. Carr, 238 U. S. 260, 263, 59 L. ed. 1298, [Ed. Note.-For other cases, see Appeal and 1299, 35 Sup. Ct. Rep. 780, 9 N. C. C. A. Error. Cent. Dig. df 1149, 1165, 1304-1308; Dec. 1; Pennsylvania Co. v. Donat, 239 U. S. Dig. 213.) (No. 330.]

50, 60 L. ed. 139, 36 Sup. Ct. Rep. 4;

Kalem Co. v. Harper Bros. 222 U. S. 55, Submitted November 1, 1916. Decided No. 62, 63, 56 L. ed. 92, 95, 96, 32 Sup. Ct. vember 13, 1916.

Rep. 20, Ann. Cas. 1913A, 1285.

But it is necessary to see how the case N ERROR to the Court of Appeals of the was dealt with in the trial court. The



which affirmed a judgment of the Circuit jury on the question whether the deceased Court of Knox County, in that state, in was engaged in interstate commerce. It favor of plaintiff in an action against a simply asked the court to direct a verdict, railway company to recover damages for

on the ground, among others, that it apthe negligent killing of an employee. Af-peared as matter of law that he was so enfirmed.

gaged. But if the question had been left See same case below, 165 Ky. 658, 177 S. to the jury, and they had disbelieved the W. 465.

testimony that the empty car was moved The 'facts are stated in the opinion. for the ulterior purpose of interstate com

Mr. Benjamin D. Warfield for plaintiff merce, there would have been no error of in error.

law in allowing a verdict for the plaintiff Messrs. Edward C. O'Rear, J. M. Rob- to stand. It is true that the judge seems sion, and B. G. Williams for defendant in to have assumed that the business in hand

was intrastate, but the only objection in

dicated was to his not ruling the contrary; Mr. Justice Holmes delivered the opin- and, as the railroad did not ask to go to ion of the court:

the jury, and the only ruling requested was The plaintiff's intestate was a fireman properly denied, the judgment must stand. upon a switching engine which was moving Judgment affirmed. upon a switch track. A caboose stood upon the main track so near to where the engine moved that the deceased struck it and was killed. His administrator brought this ac

(242 U. S. 4) tion against the railroad, the plaintiff in

WILLIAM P. CROSS, App top error, for causing the intestate's death, and got a verdict, which, it is admitted, cannot

UNITED STATES. be sustained if the deceased was engaged in interstate commerce. The dealings of the

CLERKS OF COURTS Om 23_FEES–NATURALstate courts with that question are the

IZATION PROCEEDINGS. ground for the present writ of error. A charge by a clerk of a Federal disThe judgment for the plaintiff was affirmed trict court of fees for making, on the di. by the court of appeals. 165 Ky. 658, 177 rection of the Bureau of Immigration and S. W. 465.

Naturalization, triplicate copies of original The business upon which the deceased and attaching the seal of the court, is not

declarations of intention for naturalization, was engaged at the moment was trans- authorized by the general provisions of U. ferring an empty car from one switch track S. Rev. Stat. § 828, Comp. Stat. 1913, to another. This car was not moving in in- § 1383, since if the duty to render such terstate commerce, and that fact was treat services was expressly commanded by the ed as conclusive by the court of appeals. naturalization act of June 29, 1906 (34 In this the court was in error, for if, as

Stat. at L. 596, chap. 3592, Comp. Stat. there was strong evidence to show, and as

1913, $$ 4371, 4372, 4377), § 12, the right the court seemed to assume, this movement den by the prohibitory provision of $ 21,

to charge therefor would be clearly forbid. was simply for the purpose of reaching and such services not having been included in moving an interstate car, the purpose would the enumeration of fees in g 13, and if such control and the business would be inter duty only arose in consequence of the gen. state. The difference is marked between a eral provisions of g 12, the prohibition of mere expectation that the act done would $ 21 would equally be applicable. be followed by other work of a different

[Ed. Note.-For other cases, see Clerks of

Courts, Cent. Dig. $$ 33, 34, 54; Dec. Dig. 23.) character, as in Illinois C. R. Co. v. Behrens, 233 U. S. 473, 478, 58 L. ed. 1051,

(No. 78.] 34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163, 10 N. C. C. A. 153, and doing the act Submitted October 23, 1916. Decided No for the purpose of furthering the later

vember 13, 1916. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

PPEAL from the Court of Claims to plicate thereof, one dollar. For making, A

review the rejection of the claim of the filing, and docketing the petition of an clerk of the District Court of the United alien for admission as a citizen of the Unit. States for the District of Rhode Island, to ed States and for the final hearing thereon, be paid fees for making triplicate copies of two dollars; and for entering the final ordeclarations of intention for naturalization, der and the issuance of the certificate of. and attaching the seal of the court. Af- citizenship thereunder, if granted, two dolfirmed.

lars." See same case below, 50 Ct. Cl. 413.

In their ultimate analysis all the arguThe facts are stated in the opinion. ments for reversal must come to one or the

Messrs. Frank B. Crosthwaite and Ed. other or both of the following propositions: ward F. Colladay for appellant.

(a) That the declarations of intention were Assistant Attorney General Thompson not proceedings in naturalization covered for appellee.

by § 12, and therefore the services ren

dered were outside of that section, and Mr. Chief Justice White delivered the governed, not by the enumeration of fees in opinion of the court:

§ 13, but by the general provisions of $ The question for decision is, did the 828, Rev. Stat. Comp. Stat. 1913, § 1383, court below err in rejecting the claim of authorizing a charge by clerks of 10 cents the plaintiff, who is the appellant, to re- per folio "for a copy of any entry or reccover an amount based upon his asserted ord, or of any paper on file," and a fee of right as clerk of the United States dis- 20 cents "for affixing the seal of the court trict and circuit courts for the district of to any instrument, when required.” Or Rhode Island to be paid fees for making, (b) if the declarations of intention of which on the direction of the Bureau of Immigra- triplicate copies were furnished were protion and Naturalization, triplicate copies ceedings in naturalization and within the of original declarations of intention for nat requirements of § 12, payment for such uralization, and attaching the seal of the copies was not embraced by the fees enucourt to the same?

merated in § 13, and therefore the charge The solution of the inquiry depends upon for them must be considered as being proa consideration of $$ 12, 13, and 21 of the vided for in § 828, Rev. Stat. Comp. Stat. Naturalization Act of June 29, 1906 (34 | 1913, § 1383. Stat. at L. 596, chap. 3592, Comp. Stat. But we are of opinion that both of these 1913, SS 4371, 4372, 4377), and the relation propositions are incompatible with $$ 12 to those provisions of § 828, Revised Stat- and 13, and, moreover, that to sanction them utes, Comp. Stat. 1913, § 1383.

would disregard the express prohibition of By s 12 it is provided that it shall be $ 21, which is as follows: the duty of the clerk of every court exercising jurisdiction in naturalization matters of any court or his authorized deputy or “to keep and file a duplicate of each decla- assistant exercising jurisdiction in naturalration of intention made before him and to ization proceedings, or to demand, charge, send to the Bureau of Immigration and collect, or receive any other or additional Naturalization at Washington, within thir. fees or moneys in naturalization proceedty days after the issuance of a certificate ings save the fees and moneys herein speciof citizenship, a duplicate of such certifi-fied.” cate, and to make and keep on file in his We are of opinion the conclusion stated office a stub for each certificate so issued clearly follows from the the prohibition of by him.

: . It shall also be the duty this section for the following reasons: First, of the clerk of each of said courts to re-if, on the one hand, it be assumed that the port to the said Bureau, within thirty days duty to furnish the copies charged for was after the final hearing and decision of the expressly commanded by $ 12, the right to court, the name of each and every alien charge for them would be clearly prohibited who shall be denied naturalization, and to by $ 21, even if no provision for payment furnish to said Bureau duplicates of all was embraced in the fees enumerated in § petitions within thirty days after the fil. 13; since it is apparent from the text that ing of the same, and certified copies of the purpose of the statute was to permit such other proceedings and orders insti- fees to be charged for the services expressly tuted in or issued out of said court affect provided for in § 12 only when such fees ing or relating to the naturalization of were enumerated and authorized by $ 13,aliens as may be required from time to a conclusion which is additionally apparent time by the said Bureau.”

since § 12 unmistakably imposes duties for By § 13 provision is made for the fol. which no fees are provided in g'13, but lowing fees: “For receiving and filing a which are covered by the prohibition of declaration of intention and issuing a du- 1 $ 21. Second, if, on the other hand, it be

8. "That it shall be unlawful for any clerk


assumed that there is no express provision statute before the limitation had run that for furnishing the copies in § 12, but that might have lulled him to repose. such duty only arose in consequence of the [Ed. Note.--For other cases, see Constitutional general provision of that section requiring Law, Cent. Dig. $ 925; Dec. Dig. 308.]

CONSTITUTIONAL LAW 278(1)-DUE PROclerks to furnish "certified copies of such

CESS OF LAW-DEPARTURE FROM RULE OF other proceedings and orders instituted in

PROPERTY. or issued out of said court affecting or re- 3. A mere departure by the courts of lating to the naturalization of aliens as the state from a rule of property established may be required from time to time by the by prior decisions does not violate any said Bureau,” it is equally clear that the rights under the 14th Amendment to the

Federal Constitution. prohibition of § 21 would be applicable,

(Ed. Note.-For other cases, see Constitutional since it was plainly intended to prevent re- Law, Dec. Dig. 278(1).) sort to extraneous legislation for the pur.

(No. 68.] pose of supporting the right to charge a fee for services embraced within the general Argued November 6, 1916. Decided Novemterms of $ 12 when no fee was provided for

ber 20, 1916. such services by § 13.

N ERROR to the Supreme Court of the Affirmed.

State of Colorado to review a decrce which affirmed a decree of the Park District Court, in that state, dismissing the com

plaint in a suit to quiet title to alleged (242 U. S. 20)

water rights, and to enjoin the closing of DAN O'NEIL, Piff. in Err., plaintiff's irrigation ditch. Affirmed.

See same case below, 56 Colo. 545, 139 NORTHERN COLORADO IRRIGATION

Pac. 536.
COMPANY et al.

The facts are stated in the opinion.

Messrs. Fred R. Wright, Charles D. ConsTITUTIONAL LAW 308—“DUE PRO


stein for plaintiff in error. 1. The failure, if any, to accord an ap.! Messrs. La Fayette Twitchell, Luther propriator of water rights for irrigation | M. Goddard, Paul M. Clark, and Fred Farpurposes an opportunity to be heard in a rar, Attorney General for the state of Colosuit in another water district over priority rado, for defendants in error. of appropriation does not make it a denial of due process of law for the state to pro- Mr. Justice Holmes delivered the opinvide, as is done by Colo. Act of February 23, ion of the court: 1881, § 35, that if he takes no steps to assert his rights within four years after the tiff in error to quiet his title to alleged

This is a complaint brought by the plainjudicial assertion of an adverse title, the decree being a public fact, he shall’ lose water rights on Tarryall creek, a tributary those rights.

of the South Platte river, and to enjoin (Ed. Note.--For other cases, see Constitutional the defendant Irrigation Company and the Law, Cent. $925; Dec. Dig. rm308.

state officials from closing the plaintiff's For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.] ditch under an assertion of the Irrigation CONSTITUTIONAL LAW 308—“DUE PRO- Company's superior right. The defendants CESS OF LAW"-CONSTRUCTION OF PRE- justified under a decree establishing the SCRIPTION STATUTE-SURPRISE. 2. Construing as applying to parties in

Irrigation Company's priority and a statdifferent water districts the provisions of ute making the decree conclusive after four Colo. Act of February 23, 1881, $ 35, that years.

The plaintiff replied and argued after four years from the rendition of a

that the statutes, if construed to have the final decree in any water district in a suit alleged effect, took his property without over priority of appropriation of water due process of law, contrary to the 14th rights for irrigation purposes all parties Amendment. The defendants demurred and whose interests are thereby affected shall be the state courts upheld the defense. 56 deemed and held to have acquiesced in the Colo. 545, 139 Pac. 536. same, and that thereafter all persons shall

The case is this: In 1879 the state estab. be forever barred from setting up any claim to priority of rights to water for irrigation lished water districts, the plaintiff's water in such water district adverse or contrary rights being in district 23 and the defendto the effect of such decree, does not take ant's in district 8, directly below 23, upon without due process of law, contrary to the South Platte. Jurisdiction was U. S. Const. 14th Amend., the property of ferred · upon the district courts for the an appropriator in another district than proper county to adjudicate all questions the one in which a decree establishing a priority of appropriation in another appro- other questions of right between “owners of

concerning priority of appropriation and priator was rendered, although such construction was first announced after the pe

ditches drawing water for irrigation purriod of limitation had expired, where there poses from the same stream or its tribuhad been no different construction of the Itaries within the same water district."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes




Laws of 1879, Feb. 19, § 19, p. 99. Rev., 650, 34 Sup. Ct. Rep. 413. The answer to Stat. 1908, § 3276. The provisions were the first half of the plaintiff's contention is enlarged by an Act of February 23, 1881, p. no less plain. It is that the construction 142, but still seemingly confined to con- of a statute does not take a party's proptroversies between parties in the same dis- erty without due process of law simply betrict, until they came to the sections of cause it takes him by surprise, and when it limitation. By § 34 the act was not to is too late for him to act on the construcprevent suits within four years, and by tion and save his rights. That is all that § 35 after “four years from the time of the plaintiff has to complain of. There was rendering a final decree, in any water dis- no different construction of the statute by trict, all parties whose interests are thereby the court before the limitation had run, affected shall be deemed and held to have that might have lulled him to repose. The acquiesced in the same

and there only decisions relied upon by the plaintiff after all persons shall be forever barred as tending to favor him are Nichols v. Mcfrom setting up any claim to priority of Intosh, 19 Colo. 22, 34 Pac. 278, and Sterrights to water for irrigation in such waterling Irrig. Co. v. Downer, 19 Colo. 595, 36 district adverse or contrary to the effect of Pac. 787, which were not rendered until such decree.” Taws of 1881, pp. 159, 160. 1893 and 1894, and both of which are conRev. Stat. 1908, $$ 3313, 3314. Later stat- sistent with Ft. Lyon Canal Co. v. Arkansas utes were enacted in 1887 and 1903, creat- Valley Sugar Beet & Irrig. Land Co. 39 ing divisions, and requiring the irrigation Colo. 332, 90 Pac. 1023, establishing the division engineers to tabulate the priori-construction followed in this case. ties and rights as established by decree in should be added that, however strong the the different districts of their divisions, and / argument for a different interpretation, the to administer the use of water accordingly. one adopted also was strongly supported, But these statutes are not material. The so that there can be no pretense that a parties' rights were held to be fixed under perverse reading of the law was used as an the Act of 1881.

excuse for giving a ret pective effect to On December 10, 1883, the proper court the law of 1903. The decision was absofor the defendant company's district made lutely entitled to respect. & decree that the company was entitled to It is suggested that the cases cited estaba priority of right to the use of water for lished a rule of property, and that any deirrigation purposes of 1184 cubic feet of parture from it violated the plaintiff's water per second from the South Platte and rights under the 14th Amendment. But we its tributaries, dated January 18, 1879, already have said that the cases do not which was prior to the date of the plaintiff's establish the rule supposed, and if they did, rights. It will be observed that the Act something more would be necessary before of 1881 was in force when this decree was the plaintiff could come to this court. made. The plaintiff contends that the con- Sauer v. New York, 206 U. S. 536, 547, 548, struction of g 35 of the act, as applying to 51 L. ed. 1176, 1182, 27 Sup. Ct. Rep. 686; parties in a different district, this construc- Chicago & A. R. Co. v. Tranbarger, 238 U. tion having been first announced after the S. 67, 76, 59 L. ed. 1204, 1210, 35 Sup. cte period of limitation had gone by, had the Rep. 678. effect of a new statute declaring his rights Judgment affirmed. barred by time already elapsed, and attempted to make conclusive against him a proceeding to which he was not a party and

(242 U. 8. 15) in which he would not have been heard. SEABOARD AIR LINE RAILWAY, Appto,

So far as the last objection goes the answer is that if it be true that the plain- | CITY OF RALEIGH and James I. Johnson, tiff was not entitled to be heard on the de- 0. G. King, and R. B. Seawell, Commis fendant's decree, still there was nothing to

sioners of the City of Raleigh. hinder the state from providing that, if he

CONSTITUTIONAL LAW 134-IMPAIRING took no step to assert his rights within a

CONTRACT OBLIGATIONS-LICENSE-RAILreasonable time after the judicial assertion WAY OCCUPATION OF CITY SIDEWALK. of an adverse title, the decree being a public No contract rights to occupy a city fact, he should lose those rights See Barker sidewalk with a spur track which would unv. Harvey, 181 U. S. 481, 45 L. ed. 963, 21 | constitutionally be impaired by a city ordiSup. Ct. Rep. 690; Soper v. Lawrence Bros. nance directing its removal can be implied Co. 201 U. S. 359, 367, 368, 50 L. ed. 788, from a resolution of the board of aldermen, 791, 26 Sup. Ct. Rep. 473; American Land adopted long after the creation of the rail Co. v. Zeiss, 219 U. S. 47, 60, 55 L. ed. 82, road, granting such railway company, per

way company and the construction of its 94, 31 Sup. Ct. Rep. 200; Montoya v. Gon- mission-without any contract as to timezales, 232 U. 8. 375, 378, 58 L. ed. 645,'to occupy the sidewalk for the purpose of


For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

running a track, nor from the railway com- or west by Salisbury street, on the rear or pany's possession under such permission, no east by Halifax street, and on the north matter how long continued.

and south by North and Lane streets. Many (Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. $ 344; Dec. Dig. Om 134.)

years subsequently, in 1881, on the block

just below and on the same side of Salis[No. 59.)

bury street, a cotton compress had been

built, fronting on Salisbury street and abutArgued November 1, 1916. Decided Novem- ting on the sidewalk on that street.

In ber 20, 1916.

that year the railroad company asked per

mission of the city authorities to extend a PPEAL from the District Court of the track to and along the sidewalk on the A

United States for the Eastern District block in front of the compress, which was of North Carolina to review a decree which granted, the official record of the consent dismissed the bill in a suit to restrain the of the city having been manifested by the enforcement of a municipal ordinance di following entry in the minutes of the board recting the removal of a railway spur track of aldermen: "Upon application of John from a city sidewalk. Affirmed.

C. Winder, General Superintendent, the See same case below, 219 Fed. 573. Raleigh & Gaston Railroad Company was The facts are stated in the opinion. granted permission to occupy the sidewalk Mr. Murray Allen for appellant. on the east side of Salisbury street, between

Mr. John W. Hinsdale, Jr., for appel. Jones and Lane streets, for the purpose of lees.

running a track.” In virtue of this consent

a spur track projecting from the main Mr. Chief Justice White delivered the tracks as they curved into the terminal opinion of the court:

block was built which ran down to and upon Upon the assumption that contract rights the sidewalk in front of the compress. For protected by the Constitution of the United many years this track was used for business States would be violated, the bill sought to going in and out of the compress, as well as restrain the enforcement of an ordinance for the general purposes of the railroad. In which directed the removal of a spur track 1906, however, the compress ceased to be on a sidewalk on a designated street and operated, and subsequently (about 1910 block. On the bill, answer, and on agreed or 1911) the railroad company, owning the facts the court refused an injunction on block on which the compress was situated, the ground that there was no contract right removed the same and built upon the block in existence, and, treating this conclusion a warehouse. It was not possible, however, as going to the vitals of the whole case, from the track on the sidewalk to directly dismissed the bill, and a direct appeal was reach such warehouse, as, along the block taken.

where it fronted on Salisbury street, tracks Although there are fourteen assignments were laid between the warehouse and the of error, but one question arises : Was spur track, which, for the purposes of the there a contract? since, leaving out mere railroad, were depressed below the level of forms of statement, all the assignments con. the street and sidewalk, and thus the spur cern this single question, and we come to track on the sidewalk was only available for its solution. In doing so, to avoid that parking cars, or as a team track, and was which is superfluous, we concede, for the alternately in use for one or the other of sake of the argument only, that the city these purposes when the city adopted the had the lawful authority to make a contract | assailed ordinance directing the removal of concerning the track on the street and side the spur track. walk in question. With this argumentative Under this statement it becomes at once concession the question then is, not what apparent that the court below rightly dethere was power to do, but what was done; cided that the contract right asserted had and to solve it requires a brief statement. no existence, since, on the very face of the

In 1835 the Raleigh & Gaston Railroad consent which was given, a mere right to Company, to whose rights it is conceded the occupy was conveyed, without any contract complainant and appellant succeeded, was as to time, and which therefore, taking the authorized to and shortly afterwards built best view for the railroad, amounted to con& railroad from Gaston to Raleigh, North ferring upon it a mere license to put and Carolina. Entering the latter city through use a track upon the sidewalk, and there. its streets with its consent, and building fore subject to the power of the city to re therein machine shops, a railroad yard, and voke whenever it deemed the municipal inother facilities, the main tracks of the rail- terest required it to do so. road curved into a block which the com- But the contention is that, although it be pany had bought and upon which it estab-conceded that the well-settled rule is that lished its terminals, bounded on the front general implications may not be resorted to

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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