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to stand.

law in allowing the verdict for the plaintiff, work. See New York C. & H. R. R. Co. 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. § 1149, 1165, 1304-1308; Dec. Dig. 213.]

[No. 330.]

1; Pennsylvania Co. v. Donat, 239 U. S. 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.

The

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. IN State of Kentucky to review a judgment railroad company did not ask to go to 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.

The facts are stated in the opinion. Mr. Benjamin D. Warfield for plaintiff in error.

Messrs. Edward C. O'Rear, J. M. Robsion, and B. G. Williams for defendant in

error.

testimony that the empty car was moved for the ulterior purpose of interstate commerce, there would have been no error of law in allowing a verdict for the plaintiff to stand. It is true that the judge seems to have assumed that the business in hand was intrastate, but the only objection indicated 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 plaintiff's intestate was a fireman upon a switching engine which was moving 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 action against the railroad, the plaintiff in error, for causing the intestate's death, and got a verdict, which, it is admitted, cannot be sustained if the deceased was engaged in interstate commerce. The dealings of the state courts with that question are the ground for the present writ of error. The judgment for the plaintiff was affirmed by the court of appeals. 165 Ky. 658, 177 S. W. 465.

the jury, and the only ruling requested was properly denied, the judgment must stand. Judgment affirmed.

(242 U. S. 4)

WILLIAM P. CROSS, Appt.,

V.

UNITED STATES.

CLERKS OF COURTS 23-FEES-NATURAL-
IZATION PRoceedings.

A charge by a clerk of a Federal dis-
trict court of fees for making, on the di-
rection of the Bureau of Immigration and
Naturalization, triplicate copies of original
declarations of intention for naturalization,
and attaching the seal of the court, is not
authorized by the general provisions of U.
S. Rev. Stat. § 828, Comp. Stat. 1913,
§ 1383, since if the duty to render such
services was expressly commanded by the
naturalization act of June 29, 1906 (34
Stat. at L. 596, chap. 3592, Comp. Stat.
1913, §§ 4371, 4372, 4377), § 12, the right
den by the prohibitory provision of § 21,
to charge therefor would be clearly forbid-
such services not having been included in
the enumeration of fees in § 13, and if such
duty only arose in consequence of the gen-
eral provisions of § 12, the prohibition of
§ 21 would equally be applicable.
Courts, Cent. Dig. §§ 33, 34, 54; Dec. Dig. 23.]
[No. 78.]

The business upon which the deceased was engaged at the moment was transferring an empty car from one switch track to another. This car was not moving in interstate commerce, and that fact was treated as conclusive by the court of appeals. In this the court was in error, for if, as there was strong evidence to show, and as the court seemed to assume, this movement was simply for the purpose of reaching and moving an interstate car, the purpose would control and the business would be interstate. The difference is marked between a mere expectation that the act done would be followed by other work of a different character, as in Illinois C. R. Co. V. Behrens, 233 U. S. 473, 478, 58 L. ed. 1051, 34 Sup. Ct. Rep. 646, Ann. Cas. 1914C, 163, 10 N. C. C. A. 153, and doing the act Submitted October 23, 1916. Decided Nofor the purpose of furthering the later

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

vember 13, 1916.

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

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plicate thereof, one dollar. For making, filing, and docketing the petition of an alien for admission as a citizen of the United States and for the final hearing thereon, two dollars; and for entering the final order and the issuance of the certificate of citizenship thereunder, if granted, two dollars."

In their ultimate analysis all the arguments for reversal must come to one or the other or both of the following propositions: (a) That the declarations of intention were not proceedings in naturalization covered by § 12, and therefore the services rendered were outside of that section, and

Mr. Chief Justice White delivered the governed, not by the enumeration of fees in opinion of the court:

The question for decision is, did the court below err in rejecting the claim of the plaintiff, who is the appellant, to recover an amount based upon his asserted right as clerk of the United States district and circuit courts for the district of Rhode Island to be paid fees for making, on the direction of the Bureau of Immigration and Naturalization, triplicate copies of original declarations of intention for naturalization, and attaching the seal of the

court to the same?

The solution of the inquiry depends upon a consideration of §§ 12, 13, and 21 of the Naturalization Act of June 29, 1906 (34 | Stat. at L. 596, chap. 3592, Comp. Stat. 1913, §§ 4371, 4372, 4377), and the relation to those provisions of § 828, Revised Statutes, Comp. Stat. 1913, § 1383.

By 12 it is provided that it shall be the duty of the clerk of every court exercising jurisdiction in naturalization matters "to keep and file a duplicate of each declaration of intention made before him and to send to the Bureau of Immigration and Naturalization at Washington, within thirty days after the issuance of a certificate of citizenship, a duplicate of such certificate, and to make and keep on file in his office a stub for each certificate so issued by him. It shall also be the duty of the clerk of each of said courts to report to the said Bureau, within thirty days after the final hearing and decision of the court, the name of each and every alien who shall be denied naturalization, and to furnish to said Bureau duplicates of all petitions within thirty days after the filing of the same, and certified copies of such other proceedings and orders instituted in or issued out of said court affecting or relating to the naturalization of aliens as may be required from time to time by the said Bureau."

By 13 provision is made for the following fees: "For receiving and filing a declaration of intention and issuing a du

§ 13, but by the general provisions of § $28, Rev. Stat. Comp. Stat. 1913, § 1383, authorizing a charge by clerks of 10 cents per folio "for a copy of any entry or record, or of any paper on file," and a fee of 20 cents "for affixing the seal of the court to any instrument, when required." Or (b) if the declarations of intention of which triplicate copies were furnished were proceedings in naturalization and within the requirements of § 12, payment for such copies was not embraced by the fees enumerated in § 13, and therefore the charge for them must be considered as being provided for in § 828, Rev. Stat. Comp. Stat. 1913, § 1383.

But we are of opinion that both of these propositions are incompatible with §§ 12 and 13, and, moreover, that to sanction them would disregard the express prohibition of § 21, which is as follows:

"That it shall be unlawful for any clerk of any court or his authorized deputy or assistant exercising jurisdiction in naturalization proceedings, or to demand, charge, collect, or receive any other or additional fees or moneys in naturalization proceedings save the fees and moneys herein specified."

We are of opinion the conclusion stated clearly follows from the the prohibition of this section for the following reasons: First, if, on the one hand, it be assumed that the duty to furnish the copies charged for was expressly commanded by § 12, the right to charge for them would be clearly prohibited by § 21, even if no provision for payment was embraced in the fees enumerated in § 13; since it is apparent from the text that the purpose of the statute was to permit fees to be charged for the services expressly provided for in § 12 only when such fees were enumerated and authorized by § 13,a conclusion which is additionally apparent since § 12 unmistakably imposes duties for which no fees are provided in § 13, but which are covered by the prohibition of § 21. Second, if, on the other hand, it be

[Ed. Note.-For other cases, see Constitutional

Law, Cent. Dig. § 925; Dec. Dig. 308.] CONSTITUTIONAL LAW 278(1)-DUE PROCESS OF LAW-DEPARTURE FROM RULE of PROPERTY.

3. A mere departure by the courts of the state from a rule of property established by prior decisions does not violate any rights under the 14th Amendment to the Federal Constitution.

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 general provision of that section requiring clerks to furnish "certified copies of such other proceedings and orders instituted in or issued out of said court affecting or relating to the naturalization of aliens as may be required from time to time by the said Bureau," it is equally clear that the prohibition of § 21 would be applicable, since it was plainly intended to prevent resort to extraneous legislation for the purpose 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 such services by § 13.

Affirmed.

(242 U. S. 20)

DAN O'NEIL, Plff. in Err.,

V.

NORTHERN COLORADO IRRIGATION COMPANY et al.

CONSTITUTIONAL LAW 308-"DUE PROCESS OF LAW"-PRESCRIPTION-OPPORTUNITY FOR HEARING.

1. The failure, if any, to accord an appropriator of water rights for irrigation purposes an opportunity to be heard in a suit in another water district over priority of appropriation does not make it a denial of due process of law for the state to provide, as is done by Colo. Act of February 23, 1881, § 35, that if he takes no steps to assert his rights within four years after the judicial assertion of an adverse title, the decree being a public fact, he shall lose those rights.

[Ed. Note. For other cases, see Constitutional Law, Cent. § 925; Dec. Dig. 308.

For other definitions, see Words and Phrases, First and Second Series, Due Process Of Law.j CONSTITUTIONAL LAW 308-"DUE PROCESS OF LAW"-CONSTRUCTION OF PRESCRIPTION STATUTE-SURPRISE.

2. Construing as applying to parties in different water districts the provisions of Colo. Act of February 23, 1881, § 35, that after four years from the rendition of a final decree in any water district in a suit over priority of appropriation of water rights for irrigation purposes all parties whose interests are thereby affected shall be deemed and held to have acquiesced in the same, and that thereafter all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such water district adverse or contrary to the effect of such decree, does not take without due process of law, contrary to U. S. Const. 14th Amend., the property of an appropriator in another district than the one in which a decree establishing a priority of appropriation in another appropriator was rendered, although such construction was first announced after the period of limitation had expired, where there had been no different construction of the

[Ed. Note. For other cases, see Constitutional Law, Dec. Dig. 278(1).]

I'

[No. 68.]

ber 20, 1916.

N ERROR to the Supreme Court of the State of Colorado to review a decree which affirmed a decree of the Park District Court, in that state, dismissing the complaint in a suit to quiet title to alleged water rights, and to enjoin the closing of plaintiff's irrigation ditch. Affirmed.

See same case below, 56 Colo. 545, 139 Pac. 536.

The facts are stated in the opinion. Messrs. Fred R. Wright, Charles D. Hays, Clyde C. Dawson, and G. K. Hartenstein for plaintiff in error.

Messrs. La Fayette Twitchell, Luther M. Goddard, Paul M. Clark, and Fred Farrar, Attorney General for the state of Colorado, for defendants in error.

Mr. Justice Holmes delivered the opinion of the court:

tiff in error to quiet his title to alleged This is a complaint brought by the plainwater rights on Tarryall creek, a tributary of the South Platte river, and to enjoin the defendant Irrigation Company and the state officials from closing the plaintiff's ditch under an assertion of the Irrigation Company's superior right. The defendants justified under a decree establishing the ute making the decree conclusive after four Irrigation Company's priority and a statyears. The plaintiff replied and argued that the statutes, if construed to have the alleged effect, took his property without due process of law, contrary to the 14th Amendment. The defendants demurred and the state courts upheld the defense. 56 Colo. 545, 139 Pac. 536.

The case is this: In 1879 the state estab

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lished water districts, the plaintiff's water rights being in district 23 and the defendant's in district 8, directly below 23, upon the South Platte. Jurisdiction was conferred upon the district courts for the proper county to adjudicate all questions concerning priority of appropriation and other questions of right between "owners of ditches drawing water for irrigation purposes from the same stream or its tributaries within the same water district."

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

650, 34 Sup. Ct. Rep. 413. The answer to the first half of the plaintiff's contention is no less plain. It is that the construction of a statute does not take a party's property without due process of law simply because it takes him by surprise, and when it is too late for him to act on the construction and save his rights. That is all that the plaintiff has to complain of. There was no different construction of the statute by the court before the limitation had run, that might have lulled him to repose. The only decisions relied upon by the plaintiff as tending to favor him are Nichols v. McIntosh, 19 Colo. 22, 34 Pac. 278, and Ster

Laws of 1879, Feb. 19, § 19, p. 99. Rev. Stat. 1908, § 3276. The provisions were enlarged by an Act of February 23, 1881, p. 142, but still seemingly confined to controversies between parties in the same district, until they came to the sections of limitation. By § 34 the act was not to prevent suits within four years, and by § 35 after "four years from the time of rendering a final decree, in any water district, all parties whose interests are thereby affected shall be deemed and held to have acquiesced in the same and thereafter all persons shall be forever barred from setting up any claim to priority of rights to water for irrigation in such waterling Irrig. Co. v. Downer, 19 Colo. 595, 36 district adverse or contrary to the effect of such decree." Laws of 1881, pp. 159, 160. Rev. Stat. 1908, §§ 3313, 3314. Later statutes were enacted in 1887 and 1903, creating divisions, and requiring the irrigation division engineers to tabulate the priorities and rights as established by decree in the different districts of their divisions, and to administer the use of water accordingly. But these statutes are not material. The parties' rights were held to be fixed under the Act of 1881.

On December 10, 1883, the proper court for the defendant company's district made a decree that the company was entitled to a priority of right to the use of water for irrigation purposes of 1184 cubic feet of water per second from the South Platte and its tributaries, dated January 18, 1879, which was prior to the date of the plaintiff's rights. It will be observed that the Act of 1881 was in force when this decree was made. The plaintiff contends that the construction of § 35 of the act, as applying to parties in a different district, this construction having been first announced after the period of limitation had gone by, had the effect of a new statute declaring his rights barred by time already elapsed, and attempted to make conclusive against him a proceeding to which he was not a party and in which he would not have been heard.

So far as the last objection goes the answer is that if it be true that the plaintiff was not entitled to be heard on the defendant's decree, still there was nothing to hinder the state from providing that, if he took no step to assert his rights within a reasonable time after the judicial assertion of an adverse title, the decree being a public fact, he should lose those rights See Barker v. Harvey, 181 U. S. 481, 45 L. ed. 963, 21 Sup. Ct. Rep. 690; Soper v. Lawrence Bros. Co. 201 U. S. 359, 367, 368, 50 L. ed. 788, 791, 26 Sup. Ct. Rep. 473; American Land Co. v. Zeiss, 219 U. S. 47, 60, 55 L. ed. 82, 94, 31 Sup. Ct. Rep. 200; Montoya v. Gonzales, 232 U. S. 375, 378, 58 L. ed. 645,

Pac. 787, which were not rendered until 1893 and 1894, and both of which are consistent with Ft. Lyon Canal Co. v. Arkansas Valley Sugar Beet & Irrig. Land Co. 39 Colo. 332, 90 Pac. 1023, establishing the construction followed in this case. It should be added that, however strong the argument for a different interpretation, the one adopted also was strongly supported, so that there can be no pretense that a perverse reading of the law was used as an excuse for giving a retrospective effect to the law of 1903. The decision was absolutely entitled to respect.

It is suggested that the cases cited established a rule of property, and that any departure from it violated the plaintiff's rights under the 14th Amendment. But we already have said that the cases do not establish the rule supposed, and if they did, something more would be necessary before the plaintiff could come to this court. Sauer v. New York, 206 U. S. 536, 547, 548, 51 L. ed. 1176, 1182, 27 Sup. Ct. Rep. 686; Chicago & A. R. Co. v. Tranbarger, 238 U. S. 67, 76, 59 L. ed. 1204, 1210, 35 Sup. Ct. Rep. 678.

Judgment affirmed.

(242 U. S. 15) SEABOARD AIR LINE RAILWAY, Appt.,

V.

CITY OF RALEIGH and James I. Johnson, O. G. King, and R. B. Seawell, Commissioners of the City of Raleigh.

CONSTITUTIONAL LAW 134—IMPAIRING
CONTRACT OBLIGATIONS-LICENSE-RAIL-
WAY OCCUPATION OF CITY SIDEWALK.

No contract rights to occupy a city sidewalk with a spur track which would unconstitutionally be impaired by a city ordinance directing its removal can be implied from a resolution of the board of aldermen, adopted long after the creation of the railroad, granting such railway company perway company and the construction of its mission-without any contract as to timeto 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 company's possession under such permission, no matter how long continued.

or west by Salisbury street, on the rear or east by Halifax street, and on the north and south by North and Lane streets. Many years subsequently, in 1881, on the block just below and on the same side of Salisbury street, a cotton compress had been built, fronting on Salisbury street and abutNovem-ting on the sidewalk on that street.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 344; Dec. Dig. 134.] [No. 59.]

Argued November 1, 1916. Decided ber 20, 1916.

A

PPEAL from the District Court of the United States for the Eastern District of North Carolina to review a decree which dismissed the bill in a suit to restrain the enforcement of a municipal ordinance directing the removal of a railway spur track from a city sidewalk. Affirmed.

See same case below, 219 Fed. 573.
The facts are stated in the opinion.
Mr. Murray Allen for appellant.
Mr. John W. Hinsdale, Jr., for appel-
lees.

In

that year the railroad company asked permission of the city authorities to extend a track to and along the sidewalk on the block in front of the compress, which was granted, the official record of the consent of the city having been manifested by the following entry in the minutes of the board of aldermen: "Upon application of John C. Winder, General Superintendent, the Raleigh & Gaston Railroad Company was granted permission to occupy the sidewalk on the east side of Salisbury street, between Jones and Lane streets, for the purpose of 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:

Upon the assumption that contract rights protected by the Constitution of the United States would be violated, the bill sought to restrain the enforcement of an ordinance which directed the removal of a spur track on a sidewalk on a designated street and block. On the bill, answer, and on agreed facts the court refused an injunction on the ground that there was no contract right in existence, and, treating this conclusion as going to the vitals of the whole case, dismissed the bill, and a direct appeal was taken.

Although there are fourteen assignments of error, but one question arises: Was there a contract? since, leaving out mere forms of statement, all the assignments concern this single question, and we come to its solution. In doing so, to avoid that which is superfluous, we concede, for the sake of the argument only, that the city had the lawful authority to make a contract concerning the track on the street and sidewalk in question. With this argumentative concession the question then is, not what there was power to do, but what was done; and to solve it requires a brief statement.

block was built which ran down to and upon the sidewalk in front of the compress. For many years this track was used for business going in and out of the compress, as well as for the general purposes of the railroad. In 1906, however, the compress ceased to be operated, and subsequently (about 1910 or 1911) the railroad company, owning the block on which the compress was situated, removed the same and built upon the block a warehouse. It was not possible, however, from the track on the sidewalk to directly reach such warehouse, as, along the block where it fronted on Salisbury street, tracks were laid between the warehouse and the spur track, which, for the purposes of the railroad, were depressed below the level of the street and sidewalk, and thus the spur track on the sidewalk was only available for parking cars, or as a team track, and was alternately in use for one or the other of these purposes when the city adopted the assailed ordinance directing the removal of the spur track.

Under this statement it becomes at once apparent that the court below rightly decided that the contract right asserted had no existence, since, on the very face of the consent which was given, a mere right to occupy was conveyed, without any contract as to time, and which therefore, taking the best view for the railroad, amounted to conferring upon it a mere license to put and use a track upon the sidewalk, and therefore subject to the power of the city to revoke whenever it deemed the municipal in

In 1835 the Raleigh & Gaston Railroad Company, to whose rights it is conceded the complainant and appellant succeeded, was authorized to and shortly afterwards built a railroad from Gaston to Raleigh, North Carolina. Entering the latter city through its streets with its consent, and building therein machine shops, a railroad yard, and other facilities, the main tracks of the rail-terest required it to do so. road curved into a block which the company had bought and upon which it established its terminals, bounded on the front

But the contention is that, although it be conceded that the well-settled rule is that 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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