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inal billing to Columbia and the rebilling from there to Mount Pleasant operated in the same way as would an original billing to Mount Pleasant with the privilege of stopping en route at Columbia to deliver a part of the merchandise. Indeed, it is stipulated that the reason for not billing the cars through to Mount Pleasant in this way was because the carriers receiving the shipments "would not allow such stop-over privilege, though the same is allowed on nearly every other kind of shipment.” Certainly the transportation of the merchandise destined to Mount Pleasant was not completed when it reached Columbia; nor was the continuity of its movement broken by its temporary stop at that place. As to that merchandise the journey to Columbia and the journey from there to Mount Pleasant were not independent, each of the other, but in fact and in legal contemplation were connected parts of a continuing interstate movement to the latter place.
It results that the tax was imposed for carrying on interstate commerce, and so was repugnant to the Constitution and void.
The CHIEF JUSTICE dissents, being of opinion that the case is controlled by May v. New Orleans, 178 U. S. 496.
CHICAGO, MILWAUKEE & ST. PAUL RAILWAY
COMPANY OF IDAHO v. UNITED STATES.
APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE
No. 176. Argued April 18, 19, 1917.-Decided June 4, 1917.
The power to establish forest reservations, bestowed upon the President
by acts of Congress, includes the power to withdraw lands temporarily from disposition under the public land laws in order that they may be examined, and, if found suitable, may be permanently re
served as forests. An act of the Secretary of the Interior in directing the making of
a temporary withdrawal for forest reserve purposes is in legal con
templation the act of the President. Lands reserved for forest purposes, whether by temporary withdrawal
or permanent reservation, are “specially reserved from sale” within the meaning of 8 5 of the general railroad right of way act of March 3, 1875, c. 152, 18 Stat. 482, and also, like the military, park and Indian reservations therein mentioned, are set apart for a public
purpose, and are not subject to the provisions of that act. Under the provision relating to the subject in the Act of March 3, 1899,
c. 427, 30 Stat. 1233, a railroad right of way may be obtained over a temporary or permanent forest reservation only if in the judgment of the Secretary of the Interior the public interests will not be injuriously affected thereby, and, in exercising his broad discretion under this provision, the Secretary may condition his approval of an application upon the prior filing of a stipulation, binding upon the applicant, respecting the use and enjoyment of the privilege granted, the prevention of forest fires, and compensation for timber cut or
destroyed or for other injuries done to the reservation. Where, for the purpose of securing a right of way under the Act of 1899,
supra, with immediate permission to proceed with construction work, a railroad company's agent agreed in writing that it would later execute and abide by a stipulation touching its rights and conduct in the reservation, but the agreement was made subject to ratification by the company, Held, that the company's action in availing itself of the permission and proceeding with the construction work with knowledge of the manner in which the permission
had been obtained, and its acceptance of ensuing benefits, amounted to an implied ratification of its agent's agreement, binding the company either to execute the required stipulation or to discontinue the
construction and operation of its railroad within the reservation. A suit by the United States to enjoin a railroad company from con
structing and operating its road through a national forest in default of the execution and filing by it of a stipulation required by the Secretary of the Interior, and to obtain damages for timber cut and destroyed and for injury done in the course of the construction and operation of such railroad, is cognizable in equity, and a bill praying
such relief is not multifarious. The damages assessed against the appellant in this case are in part
justified by the terms of the stipulation which it agreed to execute, and in other respects are sustained by the concurring decisions of
the courts below. In the absence of either cross-appeal by the Government or objection
by the appellant company, the court will not decide whether the decree, instead of commanding unconditionally that the company execute the stipulation agreed upon, should not have provided, in the alternative, for ousting the company from the reservation if it
did not execute such stipulation within a certain time. 218 Fed. Rep. 288, affirmed.
The case is stated in the opinion.
Mr. F. M. Dudley and Mr. H. H. Field for appellant.
Mr. Assistant Attorney General Kearful, with whom Mr. W. W. Dyar was on the brief, for the United States.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This is a suit by the United States to enjoin a railroad company from constructing or operating its railroad through a national forest reserve in Idaho unless it executes and files with the Secretary of the Interior a stipulation required by that officer, and to obtain damages for timber cut and destroyed and injury done in the course
of the construction and operation of such railroad. In the District Court, 207 Fed. Rep. 164, and in the Circuit Court of Appeals, 218 Fed. Rep. 288, the Government prevailed. The railroad company prosecutes this appeal.
The forest reserve had its inception in an order by the Commissioner of the General Land Office, made March 21, 1905, temporarily withdrawing a large body of public lands from all disposal, save under the mineral land laws. The order was made by direction of the Secretary of the Interior with a view to the creation of a permanent forest reserve, under 8 24 of the Act of March 3, 1891, c. 561, 26 Stat. 1095, if after further examination that should receive the President's approval. The permanent reserve was created November 6, 1906, by a proclamation of the President. Between the temporary withdrawal and the President's proclamation the railroad company was incorporated under the laws of Idaho and filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization. During the same period it also filed in the local land office a map or profile of its proposed railroad through the reserve, and after the President's proclamation it filed in that office a second and then a third map. The line of the proposed road shown upon the second map differed widely from that upon the first and the line shown upon the third differed materially from those upon the others. The first and second maps, neither of which had been approved, were returned to the company as superseded by the third. It was filed May 10, 1907. At that time, as also before any map was filed, the regulations governing applications for railroad rights of way in forest reserves required the applicant to enter into a stipulation respecting the use and enjoyment of the privilege, the prevention of forest fires, the compensation to be made for timber cut or destroyed and the duty of the company to pay for any injury otherwise done to the reserve. 32 L. D. 481; 34
Opinion of the Court.
L. D. 583. One provision in the regulations said: “No construction can be allowed on a reservation until an application for right of way has been regularly filed in accordance with the laws of the United States and has been approved by the Department, or has been considered by this office or the Department, and permission for such construction has been specifically given.” After filing the third map the company sought permission from the Forest Office to proceed with the construction of its railroad in advance of the approval of its map, and to that end its authorized representative, Mr. George R. Peck, in its behalf, signed and filed in the Forest Office the following memorandum:
“Whereas, the Chicago, Milwaukee & St. Paul Railway Company of Idaho desires immediate permission from the Forest Service to begin construction of the company's railroad in the Coeur d'Alene National Forest, Idaho, I hereby promise and agree on behalf of the company that it will execute and abide by stipulations and conditions to be prescribed by the Forester in respect to said railroad; such stipulation and conditions to be as nearly as practicable like those executed by the company on January 18, 1907, in respect to its railroad within the Helena National Forest, Montana.
The Forester wrote upon the memorandum, and signed, an endorsement, saying:“Approved and advance permission given to construct, subject to ratification hereof by the company.” At the same time a telegram was sent to the supervisor of the reserve, saying: “Advance permission given today St. Paul Railroad Company to construct railroad through Coeur d'Alene, subject usual stipulations. Supervise clearing and piling and scale all timber cut."
There was no express ratification of the Peck memorandum, but shortly after it was made the company entered upon the reserve and actively proceeded with the construction of its road, which it would not have been per