was described. In making excavations two | specifications of his patent nor describe it as part of his method. His apparatus, it is "The wheels of vehicles encounter the disintegrated parts, digging there a hole which -if it be not promptly repaired-finishes by deepening itself as far as the beton. The sole remedy for this evil is to remove all the bad part and replace it by new as-out my invention." phalt, taking care therein to heat the edges of the sound portion so as to obtain a perfect soldering, as we have explained a little further back.' And what is claimed is, as we have seen, "the subjecting the spot to be repaired to heat." In further answer to the contention we may quote the circuit court of appeals as follows: by the patentee upon a ruling or declaration of the Patent Office that the first and third claims were the same in substance and could not both be permitted to remain in the case. That was not merely a casual expression of opinion by an examiner, but was in effect a requirement that one or the other of the claims be withdrawn, and no reason is perceived for not applying the ordinary rule. Having voluntarily abandoned the claim for a method limited to the use of 'a blast of heat,' the patentee or his assignee may not now insist that a broad claim, containing no suggestion of such intention, shall nevertheless be subjected by construction to the same restriction. This point, in view of the reservation already considered, is unimportant, and might be passed, but it is to be observed that if the The counsel claim, however, that the Perkins "method is characterized by a new and useful way of applying heat to the *pave- "Another objection to the proposed limi ment, to wit, by sending a flame blast into tation of the claim by making it read 'a direct contact with the pavement surface," blast of heat,' or 'a strong blast of heat,' and that the Crochet patent had no sugges- in lieu of the unqualified word 'heat,' is in tion of that; and, besides, the Crochet pro- the fact that the third claim, which concess applied to compressed asphalt road-tained the additional words, was withdrawn ways, which was a different asphalt roadway than that to which the Perkins method was intended to apply. And upon the difference in the asphalt counsel has dwelt long and interestingly, but the argument finally comes to a dependence upon the fact that the compressed asphalt of the Crochet patent disintegrates and crumbles, and if overheated becomes as inert as sand; whereas the asphalt of the Perkins patent melts under the action of heat and has "a peculiar property or 'susceptibility;' namely, that when its surface is subjected constantly to a lively heat, the exposed material automatically covers itself with a thin, protecting shield, and merely melts and softens beneath that shield." The answer to the contentions is that given by the circuit court of appeals; the patent does not support them. Before the time of either pat-third claim was withdrawn by mistake, a ent the world knew that heat disintegrated some things and melted others, and we cannot concede invention to the thought that that might be true of different kinds of asphalt. Indeed, even in the face of the grave testimony contained in this record given by unquestionably expert men, we find it also difficult to concede that it was an exertion of invention to apply heat to the edges of an excavation to make a bond between the old and the new material. To devise an instrument to do that well and quickly might be invention, and that Perkins achieved by his apparatus patent. To allow him more under the facts of this record would be to give him a monopoly of the machine and of that which the machine can do. And this is an answer to the contention based upon the peculiar property of American asphalt to interpose a shield against a blasting heat to protect itself from destruction, -a virtue in American asphalt, no doubt. If it is a virtue resulting from a peculiar application of heat, there is nothing in the record to show that Perkins was aware of it. He certainly did not reveal it in the correction should have been sought in the Patent Office, either by a surrender and reissue, or possibly by a new application. It is not within the rightful power of the courts to enlarge or restrict the scope of patents which by mistake were issued in terms too narrow or too broad to cover the invention, however manifest the fact and extent of the mistake may be shown to have been." Decree affirmed. (183 U. S. 572) PABLO MAESE, José L. Lopez, Dionicio Gonzalez, and Jesus Maria Tafoya, Appts., v. BINGER HERMAN, Commissioner of the Private land claims-equity-public lands. 009. *573 preted, was to private persons instead of to the surveyor general as a claim by the town | gua, and on the west the boundary of the under a Mexican grant cannot be contested by grant to San Miguel del Bade." a bill in equity against the Land Department The tract contains 496,446.96 acres of on the ground that the grant, properly interland, and was afterwards surveyed in 1860, which survey the town, even if the so-called town has no was approved by the surlegal or corporate existence, since the capac- veyor general of New Mexico. ity of the town to take the patent is settled The petition was presented to the terri-* by the confirmation to it by Congress. torial deputation, approved by that body on the 23d of March, 1835, and the grant made as asked for, with the provision "that persons who owned no land were to be allowed [No. 226.] Argued November 6, 7, 1901. Decided Jan- the same privilege of settling upon the uary 6, 1902. PPEAL from a decree of the Court of A Appeals of the District of Columbia affirming a decision dismissing a bill in equity against the officers of the Land Department. Affirmed. See same case below, 17 App. D. C. 52. Statement by Mr. Justice McKenna: This is a bill in equity brought in the supreme court of the District of Columbia, praying for an injunction against respondents from issuing a patent to the town of Las Vegas, New Mexico, of the lands in the Las Vegas private land grant, or, if a patent has issued, to declare it to be void, or, if a patent has not issued, to direct one to issue "to all of said lands, to the heirs, legal representatives, and assigns of the said Juan de Dios Maese, Manuel Duran, Miguel Arculeta, José Antonio Cassaos, and those who were associated with them as the original grantees and as representatives of said original grantees; and that their title in and to said lands may be quieted; and said plaintiffs pray for such other and further and general relief as they may show themselves entitled to under the law and the facts." There was a demurrer to the bill, which was sustained, and the complainants declining to amend their bill, it was dismissed. An appeal was taken to the court of appeals, and the action of the supreme court of the district was affirmed. 17 App. D. C. 52. The suit was brought by the complainants as heirs of the original grantees, for themselves and others, who, it is alleged, are too numerous to be made parties. The defendants are sued in their official character. The facts as they appear from the bill are that on the 20th of March, 1835, Juan de Dios Maese, Miguel Archuleta, Manuel Duran, and José Antonio Cassaos, for themselves and on behalf of twenty-five men, presented a petition to the corporation of El Bado, in the territory of New Mexico, Mexico, for the grant and possession of the tract of land "commonly known as Las Vegas, on the Galenas river, which was desired for the cultivation of moderate crops and for pasture and watering places." The land was under the jurisdiction of El Bado, and was bounded as follows: "On the north by the Sappello river, on the south by the boundary of the grant of Don Antonio Ortiz, on the east by the Aguage de la Ze grant as those who petitioned for it, and that 'the pasture and watering places are free to all.'" On the 24th of March, 1835, the acting tory approved the action of the territorial governor and political chief of the terrideputation, and directed the constitutional justice of El Bado to place the parties in possession of the lands prayed for. This was done on the 6th of April, 1835. The heirship or legal succession of the parties to the original grantees is alleged, and that the complainants "are now the true and real owners of undivided interests in said land, the separate interest therein of each being of the full value of not less than $10,000." The total value of the land is $2,000,000. The treaty and protocol of Guadalupe Hidalgo are invoked, and it is alleged that the surveyor general of New Mexico, under the provisions of the act of Congress of July 22, 1854 (10 Stat. at L. 309, chap. 103), and acting under the instructions of the Secretary of the Interior and Commissioner of the General Land Office, gave notice to parties claiming grants from Mexico to present their claims, and thereupon Francisco Lopez, Henry Connelly, and Hilario Gonzalez, on behalf of themselves and a large number of citizens of the United States, residents of San Miguel county, presented their petition claiming the Las Vegas grant. The surveyor general investigated the claim, found, and reported its validity. His report was approved by Congress and the grant confirmed, "thereby confirming in and to the original grantees named and designated in said Las Vegas grant, their heirs and assigns, their absolute right and title to all of the lands embraced within the aforesaid boundaries and limits, free of all right, title, claim, or control upon the part of the United States." It is the duty of the Commissioner of the General Land Office to issue patents in "all such confirmed private land grants, to the grantees named in the original grant, their heirs or assigns, and in the discharge and performance of his duty therein he has no judicial or discretionary powers, but acts ministerially alone in the issuing of such patents." It is further alleged in the bill that "December 17, 1898, upon a petition filed in the Interior Department of the United States, praying that a patent be ordered to be issued to the town of Las Vegas to all the land included in said Las Vegas grant, 'the Honorable Thomas Ryan, the then act ing Secretary of the Interior Department, | cluded within the Las Vegas grant or any addressed a letter to the Commissioner of other real estate." the General Land Office wherein and whereby the said Interior Department ordered and directed the honorable Commissioner of the General Land Office to issue a patent to said lands to the town of Las Vegas, which order of the Interior Department now remains and continues in full force and effect, not having been set aside, vacated, or omitted. "Said plaintiffs are informed and believe, and upon their information and belief they charge the fact to be, that at the date of the making of said Las Vegas grant, as aforesaid, there was no place of collection of people having any legal existence under the laws, customs, or usages of the Republic of Mexico or the territory of New Mexico known or designated as the town of Las Vegas, nor was there any town by name of Las Vegas on said grant or elsewhere at that time which under the laws in force at that time in the territory of New Mexico had any legal or corporate existence, or which under or by virtue of any law, custom, or usage in force in New Mexico could take or acquire title to lands. It is further alleged that such patent, if issued, will be a cloud upon the title of plaintiffs, and that they have presented their claim to said grant, and have re quested a patent to be issued to the heirs and assigns of the original grantees, and that their request has been ignored, "and said Commissioner of the General Land Office is now about to issue the patent to said grant to a nonentity called the town of Las Vegas, in violation of law and in violation of the rights of plaintiffs and to their great and irreparable injury, and will do so unless restrained from so doing by this court." The demurrer to the bill was general, charging want of equity, no jurisdiction of the court over the subject-matter, and a defect of parties. The other facts stated in the opinion are taken from H. Ex. Doc. 14, 30th Cong., p. 36, quoted in the brief of counsel for appellants. Messrs. Fred Beall and H. C. Burnett for appellants. * Ꭸ Assistant Attorney General Van Devan-* ter and Solicitor General Richards for appellees. Mr. Justice McKenna delivered the opinion of the court: The first and second grounds of demurrer are substantially the same, or depend upon the same arguments. Of the second ground the courts below took different views, the supreme court holding that the town of Las Vegas was not, and the court of appeals holding that the town was, a necessary party. "And said plaintiffs allege and charge further that said land grant was not made to any town by name of Las Vegas or by any other name; that the town of Las Vegas nor any other town ever petitioned the surveyor general of New Mexico to investigate the nature, character, extent, or validity of said grant; and that the only petition ever preferred to any surveyor general for such an investigation touching said grant was preferred by individuals representing the original grantees Juan Dios Maese et al., their heirs and assigns, the same hereinbefore referred to. They aver further that As stated in the bill, the act of July 22, said surveyor general reported that said 1854, in execution of the treaty of Guadagrant, was made in due form to Juan Dios lupe Hidalgo, required the surveyor genMaese and his associates, and was to them eral of New Mexico, under the instruction a valid grant, and plaintiffs aver that said of the Secretary of the Interior, to investigrant was duly and legally confirmed by gate and report upon the validity of grants Congress to the original grantees, the said of land from the Mexican government. On Juan Dios Maese and his associates, and September 11, 1855, a petition was prethat it was not confirmed to a town by the sented to the surveyor general for the examname of Las Vegas or to any other town. ination of the grant of Juan de Dios Maese Said plaintiffs further show that they are et al., which stated that it was presented informed and believe, and upon their infor- by "Francisco Lopez and Henry Connelly mation and belief they charge the fact to and Hilario Gonzales, on behalf of thembe, that there was not on December 17, United States, residents of the town of Las selves and a large number of citizens of the 1898, any town by name of Las Vegas any; Vegas and its vicinity, in the county of San where in the United States, having any legal Miguel, territory of New Mexico, represent or corporate existence or any defined boun- to your honor that they and the citizens daries, or that could take or acquire title, they represent are the claimants and legal either equitable or legal, to any lands what-owners of a certain tract of land lying and soever; and, further, that there was not at being situate in the county of San Miguel, the time of the cession of the country in- in the territory of New Mexico." cluded in the territory of New Mexico to It also stated the fact of a grant, the the United States, by the Republic of Mex-boundaries of the grant, and concluded as ico, or at the time of the confirmation by Congress of the United States of said Las Vegas grant, any such town having any legal or corporate existence or having any defined boundaries, or any place by that name capable in the law of acquiring, having, or holding title, either legal or equitable, to the lands in follows: "The said claimants cannot show the quantity of land embraced in said grant, except as the same are set forth in the boundaries of sald grant; nor can they furnish a plat of survey of said grant, as no survey of said land has ever been executed. 849. *579 "Your petitioners, the claimants, are also | ularly directed to the 6th section of the act informed and believe that Thomas Cabeza of Congress as follows: de Baca, for himself and others, are claimants also for the lands embraced in said grant and now claimed by your petitioners. Your petitioners pray that their claim and title to said lands be examined as required by law and that said grant be confirmed to them; and, as in duty bound will ever pray," etc. The surveyor general made report of the claim, stating "The grant made to Juan de Dios Maese and others is not contested on the ground of any want of formality in the proceedings, but, as far as the documentary evidence shows, is made in strict conformity with the laws and usages of the country at the time. "Testimony is introduced to show that the heirs of Baca protested in 1837 against the occupancy of the land by the claimants under the latter grant, and that they went upon the land knowing the existence of a prior grant; but as these matters are not deemed to be pertinent to the case so far as this office is concerned, it is not necessary to comment upon them. "In this connection I have to draw your special attention to the 6th section of said act of June 21, 1860. This law gives the land to the Vegas town claim, and allows the Baca heirs to take an equal quantity of vacant land, not mineral, in New Mexico, to be located by them in square bodies, not exceeding five in number. To give this law timely effect you will give priority, in surveying private land claims, to this claim, particularly as it is in the vicinity,-about 4 miles from the outside of the public surveys. You will proceed to have the exteriors of the Las Vegas town claim properly run and connected with the line of the public surveys. The exact area of the Las Vegas town tract having been thus ascertained, the right will accrue to the Baca claimant to locate a quantity equal to the area of the town tract elsewhere in New Mexico, as vacant and, not mineral, in square bodies, not exceeding five in number." The grant was surveyed, and a plat was made showing its area to be 496,446.96 acres. A certificate was issued to the Baca wards locate that quantity, and the location was sustained by this court. Shaw v. Kellogg, 170 U. S. 317, 42 L. ed. 1052, 18 Sup. Ct. Rep. 632. "It is firmly believed that the land em- heirs for a like quantity of land, which enbraced in either of the two grants is law-titled them to locate, and they did afterfully separated from the public domain, and entirely beyond the disposal of the general government, and that, in the absence of the one, the other would be a good and valid grant; but as this office has no power to decide between conflicting parties, they are referred to the proper tribunals of the country for the adjudication of their respective claims, and the case is hereby respectfully referred to Congress through the proper channel for its action in the premises." The claims and thirty-two others which the surveyor general had investigated were submitted to Congress, with his report thereon. The claims were designated by numerals from one to thirty-eight, number twenty being the "town of Las Vegas and Thomas Baca et al." H. Ex. Doc. 14, pp. 42, 45. The claims were confirmed by the act of June 21, 1860. 12 Stat. at L. 71, 72, chap. 167. Section 6 of the act is as follows: On May 4, 1861, the surveyor general reported his action to the General Land Office, and transmitted the survey, field notes, and plat. The papers were received and filed in the Land Office, and the grant was treated as confirmed for 496,446.96 acres. In the reports of the General Land Office, subsequently made, the tract was named "town of Las Vegas," and the claimants the "inhabitants of the town." On March 3, 1869, Congress passed an acte which provided for the issue of patents for private land claims in New Mexico which had theretofore been confirmed by Congress. Section 2 of the act is as follows: "And be it further enacted, That the Commissioner of the General Land Office "And be it further enacted, That it shall shall, without unreasonable delay, cause the be lawful for the heirs of Luis Maria Baca, lands embraced in said several claims to be who make claim to the said tract of land as surveyed and platted, at the proper expense is claimed by the town of Las Vegas, to se- of the claimants thereof, and upon the fillect, instead of the land claimed by them, an ing of said surveys and plats in his office equal quantity of vacant land, not mineral, he shall issue patents for said lands in said in the territory of New Mexico, to be lo- territory which have heretofore been concated by them in square bodies, not exceed-firmed by acts of Congress and surveyed, ing five in number. And it shall be the duty of the surveyor general of New Mexico to make survey and location of the lands so selected by said heirs of Baca when there unto required by them: Provided, however, That the right hereby granted to said heirs of Baca shall continue in force during three years from the passage of this act, and no longer. Approved June 21, 1860." 12 Stat. at L. 71, 72, chap. 167. Notice of the confirmation was sent by the Land Office to the surveyor general of New Mexico, and his attention was partic and plats of such survey filed in his office as aforesaid, but for which no patents have heretofore been issued." 15 Stat. at L 342, chap. 152. It is stated by counsel for appellants that, prior to the act of March 3, 1869, the General Land Office was without authority to issue a patent for the lands in controversy. See also Shaw v. Kellogg, 170 U. S. 342, 42 L. ed. 1061, 18 Sup. Ct. Rep. 632. That act, therefore, is the sole authority to the General Land Office to issue the patent, and it would seem not to admit of controversy that the patent must issue to the confirmee | take a patent is open to dispute in the Land of Congress. We think that the town of Office. Of that capacity Congress was satLas Vegas was that confirmee, and this con- isfied, and it is not for the Land Departclusion relieves us from considering some of ment to conceive and urge doubts about it the interesting questions discussed by coun- raised upon disputable legal propositions. The town and its inhabitants were certainly substantial entities in fact, and were recognized by Congress as having rights, and sel. The grant originally was as much to a community as to individuals, and a town was contemplated. The decree of the gov-directed such rights to be authenticated by ernor directed the selection of "a site for a town to be built by the inhabitants," and the constitutional justice, in executing the decree, informed those to whom he made "the distribution" of the land "that the water and pasture were free to all, and that the joint labor should be done by themselves without any dispute, and that the wall surrounding the town marked out should be made by them all, which being done, that they notify the justice, in order that he may mark out to each one equally the portion he is entitled to." A town was started, and grew and had attained substantial proportions at the time the confirmatory act was passed. a patent of the United States. It is the (183 U. S. 503) & NASHVILLE RAILROAD COMPANY, Plff. in Err., LOUISVILLE v. COMMONWEALTH OF KENTUCKY. Constitutional law-due process of lawequal protection of the laws-charging more for shorter than for longer haul-interference with interstate commerce. 1. The construction put by the Kentucky court of appeals upon the provisions of Ky. Const. 218, by which a different effect is given to it than to similar language in the interstate commerce law, is binding upon the Supreme Court of the United States in a case governed by the state Constitution. The petition of the surveyor general of New Mexico describes the petitioners as "residents of the town of Las Vegas and its vicinity;" and he manifestly regarded it a claim on behalf of the town, stated it from that standpoint, and reported it to Congress as a claim by the town of Las Vegas. The claim was confirmed by reference to the report, and the town was especially designated the claimant in § 6 of the confirmatory act. That it received confirmation at all may be because it was a claim by a town. Its legality might have been questioned. The claimants in their petition stated that their claim was disputed by Thomas Cabeza de Baca, and reporting on that dispute the surveyor general said that testimony was introduced to show that the heirs of Baca protested in 1837 against the occupancy of the land by the claimants under the grant to 2. The equal protection of the laws is not de Juan de Dios Maese, and that the claimants "went upon the land, knowing the existence of a prior grant,"-the Baca grant. The surveyor general, however, did not assume to decide the dispute between the parties, but referred it to "the proper tribunals of the country" and to Congress. Congress accommodated the dispute by a magnificent donation of lands to the heirs of Baca, and confirmed the original land to the town; and we can easily see that Congress might have exercised its bounty to adjust a controversy to which a town was a party, when, if the contestants were individuals, they would have been remitted to the courts to litigate their rights and priorities. But however this may be, we cannot assume that Congress approved the report of the surveyor general unadvisedly, used the name of the town unadvisedly, or intended primarily some other confirmee. This interpretation of the act of Congress cannot be changed even if Las Vegas had or has "no legal or corporate existence." If the designated confirmee cannot take, another cannot be substituted in its stead. Nor do we think the capacity of the town to 3. nied to a railroad company by Ky. Const. 218, and Ky. Gen. Stat. 1894, § 820, which prohibit the companies from charging more for a shorter than for a longer haul, except by permission of the railroad commission in special cases after investigation. The guaranty of due process of law by the Federal Constitution is not violated by Ky. Const. 218, and Ky. Gen. Stat. 1894, § 820, giving a railroad commission power to make exceptions in particular cases, after investigation, from the general prohibition of greater rates for shorter than for longer hauls. Such commission is not to be deemed a mere administrative body, but it is a constitutional tribunal, the decisions of which are made conclusive, and not reviewable by the courts. 4. A railroad company accepting its charter subject to the provisions of Ky. Const. § 218, prohibiting greater charges for shorter than for longer hauls, except when permitted by the railroad commission, is as much subject to the provisions for exoneration from that prohibition as to the prohibition itself, and cannot claim that it has any implied contract exemption from these provisions by virtue of Its charter and the consequent right to charge reasonable rates for its service. 5. Any interference with interstate commerce by the enforcement of state laws prohibiting |