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3. The act of March 12, 1890, is to be construed as a continuation of the
act in force when the Garland contract was made, extending the time
in which an action to foreclose its lien should be commenced; and, as
this was done before the time came for taking proceedings to effect a
sale under the lien, it was not an alteration of the right or the remedy,
as those terms are used in the statute. Ib.
See Local Law, 1, 3.
1. A court of equity cannot properly interfere with, or in advance restrain
the discretion of a municipal body while it is in the exercise of powers
that are legislative in their character. New Orleans Water Works Co.
v. New Orleans, 471.
2. Legislatures may delegate to municipal assemblies the power of enacting
ordinances relating to local matters, and such ordinances, when legally
enacted, have the force of legislative acts. 16.
1. The provisions of $$ 96 and 98 of c. 157 of the Public Statutes of Massa-
chusetts, invalidating preferences made by insolvent debtors and as-
signments or transfers made in contemplation of insolvency, do not
conflict with the provisions contained in Rev. Stat. $$ 5136 and 5137,
relating to national banks and to mortgages of real estate made to
them in good faith by way of security for debts previously contracted,
and are valid when applied to claims of such banks against insolvent
debtors. McClellan v. Chipman, 347.
2. National Bank v. Commonwealth, 9 Wall. 353, affirmed to the point that it
is only when a state law incapacitates a national bank from discharg-
ing its duties to the government that it becomes unconstitutional: and
Davis v. Elmira Savings Bank, 161 U. S. 275, affirmed to the point
that national banks are instrumentalities of the Federal government,
created for a public purpose, and as such necessarily subject to the
paramount authority of the United States: and the two distinct propo
sitions held to be harmonious. Ib.
3. The Comptroller of the Currency may appoint a receiver of a defaulting
or insolvent national bank, or call for a ratable assessment upon the
stockholders of such bank without a previous judicial ascertainment
of the necessity for either. Bushnell v. Leland, 684.
PATENT FOR INVENTION.
Letters patent No. 331,920, issued to George W. Taft, December 8, 1885,
for a machine for making, repairing and cleaning roads, are void, if
not for anticipation, for want of invention in the patented inachine.
American Road Machine Co. v. Pennock & Sharp ('5., 26.
See CRIMINAL LAW, 6.
See RAILROAD, 1.
See JURISDICTION, B, 5; Public Moneys, 4;
Local Law, 2, 4; RECEIVER, 1.
1. The fact that a marriage license has issued carries with a pre-
sumption that all statutory prerequisites thereto have been complied
with, and one who claims to the contrary must affirmatively show the
fact. Nofire v. United States, 657.
2. Persons coming to a public office to transact business who find a person
in charge of it and transacting its business in a regular way, are not
bound to ascertain his authority to so act; but to them he is an officer
de facto, to whose acts the same validity and the same presumptions
attach as to those of an officer de jure. Ib.
PRINCIPAL AND SURETY.
A surety on a bond, conditioned for the faithful performance by the prin-
cipal obligor of his agreement to convey land to the obligee on a day
named on receiving the agreed price, is released from his liability if
the vendee fails to perform the precedent act of payment at the time
provided in the contract, and if the vendor, having then a right to
rescind and declare a forfeiture in consequence, waives that right.
Coughran v. Bigelow, 301.
1. The action of local land officers on charges of fraud in the final proof
of a preemption claim does not conclude the government, as the Gen-
eral Land Office has jurisdiction to supervise such action, or correct
any wrongs done in the entry. Orchard v. Alexander, 157 U. S. 372,
affirmed and followed to this point. Parsons v. Venzke, 89.
2. The jurisdiction of the General Land Office in this respect is not arbi-
trary or unlimited, or to be exercised without notice to the parties
interested; nor is it one beyond judicial review, under the same con-
ditions as other orders and rulings of the land department. Ib.
3. The seventh section of the act of March 3, 1891, c. 561, 26 Stat. 1098,
may have been made and certificates issued, and to which there are
no adverse claims originating prior to final entry and which have been
sold or incumbered prior to the first day of March, eighteen hundred
and eighty-eight, and after final entry, to bona fide purchasers, or in-
cumbrancers for a valuable consideration, shall, unless upon an investi-
gation by a government agent, fraud on the part of the purchaser has
been found, be confirmed and patented upon presentation of satisfac-
tory proof to the land department of such sale or incumbrance,”
refers only to existing entries, and does not reach a case like the
present, where the action of the land department in cancelling the
entry and restoring the land to the public domain took place before
the passage of the act. Ib.
4. The changes inade in the grants to Wisconsin in the act of May 5, 1864,
to aid in the construction of railroads from those made to that State
by the act of June 3, 1856, rendered necessary some modifications of
provisos 1 and 3 of g 1, and of S$ 2, 3 and 4 of the latter act, and they
were accordingly reënacted in homologous provisos and sections of the
act of 1864; but as the second proviso of § 1 and § 5 of the act of
1856 required no modification, they were not reënacted, but the terms
and conditions contained therein were carried forward by reference,
as explained in detail in the opinion of the court. Wisconsin Central
Railroad Co. v. United States, 190.
5. Doing that which it is necessary to do, in order that a newly created
land office may be in a proper and fit condition at the time appointed
for opening it for public business, is a part of the official duties of
the person who is appointed its register and receiver. United States
v. Delaney, 282.
6. The claimant having entered on the performance of such duties at a
new office in Oklahoma on the 18th of July, 1890, and having been
engaged in performing them, in the manner described by the court in
its opinion, from thence to the 1st of September following, when the
office was opened for the transaction of public business, is entitled to
compensation as register and receiver during that period. Ib.
7. As the claim of the plaintiff in error, claiming under an alleged preëmp-
tion, was passed upon by the proper officers of the land department,
originally and on appeal, and as the result of the contest was the
granting of a patent to the contestant, in order to maintain her title
she must show, either that the land department erred in the con-
struction of the law applicable to the case, or that fraud was prac-
tised upon its officers, or that they themselves were chargeable with
fraudulent practices, which she has failed to do. Gonzales v. French,
8. The claim of the plaintiff in error to a right of preëmption is fatally
defective because her vendors and predecessors in title had failed to
make or file an actual entry in the proper land office. Ib.
9. The Supreme Court of the State of Montana having decided adversely
to the plaintiff in error a claim of title to land under an act of Con-
gress, a Federal question was thereby raised. Northern Pacific Rail-
road Co. v. Colburn, 383.
10. No preëmption or homestead claim attaches to a tract of public land
until an entry in the local land office; and the ruling by the state
court that occnpation and cultivation by the claimant created a claim
exempting the occupied land from passing to the railroad company
under its land grant, is a decision on a matter of law open to review
in this court. 1b.
11. The facts found below were not of themselves sufficient to disturb the
title of the railroad company under the grant from Congress. Ib.
12. The grant of public land made to the Oregon Central Railroad Com-
pany by the act of May 4, 1870, c. 69, 16 Stat. 94, “ for the purpose of
aiding in the construction of a railroad and telegraph line from Port-
land to Astoria and from a suitable point of junction near Forest
Grove to the Yamhill River near McMinnville in the State of Ore-
gon," contemplated a main line from Portland to Astoria opening up
to settlement unoccupied and inaccessible territory and establish-
ing railroad communication between the two termini, and also the
construction of a branch road from Forrestville to McMinnville,
twenty-one miles in length, running through the heart of the Wil-
lamette Valley, and it devoted the lands north of the junction, not
absorbed by the road from Portland to that point, to the building
of the road to the north. United States v. Oregon & California Rail.
road Co., 526.
13. The construction of the branch road, though included in the act, was
subordinate and subsidiary, and this court cannot assume that if the
promoters had sought aid merely for the subordinate road, their appli-
cation would have been granted. Ib.
14. The facts that the act of 1870 grants land for the purpose of aiding in
the construction of a railroad - in the singular number — and that the
act of January 31, 1885, c. 46, 23 Stat. 296, does the same, do not affect
these conclusions. 1b.
15. In a suit by the American Emigrant Company to obtain a decree
quieting its title to certain lands in Calhoun County, Iowa, of which
the defendants have possession, the plaintiff asserted title under the
act of Congress known as the Swamp Land act of 1850, 9 Stat. 519,
c. 84; the defendants under the act of Congress of May 15, 1856, 11
Stat. 9, c. 28, granting land to Iowa to aid in the construction of rail-
roads in that State, including one from Dubuque to Sioux City. The
principal contention of the plaintiff was that the lands passed to the
State under the act of 1850, and were not embraced by the railroad
act of 1856. By an act passed, January 13, 1853, the State of Iowa
granted to the counties respectively in which the same were situated
the swamp and overflowed lands granted to the State by the Swamp
Land act of 1850. Congress, by an act approved May 15, 1856,
granted lands to Iowa to aid in the construction of certain railroads
in that State, among others a railroad from Dubuque to Sioux City.
That act excepted from its operation all lands previously reserved to
the United States by any act of Congress, or in any other manner, for
any purpose whatsoever.
The lands, interests, rights, powers and
privileges granted by the last-named act, so far as they related to the
proposed road from Dubuque to Sioux City, were transferred by the
State in 1856 to the Dubuque and Pacific Railroad Company. In the
same year, the county court of Calhoun County, Iowa, appointed an
agent to select and certify the swamp lands in that county, in accord-
ance with the above act of 1853. The lands in controversy are within
the limits of the railroad grant of May 15, 1856, and were earned by
the building of the road from Dubuque to Sioux City, if they were
subject at all to that grant. The several defendants hold by suffi-
cient conveyance all the title and interest which passed under the
railroad grant, if any title or interest thereby passed. Under date of
December 25, 1858, these with other lands were certified to the State
by the General Land Office of the United States as lands within the
place limits defined by the railroad act of 1856 of the Dubuque and
Pacific Railroad. A list of the tracts so certified to the State was
approved by the Secretary of the Interior, subject to the conditions of
the act of 1856 and to any valid interfering rights existing in any of
the tracts embraced in the list. The selection of these lands as swamp
lands by the agent of Calhoun County was reported to the county
court of that county September 30, 1858. March 27, 1860, the sur-
veyor general for the State certified these lands as swamp and over-
flowed lands, and this certificate was received in the General Land
Office March 27, 1860, and at the local land office at Des Moines,
Iowa, February 18, 1874. It did not appear that the Secretary of the
Interior ever took any action in respect to the lists made by the agent
of Calhoun County of lands selected by him as swamp lands, nor that
the State or the county, or any one claiming under the county, ever
directly sought any action by the General Land Office or by the
Secretary of the Interior in respect to such selection. December 12,
1861, a written contract was made between the county of Calhoun,
Iowa, and the American Emigrant Company in relation to the swamp
and uverflowed lands in that county. Subsequently, in 1863, the
county, although no patent had ever been issued to the State, con-
veyed to that company the lands in controversy. Held, (1) That the
Secretary of the Interior had no authority to certify lands under the
railroad act of 1856 which had been previously granted to the State
by the Swamp Land act of 1850; (2) That whether the lands in con-
troversy were swamp and overflowed lands within the meaning of the
act of 1850 was to be determined, in the first instance, by the Secre-
tary of the Interior; and that when he identified lands as embraced by
that act, and not before, the State was entitled to a patent, and on