that. At any rate, if it did so it would violate no provision of the Federal Constitution, and whether it did so or not was a matter to be determined finally by the supreme court of the state. These being the only matters presented, and in them appearing no error, the judgment of the supreme court of the state will be affirmed. With respect to the next inquiry, it is true there | charge it with back taxes, while at the same is a difference in the mode of assessment. Sec- time, by reason of the stationary character of tion 113 authorizes the county auditor to make real estate, it might elect to proceed against the assessment, while as to property generally the assessment is made by the county assessor. The latter also acts upon actual view (§ 33), while there is in section 113 no such direction to the county auditor. The assessment made by the assessor comes before a town board of review (§ 39), and subsequently before a county board of equalization. § 44. Neither of these provisions is found in section 113. So that the difference between the two modes of assessment may be stated thus: In the one case there is an assessment by one officer, with a right to review his action; in the other, there is an assessment by a different officer, and no provision for a review except as the matter comes before the court in the proceedings for the collection of taxes. But there is nothing in this difference to affect the constitutional rights of a party. The legislature may authorize different modes of assessment for different properties, providing the rule of assessment is the Cincinnati, N. O. & T. P. R. Co. v. Kentucky ("Kentucky R. Tax Cases") 115 U. S. 321, 337 [29: 414, 419]; Pittsburg, C. C. & St. L. R. Co. v. Backus, 154 U. S. 421 [38: 1031]. same. One other suggestion is made by counsel for the plaintiff in error. Section 113 contemplates the assessment and taxation of both real and personal property. It is claimed that the taxation of personal property is manifestly void because, even under the general tax law, there is no pro539] vision for notice to the owner of the property before the charge is fixed upon him, and that it cannot be assumed that the legislature would attempt to provide for the taxing of real property which had escaped taxation in prior years without also providing for a like taxation of personal property, and hence that the whole section must fail. The supreme court of the state was of opinion that even if the tax on personal property was not collectible under the general provisions of the tax law for the reason claimed, yet there was, at least, a valid tax which, in the absence of any law providing another method, might be enforced by any ordi. nary personal action. It seems to us, also, that the assumption that it cannot be believed that the legislature would never seek to provide for the collection of back taxes on real property without at the same time including therein a like provision for collecting back taxes on personal property, cannot be sustained. The case is different from that of an ordinary tax law in which there may be some foundation for the claim that the legislature is expected to make no discrimination, and would not attempt to provide for the collection of taxes on one kind of property without also making provision for collection of taxes on all other property equally subject to taxation. For this statute rests on the assumption that, generally speaking, all property subject to taxation has been reached, and aims only to provide for those accidents which may happen under any system of taxation, in consequence of • which here and there some item of property has escaped its proper burden; and it may well be that the legislature in view of the probabilities of changes in the title or situs of personal property might deem it unwise to attempt to WINONA & ST. PETER LAND [540 0. STATE OF MINNESOTA (No. 2). (See S. C. Reporter's ed. 540, 541.) Where the Federal questions sought to be raised in [No. 38.] errог. Messrs H. W. Childs, Attorney General of Minnesota, and George B. Edgerton, for defendant in error. Mr. John Lind, for defendant in error, filed a brief on behalf of Brown county. Mr. Justice Brewer delivered the opinion of the court: This case is similar to the one between the same parties just decided, in that the questions presented to the state courts involved the taxability of lands included in the legislative grants of May 22, 1857, and March 10, 1862, the Barney contract of October 31, 1867, and the decree in the United States circuit court of March 7, 1887. The tax proceedings were under the law of 1881, but were had in the county of Brown instead of the county of Redwood. The case, however, differs from the preceding, in that the Federal questions sought to be raised in this court were not seasonably NOTE. As to jurisdiction of Federal over state courts; necessity of Federal question; what constitutes Federal question, -see note to Hamblin v. Western Land Co. 37: 267. As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state Constitution; to revise decrees of state courts as to construction of state laws, see notes to Hart v. Lamphire, 7: 679, and Commercial Bank of Cincin nati v. Buckingham, 12: 169. As to jurisdiction in the United States Supreme Court where Federal question arises, or where are drawn in question statutes, treaty, or Constitution, see notes to Martin v. Hunter, 4:97; Mathews v. Zane, 2: 654; and Williams v. Norris, 6: 571. presented in the state courts. The alleged im- | Statement by Mr. Chief Justice Fuller: munity from taxation and lack of due process of law were not "specially set up or claimed" prior to the decision in the Supreme Court. The failure so to do prevents this court, as has been frequently held, from acquiring jurisdiction. Ex parte Spies, 123 U. S. 131, 181 [31:80, 91]; 541]* Brooks v. Missouri, 124 U. S. 394 [31: 454]; Chappell v. Bradshaw, 128 U. S. 132 [32: 2691; Brown v. Massachusetts, 144 U. S. 573 [36: 546); Schuyler Nat. Bank v. Bollong, 150 U. 8.85 [37:1008]; Powell v. Brunswick County Suprs. 150 U. S. 433 [37:1134]; Miller v. Texas, 153 U. S. 535 [38: 812]; Morrison v. Watson, 154 U. S. 111 [38: 927]; Sayward v. Denny, 158 U. 8. 180 [39: 941]. The writ of error must therefore be dismissed for want of jurisdiction. CHARLES A. WEEKS, Plf. in Err., 0. COLEMAN BRIDGMAN. (See S. C. Reporter's ed. 541-548). Land grant to Minnesota-right of pre-emptor-certificate of land department-objections to pre-emption claim. 1. Under the grant by Congress to Minnesota, of 1867, of lands to aid in the construction of railreads, lands to which pre-emption rights had attached when the line of the railroad was definitely fixed, were excepted therefrom; and this is so as to applications for pre-emption rejected by the local land office and pending on appeal in the land department at the time of definite location. 2. When a pre-emptor has the right to make entry, and applies to the local land officers, and they refuse to recognize his right, it will be deemed to date from the time of his application. 8. Where land is not included in a railroad grant or subject to disposition as part of the public domain, the action of the land department in including it within the lists of lands certified as granted to a state for railroad purposes is inef fectual. As to pre-emption rights, see note to United States v. Fitzgerald, 10: 785. As to errors in surveys and descriptions in patents for lands, how construed, see note to Watts v. Lind say, 5: 423. This was an action brought by Charles A. Weeks against Coleman Bridgman in the district court for the seventh judicial district of Minnesota under a statute of that state to determine adverse claims to vacant and unocсиpied real estate. Judgment having been rendered for plaintiff, the cause was taken to the supreme court of Minnesota on appeal. the judgment reversed, and the cause remanded. 41 Minn.352. The cause was again tried in thedistrict court by the court, a jury having been expressly waived, and judgment entered for defendant, which, on a second appeal, was affirmed. *46 Minn. 390. To this judg- [542 ment the pending writ of error was allowed. The facts were in substance as follows: By Act of Congress of March 3, 1857 (11 Stat. at L. 195), there was granted "to the territory of Minnesota, for the purpose of aiding in the construction of railroads, from Stillwater, by way of Saint Paul and Saint Anthony, to a point between the foot of Big Stone Lake and the mouth of Sioux Wood river, with a branch via Saint Cloud and Crow Wing, to the navigable waters of the Red River of the North, at such point as the legislature of said territory may determine; every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said road and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of preemption has attached to the same, then it shall be lawful for any agent, or agents, to be appointed by the governor of said territory or future state, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as shall be equal to such lands as the United States bave sold, or otherwise appropriated, or to which the rights of pre-emption have attached, as aforesaid; which lands (thus selected in lieu of those sold and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the territory or future state of Minnesota for the use and purpose aforesaid." The Minnesota & Pacific Railroad Company was organized as a railroad corporation under and pursuant to an act of the legislature of the territory, now state, of Minnesota, approved May 22, 1857. The St. Paul & Pacific Railroad Company was organized in conformity to an act of the legislature of the state, approved March 10, 1862, and, under and by virtue of that act, became the owner of all the lines of *railroad formerly owned by the Minne-[543 sota & Pacific Railroad Company, and also of the lands granted to the territory, now state, of Minnesota, to aid in the construction of the branch line of railroad from St. Anthony northward to St. Cloud, under the Act of Congress of March 3, 1857. On February 6, 1864, the First Division of the St. Paul & Pacific railroad was organized for railroad purposes, which organization was confirmed by act of the legislature of the state, approved February 6, 1866, and said First Division succeeded to all the rights, privileges, and lands possessed or granted to the Minnesota & Pacific Railroad Company or to the St. Paul & Pacific Railroad Company, as its successor, in any way pertain ing to the branch line. The line of the branch railroad was definitely fixed, and a map thereof filed with the Secretary of the Interior, December 30, 1857, and the land in controversy is part of an odd section within six miles of said branch line, being section 13, township 124 N., range 28 W. This section was certified to the state of Minnesota by the Secretary of the Interior, October 25, 1864, as a part of the land granted by the Act of Congress of March 3, 1857. The branch line of railroad was constructed from St. Anthony to St. Cloud, opposite the land in controversy, during September, 1866, and plaintiff in error had acquired all the right and title to the land described in the complaint that was ever possessed by the territory or state of Minnesota, or the First Division of the St. Paul & Pacific Railroad Company. George F. Brott on September 9, 1855, entered into a contract with the United States to carry the mail from Minneapolis to supply the offices at St. Cloud, Monticello, and Dayton. This route was about sixty-five miles in length, and the contract said: "The route from Minneapolis by Dayton to Monticello and St. Cloud aforesaid is to be deemed and considered a post road during the continuance of this contract." By Act of Congress of March 3, 1855 (10 Stat. at L. 683, 684), it was provided that "each contractor engaged, or to be engaged in carrying mails through any of the territories 544] *west of the Mississippi shall have the privilege of occupying stations at the rate of not more than one for every twenty miles of the route on which he carries the mail, and shall have a pre-emptive right therein, when the same shall be brought into market, to the extent of six hundred and forty acres to be taken contiguously, and to include his improvement." As mail contractor, Brott, in 1855, selected for and built and established his mail station upon section 13, which station consisted of stable and building for the use of his teams and carriages, and maintained the same throughout the term of his mail contract. Brott's route terminated at St. Cloud, and no mail was carried west from there under the United States government until the latter part of the year 1856, or some time in 1857. August 7, 1857, Brott made application to the United States land office at St. Cloud to file a pre-emptory declaratory statement for the southwest quarter of the northwest quarter of said section 13, township 124, range 28, which embraced the land in controversy, with other lands, claiming the right to pre empt the same, as a mail contractor, under the Act of March 3, 1855. This application was by the decision of the local land officers rejected, and from such decision Brott appealed to the Commissioner of the General Land Office, by whom the decision of the local land officers was sustained. Brott thereupon appealed to the Secretary of the Interior, who reversed the Commissioner's decision, on August 30, 1861, and held that Brott should be permitted to enter the tracts mentioned in his application upon the production of proof of the performance of his mail contract and of the occupation of the stations, and upon compliance with the laws and regulations in other respects applicable to the case. On May 26, 1860, Congress passed an act entitled "An Act for the Relief of George F. Brott," providing (12 Stat. at L. 843): "That George F. Brott be, and he is hereby, authorized to enter the following described lands, to wit: [omitting description which includes that in dispute] in the district of lands subject to sale at the land office at St. Cloud, Minnesota; said tracts containing five hundred and sixty-two and twenty-hundredths *acres, upon the payment by the said [545 Brott of the usual minimum of one dollar and twenty-five cents per acre therefor: Provided, That said entry shall in nowise interfere with or embrace any land to which there is a valid subsisting claim under the pre-emption laws of the United States; and the Commissioner of the General Land Office is directed to issue a patent on said entry." No further effort was made by Brott to enter the land simply as such mail contractor, but the entry of the same was thereafter made by him under and in pursuance of the Act of Congress passed for his relief, he paying for the land the sum specified. In July, 1871, a patent for the land issued from the e United States to Brott in the usual form, except that it was stated therein that the land had been certified to the state of Minnesota for railroad purposes by mistake. The defendant at the time of the commencement of the action had and was seised of all the right and title to the lots in controversy that Brott ever had or possessed under his patent, and claimed his right to such title under and by virtue of mesne conveyances duly made, executed, and delivered by and through Brott and his grantees and duly recorded. Mr. M. D. Grover for plaintiff in error. No counsel for defendant in error. Mr. Chief Justice Fuller delivered the opinion of the court: The line of the road was definitely fixed December 30, 1857; the lands within the place limits then subject to the grant were thereby segregated from the public domain; and the grant took effect thereon. But under the granting act, lands to which pre-emption rights had attached, when the line was definitely fixed, were as much excepted therefrom as if in a deed they had been excluded by the terms of the conveyance. And this was true in respect of applications for pre-emption rejected *by the local land office and pending an [546 appeal in the land department at the time of definite location since the initiation of the inchoate right to the land would prevent the passage of title by the grant, and the determination of its final destination would rest with the government and the claimant. Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629 [28: 1122]; Hastings & D. R. Co. v. Whitney, 132 U. S. 357 [33: 363]; Bardon v. Northern P. R. Co. 145 U. S. 535 [36:806]; Ard v. Brandon, 156 U. S. 537 [39: 524]; Whitney v. Taylor, 158 U. S. 85 [39: 906]. things are wholly void and without force and effect as to all persons and for all purposes, and incapable of being made otherwise. Things are voidable which are valid and effectual until they are avoided by some act; while things are often said to be void which are without validity until confirmed. 8 Bac. Abr. Void and Voidable; Ercell v. Daggs, 108 U. S. 143 [27: 632]; Ex parte Lange, 85 U. S. 18 Wall. 163 Brott selected certain lands, including this in dispute, for and built and established his mail stations thereon in 1855 and maintained the same during the term of his mail contract; and filed his application to enter these lands, as a mail contractor under the Act of March 3, 1855, in the local land office August 11, 1857. The application was rejected by the local land officers, and Brott appealed to the Commissioner of the General Land Office, and from his de[21: 872]; State v. Richmond, 26 N. Η. 232; cision to the Secretary of the Interior, who reversed the rulings of the land officers and of the Commissioner, and held Brott entitled to pre empt the stations occupied. He was indeed required to produce proof of the performance of his mail contract and of the occupation of the lands as stations, and he actually entered them in pursuance of the Act of Congress for his relief, but in Ard v. Brandon, supra, it was held that when a pre-emptor has the right to make entry, and applies to the local land officers and they refuse to recognize his right, it will be deemed to date from the time of his app'ication, and this notwithstanding he pro ceeds to obtain title in some other way. The conclusion follows that Brott's pre-emption claim must be regarded as having attached prior to the definite location, December 30, 1857, and that the title did not pass under the congressional grant to the state. But it is contended that as on October 25, Anderson v. Roberts, 18 Johns. 513, 9 Am. As against Brott the certification had no operative effect. It is also objected that Brott was not a qualified claimant under the act of 1855, because that act only applied to a contractor engaged in 'carrying the mail through any of the [548 *territories west of the Mississippi, and because it does not appear that his declaratory statement was ever accepted or recognized, or that he made proof of his occupation of the land as a mail station, but these and other like objections involve questions between Brott and the government, already determined in his favor, and which the railroad company and its grantees are not in a position to raise upon this record. Judgment affirmed. and Appellant, AMERICAN BELL TELEPHONE COM- 1864, the Secretary of the Interior included UNITED STATES of America, Complainant section 13 in the list of lands certified to the state of Minnesota under the Act of August 3, 1854 (10 Stat. at L. 346), as a part of the lands granted by the Act of March 3, 1857, that certification was an adjudication that the land in que tion had not been previously disposed of. and that no pre emption right had attached 547 thereto, and passed the *legal title, whatever Brott's equitable right might be; and that while the certification might be voidable, it was (See S. C. Reporter's ed. 548-555). Jurisdiction of the United States Supreme Court -construction of statute. not absolutely void. The act of August 3, 1854, 1. The Supreme Court of the United States has provided that where lands had been or should be thereafter granted to the several states and territories, and the law did not convey the feesimple title of such lands or require patents to be issued therefor, the lists of such lands which had been or might th thereafter be certified, "shall be regarded as conveying the fee simple of all the lands embraced in such lists that are of the character contemplated by such Act of Congress, and intended to be granted thereby; but where lands embraced in such lists are not of the character embraced by such acts of Congress, and are not intended to be granted thereby, said list, so far as these lands are con cerned, shall be perfectly null and void, and no right, title, claim, or interest shall be conveyed thereby." As we have seen, this particular land was not included in the grant, and the Secretary of the Interior had so decided on August 30, 1861, when he determined that the pre-emption right had attached. And since it was not so included nor subject to disposition as part of the public domain, on October 25, 1864, the action of the land department in including it within the lists certified on that day was ineffectual. Noble v. Union River Logging R. Co. 147 U. S. 165, 174 [37:123, 126]. The distinction between void and voidable acts need not be discussed. It is rarely that jurisdiction, on appeal from the circuit court of appeals, of a suit by the United States to cancel a patent for an invention; it is not a case "arising under the patent laws" in which the judg. ment or decree of the circuit court of appeals is final under the Act of March 3, 1891. 2. The operation of a statute claimed to restrict appellate jurisdiction must be restrained within narrower limits than its words import, if the court is satisfled that the literal meaning of its language would extend to cases which the leg is. lature never intended to include in it. [No. 745.] Submitted Oct. 28, 1895. Decided Nov. 11,1895. APPEAL from a decree of the United States Circuit Court of Appeals for the First Circuit reversing a decree of the circuit court and dismissing a suit brought by the United NOTE. As to jurisdiction in the United States Supreme Court where Federal question arises, or where are drawn in question statutes, treaty, or Constitu tion, see notes to Martin v. Hunter, 4: 97: Matthews v. Zane, 2: 654; and Williams v. Norris, 6: 571. As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state Constitution; to revise decrees of state courts as to construction of state laws, -see notes to Hart v. Lamp hire, 7: 679, and Commercial Bank of Cincinnati v. Buckingham, 12: 169. States to cancel a patent for an invention granted to the American Bell Telephone Company as assignee of the inventor, Emile Berliner. On motion to dismiss. Motion denied. See same case below, 65 Fed. Rep. 86, 68 Fed Rep. 542. The facts are stated in the opinion. Messrs. James J. Storrow and Frederick P. Fish for appellees, in favor of motion to dismiss. Messrs. Richard N. Olney, Attorney General, Causten Browne, and R. S. Taylor for appellant, in opposition to motion. 549] *Mr. Chief Justice Fuller delivered the opinion of the court: This is a suit by the United States to cancel a patent for an invention granted to the American Bell Telephone Company as assignee of the inventor, Emile Berliner. On a hearing in the circuit court there was a finding and decree for the complainant. 65 Fed. Rep. 86. The cause having been taken to the Circuit Court of Appeals for the First Circuit, the decree of the circuit court was reversed, and it was ordered that the bill be dismissed. 68 Fed. Rep. 542. From this decree an appeal was taken by the United States to this court, which appellees now move to dismiss "for want of jurisdiction in this court to entertain in under the Circuit Court of Appeals Act of March 3, 1891, chap. 517 (26 Stat. at L. 828) for the reason that the case is a case arising under the patent laws." The Supreme Court has appellate jurisdiction, under the Constitution, in all cases to which the judicial power extends (other than those in respect of which it has original jurisdiction), "with such exceptions and under such regulations as the Corgress shall make." It was early held that in the passage of the Judiciary Act of 1789, Congress was executing the power of making exceptions to the exercise of appellate jurisdiction, and that the affirma tive description of the cases to which the appellate power extended was to be understood as implying a negative on the exercise of such appellate power as was not comprehended within it, but that as this restriction rested on nplication founded on the manifest intent of the legislature, it could be sustained only when that manifest intent appeared. Durousseau v. United States, 10 U. S. 6 Cranch, 307 [3: 232]. Where the appellate jurisdiction is described in general terms so as to comprehend the par ticular case, no presumption can be indulged of an intention to oust or to restrict such juris diction; and any statute claimed to have that effect must be examined in the light of the objects of the enactment, the purposes it is to serve, and the mischiefs it is to remedy, bear ing in mind the rule that the operation of such a statute must be restrained within narrower 550 limits than its words *import, if the court is satisfied that the literal meaning of its lan guage would extend to cases which the legis lature never intended to include in it. Petri v. Commercial Nat. Bank, 142 U. S. 644, 650 [35: 1144, 1146]; Brewer v. Blougher, 39 U. S. 14 Pet. 178 [10: 408]; Reiche v. Smythe, 80 U. S. 13 Wall. 162, 164 [20: 566, 567); Washington Market Co. v. Hoffman, 101 U. S. 112 [25: 782]. We inquire then whether the appellate ju risdiction of this court over controversies to which the United States are parties has been circumscribed by Congress in respect to the right of appeal. By section 629 of the Revised Statutes, or iginal jurisdiction was conferred upon the circuit courts (with a limitation as to the value of the matter in dispute) of all suits in equity and all suits at common law where the United States are petitioners or plaintiffs; all suits at law or in equity, arising under any Act providing for revenue from imports or tonnage; all causes arising under any law providing internal revenue; all causes arising under the postal laws; and all suits at law or in equity arising under the patent or copyright laws of the United States. By the fifth paragraph of section 711, the jurisdiction of the courts of the United States of all cases "arising under the patent right or copyright laws of the United States" was declared to be exclusive. By the Act of March 3, 1875 (18 Stat. at L. 470), it was provided: "The circuit courts of the United States shall have original cognizance, concurrent with the courts of the sev eral states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners;" and this was repeated in substance, the differences being immaterial here, in the acts of March 3, 1887 (24 Stat. at L. 552) and August. 13, 1888 (25 Stat. at L. 433). And this court had appellate jurisdiction over all final judgments and decrees of any circuit court or of any district court acting as a circuit court, in civil actions *where [551 the matter in dispute exceeded the sum or value of five thousand dollars. Rev. Stat. §§ 690692; 18 Stat. at L. 315. The primary object of the Act of March 3, 1891, chap 517, as stated in American Const. Co. v. Jacksonville, T. & K. W. R. Co. 148 U. S. 372, 382 [37: 486, 490], "well known as a matter of public history, manifest on the face of the Act, and judicially declared in the leading cases under it, was to relieve this court of the over burden of cases and controversies, arising from the rapid growth of the country, and the steady increase of litigation; and, for the accomplishment of this object, to transfer a large part of its appellate jurisdiction to the circuit courts of appeals thereby established in each judicial circuit, and to distribute between this court and those, according to the scheme of the Act, the entire appellate jurisdiction from the circuit and district courts of the United States." By section five of this Act, appeals or writs of error may be taken from the circuit court directly to this court in six specified classes of cases: where the jurisdiction of the court be low is in issue; in prize causes; in cases of convictions of capital or otherwise infamous crimes; in cases involving the construction or application of the Constitution of the United States; in cases in which the constitutionality of any law of the United States, or the validity |