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force of an unconstitutional law, against his | ciple of general law, providing that judgment will.

Marbury v. Madison, 5 U. S. 1 Cranch, 177 (2: 73); Osborn v. Bank of United States, 22 U. 8.9 Wheat. 830 (6: 226); Vanhorne v. Dorrance, 2 U. S. 2 Dall. 308 (1: 393); Sumner v. Beeler, 50 Ind. 341.

A void law can afford no justification to any one who comes under it; and he who attempts to collect the tax under the illegal law will be a trespasser.

Woolsey v. Dodge, 6 McLean, 146; Little Rock & Ft. S. R. Co. v. Worthen, 120 U. S. 97 (30: 588); Buffington v. Day, 78 U. S. 11 Wall. 113 (20: 122); Poindexter v. Greenhow ("Virginia Coupon Cases") 114 U. S. 297 (29: 195); Dobbins v. Erie County Comrs. 41 U. S. 16 Pet. 435 (10: 1022); Hays v. Pacific Mail S. 8. Co. 58 U. S. 17 How. 597 (15: 254); Fellows v. Denniston ("The New York Indians") 72 U. S. 5 Wall. 761 (18:709); Cox v. Lott ("State Tonnage Tax Cases") 79 U. S: 12 Wall. 204 (20: 370); Low v. Austin, 80 U. S. 13 Wall. 29 (20:517); Morgan v. Parham, 83 U. S. 16 Wall. 471 (21: 303); Keith v. Clark, 97 U. S. 454 (24: 1071); Albany County Suprs. v. Stanley, 105 U. S. 305 (26: 1044).

It cannot be said that the plaintiff impliedly agreed that the state of Vermont might impose upon it an unconstitutional tax. If the decision of the Vermont court, that the act, although invalid as a regulation of commerce, would nevertheless protect the defendant, was erroneous, has this court jurisdiction to review that judgment? The statutes of the United States provide that judgments of a state court in which is drawn in question question the validity of a state statute, or the authority exercised under a state statute, upon the ground that it is repuguant to the Constitution of the United States, may be reviewed by this court. It is both the statute and the authority exercised under it which is guarded against. The objective point is the protection of the citizen from the unlawful acts of the state. It is not the enactment of an unconstitutional law, but its enforcement, that infringes the rights of the citizens, and it is the invasion of those rights which it is the duty of this court to pre

vent.

If the state court can hold that this statute is unconstitutional and nevertheless binding as a statute, and if the citizen is thereby cut off from all redress in this court, the Federal Constitution becomes a nullity.

The remedy is an essential part of the obligation. It has been repeatedly held that the legislature cannot take away nor materially change the remedy existing when a contract is entered into without impairing its obligation. When this contract was made the plaintiff could enforce the payment of its stipulated rent. Under the decision of the Vermont court that right is absolutely taken away. That decision must be reviewable here.

Gunn v. Barry, 82 U. S. 15 Wall. 610 (21: 212); White v. Hart, 80 U. S. 13 Wall. 646 (20: 685); United States v. Quincy, 71 U. S. 4 Wall. 535 (18: 403); Edwards v. Kearzey, 96 U. S. 595 (24: 793); Louisiana v. Pilsbury, 105 U. S. 278 (26: 1090).

The state court cannot escape this power of review by resting its judgment upon some prin

gives effect to the statute drawn in question. Proprietors of Passaic & H. River Bridgesv. Hoboken Land & Imp. Co. 68 U. S. 1 Wall. 116 (17: 571); Jefferson Branch Bank v. Skelly, 66 U. S. 1 Black, 436 (17: 173); Delmas v. Merchants' Mut. Ins. Co. 81 U. S. 14 Wall. 661 (20: 757); Northwestern University v. People, 99 U. S. 309 (25: 387); New Jersey v. Wright ("Given v. Wright") 117 U. S. 648 (29: 1021).

The case at bar should be carefully distinguished from those in which the state court puts its decision upon an independent ground. By independent ground is meant some ground apart from the statute, upon which the case may have been decided without any reference to the statute. If the judgment of the state court necessarily gives effect to the statute, a Federal question is presented.

Lehigh Water Co. v. Easton, 121 U. S. 388 (30: 1059); Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 579 (28: 1084, 1086); Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46, 51 (31:683, 685).

Messrs. E. J. Phelps and B. F. Fifield, for defendant in error:

The case presents no Federal question.

Taxes on the property of the Rutland in the occupation of the Central as lessee belonged to the Rutland to pay, no provision to the contrary being contained in the lease. Such is the general rule of law.

Taylor, Landlord & Tenant, § 341.

Many cases have been cited by the plaintiff in error to prove that an unconstitutional law affords no assistance to those who seek to justify under it an act otherwise wrongful, or to enforce a claim having no other foundation, Authority in support of this axiom is unnecessary. Its truth is not denied.

But two conditions that attend every unconstitutional law are equally clear: (1) That it is void only as against those whose legal rights are affected by it and who alone are entitled to be heard against it. (2.) That if any party so affected chooses to waive the objection, it is lost, and the law becomes obligatory upon him.

Such a statute is therefore not void, as is sometimes loosely said, but voidable, and, like all other voidable obligations, is affirmed by the consent or acquiescence of the party who has the right to avoid it.

Re Wellington, 16 Pick. 96, 26 Am. Dec.631. A party who has assented to his property being taken under a statute cannot afterwards object that the statute is in violation of a provision of the Constitution designed for the protection of private property. The statute is assumed to be valid until some one complains whose rights it invades.

Cooley, Const. Lim. chap. 7, § 3. *164. Money paid as taxes under an unconstitutional law cannot be recovered back, though paid in ignorance of the unconstitutionality. Cooley, Taxn. 566, and cases cited. A party is estopped from repudiating on any ground a course of dealing in which he has acquiesced, especially if he has taken the benefit of it, although in the outset he might have been entitled to object. Silence where a party ought to speak is a waiver of the right that should have been made known.

Morgan v. Chicago & A. R. Co. 96 U. S. 716 (24:743); Kirk v. Hamilton, 102 U. S. 70 (26: 83); Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Dickerson v. Colgrove, 100 U. S. 578 (25: 618); Philadelphia, W. & B. R. Co. v. Dubois, 79 U. S. 12 Wall. 64 (20: 269); Leather Manufacturers Nat. Bank v. Morgan, 117 U. S. 96 (29: 811).

Olcott Fonddu Lac County Suprs. 83 U. S. 16 Wall. 678 (21: 382).

If a contract when made was valid under the Constitution and laws of a state, as they had been previously expounded by its judicial tribunals, and as they were understood at the time, no subsequent action by the legislature or the judiciary will be regarded by this court as establishing its invalidity.

The Central as agent of the Rutland in paying the taxes in question was guilty of no breach of duty that would deprive it of the right to charge the payments to its principal, Kenosha v. Lamson. 76 U. S. 9 Wall. 477 even assuming the taxes paid to have been (19: 725); Delmas v. Merchants Mut Ins. Co. 81 illegal, and that the illegality had not been U. S. 14 Wall. 661 (20:757); Thompson v. waived. Nor was the Central company Perrine, 103 U. S. 806 (26: 612); Burgess v. guilty of any negligence in failing to discover Seligman, 107 U. S. 20 (27: 359). the invalidity of the taxes, if they were in- When the constitutionality of a statute is

valid. As the law stood under the decisions of this court until after the taxes now in dis pute were paid, their constitutionality was established by the final authority-the Supreme Court of the United States.

Philadelphia & R. R. Co. v. Pennsylvania ("State Freight Tax") 82 U. S. 15 Wall. 232 (21: 146); Minot v. Philadelphia, W. & B. R. Co. ("Delaware R. Tax") 85 U. S. 18 Wall. 206 (21: 888).

It was not until the case of Philadelphia & S. M. S. S. Co. v. Pennsylvania, 122 U. S. 326 (30: 1200), 1 Inters. Com. Rep. 308, decided in May, 1887, and reported some months later, overruling the decision to the contrary in the case of the State Freight Tax, that such taxes as these are now assumed to be were declared unconstitutional.

Had the Central brought a bill to enjoin the collection of this tax, it would have been dismissed at the threshold, upon that ground. The Rutland company alone could have raised the question.

Waite v. Dowley, 94 U. S. 527 (24: 181). To give this court jurisdiction of a writ of error from a state court, it must affirmatively appear that the state court rested the judgment complained of wholly upon the decision of the Federal question, and that such a decision was necessary to the determination of the case.

Cook County v. Calumet & C. Canal & D. Co. 138 U. S. 635 (34: 1110); Hammond v. Johnston, 142 U. S. 73 (35: 941); Beaupré v. Noyes, 138 U. S. 401 (34: 992); Eustis v. Bolles, 150 U. S. 361 (37: 1111); Moore v. Mississippi, 88 U. S. 21 Wall. 636 (22: 653); State v. Louisiana Board of Liquidation, 98 U. S. 141 (25: 115); New Orleans v. New Orleans Water Works Co. 142 U. S. 84 (35: 944); Brown v. Atwell, 92 U. S. 327 (23: 511); DeSaussure v. Gaillard, 127 U. S. 216 (32: 125).

The state court correctly held that the rights of the parties in respect to the payments now in question are to be determined by the law as it stood when those payments were made, under the statute of Vermont and the previous decisions of this court on the subject, and that the taxes so paid are, as between these parties and for the purposes of this case, to be regarded as valid.

Gelpcke v. Dubuque, 68 U. S. 1 Wall. 175 (17: 520); Havemeyer v. Iowa County Suprs. 70 U. S. 3 Wall. 294 (18:38): Douglass v. Pike County, 101 U. S. 677 (25: 968); Pleasant Twp. v. Ætna L. Ins. Co. 138 U. S. 71 (34: 866); Taylor Ypsilanti, 105 U. S. 60 (26: 1008);

brought in question collaterally or incidentally, and not between the authority seeking to en force the statute and the party whose rights are affected by it, the objection will not be considered.

Waite v. Dowley, 94 U. S. 527 (24: 181); Com. v. Philadelphia, 27 Pa. 497; People v. Salomon, 54 Ill. 46.

The decision of the supreme court of Vermont that the 14th section of the statute in question is valid was right, and, whether right or not, is immaterial here.

A state in the legitimate exercise of its taxing power may require its citizens who are lessees or custodians of property in the state belonging to other citizens, to withhold from the money derived from it and payable to its owners, the amount of the tax assessed upon it against the owners, and to pay the tax to the state.

First Nat. Bank v. Kentucky, 76 U. S. 9 Wall. 353 (19: 701); Lionberger v. Rouse, 76 U. S. 9 Wall. 468 (19: 721); Bells Gap R. Co. v. Pennsylvania, 134 U. S. 232 (33: 892); Jennings v. Coal Ridge Imp. & C. Co. 147 U. S. 147 (37:116); New York, L. E. & W. R. Co. v. Pennsylvania, 153 U. S. 628 (38: 846).

Such a law impairs no obligation of the contract between the owners and the lessees, because all contracts are subject to the taxing power of the state, and such is therefore their implied obligation.

Osborn v. Nicholson, 80 U. S. 13 Wall. 660 (20:695); New York v. Cook, 148 U. S. 397 (37: 498); West River Bridge Co. v. Dix, 47 U. S. 6 How. 532 (12: 545); Charles River Bridge Proprs v. Warren Bridge Proprs. 36 U. S. 11 Pet. 420 (9:773).

If these taxes are found to be valid, and the decision of the supreme court of Vermont on this point to be therefore erroneous, the whole case of the plaintiff in error falls to the ground, and the judgment of the Vermont court being, in that view, unquestionably right, though based upon wrong reasons, will be affirmed.

Doe, Brobst, v. Roe (“Brobst v. Brock") 77 U. S. 10 Wall. 519 (19: 1002); Barth v. Clise, 79 U. S. 12 Wall. 400 (20: 393); First Nat. Bank v. Home Sav. Bank, 88 U. S. 21 Wall. 294 (22: 560).

Mr. Justice Gray delivered the opinion of the court:

It was hardly denied at the bar that the first writ of error was prematurely sued out before a final decree had been entered. But it is unnecessary to dwell upon that, because, in other respects, the questions arising upon the two writs of error are identical.

The decree below, as appears by the mandate of the supreme court of Vermont, and still more clearly by its opinion, made part of the record, and reported in 63 Vt. 1, 10 L. R. A. 562, 3 Inters. Com. Rep. 488, did not proceed exclusively on the decision of a Federal question, but also upon grounds of general law.

The conclusion of that court, following the decision of this court in Philadelphia & S. M. S. S. Co. v. Pennsylvania, 122 U. S. 326 [30: 1200], 1 Inters. Com. Rep. 308, that the statute of Vermont of 1882, so far as it sought to tax the earnings derived from interstate commerce, was unconstitutional, was in favor of the Rut639]land Railroad *Company, and therefore cannot be questioned on a writ of error sued out by that company.

The court did declare that the provision of the statute, which requires the lessce to pay the tax and deduct the amount from the rent, does not impair the obligation of a contract, because both railroad companies, as well as the rent due from the one to the other, were proper subjects for taxation under the laws of Vermont, and the method to be adopted for the collection of the tax was purely a question of legislative discretion.

But the decision of this part of the case (the only part decided against the plaintiff in error) was not put upon that consideration alone. On the contrary, the court went on to say: "But it by no means follows, because the de fendant has paid to the state taxes, under a law afterwards held to be void, by withholding the amount thereof from the rent, that the Rutland Company can now claim the balance of the rent for this reason." And this proposition was rested on several distinct grounds.

The first of those grounds, as summed up by the state court, was as follows: "Down to May 27, 1887, the date on which the decision in Philadelphia & S. M. S. S. Co. v. Pennsyl rania, 122 U. S. 326 [30: 1200], 1 Inters. Com. Rep. 308, was promulgated, the doctrine of the cases decided by the supreme court upheld the constitutionality of the taxation in question. Philadelphia & R. R. Co. v. Pennsylvania ("State Tax on Railway Gross Receipts") 82 U. S. 15 Wall. 284 [21: 164]; Minot v. Philadelphia, W. & B. R. Co. ("Delaware R. Tax") 85 U. S. 18 Wall. 206 [21:888]. The Supreme Court of the United States is the supreme arbiter when a Federal question is involved. Down to 1887 that court had ruled the Federal question now under consideration in a way that upheld the legislation in question. I.ts decisions then promulgated were the supreme law of the land, absolutely binding upon both parties to this cause. Hence all payments of taxes, made under our law, which down to that time must be treated as valid for present purposes, were made in strict conformity to law. The subsequent change in the decisions of the United States Supreme Court is only operative prospectively, and all acts done in obedience to the former decisions are valid and cannot be disturbed."

640]*But the conclusion that "the defendants are not liable to pay as rent the amount paid by

them as taxes upon the earnings of the Rutland Road" was also put upon other grounds, namely, that the taxes upon the earnings of the Rutland Railroad were taxes which, as between the Rutland Company and the Central Vermont Company, it was the duty of the Rutland Company to pay; that, the lease being g silent, the duty to pay, under the common law, rested upon the lessor; that this question bad been decided in the former suit between the parties; that by the statute of 1882 the thing taxed was the property of the Rutland Company, and the Central Vermont Company was but the collector of the tax; that the Central Vermont Company having been compelled by law to make the payments to discharge an obli. gation of another, the law implied a promise to repay, and the Central Vermont Company would have an action to recover the amount from the Rutland Company, and a court of equity would avoid circuity of action; that the Rutland Company, in its treasurer's letter of September 19, 1883, bad simply objected that the tax was invalid, and had made no suggestion that the statute was unconstitutional, and no offer to indemnify the Central Vermont Company, and the latter could not, in prudence, do otherwise than pay the taxes, and was under no duty to incur the expense and assume the perils of delay and of litigation to test the constitutionalty of the statute; and that the Rutland Company, in a court of equity, could not have relief for what, as between the parties, itself should have done, and what, by its own laches, it bad suffered to be done, professedly in its behalf, by the Central Vermont Company.

These grounds involved no Federal question, and were broad enough to support the judgment, without regard to the question whether the provision of the statute, under which the Central Vermont Company paid the taxes and deducted them from the rent, was or was not constitutional.

Such being the case, the conclusion is inevitable that the court has no jurisdiction to review the decision of the state court.

It is well settled, by a long series of decisions of this court, *that where the highest court [641 of a state, in rendering judgment, decides a Federal question, and also decides against the plaintiff in error upon an independent ground not involved in a Federal question, and broad enough to support the judgment, the writ of error will be dismissed without considering the Federal question. Murdock v. Memphis, 87 U. S. 20 Wall. 590 [22:429]; Jenkins v. Loewerthal, 110 U. S. 222 [28:129]; Beaupré v. Noyes, 138 U. S. 397 [34:991]; Walter A. Wood Могоing & R. Mach. Co. v. Skinner, 139 U. S. 293 [35: 193]; Hammond v. Johnston, 142 U. S. 73 [35: 941]; Tyler v. Cass County, 142 U. S. 288 [35: 1010]; Delaware City S. & P. S. B. Nav. Co. v. Reybold, 142 U. S. 636 [35:1141]; Eustis v. Bolles, 150 U. S. 361 [37:1111], in the last two of which many other cases to the same effect are cited.

In Williams v. Weaver, the court of appeals of New York held that assessors of taxes were not personally liable in damages to the owner of national bank shares alleged to have been taxed in violation of a statute of the United

States. 75 N. Y. 30. A writ of error to review the judgment was dismissed by this court because, as was said by Mr. Justice Miller in delivering the opinion, "If the defendants, in assessing property for taxation, incur no personal liability for any error they may commit, the fact that the error committed is a misconstruction of an act of Congress can make no difference." 100 U. S. 547 [25: 708].

JAMES STEWART, Piff. in Err., [643

υ.

DANIEL S. C. MCHARRY.

(See S. C. Reporter's ed. 643-650.)

In Young v. American S. S. Co. 105 U. S. 41 [26: 966], it was held, in an opinion delivered by Mr. Justice Field, that the question whether fees exacted in violation of a statute of the United States, and paid without objection, could be recovered back, was not a Federal question, the decision of which by the highest court of a state could be reviewed by this court on writ of error.

V.

Rockne

In Tyler v. Cass County, above cited, an action was brought against a county to recover back money paid at a sale for taxes of lands alleged to be subject to a lien of the United States, and therefore exempt from taxation. The supreme court of North Dakota-while holding that, in view of the decision of this court in Northern P. R. Co. ("Northern P. R. Co. v. Traill County") 115 U. S. 600 [29:477], the lands were not taxable, and nothing passed by the sale-gave judg 642 ment for the defendant. *1 N. D. 369. In support of a writ of error sued out by the plaintiff from this court, it was argued that the assessor had no jurisdiction to decide whether the lands in question were or were not taxable; and that the state court, in holding that the act of the assessor, in assessing the lands against private parties in possession, though they in fact belong to the United States, would not be without jurisdiction, decided against immunity from the jurisdiction of the assessor. But this court dismissed the writ of error, and, speaking by the Chief Justice, said: "The question arising for determination in the state court was whether the money which had been paid by the purchaser of the lands at the tax sale could be recovered back, either at common law or under the Dakota statute in their behalf. The ground upon which the tax title was held to have failed was that the United States had a lien upon the lands, and that, therefore, they could not, under the laws of the United States, be sold for taxes; but that fact did not impress with a Federal character the inquiry as to the right of recovery." 142 U. S. 290 [35: 1017].

That case cannot be distinguished in princi ple from the case at bar. In this case, as in that, it was argued that the state court, while it declared the statute to be unconstitutional, yet by its decision gave effect to the unconstitutional statute. But in each case the decision of the Federal question was not an essential element in determining whether the plaintiff was entitled to recover against the defendant. Writs of error dismissed for want of jurisdiction.

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N ERROR to

IN

the Supreme Court of the State

of California, to review a judgment of that court affirming the judgment of the Superior Court of the County of Contra Costa, California, sustaining a demurrer to the cross-complaint and adjudging that the plaintiff, Daniel S. C. McHarry, do recover from the defendant, James Stewart, certain land situated in said county. Affirmed..

See same case below, 35 Pac. Rep. 141.
The facts are stated in the opinion.
Messrs. E. W. McGraw and Theodore

Wagner for plaintiff in error.
Messrs. Charles E. Wilson and W. S.
Wells for defendant in error.

Mr. Justice Field delivered the opinion of the court:

This case comes before us on error to the supreme court of California. The action was ejectment, commenced in July, 1891, to recover possession of certain parcels of land situated in the county of Contra Costa, in that state.

The plaintiff in the court below, defendant in error here, alleges in his complaint that ou the 26th of February of that year he was the owner in fee and entitled to the possession of certain parcels of land, described as lots Nos. 2 and 3 of section No. 22, and lot No. 1, and the northeast quarter of the northeast quarter of section No. 27, in township No. 2 north, of range No. 3 west, Mount Diablo base and meridian, according to the official survey of the government of the United States.

That while he was such owner, and thus seised and entitled to the possession of the premises, the defendant, on the day mentioned, without right or title, entered upon the premises and ejected him therefrom, and ever since has withheld, and still unlawfully withholds, the possession thereof, to the damage of plaintiff of $1,000.

That the value of the rents, issues, and profits of the premises from the entry stated and while the plaintiff has been excluded therefrom is $50.

The plaintiff, therefore, prays judgment against the defendant for the possession of the premises and the recovery of the sum of $1,000 for withholding the same, and the sum of $50 for the value of its rents and profits, and for such other and further relief as to the court may seem meet and proper.

The defendant in his amended answer denies generally and specifically each of its allegations, except that he is and has been in the posAnd in his answer, treated as a cross-complaint, the defendant makes certain allegations as to the acquisition and possession of other property, upon which he asserts a right to enter the tract in controversy as an adjoining farm homestead, averring that on the 2d day of October, 1882, he became the owner and went into the actual possession of a tract of land situate in the county of Contra Costa, be ing a portion of the land which was awarded to one James McClellan, under partition of a certain rancho entitled Pinole Rancho in which he was interested, as it was surveyed and patented by the United States, and which portion Getta Stewart, his wife, acquired from him.

session of the premises, which he admits, and of a family, or who has arrived at the age of 645]* claims that he is the owner thereof and twenty-one years, and is a citizen of the United entitled to their possession. And he denies that States, or who has filed his declaration of inthe plaintiff, by reason of the defendant's posses-tention to become such, as required by the sion, has been damaged in the sum of $1,000, for in any other sum.

That the portion thus acquired, a tract of land containing about sixty (60) acres, was, on

naturalization laws, shall be entitled to enter one quarter section or a less quantity of unappropriated public lands, upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre emption at one dollar and twenty-five cents per acre; or eighty acres or less of such unappropriated lands, at two dollars and fifty cents per acre, to be located in a body, in conformity to the legal subdivisions of the public lands, and after the same have been surveyed. And every person owning and residing on land may, under the provisions of this section, enter other land lying contiguous to his land, which shall not, with the land so already owned and occupied, exceed, in the aggregate, one hundred and sixty acres.

"Sec. 2290. The person applying for the benefit of the preceding section shall, upon

October 2, 1882, conveyed to the cross-com-application to the register of the land office in

plainant by deed executed and acknowledged by her. And he alleges that in the month of Marca, 1876, he went into actual possession of certain public lands of the United States situate in the county of Contra Costa, embracing a portion of the property for which this action is brought, containing, according to the public surveys, seventy (70) acres and twenty-five (25) hundredths of an acre, and that he has, from that date, remained in the actual possession thereof, and used and cultivated the same, and that the public lands adjoin the land conveyed to him by Getta Stewart, and were reserved from settlement under the United States laws, on account of unsettled Spanish and Mexican land grants, until the 16th of April, 1883, when the boundaries of the Rancho El Sobrante, of which they were a part, were finally settled.

That on the 10th day of December, 1883, the survey of the public lands was approved by the United States surveyor general of California, and the map of the township was filed in the United States land office of California.

That the cross-complainant, in the month of March, 1876, and on the 16th day of April, 646]1883, and since those periods, and on the 10th day of December, 1883, and thereafter, resided upon the land acquired by him from Getta Stewart.

That on the 10th of December, 1883, and since the month of March, 1876, he was the head of a family, and was then of the age of forty-nine years, and was, at the dates mentioned, a naturalized citizen of the United States; and was on the 2d day of October, 1882, and thereafter, on the 10th day of December, 1883, and since, the owner of and in the actual and peaceable possession of the land conveyed to him by Getta Stewart.

That on December 10, 1883, he appeared in person at the United States land office at San Francisco, state of California, and applied to the register to enter as an adjoining farm homestead under the provisions of sections 2289 and 2290 of the Revised Statutes of the United States, the public land above referred to as in bis possession. The sections of the Revised Statutes referred to are as follows:

**Sec. 2289. Every person who is the head

which he is about to make such entry, make affidavit before the register or receiver that he is the *head of a family, or is twenty-one years [647 or more of age, or has performed service in the army or navy of the United States, and that such application is made for his exclusive use and benefit, and that his entry is made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use or benefit of any other person; and upon filing such affidavit with the register or receiver on payment of five dollars when the entry is of not more than eighty acres, and on payment of ten dollars when the entry is for more than eighty acres, he shall thereupon be permitted to enter the amount of land specified."

That in compliance with the sections of the Revised Statutes, and on December 10, 1883, the cross-complainant made affidavit before the register of the United States land office at San Francisco, California, that he was then the head of a family, and of the age of fifty-six years, and a naturalized citizen of the United States, and that the application was for his exclusive use and benefit; that the entry of the land was made for the purpose of actual settlement and cultivation, and not either directly or indirectly for the use and benefit of any other person, and that the land was not mineral land, and that he was the owner of adjoining land upon which he was then residing, and the amount of land applied for would not, with the land already owned by him, exceed in the aggregate one hundred and sixty acres.

That he paid the fees and commissions required by law and demanded by the land officers, and thereupon was permitted to enter the land as an adjoining farm homestead, and that the receiver of the land office gave to him a receipt therefor.

He further alleges that on the 13th of December, 1883, the plaintiff in the action, McHarry, filed a pre-emption declaratory statement in the United States land office at San Francisco, alleging settlement on the 19th of January, 1876, upon a tract of land described substantial. ly as the premises for which recovery is sought in the present action, and gave notice that he claimed a pre-emption right to the land.

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