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it contains other than mailable matter, it the Act of August 24, 1912, § 4, providing is the plain intention of Congress that it that "when, after a weighing of the mails shall no longer be carried as second-class for the purpose of readjusting the compenmail. United States ex rel. Milwaukee So-sation for their transportation on a railcial Democratic Pub. Co. v. Burleson, 255 road route, mails are diverted therefrom or U. S. 407, 41 Sup. Ct. Rep. 352, 65: 704 thereto, the Postmaster General may, in his 4. Authority to revoke the second-class discretion, ascertain the effect of such dimail privileges of a newspaper which, con- version by a weighing of such mails for trary to the Espionage Act of June 15, 1917, such number of successive working days as systematically contained false reports and he may determine, and have the weights false statements, published with intent to stated and verified to him as in other cases, interfere with the success of the military and readjust the compensation on the routes operations of the Federal government, to affected accordingly: Provided, That no promote the success of its enemies, and to readjustment shall be made unless the obstruct its recruiting and enlistment serv- diverted mails equal at least 10 per centum ice, was conferred upon the Postmaster of the average daily weight on any of the General, not merely as to a single issue routes affected." This is not a recurrence of such paper, but until a proper applica- to the quadrennial weighing for ninety tion and showing shall be made for a re- days, but a limited investigation for a limnewal of such privilege, by the provision ited purpose. Missouri, K. & T. R. Co. v. of title 12 of that act that any newspaper United States, 256 U. S. 610, 41 Sup. Ct. published in violation of any of its terms Rep. 617, 65: 1118 shall be "nonmailable," and shall not be "conveyed in the mails or delivered from any postoffice or by any letter carrier," when read in connection with the declaration of U. S. Rev. Stat. § 396, that it is the duty of the Postmaster General to superintend regularly all the business of the Postoflice Department, and to execute all laws relating to the postal service, and with the Federal legislation classifying the mails, which deals only with "mailable matter." United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U. S. 407, 41 Sup. Ct. Rep. 352, 65: 704 Compensation for carrying mails. Recovery back of money paid under mistake, see Assumpsit.

7. The result of the last general weighing is accepted by the Act of August 24, 1912, § 4, as a near enough basis for the 10 per cent test created by the provisions of that section that "when, after a weighing of the mails for the purpose of readjusting the compensation for their transportation on a railroad route, mails are diverted therefrom or thereto, the Postmaster General may, in his discretion, ascertain the effect of such diversion by a weighing of such mails for such number of successive working days as he may determine, and have the weights stated and verified to him as in other cases, and readjust the compensation on the routes affected accordingly: Provided, That no readjustment shall be made unless the diverted mails equal at least 10 per centum of the average daily weight on any of the routes affected." Missouri, K. & T. R. Co. v. United States, 256 U. S. 610, 41 Sup. Ct. Rep. 617, 65: 1118

5. An arrangement between the Postmaster General and a railway company whereby compensation for carrying the mails for four years was fixed "unless otherwise ordered" at certain sums, with express notice that the railway company 8. A readjustment in respect of past would be "subject to all the postal laws and services in carrying the mails must be regulations which are now or may become deemed to have been contemplated by the applicable during the term of the service," provision of the Act of August 24, 1912, § is not a contract which could not be affect- 4, that "when, after a weighing of the mails ed by the subsequent enactment of the Act for the purpose of readjusting the compenof August 24, 1912, § 4, under which "when, sation for their transportation on a railafter a weighing of the mails for the pur-road route, mails are diverted therefrom or pose of readjusting the compensation for their transportation on a railroad route, mails are diverted therefrom or thereto, the Postmaster General may, in his discretion, ascertain the effect of such diversion by a weighing of such mails for such number of successive working days as he may determine, and have the weights stated and verified to him as in other cases, and readjust the compensation on the routes affected accordingly." and the railway company cannot discontinue an important item of the services upon which the compensation was computed and still demand the same pay. Missouri, K. & T. R. Co. v. United States, 256 U. S. 610, 41 Sup. Ct. Rep. 617, 65: 1118

6. The effect of a diversion of the mails may be ascertained by a weighing of the diverted mails for such number of days as the Postmaster General may direct under

thereto, the Postmaster General may, in his
discretion, ascertain the effect of such di-
version by a weighing of such mails for
such number of successive working days as
he may determine and have the weights
stated and verified to him as in other cases,
and readjust the compensation on the routes
affected accordingly: Provided, That no
readjustment shall be made unless the di-
verted mails equal at least 10 per centum
of the average daily weight on any of the
routes affected," since the act was not ap-
proved until August 24, 1912, and allowed
a readjustment from the first day of the
previous July. Missouri, K. & T. R. Co. v.
United States, 256 U. S. 610, 41 Sup. Ct.
Rep. 617,
65: 1118

9. Only where the diverted mails do not equal 10 per cent of the average daily weight upon any, i. e.. some one, of the

routes on a given railway, is a readjustment denied by the Act of August 24, 1912, § 4, which provides that "when, after a weighing of the mails for the purpose of readjusting the compensation for their transportation on a railroad route, mails are diverted therefrom or thereto, the Postmaster General may, in his discretion, ascertain the effect of such diversion by a weighing of such mails for such number of successive working days as he may determine, and have the weights stated and verified to him as in other cases, and readjust the compensation on the routes affected accordingly: Provided, That no readjustment shall be made unless the diverted mails equal at least 10 per centum of the average daily weight on any of the routes affected." Missouri, K. & T.. R. Co. v. United States, 256 U. S. 610, 41 Sup. Ct. Rep. 617,

POWERS.

65: 1118

Estate tax on testamentary execution of power of appointment, see Internal Revenue, 20.

1. The existence of a power of appointment does not, in itself, vest any estate in the donee. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617

2. Where the donee of a power of ap pointment dies indebted, having executed the power in favor of volunteers, the appointed property is treated as equitable, not legal, assets of his estate, and, in the absence of statute, if it passes to the executor at all, it does so, not by virtue of his office, but as a matter of convenience, and because he represents the rights of creditors. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617

3. Creditors of the donee of a power of appointment can lay claim to the appointed estate, where the power is executed, only to the extent that the donee's own estate is insufficient to satisfy their demands. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617

4. In the absence of statute, creditors of the donee of a power of appointment have no redress in case of a failure to execute the power. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617 5. Whether a power of appointment be or be not exercised, the property that was subject to appointment is not subject to distribution as part of the estate of the donee. If there be no appointment, it goes according to the disposition of the donor. If there be an appointment to volunteers, then, subject to whatever charge creditors may have against it, it goes not to the next of kin or the legatees of the donee, but to his appointees under the power. United States v. Field, 255 U. S. 257, 41 Sup. Ct. Rep. 256, 65: 617 PREJUDICE.

Of judge, see Judges.
PRESIDENT.

Authority over court-martial,
Courts-Martial, 1, 4.

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Of claim of Federal receiver, see Receivers, 2.

PRIVATE LAND CLAIMS.

1. The United States, as successor in interest to the Mexican government, acquired no right to use, without compensation, for national defense or security, the land embraced in a Mexican grant giving the grantee the right to inclose the land "without prejudice to the crossings, roads, and servitudes," merely because the grant was under a Mexican law of August 18, 1824, by the 5th section of which "if, for the defense or security of the nation, the Federal government should find it expedient to make use of any portion of these lands for the purpose of constructing warehouses, arsenals, or other public edifices, it may do so, with the approbation of the general Congress, or during its recess with that of the government council," since it is hardly credible that this section should have been intended to reserve the right to displace private owners, and wholly incredible that it reserves the right to do so without compensation,-especially in view of the fact that, by a law of April 6, 1830, the value of lands taken for fortification, etc., is to be credited to the states. United States v. Coronado Beach Co. 255 U. S. 472, 41 Sup. Ct. Rep. 378, 65: 736

2. Jurisdiction of a Federal district court to confirm a Mexican grant with boundaries including tidelands was not lost merely because California, in which the lands are situated, became a state before the decree was rendered, since the title of the state to submerged lands was subject to prior Mexican grants, and whether there see was such a prior grant, and what were its boundaries, were questions to be decided in

the proceedings for confirmation, and there, was jurisdiction to decide them as well if the decision was wrong as if it was right. The title of California was in abeyance until those issues were determined, as the decree related back to the date of the orig

inal grant. United States v. Coronado Beach Co. 255 U. S. 472, 41 Sup. Ct. Rep. 378, 65: 736

3. A decree of a Federal district court confirming a Mexican grant with boundaries including tidelands, followed by the issuance of a patent covering such lands, is conclusive against the United States on the question whether the grant included such lands, and neither the decree nor the patent may be collaterally attacked. Unit

ed States v. Coronado Beach Co. 255 U. S. 472, 41 Sup. Ct. Rep. 378,

65: 736

PRIVILEGES AND IMMUNITIES. Abridgment of, see Constitutional Law, III.

PROCESS.

See Writ and Process.

PROFITEERING.

Appellate jurisdiction in suit under
Lever Act, see Appeal and Error, 9.
Validity of Lever Act, see Criminal
Law, 2, 3.

1. The price at which a commodity is sold is comprehended by the provision of the Lever Act of August 10, 1917, § 4, as re-enacted by the Act of October 22, 1919, § 2, making it unlawful for any person wilfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries, or to conspire to exact excessive prices for any necessaries. United States v. L. Cohen Grocery Co. 255 U. S. 81, 41 Sup. Ct. Rep. 298, 65: 516 Tedrow v. A. T. Lewis & Son Dry Goods Co. 255 U. S. 98, 41 Sup. Ct. Rep. 303,

65: 524 Kinnane v. Detroit Creamery Co. 255 U. S. 102, 41 Sup. Ct. Rep. 304, 65: 531 C. A. Weed & Co. v. Lockwood, 255 U. S. 104, 41 Sup. Ct. Rep. 305, 65: 532 G. S. Willard Co. v. Palmer, 255 U. S. 106, 41 Sup. Ct. Rep. 305, 65: 534 Oglesby Grocery Co. v. United States, 255 U. S. 108, 41 Sup. Ct. Rep. 306, 65: 535 2. The exaction of excessive prices upon the sale of necessaries, contrary to the provisions of the Lever Act of August 10, 1917, § 4, as re-enacted in the Act of October 22, 1919, § 2, was, where such sale was subsequent to the latter act, penalized by the provision of the re-enacted section, making violations of any of the provisions of such section punishable by fine or imprisonment, although the section, before its re-enactment, contained no penalty. United States v. L. Cohen Grocery Co. 255 U. S. 81, 41 Sup. Ct. Rep. 298, 65: 516 Tedrow v. A. T. Lewis & Son Dry Goods Co. 255 U. S. 98, 41 Sup. Ct. Rep. 303,

Kinnane v. Detroit Creamery Co. 255 U. S. 102, 41 Sup. Ct. Rep. 304, 65: 531 255 U. S. 65: 532

C. A. Weed & Co. v. Lockwood, 104, 41 Sup. Ct. Rep. 305,

G. S. Willard Co. v. Palmer, 255 U. S. 106, 41 Sup. Ct. Rep. 305, 65: 534 Oglesby Grocery Co. v. United States, 255 U. S. 108, 41 Sup. Ct. Rep. 306, 65: 535

PROHIBITION.

Court.

1. Power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction is, by the Judicial Code, § 234, specifically conferred on the Federal Supreme 41 Sup. Ct. Rep. 588, Ex parte New York, 256 U. S. 490, 65: 1057 2. Neither prohibition nor mandamus will issue to prevent a Federal district court from exercising further jurisdiction, and to compel it to undo what has been done in a suit in admiralty in which the question of the jurisdiction of that court is an open one and of uncertain solution. Re Hussein Lufti Bey, 256 U. S. 616, 41 Sup. Ct. Rep. 609, 65: 1122

3. Prohibition or mandamus will not Issue to prevent a Federal district court to compel it to undo what has been done, in from exercising further jurisdiction, and a suit in admiralty against a British steamship privately owned, in which a mere suggestion, unsupported by proof, was presented on behalf of the British Embassy by private counsel appearing as amici curiæ, that the vessel libeled was in the public service and under the control of the British government as an admiralty transport, where the suit is still in the interlocutory stage, and the status of the vessel is at best doubtful and uncertain, both as matter of fact and in point of law. Re Muir, 254 U. S. 522, 41 Sup. Ct. Rep. 185,

65: 383

4. A writ of prohibition to prevent a lower court from wrongfully assuming jurisdiction of a party, of a cause, or of some collateral matter arising therein, will ordinarily be granted to one who at the outset objected to the jurisdiction, has preserved his rights by appropriate procedure, and has no other remedy, but if the jurisdiction of the lower court is doubtful, or depends upon a finding of fact made upon evidence which is not in the record, or if the complaining party has an adequate remedy by appeal or otherwise, the writ will ordinarily be denied. Re Chicago, R. I. & P. R. Co. 255 U. S. 273, 41 Sup. Ct. Rep. 288,

65: 631

5. Neither prohibition nor mandamus will be granted by the Federal Supreme Court to prevent a district court from as. suming jurisdiction of the person of a nonresident corporation against which a personal liability is asserted in a cross bill filed in a suit for the appointment of a receiver of another corporation in default on its bonds, after the nonresident corporation appeared before a special master for the purpose of protecting its interest in 65: 524 such bonds, where the most that can be said

against the district court's jurisdiction is
that it is in doubt, the return reciting that
the order which declared that such nonresi-
dent corporation became a party rests upon
evidence which has not been embodied in
the record, and the district court obviously
having jurisdiction to determine in the first
instance whether such corporation had en-
tered a general appearance, and to deter-
mine whether the relief sought in the cross
bill was in its nature germane to the pro-
ceedings theretofore instituted in the suit,
so that the rights asserted in the cross bill
could be properly litigated in that suit, and
to determine whether the fact that such
carlier proceeding had been instituted on
behalf of such corporation, and that it had
actively participated in the conduct thereof,
and to that end had entered a general ap-
pearance, made it subject to further pro-
ceedings thereon by way of cross bill as
fully as if the earlier action had been taken
in its name as well as on its behalf.
Re
Chicago, R. I. & P. R. Co. 255 U. S. 273,
41 Sup. Ct. Rep. 288,
65: 631

6. The fact that the objection to the jurisdiction of the court below might be raised by appeal from the final decree is not, in all cases, a valid objection to the issuance of a writ of prohibition by the Federal Supreme Court at the outset, where a court of admiralty assumes to take cognizance of matters over which it has no lawful jurisdiction. Ex parte New York, 256 U. S. 490, 41 Sup. Ct. Rep. 588,

PROPERTY.

65: 1057

grounds are subject, in Oklahoma, to spe-
cial assessment for betterments from a
street improvement, notwithstanding a pos-
sible right of reverter in the Creek Nation.
Choctaw, O. & G. R. Co. v. Mackey, 256 U.
S. 531, 41 Sup. Ct. Rep. 582, 65: 1076
3. Mere insufficiency of description or
other irregularity in a proceeding for a
special assessment for a street improvement
would not, in Oklahoma, entitle abutting
owners to have the assessment declared
void, but their rights, under Okla. Laws
1907-8, § 728, would be limited to having a
reassessment made, conforming to the stat-
utory regulations. Choctaw, O. & G. R. Co.
v. Mackey, 256 U. S. 531, 41 Sup. Ct. Rep.
582,
65: 1076

PUBLIC LANDS.

Taking by condemnation proceedings,
see Eminent Domain, 2.
Indian allotments, see Indians, 5-21.
Limitation of suit to cancel patents,
see Limitation of Actions.
Mandamus to Land Department, see
Mandamus, 5-7.

Mines on, see Mines.

Private land claims, see Private Land
Claims.

done all that is required under the law to
1. A claimant to public land who has
perfect his claim acquires rights against
the government, and his right to a legal
title is to be determined as of that time, on
the theory that, by virtue of his compliance
with the requirements, he has an equitable
title to the land and that the government
holds it in trust for him. Payne v. New

Guaranty of right to, see Constitution- Mexico, 255 U. S. 367, 41 Sup. Ct. Rep. 333,

al Law, IV.

PROXIMATE CAUSE.

Of defect in safety appliance, see
Master and Servant, 7.

PUBLIC CONTRACTS.

Enjoining performance of municipal
contract, see Injunction, 3.
See also Public Improvements; United
States, 6-17.

PUBLIC IMPROVEMENTS.

Discrimination in, see Constitutional
Law, 14, 15.

Due process of law in, see Constitu-
tional Law, 51, 52.

1. The right of way and station grounds of a railroad in Oklahoma, which were granted by Congress, and which, through leasing, have become an integral part of through lines of a great railroad system, are not exempt from special assessment for a local improvement on the theory that, because among the public served by the railroad are some mines on land leased from the Choctaw Nation, such railroad is an instrumentality of the Federal government. Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531, 41 Sup. Ct. Rep. 582,

65: 680

2. The long-continued, practical construction by the Land Department of the provision of the Act of May 14, 1880, that "in all cases where any person has contested, paid the land office fees, and procured the cancelation of any pre-emption, homestead, or timber-culture entry, he shall be the district in which such land is situated notified by the register of the land office of of such cancelation, and shall be allowed thirty days from date of such notice to enter said lands," as giving a successful contestant, when, at the date of the notice, the is not open to entry, thirty days after the land, by reason of an existing withdrawal, land is restored to entry within which to exercise his preferred right of entry,-will not be disturbed by the courts. McLaren v. Fleischer, 256 U. S. 477, 41 Sup. Ct. Rep. 577, 65: 1052 Culpepper v. Ocheltree, 256 U. S. 483, 41 Sup. Ct. Rep. 579, 65: 1054 Railroad land grants.

Rates of land-grant railroads, see Carriers, 19-22.

Enjoining action of Land Department,

see Injunction, 13.

3. The only exception to the general rule that the time as of which the character of public land-whether mineral or non2. A railway right of way and station mineral-is to be determined is that when

65: 1076

selection was made is confined to railroad, Secretary of the Interior, and having comland grants. Wyoming v. United States. plied with the terms of such proposal, ac255 U. S. 489, 41 Sup. Ct. Rep. 393, 65: 742 quired a vested right in the selected lieu 4. The designation by section number, land which the officers of the Land Departtownship, and range, of a section of unsur-ment could not lawfully cancel or disregard veyed public land selected by a railway merely because the base tract-the one to company under the Act of March 2, 1899, which the right was waived-had, subsein lieu of land to be relinquished to the quent to such selection, been eliminated United States, describes the land with rea- from the reservation by a change in its sonable certainty, although it is 7 miles boundaries. Payne v. New Mexico, 255 U. from any known survey, if it may readily S. 367, 41 Sup. Ct. Rep. 333, 65: 680 be located from such survey. Edward Rutledge Timber Co. v. Farrell, 255 U. S. 268, 41 Sup. Ct. Rep. 328. 65: 623 5. The mere filing by the state of Idaho, under the Act of August 18, 1894, of an application for a survey, did not so far withdraw the lands from the public domain as to make ineffective a selection by a railway company under the Act of March 2, 1899, in lieu of lands relinquished to the United States,-especially where, if valid for any purpose, the application merely gave an option to select which was never exerted. Edward Rutledge Timber Co. v. Farrell, 255 U. S. 268, 41 Sup. Ct. Rep. 328, 65: 623

6. Indemnity selections under a railroad land grant, made in full compliance with the directions promulgated by the Secretary of the Interior, of lands subject to such selection, and based on actual loss within place limits adequate to sustain them, the railroad having been constructed and equipped as required by the granting act, and nothing remaining to be done by the grantee or its successor to fulfil the conditions of the grant and perfect the right to a patent, could not be defeated by a subsequent temporary withdrawal for a water-power site under the Act of June 25, 1910, made while such selections were as yet unapproved by the Secretary of the Interior. Payne v. Central P. R. Co. 255 U. S. 228, 41 Sup. Ct. Rep. 314, 65: 598

7. The temporary Executive withdrawal before survey, for possible addition to an existing forest reserve, of lands within the indemnity limits of the land grant to the Northern Pacific Railroad Company, made by the Act of July 2, 1864, as modified and supplemented by the Joint Resolution of May 31, 1870, could not cut off the railroad company's right, earned by the construction of the road, to select such lands as indemnity, where the losses in the place limits at the time of such withdrawal exceeded the available lands in the indemnity limits, and the company's purpose to claim the latter was asserted at the earliest opportunity. United States v. Northern P. R. Co. 256 U. S. 51, 41 Sup. Ct. Rep. 439, 65: 825 School grant.

9. A state, having accepted the proposal of Congress that, if any designated sections of public land passing under the school-land grant to the state should be included within a public reservation, it might waive its right to them, and select instead other vacant, unappropriated, nonmineral public land of equal acreage, under the direction of the Secretary of the Interior, and having complied with the terms of proposal, became invested with the equitable title to the selected land, and the Secretary of the Interior and the Commissioner of the General Land Office could not disapprove and reject such selection on the ground that the selected land was, two years later, included in a temporary executive withdrawal as possible oil land, under the Act of June 25, 1910, and still later was discovered to be mineral land, that is, to be valuable for oil. The validity of the selection must be determined according to the conditions as of the time when the waiver and selection were made. Wyoming v. United States, 255 U. S. 489, 41 Sup. Ct. Rep. 393, 65: 742

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PUBLIC UTILITIES COMMISSION. Exhausting remedy before, as condition precedent to suit, see Carriers, 17: Discrimination in rate-making order, see Constitutional Law, 27.

8. A state having accepted the proposal by Congress that, if any designated sections of public land passing under the schoolland grant to the state should be included A formal complaint and hearing before within a public reservation, the state might the commission are not conditions precedent waive its right to them and select instead to a suit in equity, brought under the Act other land of equal acreage, under the direc- of March 4, 1913, § 8, 64, by a person tion and subject to the approval of the interested and dissatisfied with rate-making

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