both courts below unless clear error is shown. was brought shortly after the patents issued. Apparently Edwards himself [For other cases, see Appeal and Error, 4931- drafted the bill. The district court dis4959, in Digest Sup. Ct. 1908.] Appeal - affirmance on motion. 2. A decree of a Federal circuit court of appeals will be affirmed on motion where the case turns essentially on questions of fact, and both courts below, on a review of the evidence, have found the facts in the same way, and the record not only fails clearly to disclose error in such concurrent findings, but does not contain all the evidence, since, under these circumstances, to return the cause for oral argument in regular course would result in harmful delay, and serve no useful purpose. [For other cases, see Appeal and Error, VII. g, in Digest Sup. Ct. 1908.] [No. 495.] Submitted on motion to dismiss or affirm, December 6, 1920. Decided February 28, 1921. APPEAL from the United States Circuit Court of Appeals for the Ninth Circuit, to review a decree which, on a second appeal, affirmed a decree of the District Court for the Southern District of California, Southern Division, in favor of plaintiff in a suit to establish a trust in public land. Affirmed. See same case below on first appeal, 161 C C. A. 488, 249 Fed. 562, on second appeal, C. C. A., 265 Fed. 621. The facts are stated in the opinion. Mr. Samuel Herrick submitted the cause for appellee in support of the motion. Mr. Henry M. Willis was on the brief. Mr. Justice Van Devanter delivered the opinion of the court: This is a suit by Edwards to have Bodkin declared a trustee for him of the title to a quarter section of land in California. While the land was public, and subject to entry under the homestead law, Edwards, a qualified applicant, made a homestead entry of it, and afterwards submitted final proofs in due course. Bodkin instituted a contest against the entry, and obtained its cancelation by the Land Department. The land officers then permitted Bodkin to make a homestead entry of the tract, afterwards allowed him to relinquish that entry and make others of the same tract, under soldiers' additional rights of which he was the assignee, and finally patented the tract to him. During all these proceedings Edwards actively asserted the validity of his claim, and sought to interpose it as an obstacle to passing the title to Bodkin. This suit The missed it without leave to amend, and he appealed. The circuit court of appeals, while recognizing that the bill was somewhat inartificial, held that it contained allegations which, if true, disclosed a right to the relief sought. The decree of dismissal was accordingly reversed. 161 C. C. A. 488, 249 Fed. 562. When the case got back to the district court the form of the bill was helped by amendments, but the substance remained substantially [223] as before. Bodkin answered and the issues were tried. court found that the material allegations of the bill were true; that, in the proceedings before the Land Department, matters presented by Edwards which should have been considered were not considered, and that, in consequence, the title was passed to Bodkin when it should the latter followed and Bodkin appealed. A decree for have gone to Edwards. The circuit court of appeals affirmed this decree, and, in the course of its opinion, said: "A careful review of the testimony assures us that all material allegations of the bill of complaint have been substantiated." — C. C. A. —, 265 Fed. 621. Bodkin then took a further appeal to this court, the decision of the circuit court of appeals not being final under § 128 of the Judicial Code. The appellee, Edwards, now moves that the appeal be dismissed, or, in the alternative, that the decree be affirmed, under Rule 6, 222 U. S. p. 10, Appx., 56 L. ed. 1296, 32 Sup. Ct. Rep. v. The appellant, Bodkin, although served with the motion and supporting brief, has not presented any brief in opposition. The motion to dismiss must be denied and the one to affirm sustained. The case, as presented here, turns essentially on questions of fact. Both courts below, on a review of the evidence, have found the facts in the same way. This court, under a settled rule, accepts such concurring findings unless clear error is shown. Page v. Rogers, 211 U. S. 575, 577, 53 L. ed. 332, 333, 29 Sup. Ct. Rep. 159; Washington Securities Co. v. United States, 234 U. S. 76, 78, 58 L. ed. 1220, 1222, 34 Sup. Ct. Rep. 725; WrightBlodgett Co. v. United States, 236 U. S. 397, 402, 59 L. ed. 637, 639, 35 Sup. Ct. Rep. 339; National Bank v. Shackelford, 239 U. S. 81, 60 L. ed. 158, 36 Sup. Ct. Rep. 17. No such error is shown by the record before us. Besides, it does not contain all the evidence that was before the courts below, a part having 1. A possession which is not conscious and willing is not included and made criminal by the provisions of U. S. Crim. Code, § 169, for the punishment of anyone who, without lawful authority, shall have in his possession any die in the likeness or similitude of a die designated for making genuine coin of the United States. [For other cases, see Counterfeiting, in Digest Sup. Ct. 1908.] Counterfeiting power of Congress punishing possession of dies. 2. Making the conscious and wilful possession without lawful authority, of a die in the likeness or similitude of one used or designated for making genuine coin of the United States, a criminal offense, as was done by U. S. Crim. Code, § 169. was a valid exercise by Congress of the power conferred by the clause of U. S. Const. art. 1, § 8, investing Congress with power to coin money and regulate the value thereof, such power being in no wise limited by the following clause relating to the punishment for counterfeiting. [For other cases, see Counterfeiting, in Digest Sup. Ct. 1908.] [No. 614.] This is an appeal from an order denying a petition for a writ of habeas corpus. The petitioner was indicted under § 169 [225] of the Criminal Code, which declares that "whoever, without lawful authority, shall have in his possession" any die in the likeness or similitude of a die designated for making genuine coin of the United States, shall be punished, etc. The indictment charged that he "wilfully, knowingly," and without lawful authority, had in his possession certain dies of that description. entered a plea of guilty, and was sentenced to pay a fine and suffer a year's imprisonment. He made an explanatory statement to the effect that the dies were in some junk he had purchased, and that he did not know at the time of their presence nor of their coming into his possession; but, so far as appears, the statement was made without his being under oath, and with the purpose only of inviting a lenient sentence. He Originally the statute contained the qualifying words, "with intent to fraudulently or unlawfully use the same," February 10, 1891, chap. 127, § 1, 26 Stat. at L. 742, but they were eliminated when it was incorporated into the Criminal Code, chap. 321, § 169, 35 Stat. at L. 1088, 1120, Comp. Stat. §§ 10,165, 10,339, 7 Fed. Stat. Anno. 2d ed. pp. 396, 730. The petitioner makes two contentions. One is that the statute is repugnant to the due process of law clause of the 5th Amendment in that it makes criminal a having in possession which is neither willing nor conscious. The district court, in denying the petition, held otherwise, saying that the statute, rightly construed, means "a willing and conscious possession; and the court added: Argued January 11, 1921. Decided February "Such is the possession intended by the 28, 1921. indictment, and such is the possession, the petitioner having pleaded guilty to APPEAL from the District Court of the indictment, that he must be held to the United States for the Northern District of California to review an order denying a petition for a writ of habeas corpus. Affirmed. The facts are stated in the opinion. Mr. Levi Cooke argued the cause and filed a brief for appellant. have had. Otherwise he was not guilty. He might have pleaded not guilty, and, upon trial, shown that he did not know the dies were in his possession." We think the court was right. The statute is not intended to include and make criminal a possession which is not conscious and willing. While its words Mr. Albert E. Carter also filed a brief are general, [226] they are to be taken for appellant. Assistant Attorney General Stewart argued the cause, and, with Mr. Harry S. Ridgely, filed a brief for appellee. Mr. Justice Van Devanter delivered the opinion of the court: in a reasonable sense, and not in one which works manifest injustice or infringes constitutional safeguards. In so holding we but give effect to a cardinal rule of construction recognized in repeated decisions of this and other courts. A citation of three will illustrate our view. Final order affirmed. [228] JOHN BARTON PAYNE, Secretary of the Interior, et al., Appts., V. CENTRAL PACIFIC RAILWAY COM- In Margate Pier Co. v. Hannam, 3 Barn., guard the public against spurious, sim& Ald. 266, 270, 106 Eng. Reprint, 661, ulated, and debased coin; and (2) that Abbott, Ch. J., quoting from Lord Coke, the power of Congress in that regard is said: "Acts of Parliament are to be in no wise limited by the clause relating so construed, as no man that is in- to the punishment of counterfeiting. nocent, or free from injury or wrong, United States v. Marigold, 9 How. 560, be by a literal construction punished or 567, 568, 13 L. ed. 257, 260, 261; Legal endamaged." In United States v. Kirby, Tender Cases, 12 Wall. 457, 535, 536, 544, 7 Wall. 482, 486, 19 L. ed. 278, 280, this 545, 20 L. ed. 287, 307, 310. It hardly court said: "All laws should receive a needs statement that, in the exertion of sensible construction. General terms this power, the conscious and willing posshould be so limited in their application session, without lawful authority, of a as not to lead to injustice, oppression, die in the likeness or similitude of one or an absurd consequence. It will al- used or designated for making genuine ways, therefore, be presumed that the coin of the United States, may be made a legislature intended exceptions to its criminal offense. If this be not a neclanguage, which would avoid results of essary, it is at least an appropriate, step this character. The reason of the law in effectively suppressing and preventin such cases should prevail over its ing the making and use of illegitimate letter. The common sense of man ap- coin. proves the judgment mentioned by Puffendorf, that the Bolognian law which enacted 'that whoever drew blood in the streets should be punished with the utmost severity' did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the Statute of 1st Edward II., which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire,'for he is not to be hanged because he would not stay to be burnt."" And in United States v. Jin Fuey Moy, 241 U. S. 394, 401, 60 L. ed. 1061, 1064, 36 Sup. Ct. Rep. 658, Ann. Cas. 1917D, 854, we said: "A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score." The other contention is that the clause in the Constitution empowering Congress "to provide for the punishment of counterfeiting the securities and current coin of [227] the United States,” art. 1, § 8, cl. 6, is a limitation as well as a grant of power; that the act which the statute denounces is not counterfeiting, and therefore that Congress cannot provide for its punishment. The contention must be rejected. It rests on a misconception not only of that clause, but also of the clause investing Congress with power "to coin money" and "regulate the value thereof," art. 1, § 8, cl. 5. Both have been considered by this court, and the purport of the decisions is (1) that Congress not only may coin money in the literal sense, but also may adopt appropriate measures, including the imposition of criminal penalties, to maintain the coin in its purity, and to safe sub (See S. C. Reporter's ed. 228-238.) Public lands railroad land grants indemnity selections effect sequent executive withdrawal. 1. 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 right to a patent, could not be defeated by conditions of the grant and perfect the a subsequent temporary withdrawal for a Note.-On land grants to railroadssee note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28 L. ed. U. S. 794. On suit against Federal officers or agents as suit against United States-see notes to Louisiana v. Garfield, 53 L. ed. U. S. 92; and Wells v. Roper, 62 L. ed. U. S. 756. As to when injunction to restrain acts of public officers will be granted-see note to Mississippi v. Johnson, 18 L. ed. U. S. 437. 1 Leave granted May 17, 1920, to subPayne, present Secretary of the Interior, stitute as one of the appellants John Barton in the place of Franklin K. Lane, former Secretary thereof, on motion of Solicitor General King for appellants. water-power site under the Act of June 25, 1910, made while such selections were as yet unapproved by the Secretary of the Interior. [For other cases, see Public Lands, 125-131; 243-252, in Digest Sup. Ct. 1908.] United States immunity from suit suit against officers. 2. A suit by a railway company to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from canceling a selection of indemnity lands under a railroad land grant, which the Land Department had ordered canceled solely on the ground that the land selected had, before approval by the Secretary of the Interior, been included in a subsequent temporary executive withdrawal for a water-power site, is not one against the United States, not maintainable without its consent, but is one to restrain such officers from canceling a valid indemnity selection through a mistaken conception of their authority, and thereby casting a cloud on the plaintiff's title. For other cases, see United States, IV. b, in indemnity selection. 3. The injury to a railway company, resulting from the error of the Land Department in giving effect, as against an indemnity selection of public lands, valid when made, to a subsequent temporary executive withdrawal for a water-power site, should be redressed by the issue of an injunction directing a disposal of such indemnity selection on its merits, unaffected by the withdrawal. [For other cases, see Injunction, I. j, in Digest Sup. Ct. 1908.] [No. 17.] States are acquired under an indemnity selection list. Sioux City & St. P. R. Co. v. Chicago, M. & St. P. R. Co. 117 U. S. 406, 408, 59 L. ed. 915, 928, 6 Sup. Ct. Rep. 790; Wisconsin C. R. Co. v. Price County, 133 U. S. 496, 511, 513, 33 L. ed. 687, 694, 695, 10 Sup. Ct. Rep. 341; United States v. Missouri, K. & T. R. Co. 141 U. S. 358, 374, 375, 35 L. ed. 766, 771, 12 Sup. Ct. Rep. 13; New Orleans P. R. Co. v. Parker, 143 U. S. 42, 57, 58, 36 L. ed. 66, 70, 71, 12 Sup. Ct. Rep. 364; Osborn v. Froyseth, 216 U. S. 571, 577, 54 L. ed. 619, 623, 30 Sup. Ct. Rep. 420; Northern P. R. Co. v. McComas, 250 U. S. 387, 391, 392, 63 L. ed. 1049, 1052, 1053, 39 Sup. Ct. Rep. 546; Humbird v. Avery, 195 U. S. 480, 507, 49 L. ed. 286, 298, 25 Sup. Ct. Rep. 123; Weyerhaeuser v. Hoyt, 219 U. S. 380, 387, 388, 391, 392, 55 L. ed. 258, 261-263, 31 Sup. Ct. Rep. 300; United States v. Detroit Timber & Lumber Co. 200 U. S. 321, 334, 50 L. ed. 499, 504, 26 Sup. Ct. Rep. 282; Minneapolis, St. P. & S. Ste. M. R. Co. v. Doughty, 208 U. S. 251, 52 L. ed. 474, 28 Sup. Ct. Rep. 291; Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668; Yosemite Valley Case (Hutchings v. Low) 15 Wall. 77, 21 L. ed. 82; Shepley v. Cowan, 91 U. S. 330, 23 L. ed. 424; Russian-American Packing Co. v. United States, 199 U. S. 570, 50 L. ed. 314, 26 Sup. Ct. Rep. 157; Wagstaff v. Collins, 38 C. C. A. 19, 97 Fed. 3; Campbell v. Wade, 132 U. S. 34, 33 L. ed. 240, 10 Sup. Ct. Rep. 9; United States v. Morrison, 240 U. S. 192, 60 L. ed. 599, 36 Sup. Ct. Rep. 326; Stalker v. Oregon Short Line R. Co. 225 Argued October 6, 1920. Decided February | U. S. 142, 56 L. ed. 1027, 32 Sup. Ct. A 28, 1921. PPEAL from the Court of Appeals of the District of Columbia to review a decree which, reversing a decree of the Supreme Court of the District, directed that an injunction issue to restrain the Secretary of the Interior and the Commissioner of the General Land Office from canceling a selection of indemnity lands under a railroad land grant. Modified, and, as modified, affirmed. See same case below, 46 App. D. 374, Ann. Cas. 1918C, 1002. C. Rep. 636. The withdrawal of the lands in controversy, and their inclusion in a power-site constituted a bar to the approval of the reserve, was authorized and valid, and selection list. United States v. Midwest Oil Co. 236 U. S. 459, 59 L. ed. 673, 35 Sup. Ct. Rep. 309; Administrative Ruling in 43 Land Dec. 293. The decree below, directing an order for the issuance of patent, was erroneous, since the United States was not a party, and the effect would be to deprive the United States of the title to its lands. The facts are stated in the opinion. Assistant Attorney General Nebeker argued the cause, and, with Special Assistant to the Attorney General Under-588, 37 Sup. Ct. Rep. 348. wood, filed a brief for appellants: Louisiana v. Garfield, 211 U. S. 70, 53 L. ed. 92, 29 Sup. Ct. Rep. 31; New Mexico v. Lane, 243 U. S. 52, 61 L. ed. Until approval by the Secretary of the Interior, no rights as against the United Messrs. A. A. Hoehling and Frank Thunen argued the cause, and, with Mr. 599 The rights of a railroad grantee as to any specific tract attach, as to primary or place lands, upon the filing of a map of definite location; and as to indemnity lands, upon selection. C. F. R. Ogilby, filed a brief for appel- | Missouri, K. & T. R. Co. 141 U. S. 358, lee: 35 L. ed. 766, 12 Sup. Ct. Rep. 13; United States v. Montana Lumber & Mfg. Co. 196 U. S. 573, 49 L. ed. 604, 25 Sup. Ct. Rep. 367; United States v. Southern P. R. Co. 223 U. S. 565, 56 L. ed. 553, 32 Sup. Ct. Rep. 326; Wisconsin C. R. Co. v. Price County, 133 U. S. 511, 53 L. ed. 694, 10 Sup. Ct. Rep. 341; Weyerhaeuser v. Hoyt, 219 U. S. 380, 387, 55 L. ed. 258, 261, 31 Sup. Ct. Rep. 300. Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629, 634, 635, 28 L. ed. 1122-1124, 5 Sup. Ct. Rep. 566; Van Wyck v. Knevals, 106 U. S. 360, 366, 27 L. ed. 201, 203, 1 Sup. Ct. Rep. 336; Re Atlantic & P. R. R. Co. 6 Land Dec. 84; Barney v. Winona & St. P. R. Co. 117 U. S. 228, 232, 29 L. ed. 858, 860, 6 Sup. Ct. Rep. 654; Catholic Bishop v. Gibbon, 158 U. S. 155, 167, 39 L. ed. 931, 937, 15 Sup. Ct. Rep. 779; Cedar Rapids & M. River R. Co. v. Herring, 110 U. S. 27, 39, 28 L. ed. 56, 61, 3 Sup. Ct. Rep. 485; Clark v. Herington, 186 U. S. 206, 209, 46 L. ed. 1129, 1130, 22 Sup. Ct. Rep. 872; Dinwiddle v. Florida R. & Nav. Co. 9 Land Dec. 74; Grinnel v. Chicago, R. I. & P. R. Co. 103 U. S. 739, 742, 26 L. ed. 456, 457; Hewitt v. Schultz, 180 U. S. 139, 157, 45 L. ed. 463, 472, 21 Sup. Ct. Rep. 309; Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 112 U. S. 414, 421, 28 L. ed. 794, 797, 5 Sup. Ct. Rep. 208; Missouri, K. & T. R. Co. v. Beal, 10 Land Dec. 504; New Orleans P. R. Co. v. Parker, 143 U. S. 42, 57, 58, 36 L. ed. 66, 70, 71, 12 Sup. Ct. Rep. 356, 8 Am. Neg. Cas. 690; Ferguson v. Northern P. R. Co. 37 Land Dec. 260; Re Northern P. R. R. Co. 15 Land Dec. 8; Northern P. R. Co. v. McComas, 250 U. S. 387, 393, 63 L. ed. 1049, 1053, 39 Sup. Ct. Rep. 546; Northern P. R. Co. v. Miller, 7 Land Dec. 100; Oregon & C. R. Co. v. United States, 189 U. S. 103, 113, 47 L. ed. 726, 731, 23 Sup. Ct. Rep. 615; Osborn v. Froyseth, 216 U. S. 571, 54 L. ed. 619, 30 Sup. Ct. Rep. 420; Ryan v. Central P. R. Co. 99 U. S. 382, 386, 25 L. ed. 305; Re Santa Fe P. R. Co. 33 Land Dec. 161; Sioux City & St. P. R. Co. v. Chicago, M. & St. P. R. Co. 117 U. S. 406, 29 L. ed. 928, 6 Sup. Ct. Rep. 790; Sjoli v. Dreschel, 199 U. S. 564, 50 L. ed. 311, 26 Sup. Ct. Rep. 154; Re Southern P. R. Co. 32 Land Dec. 51; Southern P. R. Co. v. Bell, 183 U. S. 675, 682, 46 L. ed. 383, 387, 22 Sup. Ct. Rep. 232; Stalker v. Oregon Short Line R. Co. 225 U. S. 142, 56 L. ed. 1027, 32 Sup. Ct. Rep. 636; St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 119, 35 L. ed. 77, 84, 11 Sup. Ct. Rep. 389; St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 733, 28 L. ed. 872, 877, 5 Sup. Ct. Rep. 334; United States v. The rights of the railroad grantee having lawfully attached to the tracts herein in suit, no power or authority is reserved to, or vested in, the Secretary of the Interior, to devote such lands to other purposes and uses, either public or private, foreign to, and in hostility with, the grant thereof made by Congress. Burke v. Southern P. R. Co. 234 U. S. 669, 680, 58 L. ed. 1527, 1545, 34 Sup. Ct. Rep. 907; Daniels v. Wagner, 237 U. S. 547, 557, 558, 59 L. ed. 1102, 1106, 1107, L.R.A.1916A, 1116, 35 Sup. Ct. Rep. 740, Ann. Cas. 1917A, 40; Sinking Fund Cases, 99 U. S. 700, 718, 719, 25 L. ed. 496, 502; Weyerhaeuser v. Hoyt, 219 U. S. 380, 387, 55 L. ed. 258, 261, 31 Sup. Ct. Rep. 300; Wisconsin C. R. Co. v. Forsythe, 159 U. S. 46, 55, 60, 40 L. ed. 71, 74, 75, 15 Sup. Ct. Rep. 1020. Congress cannot lawfully deprive the railroad grantee of any part of its indemnity grant where the rights of such grantee have attached by lawful selection; and, furthermore, the act approved June 25, 1910, commonly referred to as the Pickett Act, has no proper application in the instant case. Bardon v. Northern P. R. Co. 145 U. S. 538, 543, 36 L. ed. 809, 810, 12 Sup. Ct. Rep. 856; Buxton v. Traver, 130 Ù. S. 232, 236, 32 L. ed. 920, 921, 9 Sup. Ct. Rep. 509; Campbell v. Wade, 132 Ù. S. 34, 38, 33 L. ed. 240, 242, 10 Sup. Ct. Rep. 9; Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668; Lake Superior Ship Canal R. & Iron Co. v. Cunningham, 155 U. S. 354, 372, 39 L. ed. 183, 189, 15 Sup. C. Rep. 103; Newhall v. Sanger, 92 U. S. 761, 763, 23 L. ed. 769, 770; Northern P. R. Co. v. Smith, 171 U. S. 260–268, 269, 43 L. ed. 157, 160-162, 18 Sup. Ct. Rep. 794; Shepley v. Cowan, 91 U. S. 330, 338, 23 L. ed. 424, 428; Wilcox v. Jackson, 13 Pet. 498, 513, 10 L. ed. 264, 272; Yosemite Valley Case (Hutchings v. Low) 15 Wall. 77, 21 L. ed. 82. The attempted inclusion of the lands here in suit in a power-site reserve, created subsequent to the indemnity selection thereof, should be treated as a nullity; and appellee is entitled to the re |