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ON

N WRIT of Certiorari to the United States Circuit Court of Appeals for the Second Circuit to review a decree which affirmed a decree of the District Court for the Southern District of New York, staying execution of process in a suit in rem in admiralty against a ship upon the suggestion of a foreign Ambassador that such ship was owned by his government, and, at the time of arrest, was in its possession. Decree of Circuit Court of Appeals vacated, with directions to dismiss the appeal from the District Court.

See same case below, 170 C. C. A. 345, 259 Fed. 369.

The facts are stated in the opinion. Messrs. Oscar R. Houston and Harold V. Amberg argued the cause, and, with Mr. D. Roger Englar, filed a brief for petitioner.

For their contentions see their brief as reported in The Pesaro, ante, 592.

Mr. Van Vechten Veeder argued the cause and filed a brief for respondent: The suggestion was properly presented. The Anne, 3 Wheat. 435, 445, 4 L. ed. 428, 430; The Sapphire, 11 Wall, 164, 20 L. ed. 127; The Maipo, 252 Fed. 627; Wadsworth v. The Queen of Spain, 17 Q. B. 171, 117 Eng. Reprint, 1246; The Constitution, L. R. 4 Prob. Div. 39, 48 L. J. Prob. N. S. 13, 40 L. T. N. S. 219, 27 Week. Rep. 739; The Crimdon, 35 Times L. R. 81; The Roseric, 254 Fed. 154; The Adriatic, 253 Fed. 489; Long v. The Tampico, 16 Fed. 491.

Mr. Justice Van Devanter delivered the opinion of the court:

This case is much like that of The Pesaro, 255 U. S. 216, ante, 592, 41 Sup. Ct. Rep. 308. The only difference requiring notice is that the appeal in that case was to this court, while in this it was to the circuit court of appeals, which rendered a decree of affirmance.

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libellant.

From that decree an appeal did not lie to the circuit court of appeals, but only to this court. Such is the effect of the statute, Judicial Code, §§ 128, 238, defining and regulating the appellate jurisdiction of this court and of the circuit courts of appeals, as is pointed out in United [221] States v. Jahn, 155 U. S. 109, 114, 39 L. ed. 87, 90, 15 Sup. Ct. Rep. 39. In that case, after an extended review of the statute, it was said: "If the jurisdiction of the circuit decided in favor of the defendant, as that court [now district court] is in issue and disposes of the case, the plaintiff should have the question certified, and take his appeal or writ of error directly to this court."

As therefore the decree in the District Court was not open to review by the Circuit Court of Appeals, we must vacate the latter's decision, and remand the case to it, with a direction to dismiss the appeal. See Union & Planters' Bank v. Memphis, 189 U. S. 71, 73, 74, 47 L. ed. 712-714, 23 Sup. Ct. Rep. 604; CarU. S. 305, 318, 60 L. ed. 658, 664, 36 olina Glass Co. v. South Carolina, 240 Sup. Ct. Rep. 293.

Decree of Circuit Court of Appeals vacated, with direction to dismiss appeal

from District Court.

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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.]

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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

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. The 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 have gone to Edwards. A decree for the latter followed and Bodkin appealed. 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 Fed. 621. Bodkin then took a further — C. C. A. —, 265 appeal to this court, the decision of the circuit court of appeals not being final under § 128 of the Judicial Code.

been substantiated."

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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

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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

Icoin 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:

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Argued January 11, 1921. Decided February "Such is the possession intended by the

28, 1921.

APPEAL from the District Court of 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.

indictment, and such is the possession, the petitioner having pleaded guilty to the indictment, that he must be held to

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.

guard the public against spurious, sim-
ulated, and debased coin; and (2) that
the power of Congress in that regard is
in no wise limited by the clause relating
to the punishment of counterfeiting.
United States v. Marigold, 9 How. 560,
567, 568, 13 L. ed. 257, 260, 261; Legal
Tender Cases, 12 Wall. 457, 535, 536, 544,
545, 20 L. ed. 287, 307, 310. It hardly
needs statement that, in the exertion of
this power, the conscious and willing pos-
session, without lawful authority, of a
die in the likeness or similitude of one
used or designated for making genuine
coin of the United States, may be made a
criminal offense. If this be not a nec-
essary, it is at least an appropriate, step
in effectively suppressing and prevent-
ing the making and use of illegitimate
coin.

Final order affirmed.

[228] JOHN BARTON PAYNE, Secre-
tary of the Interior, et al., Appts.,

V.

CENTRAL PACIFIC RAILWAY COM-
PANY.

(See S. C. Reporter's ed. 228-238.)

Public lands — railroad land grants
indemnity selections • effect

In Margate Pier Co. v. Hannam, 3 Barn.
& Ald. 266, 270, 106 Eng. Reprint, 661,
Abbott, Ch. J., quoting from Lord Coke,
said: "Acts of Parliament are to be
so construed, as no man that is in-
nocent, or free from injury or wrong,
be by a literal construction punished or
endamaged." In United States v. Kirby,
7 Wall. 482, 486, 19 L. ed. 278, 280, this
court said: "All laws should receive a
sensible construction. General terms
should be so limited in their application
as not to lead to injustice, oppression,
or an absurd consequence. It will al-
ways, therefore, be presumed that the
legislature intended exceptions to its
language, which would avoid results of
this character. The reason of the law
in such cases should prevail over its
letter. The common sense of man ap-
proves the judgment mentioned by Puf-
fendorf, that the Bolognian law which
enacted 'that whoever drew blood in the
streets should be punished with the ut-
most 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 fel-
ony, does not extend to a prisoner who
breaks out when the prison is on fire,-
'for he is not to be hanged because he sequent executive withdrawal.
would not stay to be burnt.'" And in
1. Indemnity selections under a rail-
United States v. Jin Fuey Moy, 241 U. road land grant, made in full compliance
S. 394, 401, 60 L. ed. 1061, 1064, 36 Sup. Secretary of the Interior, of lands subject
with the directions promulgated by the
Ct. Rep. 658, Ann. Cas. 1917D, 854, we to such selection, and based on actual loss
said: "A statute must be construed, if within place limits adequate to sustain
fairly possible, so as to avoid not only them, the railroad having been constructed
the conclusion that it is unconstitutional, and equipped as required by the granting
but also grave doubts upon that score.'
"act, and nothing remaining to be done by
The other contention is that the clause the grantee or its successor to fulfil the
in the Constitution empowering Congress right to a patent, could not be defeated by
conditions of the grant and perfect the
"to provide for the punishment of coun-
a subsequent temporary withdrawal for a
terfeiting 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 de-
nounces is not counterfeiting, and
therefore that Congress cannot provide
for its punishment. The contention
must be rejected. It rests on a miscon-
ception 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 im-
position of criminal penalties, to main-
tain the coin in its purity, and to safe-

sub

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 substitute as one of the appellants John Barton Payne, present Secretary of the Interior, in the place of Franklin K. Lane, former Secretary thereof, on motion of Solicitor General King for appellants.

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1920.

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.]
immunity from suit
United States
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
selection of indemnity
from canceling a
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
for a
temporary executive withdrawal
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 au-
thority, and thereby casting a cloud on the
plaintiff's title.

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. 55 L. ed. 258, 261-263, 31 Sup. Ct. Rep. Hoyt, 219 U. S. 380, 387, 388, 391, 392, 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.

[For other cases, see United States, IV. b, in
Digest Sup. Ct. 1908.]
against Federal officers
Land
Injunction
violation of official duty
railroad land grant
Department

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

A

see Injunction, I. J.

cases, Digest Sup. Ct. 1908.]

[No. 17.]

28, 1921.

in

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.

The facts are stated in the opinion.

C.

Assistant Attorney General Nebeker
argued the cause, and, with Special As-
sistant to the Attorney General Under-
wood, filed a brief for appellants:

Until approval by the Secretary of the
Interior, no rights as against the United

Rep. 636.

The withdrawal of the lands in controversy, and their inclusion in a power-site reserve, was authorized and valid, and constituted a bar to the approval of the 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.

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. 588, 37 Sup. Ct. Rep. 348.

Messrs. A. A. Hoehling and Frank Thunen argued the cause, and, with Mr.

599

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