[441] "That after the lapse of two years from the date of the issuance of the receiver's receipt upon the final entry of any tract of land under the Home stead, Timber-culture, Desert-land, or Pre-emption Laws, or under this act, and when there shall be no pending contest or protest against the validity of such entry, the entryman shall be entitled to a patent conveying the land by him entered, and the same shall be issued to him."

Both courts below held that, as the final entry was not questioned by any protest or contest in the Land Department within two years after the issue of the receiver's receipt, the statutethe provision in § 7-terminated the authority of that Department to entertain any proceeding for the cancelation of the entry, and cast upon the Secretary and the Commissioner a plain and unqualified duty to pass the entry to patent. Whether that ruling was right or otherwise is the matter we are to consider.

The words of the statute are direct and make it very plain that if, at the expiration of two years from the date of the receiver's receipt on final entry, there is "no pending contest or protest" against the entry, its validity no longer may be called in question in the Land Department, that is to say, "the entryman shall be entitled to a patent

The facts which stand admitted can be shortly stated. Allen L. Newton, the relator, made a preliminary homestead entry at the local land office of a quarter section of land. At that time the land was withdrawn for forest purposes, but with the qualification that prior homestead settlers who continued in good faith to maintain their claims should be permitted to carry them to entry and patent. Newton claimed to be a prior settler and within the qualificaand the same shall be issued to tion. In due course, after publication him." The purpose to fix his right and of the regular notice, he submitted to command its recognition is obvious. commutation proofs under the Home- This court so held in Lane v. Hoglund, stead Law, and paid the purchase price 244 U. S. 174, 61 L. ed. 1066, 37 Sup. and the legal fees. The local land offi- Ct. Rep. 558, where a writ of mandamus cers found the proofs satisfactory, per- directing the issue of a patent was mitted him to make final entry, and awarded. In that case, as in this, there issued thereon the usual receiver's re- was no contest or protest within the ceipt. That was on November 21, 1904, designated period, and in a proceeding and there was no protest, contest, or subsequently initiated the Secretary other proceeding against the entry with- held that the entryman had not comin two years, nor until November 27, plied with the law in point of residence 1908. On the latter date the Commis- and cultivation,-in other words, that sioner of the General Land Office the proofs by which he procured the ordered a hearing upon a charge that entry were false, and upon that ground Newton had not complied with the law the cancelation of the entry was directin point of residence and cultivation; ed. Besides, the entry there bore the and on March 23, 1912, the Secretary of same relation to a forest reserve that the Interior held in that proceeding that the present entry bears. Thus in all that the charge was sustained, and ordered is material the [443] two cases are alike. the entry canceled. On May 14, 1918, the In the opinion in that case it was pointSecretary rescinded that order and ed out that the practice of the Land Dedirected that the entry be passed to partment prior to the statute had been patent under the statute before quoted. to entertain and act upon belated sugThe following month the Secretary re- gestions of fraud and noncompliance called his last action and caused a suit with law; that this had resulted in a to be brought in the district court of practical blockade in the issue of patthe district wherein the land is situate, ents, and that the purpose of the statto cancel the receiver's receipt and quiet ute was to rectify that situation and the title [442] in the United States. prevent its recurrence. The court then The bill in that suit charged that the observed, p. 181: "In the exercise of entry was fraudulently procured in that its discretion Congress has said, in subthe proofs submitted by Newton in re-stance, by this statute, that for two spect of his settlement, residence, and years after the entryman submits final cultivation were false; and that charge proof and obtains the receiver's receipt is repeated in the answer in the present the entry may be held open for the incase. Further proceedings in the suit itiation of proceedings to test its validin the district court have been suspend-ity; but that if none such be begun ed, it is said, to await the ultimate de- within that time, it shall be passed to cision on this petition. patent as a matter of course."

merely to enable the officers to issue the
patent, for which they have other ex-
press authority,-but to command them
to issue it in the event stated,-the
words of the statute being: "The en-
tryman shall be entitled to a patent
conveying the land by him entered, and
the same shall be issued to him."
It is urged that the pendency in the
district court of the suit before men-
tioned affords a sufficient justification
for withholding the patent. The courts
below held otherwise, and rightly so, as
we think. The statute contemplates
that, in the event stated, the patent
shall not longer be withheld, but shall
be issued promptly, to the end that the
entryman shall have the advantages
and protection which go with it. In
other words, it is intended that he shall
be clothed with the legal title instead
of an equitable title only, shall have a
patent instead of a receiver's receipt,
and [445] shall have the benefit of the
presumptions which are available to other
patentees when their rights are called
in question. But for this the statute
would be without any real purpose or
effect.

In the main the Land Department, as its regulations and decisions show, has construed and applied the statute as taking from the land officers all power to entertain proceedings for the cancelation of final entries of the classes specified, save where the proceeding is begun within the two-year period, and this whether it is initiated by a government officer or by a private individual, and whether it is based upon a charge of fraud or upon some other ground. To illustrate: In the original instructions of May 8, 1891, 12 Land Dec. 450, the Department took the position that it no longer could cancel such an entry or withhold the patent "on the ground of fraud, a failure to comply with the law, or a prior claim," unless a proceeding for the purpose was initiated within the period prescribed. In the case of Re Harris, 42 Land Dec. 611, decided December 13, 1913, the Secretary of the Interior adhered to that position as grounded upon a "sound construction of the law," overruled a decision to the contrary, made two years before, and rejected a protest presented after the allotted time, which charged that the entryman, contrary to the statements in his proofs, had not complied with the law in the matter of settlement, residence, and cultivation. [444] And in instructions issued April 25, 1914, 43 QUONG HAM WAH COMPANY, Plff. in

Land Dec. 294, the Secretary stated that the lapse of two years after the issue of the receiver's receipt "will bar a contest or protest based upon any charge whatsoever," save where the proceeding is sustained by some special statutory provision.

The defendants now call that construction in question. But we perceive no reason for rejecting or disturbing it. On the contrary, we think it is in accord with the natural import of the words of the statute, and gives effect to the evident purpose of Congress. That purpose is to require that the right to a patent which, for two years, has been evidenced by a receiver's receipt, and at the end of that period stands unchallenged, shall be recognized and given effect by the issue of the patent without further waiting or delay,-and thus to transfer from the land officers to the regular judicial tribunals the authority to deal with any subsequent contro versy over the validity of the entry, as would be the case if the patent wer issued in the absence of the statute See Brown v. Hitchcock, 173 U. S. 473 477, 43 L. ed. 772, 774, 19 Sup. Ct. Rep 485. Of course, the purpose is no

Judgment affirmed.

Err.,

1. The construction of a state statute

by the highest court of that state must be accepted by the Federal Supreme Court when testing the validity of the statute under the Federal Constitution, on writ of error to the state court.

[For other cases, see Appeal and Error, 21242156, in Digest Sup. Ct. 1908.]

Error to state court

dismissal

frivolous Federal question. 2. The Federal Supreme Court will dismiss a writ of error to a state court

Note. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hambin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884, and Kipley v. Illinois, 42 L. ed. U. S. .98.

On what questions the Federal Supreme Court will consider in reviewing

be frivolous.

where the proposition upon which alone | cannery of the Alaska Packers' Associajurisdiction to entertain the writ can be tion at Cook's Inlet, Alaska, during the based is so wanting in foundation as to canning season, and that, upon his return to San Francisco, he would be paid off by the Quong Ham Wah Company and his employment terminated.

[For other cases, see Appeal and Error, VII.

1, 2, in Digest Sup. Ct. 1908.]

[No. 638.]

While working at the cannery Owe Ming sustained an injury resulting in a permanent disability, for which, on returning to San Francisco, he petitioned the Industrial Accident Commission of sation under the Workmen's CompensaCalifornia for the allowance of compention Act, § 58 of which provides:

"The commission shall have jurisdiction over all controversies arising out of injuries suffered without the territorial limits of this state in those cases where the injured employee is a resident of the contract of hire was made in this this state at the time of the injury and state, and any such employee or his dependents shall be entitled to the compensation or death benefits provided by this act." [Cal. Stat. 1917, p. 870.]

The Alaska Packers' Association was joined with the Quong Ham Wah Company as defendant in the proceedings

Mr. Chief Justice White delivered the before the commission, which culminatopinion of the court:

The Quong Ham Wah Company is engaged in the business of supplying to canneries in California and elsewhere [447] the labor required by them to carry on their canning operations. The company in 1918 hired in the city of San Francisco one Owe Ming, a resident of California, under an agreement that he was to work as its employee at the the judgments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571.

ed in a joint and several award against the said defendants. Thereafter the Quong Ham Wah Company filed with the commission a petition for rehearing, asserting, among other things, that the commission was without jurisdiction to award compensation for injuries occurring outside the territorial limits of the state of California, except as provided in 858 of the Compensation Act, and that that section was void as repugnant to article 4, § 2, of the Constitution of the United States, because it granted to citizens of California the privilege of On what adjudications of state courts recovering for injuries sustained outcan be brought up for review in the Su-side the state in the course of employpreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A.

513.

As to state decisions and laws as rules of decision in the Federal courts-see notes to Clark v. Graham, 5 L. ed. U. S. 334; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; Mitchell v. Burlington, 18 L. ed. U. S. 351; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508, and Snare & T. Co. v. Friedman, 40 L.R.A.(N.S.) 380.

And see note to this case in the state supreme court, as reported in 12 A.L.R. 1207.

724

ments [448] contracted for within the state, while at the same time denying that privilege to citizens of other states. The rehearing was refused by the commission.

The company thereupon applied to the supreme court for a writ of certiorari, which was allowed, and that court, concluding that § 58 discriminated against nonresidents as alleged, and was consequently repugnant to the Constitution of the United States and void, decided that the commission was without jurisdiction, and annulled its award. Upon a rehearing, however, this view was retracted, and the court concluded that the effect of the constitutional provision relied upon was not to render void the

provisions of § 58 for discrimination, stead of adopting that construction, its against nonresidents, but to lead to or duty was to hold the statute void for cause a construction of that section repugnancy to the Constitution on the which would include citizens of other grounds which were urged. But this in states, and therefore avoid all question a different form of statement but disas to the discrimination relied upon. putes the correctness of the construction The court consequently held that "the affixed by the court below to the state statute itself is valid and may be made statute, and assumes that that constructo apply uniformly to citizens of Cali- tion is here susceptible of being disrefornia and the citizens of the other garded upon the theory of the existence states," and, giving effect to this inter-of the discrimination contended for pretation, affirmed the action of the commission.

1231, 37 Sup. Ct. Rep. 732; Ex parte Simons, 247 U. S. 231, 62 L. ed. 1094, 247 U. S. 27, 62 L. ed. 966, 38 Sup. Ct. 38 Sup. Ct. Rep. 497; Ex parte Abdu, Rep. 447; Ex parte Peterson, 253 U. S. 300, 64 L. ed. 919, 40 Sup. Ct. Rep. 543.

Mr. Justice Holmes delivered the opin

Argued February 28 and March 1, 1921. ion of the court:
Decided March 21, 1921.

N PETITION for a Writ of Mandacourt below in a criminal case that the record need not be corrected to show that, as the result of an agreement between the accused and the district attorney, the case was tried before a jury of eleven. Rule to show cause discharged. Writ denied.

The facts are stated in the opinion. Messrs. John London and Benjamin Carter argued the cause and filed a brief for petitioner:

The trial court's record is open to correction.

Cancemi v. People, 18 N. Y. 134; People v. Walker, 132 Cal. 137, 64 Pac. 133. Solicitor General Frierson and Mr. Erle Pettus argued the cause, and, with Mr. W. C. Herron, filed a brief for respondent:

The petitioner is not entitled to a writ of mandamus to serve the same purpose which would be served by a writ of er

ror.

The petitioner was indicted for a violation of § 215 of the Criminal Code of the United States by a use of the mails This is a felony, § 235, and therefore, we assume, must be tried by a jury of twelve. The petitioner was tried, convicted, and sentenced, the record stating that "to try this cause come a jury of good and lawful men, duly impaneled, sworn, and [451] charged a true verdiet to render according to the law and the tioner filed a motion setting forth that, evidence." During the term the petias the result of an agreement between himself and the district attorney, the case was tried before a jury of eleven, to show the fact. There was also anand asking to have the record corrected other motion to set aside the judgment on this ground. The record recites that, after hearing the evidence and argument, the court, being of opinion that the record is as it should be, and does not need amendment, denies the motion, and similarly denies the motion to set aside the judgment. The record discloses exceptions to both orders, but sets forth no grounds. No exception to the jury seems to have been taken, nor does the fact alleged or the exclusion of any evidence competent to prove it appear of record in any form.

The petitioner now comes here asking for a mandamus to correct the judge's conclusion, and setting forth evidence offered in support of his motion that was rejected, and that he says should have been received. He might have saved the point by an exception at the trial or by a bill of exceptions to the denial of his subsequent motion, setting forth whatever facts or offers of proof were material, and then have brought a writ of error. Nalle v. Oyster, 230 U. S. 165, 177, 57 L. ed. 1439, 1443, 33 Sup. Ct.

United States v. Lawrence, 3 Dall. 42, 53, 1 L. ed. 502, 506; Ex parte Whitney, 13 Pet. 404, 408, 10 L. ed. 221, 223; Ex parte Taylor, 14 How. 3, 12, 13, 14 L. ed. 302, 306; Ex parte Many, 14 How. 24, 25, 14 L. ed. 311; Ex parte Newman, 14 Wall. 152, 165, 20 L. ed. 877, 879; Ex parte Burtis, 103 U. S. 238, 26 L. ed. 392; Ex parte Morgan, 114 U. S. 174, 175, 176, 29 L. ed. 135, 136, 5 Sup. Ct. Rep. 825; Ex parte Brown, 116 U. S. 401, 402, 29 L. ed. 676, 677, 6 Sup. Ct. Rep. 587; Ex parte Harding, 219 U. S. 363, 55 L. ed. 252, 37 L.R.A.(N.S.) 392, 31 Sup. Ct. Rep. 324; Re Pollitz, 206 U. S. 323, 331, 51 L. ed. 1081, 1083, 27 Sup. Ct. Rep. 729; Ex parte First Nat. Bank, 228 U. S. 516, 518, 57 L. ed. 946, 947, 33 Sup. Ct. Rep. 591; Ex parte Ameri-Rep. 1043. In such cases mandamus can Steel Barrel Co. 230 U. S. 35, 45, does not lie. Ordinarily, at least, it is 46, 57 L. ed. 1379, 1384, 33 Sup. Ct. not to be used when another statutory Rep. 1007; Ex parte Roe, 234 U. S. 70, method has been provided for reviewing 73, 58 L. ed. 1217, 1218, 34 Sup. Ct. the action below, or to reverse a deRep. 722; Ex parte Wagner, 249 U. S. cision of record. Ex parte Morgan, 114 465, 471, 63 L. ed. 709, 712, 39 Sup. Ct. U. S. 174, 29 L. ed. 135, 5 Sup. Ct. Rep. Rep. 317; Ex parte Park Square Auto-823; Ex parte Park Square Automobile mobile Station, 244 U. S. 412, 61 L. ed. Station, 244 U. S. 412, 414, 61 L ed.