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intended to give to the taxpayer and importer a further and different remedy? The mischiefs that would result, if the aggrieved party could disregard the provisions in the system designed expressly for his security and benefit, and sue at any time in the court of claims, forbid the idea that Congress intended to allow any other modes to redress a supposed wrong, in the operation of the revenue laws, than such as are particularly given by those laws."

The system spoken of in the opinion provided a general scheme for the collection of the revenue, and also provided adequate means for the correction of errors by a resort to a suit in a court of law prosecuted in the ordinary way. While it gave rights, it provided a special but full and ample remedy for their infringement. It certainly could never be presumed that Congress, while thus furnishing an adequate method for the correction of errors, intended that the party aggrieved might refuse to follow such remedy and resort to some other and different mode of relief. It is quite plain that the remedy thus specially indicated was exclusive, and [497]that the act giving *jurisdiction to the court of claims had no application. The principle asserted in the case cited has no application to this case.

Although the right to recover back the excess of payment in this proceeding is based upon the statute of 1880, we do not think it comes within the principle of those cases which hold that where a liability and a remedy are created by the same statute, the remedy thus provided is special and exclusive. In this case it is not a right and a remedy created by the same statute. The statute creates the right to have repayment under the facts therein stated, but it gives no remedy for a refusal on the part of the Secretary to comply with its provisions. The person has the right under the act to obtain a warrant from the Secretary of the Interior for the repayment of the excess therein mentioned, and for the purpose of obtaining it he must make his application and prove the facts which the statute provides, and then the Secretary is to draw his warrant on the Treasury. This constitutes the right of the appellant. Applying for the warrant is not a remedy. When application for repayment is made there is nothing to remedy. He has not been wronged. A right of repayment of money theretofore paid has been given by the act, but it is only under the act that the right exists, and that right is to have the Secretary in a proper case issue his warrant in payment of the claim, and until he refuses to do so, no wrong is done and no case for a remedy is presented. After the refusal, the question then arises as to the remedy, and you look in vain for any in the act itself. We cannot suppose that Congress intended in such case to make the decision of the Secretary final when it was made on undisputed facts. If not, then there is a remedy in the court of claims, for none is given in the act which creates the right. The procedure for obtaining the repayment as provided for in the act must be followed, and when the application is erroneously refused, the party

wronged has his remedy, but that remedy is not furnished by the same statute which gives him the right.

If there were any disputed questions of fact before the Secretary his decision in regard to those matters would probably be concla-[496] sive, and would not be reviewed in any court. But where, as in this case, there is no dieputed question of fact, and the decision turns exclusively upon the proper construction of the act of Congress, the decision of the Seeretary refusing to make the payment is not final, and the court of claims has jurisdie tion of such a case.

We have been referred to no case in this court which holds views contrary to those herein presented. We do not mean by this de cision to overrule or to throw doubt upon the general principle that where a special right is given by statute, and in that statute a special remedy for its violation is provided, that in such case the statutory remedy is the only one, but we hold that such principle has no application to this particular statute, be cause the statute does not, in our judgment, within the meaning of the principle men tioned, furnish a remedy for a refusal to grant the right given by the statute.

This case bears more resemblance to United States v. Kaufman, 96 U. S. 567 (24: 792]; and United States v. Real Estate bar ings Bank, 104 U. S. 728 [26: 908], than it does to Nichols v. United States, 7 Wail 122 [19: 125].

In United States v. American Tobacco Com pany, 166 U. S. 468 [41: 1081], the statute permitted the holder of stamps which he had paid for and not used, and which were spoiled or destroyed, etc., to apply to the Commis sioner of Internal Revenue to redeem or make allowance for such stamps. Application was so made, but the Commissioner refused to re deem or make the allowance because of other facts stated in the case. The applicant led his petition in the court of claims, and that court gave him judgment which was here af firmed. It is true that no question of juris diction was raised, but if the case at bar was properly decided by the court below, the court in that case had no jurisdiction, because the right to obtain redemption or payment was given by the same statute which proved the procedure to secure it, and the so-ca.ed remedy would have been exclusive in at case, as it is held to be exclusive in this The party had to apply to the Commissier and to comply with regulations, etc., all of which was but a part of the right which was granted, and when the Commissioner er neously refused to make the redemption as provided for by the statute, the claimant founding his claim upon a law of Congress, pursued his only remedy in the court of cia and obtained it without any question of a risdiction. We think the court had juras tion in that case, and that it also existed að this.

We come now to the question as to the true construction of the act itself, and whether it is applicable to the facts in this case.

It is conceded by the appellant that at the time the entry was made and the double mi imum price paid for the lands, they were

within the place limits of the grant to the Wisconsin Central Railroad. The payment therefore was a proper payment, and necessary to have been made in order to obtain the lands. There was no mistake or misunderstanding of the facts at the time the entry was made. It was made eight years after the passage of the land grant by Congress, May 5, 1864, and at the time the payment was made the railroad had not been built.

different reason. The petition should have
been dismissed upon the merits, but we do
not think it necessary to reverse the judg
ment on that account, as we can modify it so
that it shall provide for dismissing the peti-
tion on that ground.

Judgment modified, and as modified af
firmed.

Appts.,

v.

FLORENCE BLYTHE HINCKLEY.

The government of course was no guarantor JOHN W. BLYTHE and Henry T. Blythe,[501] that the railroad ever would be built, and the party thus making an entry of lands within the place limits of a railroad grant necessarily took his chances of the future building of the road. That it was not certain to be built was sufficiently apparent at the time of the entry, for eight years had then elapsed, and no road had been built at that time. It was not until eighteen years after the entry, viz., in 1890, that the government finally forfeited the lands because of the failure of the company to build the road. With reference to these facts, we think that the construction placed upon the act of 1880 by the Secretary of the Interior is the correct one.

The Secretary decided that the act does not apply to a case such as this, where at the time of the entry the lands were within the limits of the railroad land grant, and so continued for eighteen years, and where it was only by the failure of the railroad company to build the road and the forfeiture of the land grant by the government consequent upon such failure that the land then ceased to be within such limits.

Whatever may have been the reason of DCongress in making the charge of $2.50 per acre the minimum price for alternate sections along the line of railroads within the place limits of the grant, the meaning of the act of 1880 is not in anywise affected thereby. That act plainly referred to the case of a mistake in location at the time when the entry was made. Where the parties supposed that the land entered was within the limits of the land grant, and where subsequently it is discovered that the lands were not within those limits, that a mistake had been made and that the party had not obtained the lands which he thought he was obtaining by virtue of his entry, then the act of 1880 applies.

(See S. C. Reporter's ed. 501-508.) Appeal or writ of error'from circuit court to this court on question of jurisdiction-decision that remedy is in law, and not in equity, not a decision as to jurisdiction— decision that judgment of state court was a bar--appeal cannot be taken to this court where there is no denial of its jurisdiction or the decree rests on independent grounds.

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The decree of the circuit court dismissing the suit on the ground that the judgment of the state court was a bar and could not be reviewed by that court is not a decision of want of jurisdiction because the circuit court was a Federal court, but a decision that it was unable to grant relief because of the judgment of the state court.

An appeal cannot be taken to this court where the decree of the circuit court rested on no denial of its jurisdiction as such, but was rendered in the exercise of that jurisdiction, and the decree also rested on the independent ground that the remedy was at law.

[No. 367.]

January 30, 1899. Decided
April 3, 1899.

APPEAL from a decree of the Circuit
Court of the United States for the
Northern District of California in a suit in
equity brought by John W. Blythe et al.,
plaintiffs, against Florence Blythe Hinckley
et al., to quiet the plaintiffs' title to certain
real property claimed to belong to plaintiffs.
On motion to dismiss or affirm. Dismissed.
See same case below, 84 Fed. Rep. 246.

Here no mistake whatever has been made. The lands were within the limits of the land Submitted grant at the time of the entry, and so remained for many years and up to the time of the act of forfeiture by Congress. Whether the railroad would fulfil its obligations and in good time build its road through the land grant was a matter which the future alone could determine, was a matter which the entryman could judge of as well as the gov ernment, and was a matter in regard to which the government gave no guaranty, express or implied. Hence, when in subsequent years the company failed to build its railroad within the limits of the land grant at this point, and the same was forfeited, the government was under no obligations whatever by virtue of the act of 1880 or otherwise to repay the difference in price for these lands. While we agree with the Court of Claims in the dismissal of the petition, it is for a

Statement by Mr. Chief Justice Fullert This was a "complaint to quiet title," brought in accordance with the Code of Civil Procedure of California by John W. Blythe and Henry T. Blythe, citizens of the States of Kentucky and Arkansas, respectively, against Florence Blythe Hinckley, Freder

intended to give to the taxpayer and importer a further and different remedy? The mischiefs that would result, if the aggrieved party could disregard the provisions in the system designed expressly for his security and benefit, and sue at any time in the court of claims, forbid the idea that Congress intended to allow any other modes to redress a supposed wrong, in the operation of the revenue laws, than such as are particularly given by those laws."

The system spoken of in the opinion provided a general scheme for the collection of the revenue, and also provided adequate means for the correction of errors by a resort to a suit in a court of law prosecuted in the ordinary way. While it gave rights, it provided a special but full and ample remedy for their infringement. It certainly could never be presumed that Congress, while thus furnishing an adequate method for the correction of errors, intended that the party aggrieved might refuse to follow such remedy and resort to some other and different mode of relief. It is quite plain that the remedy thus specially indicated was exclusive, and [497]that the act giving jurisdiction to the court of claims had no application. The principle asserted in the case cited has no application to this case.

wronged has his remedy, but that remedy is not furnished by the same statute which gives him the right.

If there were any disputed questions of fact before the Secretary his decision in regard to those matters would probably be conclu-[498] sive, and would not be reviewed in any court. But where, as in this case, there is no disputed question of fact, and the decision turns exclusively upon the proper construction of the act of Congress, the decision of the Secretary refusing to make the payment is not final, and the court of claims has jurisdiction of such a case.

We have been referred to no case in this court which holds views contrary to those herein presented. We do not mean by this decision to overrule or to throw doubt upon the general principle that where a special right is given by statute, and in that statute a special remedy for its violation is provided, that in such case the statutory remedy is the only one, but we hold that such principle has no application to this particular statute, because the statute does not, in our judgment, within the meaning of the principle mentioned, furnish a remedy for a refusal to grant the right given by the statute.

This case bears more resemblance to United States v. Kaufman, 96 U. S. 567 [24: 792]; and United States v. Real Estate Savings Bank, 104 U. S. 728 [26: 908], than it does to Nichols v. United States, 7 Wall. 122 [19: 125].

In United States v. American Tobacco Company, 166 U. S. 468 [41: 1081], the statute permitted the holder of stamps which he had paid for and not used, and which were spoiled or destroyed, etc., to apply to the Commissioner of Internal Revenue to redeem or make

Although the right to recover back the excess of payment in this proceeding is based upon the statute of 1880, we do not think it comes within the principle of those cases which hold that where a liability and a remedy are created by the same statute, the remedy thus provided is special and exclusive. In this case it is not a right and a remedy created by the same statute. The statute creates the right to have repayment under the facts therein stated, but it gives no rem-allowance for such stamps. Application was edy for a refusal on the part of the Secretary to comply with its provisions. The person has the right under the act to obtain a warrant from the Secretary of the Interior for the repayment of the excess therein mentioned, and for the purpose of obtaining it he must make his application and prove the facts which the statute provides, and then the Secretary is to draw his warrant on the Treasury. This constitutes the right of the appellant. Applying for the warrant is not a remedy. When application for repayment is made there is nothing to remedy. He has not been wronged. A right of repayment of money theretofore paid has been given by the act, but it is only under the act that the right exists, and that right is to have the Secretary in a proper case issue his warrant in payment of the claim, and until he refuses to do so, no wrong is done and no case for a remedy is presented. After the refusal, the question then arises as to the remedy, and you look in vain for any in the act itself. We cannot suppose that Congress intended in such case to make the decision of the Secretary final when it was made on undisputed facts. If not, then there is a remedy in the court of claims, for none is given in the act which creates the right. The procedure for obtaining the repayment as provided for in the act must be followed, and when the application is erroneously refused, the party

so made, but the Commissioner refused to re-
deem or make the allowance because of other
facts stated in the case. The applicant filed
his petition in the court of claims, and that
court gave him judgment which was here af-
firmed. It is true that no question of juris-
diction was raised, but if the case at bar was
properly decided by the court below, the court
in that case had no jurisdiction, because the
right to obtain redemption or payment was
given by the same statute which provided
the procedure to secure it, and the so-called
remedy would have been exclusive in that
case, as it is held to be exclusive in this.
The party had to apply to the Commissioner
and to comply with regulations, etc., all of
which was but a part of the right which was
granted, and when the Commissioner *erro-[499)
neously refused to make the redemption as
provided for by the statute, the claimant,
founding his claim upon a law of Congress,
pursued his only remedy in the court of claims,
and obtained it without any question of ju-
risdiction. We think the court had jurisdic-
tion in that case, and that it also existed in
this.

We come now to the question as to the true construction of the act itself, and whether it is applicable to the facts in this case.

It is conceded by the appellant that at the time the entry was made and the double minimum price paid for the lands, they were

within the place limits of the grant to the Wisconsin Central Railroad. The payment therefore was a proper payment, and necessary to have been made in order to obtain the lands. There was no mistake or misunderstanding of the facts at the time the entry was made. It was made eight years after the passage of the land grant by Congress, May 5, 1864, and at the time the payment was made the railroad had not been built.

different reason. The petition should have been dismissed upon the merits, but we do not think it necessary to reverse the judg ment on that account, as we can modify it so that it shall provide for dismissing the petition on that ground.

Judgment modified, and as modified af firmed.

Appts.,

v.

FLORENCE BLYTHE HINCKLEY.

The government of course was no guarantor JOHN W. BLYTHE and Henry T. Blythe,[501] that the railroad ever would be built, and the party thus making an entry of lands within the place limits of a railroad grant necessarily took his chances of the future building of the road. That it was not certain to be built was sufficiently apparent at the time of the entry, for eight years had then elapsed, and | no road had been built at that time. It was not until eighteen years after the entry, viz., in 1890, that the government finally forfeited the lands because of the failure of the company to build the road. With reference to these facts, we think that the construction placed upon the act of 1880 by the Secretary of the Interior is the correct one.

The Secretary decided that the act does not apply to a case such as this, where at the time of the entry the lands were within the limits of the railroad land grant, and so continued for eighteen years, and where it was only by the failure of the railroad company to build the road and the forfeiture of the land grant by the government consequent upon such failure that the land then ceased to be within such limits.

Whatever may have been the reason of [500] Congress in making *the charge of $2.50 per acre the minimum price for alternate sections along the line of railroads within the place limits of the grant, the meaning of the act of 1880 is not in anywise affected thereby. That act plainly referred to the case of a mistake in location at the time when the entry was made. Where the parties supposed that the land entered was within the limits of the land grant, and where subsequently it is discovered that the lands were not within those limits, that a mistake had been made and that the party had not obtained the lands which he thought he was obtaining by virtue of his entry, then the act of 1880 applies.

(See S. C. Reporter's ed. 501-508.) Appeal or writ of error'from circuit court to this court on question of jurisdiction-decision that remedy is in law, and not in equity, not a decision as to jurisdiction— decision that judgment of state court was a bar--appeal cannot be taken to this court where there is no denial of its ju risdiction or the decree rests on independent grounds.

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An appeal or writ of error may be taken directly from the circuit court to this court, in a case in which the jurisdiction of that court as a Federal court is in issue; the question alone of jurisdiction being certified to this court.

The decision of the circuit court that the remedy in the suit was at law, and not in equity, was not a decision that the circuit court had no jurisdiction as a court of the United States.

The decree of the circult court dismissing the suit on the ground that the judgment of the state court was a bar and could not be reviewed by that court is not a decision of want of jurisdiction because the circuit court was a Federal court, but a decision that it was unable to grant rellef because of the judgment of the state court.

An appeal cannot be taken to this court where the decree of the circuit court rested on no denial of its jurisdiction as such, but was rendered in the exercise of that jurisdiction, and the decree also rested on the independent ground that the remedy was at law.

[No. 367.]

January 30, 1899. Decided
April 3, 1899.

Here no mistake whatever has been made. The lands were within the limits of the land Submitted grant at the time of the entry, and so remained for many years and up to the time of the act of forfeiture by Congress. Whether the railroad would fulfil its obligations and APPEAL from a decree of the Circuit Court of the United States for the in good time build its road through the land Northern District of California in a suit in grant was a matter which the future alone equity brought by John W. Blythe et al., could determine, was a matter which the plaintiffs, against Florence Blythe Hinckley entryman could judge of as well as the gov-et al., to quiet the plaintiffs' title to certain ernment, and was a matter in regard to which the government gave no guaranty, express or implied. Hence, when in subsequent years the company failed to build its railroad within the limits of the land grant at this point, and the same was forfeited, the government was under no obligations whatever by virtue of the act of 1880 or otherwise to repay the difference in price for these lands. While we agree with the Court of Claims in the dismissal of the petition, it is for a

real property claimed to belong to plaintiffs. On motion to dismiss or affirm. Dismissed. See same case below, 84 Fed. Rep. 246.

Statement by Mr. Chief Justice Fuller: This was a "complaint to quiet title," brought in accordance with the Code of Civil Procedure of California by John W. Blythe and Henry T. Blythe, citizens of the States of Kentucky and Arkansas, respectively, against Florence Blythe Hinckley, Freder

ick W. Hinckley, and the Blythe Company, all citizens of California, which alleged that complainants were owners as tenants in common of the real property described therein, and that the defendants, "and each of them, claim that they have or own adversely to plaintiffs some estate, title, or interest in said lands; but plaintiffs allege that said claims of defendants are false and groundless and without warrant of law, and their claims to said lands are a cloud upon plaintiffs' title thereto." Then followed an amended complaint, which repeated the allegations of the original complaint, with some other averments, among them, "that at the [502]*time of the commencement of this suit neither one of the parties was in possession of said lands or any part thereof." Thereafter a "second amended and supplemental bill in equity" was filed, which, among other things, set forth that Thomas H. Blythe was the owner of the real estate described at the time of his death; that he died in the city and county of San Francisco, April 4, 1883, being a citizen of the United States, and of the state of California, and a resident of said city and county; and that "after the death of said Thomas H. Blythe, as hereinbefore alleged, the public administrator of the city and county of San Francisco took charge of the estate of said Blythe and entered upon the administration of the same;" that Florence Blythe Hinckley was borne in England, the child of an unmarried woman; that the mother was a British subject; that Florence remained in England until after the death of Thomas H. Blythe, when and in 1883, she came to California, being then an infant ten years old, and "ineligible to become a citizen of the United States;" and that she was "when she arrived in California a nonresident alien."

It was then averred that the laws in force in California in 1883 relating to the rights of foreigners and aliens to take real estate by succession as heirs at law of a deceased citizen of the state of California, were the treaty of 1794 between His Britannic Majesty and the United States, the naturalization laws of the United States. and section seventeen of article one of the Constitution of California of 1879, which was made mandatory and prohibitory by section twentytwo; that there were at the death of Blythe eertain laws in force in said state, to wit, sections 230 and 1387 of the Civil Code, providing for the adoption and legitimation, and institution of heirship, of illegitimate children; that there was not at any time during Blythe's lifetime any law in force in England under or by force of which he could have legitimated the said Florence or made her his heir at law, or under which he could have absolved the said Florence from allegiance to her sovereign, or, without bring ing said Florence into California, have changed her status from a subject of Eng. land to that of a bona fide resident of Cali

fornia.

[503] *It was further alleged that on a direct proceeding in the superior court of San Francisco, sitting in probate, brought on be

half of said Florence to determine the ques tion of heirship, and to which action and proceeding complainants appeared, denying and contesting her application, that court adjudged in favor of Florence, and "decided, in substance and effect, that said Thomas H. Blythe had in his lifetime adopted and legitimated the said Florence;" that from that decree complainants appealed to the supreme court of the state, and that court "in substance and effect, decided that said Thomas H. Blythe did not adopt or legitimate the said Florence under or in conformity with said section 230 of the Civil Code, but that he had constituted her his heir under and pursuant to the provisions of section 1387 of said Civil Code." And it was charged that neither the superior court nor the supreme court had jurisdiction to render judg ment in the matter, and that the decision of the supreme court was in violation of the Constitution of the state of California, and inconsistent with numerous former decisions of that court.

The bill then set forth that said Florence filed in the superior court in the matter of the estate of Thomas H. Blythe a petition for distribution, to which complainants appeared, and the court on hearing granted a decree of partial distribution, which complainants charged was void for want of jurisdiction; that thereafter and after the marriage of said Florence to defendant Hinckley, she filed in the superior court her petition for final distribution of the estate, which was resisted by complainants, but the court entered thereon a decree of final distribution, which complainants charged was void for want of jurisdiction.

It was further stated that when the origi nal bill was filed neither party was in pos session of the land described, but that the same was in the possession of the public administrator of said city and county of San Francisco, and that since then Florence had secured and was now in possession of the property. The bill prayed for a decree quieting complainants' alleged title; for an accounting as to rents and profits; for a receiver; and for general relief.

*After the filing of the second amended and[50+ supplemental bill, Mrs. Hinckley moved to dismiss the suit for want of jurisdiction, which motion was sustained by the circuit judge, for reasons given in an opinion filed December 6, 1897. 84 Fed. Rep. 246.

After the court ordered the dismissal of the suit, the record shows that leave was given to complainants "to amend their bill upon the understanding that it would not necessitate any further argument, but should be subject to the prior motion to dismiss the second amended and supplemental bill and to the order for a final decree entered thereon." Accordingly, on December 22, 1897, complainants filed their "third amended and supplemental bill in equity." This bill was substantially the same as that immediately preceding, though it set up reasons why an action at lay would not be an adequate remedy, and amplified certain matters alleged to bear on the jurisdiction of the state courts.

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