ture of the case which renders it proper that the entire opinion, manifestly was intended desert lands be made an exception to the *to mean no more than that the desert land[338) general rule any more than lands entered un act was not applicable in the matter of price der the pre-emption laws. Lands reserved to the reserved sections within a railroad to the United States along the line of rail- land grant. This conclusion appears also in roads are made double minimum in price be the last paragraph above quoted, where we cause of their enhanced value in consequence say that "lands such as those here in suit, of the proximity of such roads. Desert lands although within the general description of subject to reclamation are as much liable to desert lands, could not properly be disposed be increased in value by proximity to rail. of at less than $2.50 per acre." Not that roads as any other class of lands, and hence they could not be disposed of at all under the the reason of the law applies to them as well desert land law, but only not at the price as to other public lands made double min- fixed by that law. imum in price. To hold desert lands an ex- The same conclusion appears subsequentception to the general rule regulating the ly, when, reviewing the act of 1891, it was price of lands reserved along the lines of held that it had no effect upon the price of railroads would be to make the laws on this lands entered before its date, our language subject inharmonious and inconsistent.” being

Other rulings of the land department were "We are of opinion that cases initiated eited, in no one of which was there any de under the original act of 1877, but not comnial of the right to enter lands along a rail. pleted, by final proof, until after the passage road under the desert land law. It was after of the act of 1891, were left by the latter act

these citations that the language referred to at least as to the price to be paid for the (882]by counsel was used. *That language must lands entered—to be governed by the law in

be interpreted in view of the fact that the force at the time the entry was made. So only contention was as to the price. It means far as the price of the public lands was consimply that the court did not consider the cerned, the act of 1891 did not change, but desert land act applicable as a whole and expressly declined to change, the terms and solidly to the reserved sections along a rail. conditions that were applicable to entries road so as to subject them to all its provisions. made before its passage. Such terms and Jo other words, the desert land act did not conditions were expressly preserved in resupersede and destroy the proviso of section spect of all entries initiated before the pag2357 in reference to a double price for such sage of that act." 160 U. S. 149 (40: 374). reserved sections. We closed the discussion We may remark in passing that the entry in reference to this matter in these words: in this case was before the act of 1891, and

“Giving effect to these rules of interpreta- therefore, under the language just quoted, it tion, we hold that Secretaries Lamar and is unnecessary for us to notice any of its Noble properly decided that the act of 1877 provisions. did not supersede the proviso of section 2357 It follows from these considerations that of the Revised Statutes, and therefore did if the petitioner Ingram had fully complied not embrace alternate sections reserved to with the terms of the desert land act he the United States by a railroad land grant. could, by the payment of $2.50 an acre, have

"It results that prior to the passage of the acquired title to the lands he sought to enact of 1891 lands such as those here in suit, ter. Voluntarily abandoning his entry, he although within the general description of has no cause of action for the sum which he desert lands, could not properly be disposed paid to initiate it. There is nothing in of at less than $2.50 per acre.

Was a dif. Frost v. Wenie, 157 U. S. 46 [39: 614], which ferent rule prescribed by that act in rela- conflicts with this conclusion, for there the tion to entries made previously to its decision simply was that lands which Conpassage?" 160 U. S. 147 [40: 373).

gress held under a trust to sell for the beneThe first of these paragraphs is one of the fit of Indians could not be given away under sentences referred to by counsel and quoted the homestead law. and hence that such law in their brief. In it we do say "that Secre- must be limited, *in its application to the[334] taries Lamar and Noble properly decided Fort Dodge reservation, to such lands as that the act of 1877 : . did not em- were not covered by the trust. brace alternate sections reserved to the The judgment of the Court of Claims is reUnited States by a railroad land grant,” but versed, and the case remanded to that court, the full meaning of that language is disclosed with directions to enter a judgment for the only when we replace the omitted words "did defendant. not supersede the proviso of section 2357 of the Revised Statutes, and, therefore." And when we turn to what Secretaries Lamar S. H. H. CLARK et al., Receivers of the Unand Noble decided, we find that they ruled,

ion Pacific Railway Company, Plffs. in not that lands within the place limits of a

Err., railroad land grant could not be entered under the desert land law, but simply that they CITY OF KANSAS CITY, Kansas, et al. could not be entered for the price named in that law, $1.25 per acre, but were subject to

(See S. C. Reporter's ed. 334-338.) the general provision of double price. The other sentence referred to by counsel is sim

What is not a final judgment. ilar, and, while taken literally and discon- The reversal of a judgment, with directions to nectedly, may give some countenance to their

sustain a demurrer, is not a final judgment on contentions, yet, when read in the light of which a writ of error will lie to a state court

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ary 3, 1899.


from the Bupreme Court of the United States, which excepts from its operation any tract
If the lower court has power to make a new or tracts of land used for agricultural pur.
case by amendment of pleadings.

poses, when the same is not owned by any
[No. 402.)

railroad or other corporation, it is in violaArgued December 13, 1898. Decided Janu- tion of that part of the Fourteenth Amend.

ment to the Constitution of the United

States, which reads as follows: Nor shall
ERROR to the Supreme Court of the any state deprive any person of life, liberty,

to a
that court reversing the judgment of the deny to any person within its jurisdiction
Court of Common Pleas of Wyandotte, Kan. the equal protection of the laws. »
sas, and ordering that court to sustain a de- The defendants, other than the township
iurrer in an action brought by S. H. H. of Wyandotte and school district No. 9, filed
Clark et al., receivers, etc., against the City a general demurrer to the petition, which
of Kansas City. Writ of error dismissed. was overruled. The defendants, the town-

The facts are stated in the opinion. ship of Wyandotto and school district No. 9,

Messrs. A. L. Williams, Winslow s. did not plead in any way. *The demurring(336) Pierce, and N. A. Loomis for plaintiffs in defendants electing to stand upon their deMessrs. T. A. Pollock and F. D. Hutch-as prayed for against them. They appealed

murrer, a perpetual injunction was granted ings for defendants in error.

to the supreme court, where the judgment

of the lower court was reversed, and an order (834) *Mr. Justice McKenna delivered the opinion of the court:

was made directing that court to sustain the

demurrer. This is a writ of error to the supreme court of the state of Kansas to review a judgment the statute was presented to the supreme

The question of the constitutionality of of that court overruling a demurrer of the nisi prius court to the petition of plaintiffs court of Kansas, and that court held that it in error for an injunction to restrain the col- violated neither the Federal nor state Conlection of taxes, levied by the city of Kansas here in six assignments of errors.

stitutions. The same question is presented

The City, on lands brought into that city under act of the legislature of Kansas authorizing specific contention is that the Kansas statute cities of the first class having a population violates that portion of the Fourteenth of 30,000 or more, which shall be subdivided Amendment which provides: “Nor shall into lots and blocks, or whenever any unplat- any state deprive any person of life, liberty, ted tract of land shall lie upon or mainly

or property without due process of law, nor (335]within any such *city, or is so situated as to deny to any person within its jurisdiction be bounded on three fourths of its boundary

the equal protection of the laws.” line by platted territory of or adjacent to

The defendants in error, however, object such city, or by the boundary line of such to the jurisdiction of this court, and urge city, or by both, the same may be added to that the judgment appealed from is not a and made part of the city by ordinance duly final one, and is not therefore reviewable in

this court. passed. There was a provision in the law as follows: “But nothing in this act shall be

It is further urged that the record does taken or held to apply to any tract or tracts not show that anything was done in the of land used for agricultural purposes when lower court after decision in the supremo the same is not owned by any railroad or court, but that error is prosecuted directly other corporation."

to the judgment of the supreme court,and that An ordinance was passed, pursuant to the that determined only a question of pleading, statute, extending the city boundaries so as

and that its direction has not yet been acted to include large tracts of land belonging to on, and that no judgment of any kind has the Union Pacific Railway. A portion of the been entered against Wyandotte township or lands were used for right of way and other school district No. 9. railroad purposes, and a large part of them

The law of Kansas prescribing action on were vacant and unoccupied, which were held demurrer is as follows: "If the demurrer be by the company for its future uses.

sustained, the adverse party may amend, if Taxes were levied by the city upon the the defect can be remedied by way of amend. property, and the suit was brought to enjoin ment, with or without costs, as the court, in their collection. The petition presented the its discretion, shall direct.” facts, and contained the following allega. [27: 73), it was decided that "the rule is

In Bostwick v. Brinkerhoff, 106 U. S. 3 tion:

"Nor shall any state deprive any person well settled and of long standing that a judg. of life, liberty, or property without due proc- ment or decree to be final, within the mean. ess of law, nor deny to any person within ing of that term, as used in the acts of Con. its jurisdiction equal protection of the laws." gress giving this court jurisdiction on ap

“And plaintiffs are advised, and so charge peals and writs of error, 'must terminate the the fact to be, that in so far as said statute litigation between the parties on the merits attempts to authorize the taking of said of the case, so that if there should be an af. lands within the limits of Kansas City, Kan. firmance here, the court below would have sas, as attempted in said ordinance, Exhibit nothing to do but to execute the judgment or A,' it is unconstitutional, null, and void, in decree it had *already rendered,"—for the[337] this, to wit:

support of which many cases were cited; and “That by reason of that portion of the act'further: "If the judgment is not one which

H a


Before measuring the claim by the con- | text of the contract. The advertisement for tract, it is essential to clearly define the ex. bids was made in April, 1887. The bid and act predicate upon which the demand neces- specifications which accompanied it were

sarily rests. Reducing all the contentions of drawn by the firm, and were submitted in (880]the claimant *to their ultimate conception, June, 1887. The advertisement to which

they amount simply to the proposition that they were an answer called for a full and the United States by the written contract explicit statement of what was proposed to guaranteed the nature of the soil under the be done by the contractor and what were the site of the proposed dock, and assumed the en: requirements upon which they expected to retire burden which might arise in case it should ly. The contractors were experienced and be ascertained, during the progress of con- competent dock builders. If it had been structing the dock, that the soil under the se- their intention to only undertake to build the lected site differed to the detriment of the con- dock for the price stipulated, provided a tractor from that delineated upon the profile guaranty was afforded them by the United plan which had been made by an officer of the States that the soil upon which the dock was United States. Considering the contract itself, to be constructed was to be of a particular it is clear that there is nothing in its terms nature conforming to a plan then existing, a which supports, even by remote implication, purpose so important, so vital, would necesthe premise upon which the claimant must sarily have found direct and positive expresrest their hope of recovery. The contract im- sion in the bid and specifications, and would posed upon the contractors the obligation to not have been left to be evolved by a forced construct the dock according to the specifica- and latitudinarian construction of the word tions within a designated time for an agreed "available,” used only in the nature of a reprice upon a site to be selected by the United cital in the specifications, and not in the con. States. We look in vain for any statement tract. The fact that the bidders knew that or agreement or even intimation that any a test of the soil in the yard had been made, warranty, express or implied, in favor of the and drew the contract providing that the contractor was entered into concerning the dock should be located on a site to be desig. character of he underlying soil. The only nated by the United States without any exword which it is claimed supports the press stipulation that there was a warranty contention that warranty un- in their favor that the ground selected should dertaken by the United States as to the con- be of a defined character, precludes the condition of the soil is the statement found in ception that the terms of the contract imthe opening portions of the specifications, posed such obligation on the government in that the dock was to be built in the navy the absence of a full and clear expression * to(388) yard upon a site which was "available," and that effect, or at least an unavoidable impli. great stress was laid in the argument at bar cation. This is made clearer by other por. upon this word. But the word "available” tions of the contract and specifications. intrinsically has no such meaning as that The seventh paragraph of the contract consought to be given it. It certainly cannot tained a stipulation that “the construction of be said that the site selected for the dock was the said dry dock and its accessories and apnot available for the purpose, since one has purtenances herein contracted for shall con. been actually erected thereon. It is conceded form in all respects to and with the plans and in argument that the word "available” has specifications aforesaid.” Now, the recital in not naturally the meaning which must be at the specifications as to an "available" site is tributed to it in order to support the con. only contained in the opening clause thereof, tention that there was a warranty as to the and naturally suggests only that it relates condition of the soil. But it is said the word solely to some place in the yard which should should be construed as having such significa- be selected in the discretion of the govern. tion, because bidders were referred to the ment suitable for the erection of a dry dock. commandants of the navy yards for informa-se, also, in the specifications as to the matetion as to the sites of the docks, and the plan rials to be furnished, which follow the recital showing the result of the examination made as to the location of the dock, there is not upon a portion of the yard was submitted to contained a word implying that a particular them. In other words, whilst admitting the piece of ground in the navy yard, having soil

rule that the contract is the law of the case, of a specially stable character, was to be the 381]and that the rights and obligations of the site on which the dock was to be placed. The

parties are to be alone determined from its
context, the argument invokes a departure contrary, however, is clearly implied from
from that rule, and asks that the contract be the provisions as to foundation and other pil.
so construed as to create a right in favor of ing which were to be used in supporting and
one of the parties in conflict with the natural enclosing, the structure. The foundation,
significance of the language of the contract, brace and cross-cap piles, it was stipulated,
because of antecedent negotiations which were to be “of such length as may be required
took place between the parties.

for the purpose, and well driven to a firm Aside from the contradiction which this bearing,” while it was stipulated that the contention involves, the meaning now claimed sheet piling should be “driven close and to for the word "available” cannot be adopted such depth as may be found necessary to without departing from the intention of the make good work;" and these provisions were parties as manifested by the terms of the con- followed by a clause reciting that “should the tract, and the documents forming part of it, character of the bottom be found such as to and such meaning cannot moreover be sanc- warrant a modification of the pile system of tioned without doing violence to the con-'floor construction, a concrete bed of not less

(889), *Mr. Justice Peckham delivered the opin- acterize and embrace natural gas, and they ion of the court:

are in the free list, and are known as paraThe defendant gas company, doing busi- graphs 496 and 651. *The language used in[341] ness at Buffalo, in the state of New York, each, when taken in its popular and commonimports natural gas from the Dominion of ly received sense, or according to the sense Canada, for the purpose of supplying its cus in which it is used commercially, would tomers with that article. The gas is brought cover and include the substance generally in pipes under the Niagara river, and is used spoken of and loosely described as natural for consumption as fuel and for illuminating gas. The fact that it is not thus named in purposes.

the act compelled the collector to assess it In 1893 the gas imported by the company as a raw or unmanufactured article not enu. was assessed for duty by the collector of the merated, a description which does not fit port of Buffalo as a nonenumerated unmanu- nearly so well as that which is contained in factured article at ten per cent, under sec- each of the paragraphs mentioned above. We tion 4 of the tariff act of October 1, 1890. think the evidence shows that natural gas 20 Stat. at L. 567, at page 613.

is included in the language of one or both The importers claimed that the gas was en those paragraphs. titled to free entry under section 2 of the The rule is familiar that in the interpretaabove act, providing for a free list, either un- tion of laws relating to the revenues the der paragraph 496 (page 604), as crude bi- words are to be taken in their commonly re tumen, or under paragraph 651 (page 607), ceived and popular sense, or according to as a crude mineral, not advanced in value or their commercial designation, if that differs condition by refining or grinding, or by any from the ordinary understanding of the

other process of manufacture, not specially word. Two Hundred Chests of Tea, Smith, (840)provided for in the act. The importers made Claimant, 9 Wheat. 430 (6: 128].

proper protest, and obtained a review of the Mr. Justice Story, in that case, in deliv. decision of the collector by the board of gen. ering the opinion of the court, said: “The eral appraisers. That board, on a second object of the duty laws is to raise revenue, hearing, after testimony had been given as and for this purpose to class substances acto the character of the gas, decided that nat-cording to the general usage and known de ural gas was a crude mineral, and the board nominations of trade. Whether a particular on that ground sustained the claim that it article were designated by one name or an. was exempt from duty under paragraph 651 other in the country of its origin, or whether of the tariff act of 1890.

it were a simple or mixed substance, was of The circuit court affirmed that decision, no importance in the view of the legislature. and upon a review by the circuit court of ap- It did not suppose our merchants to be nato peals for the second circuit (45 U. S. App. uralists, or geologists, or botanists. It ap 345), the decision was again affirmed. The plied its attention to the description of ar latter court, by Circuit Judge Lacombe, said: | ticles as they derived their appellations in “We do not undertake in this case to decide our own markets, in our domestic as well as whether or not natural gas is a 'crude bitu- our foreign traffic.” See also Lutz v. Mamen.' If it be such, the provisions of para- gone, 153 U. S. 105 [38: 651), and cases graph 496 would control its classification, there cited. being more specific than those of paragraph Prior to 1890 natural gas had not been im651. Both paragraphs are in the free list, ported, although its existence in this country and since natural gas comes fairly within and in foreign countries was well known. the general provision for crude minerals, and After the passage of the tariff act of 1890, is therefore free, it is unnecessary now to this corporation commenced its importation inquire whether it is also within the more from Canada as stated. It appeared in the specific description 'crude bitumen,' which is evidence that an analysis of the gas thus also free. The board of general appraisers imported had been made by competent chemproperly reversed the collector's assessment ists, and it was found to contain methane, or of the article for duty; it is not a 'raw or marsh gas, to the extent of 95.6 per cent, the unmanufactured article not enumerated.'” balance being made up principally of hydro

Circuit Judge Wallace, while concurring carbons other than methane. in the affirmance of the decision of the cir. In the opinion of some of the witnesses the cuit court, was of the opinion that the im- natural gas thus *examined was a crude bitu-[348] portation in controversy ought to be classi. men. It was stated “that bitumens are mix, Red under paragraph 496 as crude bitumen, tures of hydrocarbons of various kinds, mixed And exempt from duty on that ground. with other materials in varying proportions ;

The decision having been duly entered, this a crude bitumen as found in nature is mixed court upon the petition on the government is with other materials.” It was also testified sued a writ of certiorari, and the case has that this natural gas contains 97.2 per cent been brought here for review.

of natural hydrocarbon, and the balance of of opinion that the circuit court 2.8 per cent is composed of substances usuof appeals was right in its disposition of ally found with the hydrocarbons in crude the case. The substance that is taken from bitumen; that the term “bitumen" does not the bosom of the earth and which burns refer to any substance of definite chemical brightly winout any further labor put upon composition, but is distinctively a generic it, is popularly designated as: natural gas. term applied to a large number of natural This name is not contained in the tariff act, substances which consist largely or chiefly but there are two paragraphs thereof which it of hydrocarbons. These substances may be is claimed do properly and sufficiently char. gaseous, as natural gas or marsh gas; fluid,

We are.

(385) 'In October, 1895, the American Security settled rules of construction. She averred & Trust Company, alleging the death of the that, applying such rules, it was

clear granddaughter and the termination of the that the codicil operated to revoke the trust, filed a bill to obtain a construction of bequest and devise of the residuum of the the will and codicil, to the end that it might | estate made in favor of the Home for Incura

be enabled to distribute the estate, and thus bles; and *had substituted Mrs. Colville as[387] (386]be legally discharged from all *obligations in the residuary devisee after the payment of the

the premises. The bill charged that, consid- amount of the bequest in favor of the Pennering the will and codicil together, there was sylvania institution. The heirs at law by uncertainty whether the five thousand dol- their answer, while admitting that the codi. lars given by the codicil to Mrs. Colville re- cil gave Emeline Colville five thousand dolvoked the bequest in favor of the University lars, also asserted that the gift of the resiof Pennsylvania, or substituted Mrs. Colville, due made by the will, in favor of the Home in whole or only in part, in the place and for Incurables, was revoked by the codicil, stead of the Home for Incurables, as to the and therefore that, after payment of the gift in the will to that institution.

legacy of five thousand dollars given to the The Hospital of the University of Pennsyl- Hospital of the University of Pennsylvania, vania, the Home for Incurables, Emeline Col- and a like amount due to Mrs. Colville unville, and the heirs at law of the decedent, der the codicil, the remainder of the estate were made parties to the bill. The Hospital passed to them, since as to such remainder of the University of Pennsylvania by its an- the decedent was intestate. swer denied that there was any ambiguity in The trial court found that the codicil gave the will in regard to the bequest made to it, Emeline Colville five thousand dollars, and and averred that such bequest was in no substituted her to the bequest made in favor wise impaired by the codicil. The Home for of the Hospital of the University of PennIncurables, although conceding by its an. sylvania; hence, it decreed Mrs. Čolville en swer that there was an ambiguity, arising titled to the five thousand dollars, and that from the will and codicil considered in juxta- the Pennsylvania corporation took nothing. position, yet alleged that the codicil did not It further decreed that the other provision in any respect diminish the bequest and de- of the will—that is, the disposition of the vise of the residuum made to it by the will, residuary estate in favor of the Home for Inor, if it did, operated to do so only to the curables-was unaffected by the codicil. amount of five thousand dollars. Emeline The court of appeals, to which the controColville, by her answer, while admitting that versy was taken, while agreeing that the there was ambiguity in the will and codicil codicil gave Mrs. Colville five thousand dolconsidered together, averred that such am- lars, and that she was entitled to this sum, biguity was patent and was resolvable by 'held (the Chief Justice dissenting) that the my daughter. obtained a divorce with custody, ables” at Fordham, New York city, in the state of said Sophia Yuengling Huston given abso- of New York, its successors and assigns, forlutely to her said mother. In case the income ever to be used by said Home for Incurables to shall so cease and determine before the death of endow and forever maintain one or more beds my said granddaughter, then said income, and in said home, in the name and memory of my ail accumulations thereof, and the entire prin beloved son Malancthon Love Ruth. cipal of said trust estate, shall be disposed of as Fourth. I nominate and appoint Mary Robinprovided in the next succeeding item of this son Wright, wife of J. Hood Wright, of New my last will and testament.

York city, and Mary Robinson Markle, wife I further authorize my aforesaid trustee to of John Markle, of Hazleton, Pennsylvania, sell any portion of the estate herein conveyed and the survivors of them, to be the guardians to it in trust as aforesaid, and to invest and re- or guardian of the property and the person of Invest the proceeds as hereinbefore provided, my said granddaughter Sophia Yuengling Husgiving to nurchasers good and sufficient deeds ton, they and each of them being my valued or other evidences of title, without obligation friends and having consented to act in that beupon the part of said purchasers to see to the half. application of the purchase money.

Fifth. I hereby nominate and appoint the Third. In the event of the death of my said | American Security & Trust Company of Wash. granddaughter Sophia Yuengling Huston, or of ington city, District of Columbia, to be the sole the occurrence of the prior contingency for the executor of my estate. determination of said trust hereinbefore pro- I, Mary Eleanor Ruth, being of sound and vided in item two, then the trust hereinbefore disposing mind and memory and understanding, created and vested in the American Security & do make and publish this codicil to my last Trust Company sball cease and be determined, will and testament,I hereby revoke and annul and so much of my said estate shall thereupon the bequest therein made by me to the Home for be conveyed and delivered over by said Ameri- Incurables at Fordham, New York city, in the can Security & Trust Company to the Hospital state of New York, and I hereby give and beof the University of Pennsylvania as amounts queath the five thousand dollars (heretofore in to five thousand dollars, said five thousand dol- my will bequeathed to sald Home for Incur. lars to be used by said hospital to endow and ables) to my friend Emeline Colville, the widow forever maintain a first-class perpetual bed in of Samuel Colville, now living in New York city, said hospital in the city of Philadelphia, said said bequest being on account of her kindness bed to be in the name and memory of my be- to my son and myself during his and my illness loved son Malancthon Love Ruth.

and my distress. All the residue and remainder of my said es- În witness whereof I have hereto affixed my tate, of whatever kind, after the payment of name this first day of June, in the year of our said five thousand dollars for the establishment Lord eighteen hundred and ninety-two, and I of said perpetual bed in said hospital, I give, de- in all other things ratify and affirm my sald vise. and bequeath to the "Home for Incur. | will.

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