Nited States for the District of Colo IN ERROR to the District Court of the rado to review a judgment quashing an indictment for a conspiracy to defraud the United States. Aflirmed. Solicitor General Hoyt and Attorney General Bonaparte argued the cause, and, with Mr. Edwin W. Lawrence, filed a brief for plaintiff in error. For their contentions, see their brief as reported in United States v. Biggs, ante, 305. was to hold that the prohibition of the statute only applied to the period of original application, and ceased to restrain the power of the entryman to sell to another and perfect his entry for the purpose of transferring the title after patent. This being concluded by the decision in the Williamson Case, the distinction now sought to be made comes to this,-that it is unlawful under the statute to conspire to have that done which the statute did not prohibit, and, on the contrary, by implication recognized could be lawfully done without prejudice or injury to the United States in any manner whatever. This also serves to demonstrate that no error was committed by the court below in holding that, under § 5440, Rev. Stat., the acts charged in the indictment could not possibly have 522]constituted a defrauding of the Unit-reversal of the action of the court below in ed States in any manner or for any purpose within the intendment of that section. UNITED STATES, Plff. in Err., V. Of ALEXANDER T. SULLENBERGER, James [No. 290.] Argued December 16, 17, 1908. Mr. Edmund F. Richardson argued the cause, and, with Mr. Horace N. Hawkins, filed a brief for defendants in error. Mr. Justice White delivered the opinion of the court: In this case the United States seeks the The indictment quashing an indictment, the writ of error N ERROR to the District Court of the United States for the District of Colorado to review a judgment quashing an inDecided dictment for a conspiracy to defraud the United States. Affirmed. Solicitor General Hoyt and Attorney | General Bonaparte argued the cause, and, with Mr. Edwin W. Lawrence, filed a brief for plaintiff in error. Messrs. Clyde C. Dawson and Charles title the state held, it sold only an interest which was subject to redemption. [For other cases, see Constitutional Law, IV. a, 4; IV. b, 6, in Digest Sup. Ct. 1908.] [No. 53.] J. Hughes, Jr., argued the cause and Argued December 14, 1908. Decided Janufiled a brief for defendants in error. For contentions of counsel, see their ary 4, 1909. briefs as reported in United States v. Biggs, State of Michigan to review a decree N ERROR to the Supreme Court of the ante, 305. which reversed a decree of the Circuit Court Mr. Justice White delivered the opinion of Gogebic County, in that state, dismiss of the court: In this case the court below quashed an indictment, and a writ of error direct from this court is prosecuted on behalf of the United States, upon the theory by which it prosecuted the writ in the case of United States v. Biggs, No. 289, just decided. [211 U. S. 507, ante, 305, 29 Sup. Ct. Rep. 181] the case presented by the record, omitting references to irrelevant distinctions in the form of the pleadings is like that in the Biggs Case, and is controlled and disposed of by the opinion just announced therein. Affirmed. ALBERT H. RUSCH, Plff. in Err., V. ing the bill in a suit to remove a cloud on title caused by a tax deed. Affirmed. The facts are stated in the opinion. with Mr. E. C. Chapin, filed a brief for Mr. O. H. Reed argued the cause, and, plaintiff in error. Mr. J. F. Carey argued the cause, and, with Mr. C. C. Lancaster, filed a brief for defendant in error. Mr. Justice McKenna delivered the opinion of the court: This is a bill in equity, brought by defendant in error, hereinafter called the land and mining company, against plaintiff in error, in the circuit court for the county of Gogebic, state of Michigan, to remove a cloud from the title to certain lands, caused by a tax deed held by plaintiff in error, and to JOHN DUNCAN LAND & MINING COM- compel a reconveyance to that company of PANY. titles. tax The grantee in a tax deed cannot claim to have been denied due process of law or the equal protection of the laws by Mich. Pub. Laws 1897, act No. 229, requiring the giving of notice to the original owners in order to cut off the right of redemption, on the theory that, by the proceedings under the tax laws, the state acquired an absolute title, which it conveyed by the tax deed. and that the statute operated to devest such title and transfer it to another, where the highest state court holds that, whatever NOTE. As to what constitutes due proc ess of law-see notes to Kuntz v. Sumption, 2 L.R.A. 655; People v. O'Brien, 2 L.R.A. 255; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865. As to constitutional equality of privileges, immunities, and protection-see note to Louisville Safety Vault & T. Co. v. Louis ville & N. R. Co. 14 L.R.A. 579. On due process of law in tax proceedings -see note to Read v. Dingess, 8 C. C. A. 398. 312 the land described therein. The foundation of the suit and the questions in it depend upon the tax laws of the state. The bill alleged that the land and mining company was the owner in fee simple of the lands, and that Albert H. Rusch, the plaintiff in error here, held a tax deed therefor, issued by the auditor general of the state, for delinquent taxes for the years 1889 to 1901, both inclusive, for which plaintiff in error paid the sum of $648.74. That the deed was issued after the provisions of act No. 229 of the Laws of 1897 went into effect, and that the notice given by plaintiff in error to the owners of the land of the sale to him did not comply with the provisions [527 in error claimed absolute title to the land of the tax law. It was alleged that plaintiff by virtue of the tax deed and the notice which he claimed to have served upon the then owners of the lands, because the six months allowed for redemption had expired and no redemption had been made. An offer the amount paid by plaintiff in error, with by the land and mining company to refund the percentage and costs required by the laws, is alleged. The answer of plaintiff in error admitted certain of the allegations of the bill, denied others, and set up, with a recitation of cir 1908. REID V. UNITED STATES. cumstances, the sufficiency of the notice | court would seem to settle the meaning of to cut off the right of redemption of the the statute, and, to get rid of the effect of owners of the lands. And it alleged that the decision, plaintiff in error attacks the the act No. 229 of the Public Laws of 1897, constitutionality of the statute. He is put The arguwith the amendments thereto, violated cer- thereby in the dilemma of attacking the law tain sections of the Constitution of the state upon which he relies for title. of Michigan and the 14th Amendment of the ment by which this anomaly is sought to be sustained is somewhat involved, but, as we Constitution of the United States. understand it, its ultimate reliance is the contention that, by the proceedings under the tax laws, the state acquired the absolute title to the lands, and conveyed that title to plaintiff in error, and that the aim of act No. 229 is to devest such title and transfer it to another; and therefore it is further contended the property of the plaintiff in error is taken without due process of law. There is also a contention, based upon the construction of the laws, that they are unequal in their operation. After proofs taken, the circuit court dismissed the bill. The court held that the notice given by plaintiff in error to the predecessors in title of the land and mining company of the sale of the lands for taxes and the issuing of deeds therefor was sufficient, under the statute, to cut off the right of redemption, and considered that, in view of such holding, it was not necessary to pass on the constitutionality of act No. 229. The supreme court of the state, however, decided that the notice was insufficient and reversed the decree of the circuit court. Plaintiff in error then sued out this writ of error, asserting jurisdiction in this court, because he contends a question under the 14th Amendment of the Constitution of the United States is presented. If the title was taken subject to redemption, it cannot be said to be devested without due process of law if redemption *was[529 exercised according to law. And how redemption should be exercised and how it could be cut off depended upon the provisions of It will be observed that the circuit court the statute; and, therefore, the best answer held that the notice of the tax sale was suffi- to the assumption of plaintiff in error, that cient and that the supreme court decided he acquired an indefeasible title, is the anthat it was insufficient. Of course, the deci-swer given by the supreme court of the state, sion of the supreme court is determinative, whose province it is to pronounce the meanand equally, of course, if there is nothing else in the case but a matter of statutory construction, we have nothing to do with it. And that such is the case a brief statement will demonstrate. 528] *In August, 1902, plaintiff in error may redeem the property by paying to the owner of the tax title the amount invested therein, and 100 per cent in addition thereto, and the further sum of $5 for each description of land contained in the tax deed. Plaintiff in error attempted to give that notice, and its sufficiency constituted the controversy in the state courts. ing of the statutes of the state without Judgment affirmed. pute. The limitation with reference to the amount in dispute, prescribed by the act of March 3, 1887 (24 Stat. at L. 505, chap. 359, U. S. Comp. Stat. 1901, p. 754), for appeals from or writs of error to a Federal district court sitting as a court of claims, NOTE. On direct review in Federal Supreme Court of judgments of circuit or disThe trial court held it sufficient, as we have seen; the supreme court held it in-trict courts-see note to Gwin v. United sufficient. The decision of the supreme States, 46 L. ed. U. S. 741. 313 [For other cases, see Appeal and Error, I. f, 4, in Digest Sup. Ct. 1908.] remains in force, notwithstanding the pro-ices of officers of the United States," etc. vision of the circuit courts of appeals act of For a third defense the answer alleges the March 3, 1891 (26 Stat. at L. 826, chap. investigations that were made, the report517, U. S. Comp. Stat. 1901, p. 488), § 14, ed impossibility of identifying the culprits that "all acts and parts of acts relating to appeals or writs of error inconsistent with unless the soldiers would take it in hand the provisions for review by appeals or or turn state's evidence, the President's writs of error in the preceding §§ 5 and 6 belief that the crimes under consideration of this act are hereby repealed." were committed by a considerable group of the members of the regiment, and that the greater part of the regiment must know who were the guilty men, and the issuing of the order in consequence, not as a punishment, firms that it was in accordance with precedent. The third defense was demurred to, the demurrer was sustained, the petition was dismissed on the merits, and this writ of error was brought. [No. 552.] Argued December 11, 14, 1908. Decided but for the good of the service; and af I January 4, 1909. N ERROR to the District Court of the United States for the Southern District of New York to review a judgment dismiss ing a suit against the United States for pay alleged to be due to the petitioner as an enlisted man in the regular Army. Dismissed for want of jurisdiction. See same case below, 161 Fed. 469. The facts are stated in the opinion. Mr. Chase Mellen argued the cause, and, with Mr. Francis Woodbridge, filed a brief for plaintiff in error. Solicitor General Hoyt argued the cause and filed a brief for defendant in error. Mr. George B. Davis, Judge-AdvocateGeneral of United States Army, filed a brief as amicus curiæ. Mr. Justice Holmes delivered the opinion of the court: *As the case comes here on the merits, [537 and not on a certificate under the act of March 3, 1891, chap. 517, § 5, 26 Stat. at L. 827, U. S. Comp. Stat. 1901, p. 549, the first question that we have to consider is the jurisdiction of this court; and, on this point, without going further, we must yield to the argument submitted, although not urged, on behalf of the United States. The jurisdiction of the district court is derived from the act of March 3, 1887, chap. 359, § 3, 24 Stat. at L. 505, U. S. Comp. Stat. 1901, p. 754, by which it is made concurrent with that of the court of claims when the amount of the claim does not exceed $1,000, and that of the circuit court is made concurrent for amounts between one thousand and ten thousand dollars. By § 4. the right of appeal "shall be governed by the law now in force," and by § 9, the plaintiff or the United States, in any suit brought under the provisions of the act, "shall have the same rights of appeal or writ of error as are now reserved in the statutes of the United States in that behalf made." This meant the same right of appeal as was given from the court of claims (United States v. Davis, 131 U. S. 36, 33 L. ed. 93, 9 Sup. Ct. Rep. 657); so that it hardly admits of doubt that, when that statute went into effect, an appeal or writ of error under it by a claimant demanding less than $3,000 ould have been dismissed. Rev. Stat. § 707, U. S. Comp. Stat. 1901, p. 574. See Strong v. United States, 40 Fed. 183. This is a suit for $122.26, alleged to be due to the plaintiff in error as an enlisted man in the regular Army from November 16, 1906, to July 18, 1907, when his term of service expired. The plaintiff in error was one of the members of Companies B, C, and D, of the First Battalion of the Twen ty-fifth United States Infantry, who were discharged without honor by order of the President on the former date, without trial, after certain disturbances in Brownsville, Texas, in which the order averred members of those companies to have participated. The petition alleges that the plaintiff in error had no part in the disturbance and no knowledge as to who was concerned in it, and denies the power of the President to make such a discharge. The answer, aft- The real question is whether this limitaer certain preliminaries, suggests for a tion is done away with or qualified by the second defense that the district court has no act of March 3, 1891, chap. 517, §§ 5, 6, and jurisdiction, by reason of the act of March 14, 26 Stat. at L. 826, U. S. Comp. Stat. 3, 1887, chap. 359, § 2, 24 Stat. at L. 505, 1901, p. 488. By § 14, "all acts and parts as amended by the act of June 27, 1898, of acts relating to appeals or writs of erchap. 503, § 2, 30 Stat. at L. 494, U. S. ror inconsistent with the provisions for reComp. Stat. 1901, p. 753, which provides view by appeals or writs of error in the prethat the jurisdiction conferred "shall not ceding sections five and six of this act are extend to cases brought to recover fees, hereby repealed." By § 5. writs of error salary, or compensation for official serv-may be taken from the district courts di rect to this court when the jurisdiction of the court is in issue, the question of jurisdiction alone being certified; in which case no other question is open. United States v. Larkin, 208 U. S. 333, 340, 52 L. ed. 517, 520, 28 Sup. Ct. Rep. 417. That clause does not apply here. The only other clauses of § 5 that are or could be relied upon are, "in any case that involves the construction or application of the Constitution of the United States." "In any case in which the con538]stitutionality of any law of the United . is drawn in question." The latter may be dismissed as having no bearing, although it was mentioned, so that the possible application of § 5, and the consequent inference that the former limitations on the right to come to this court are repealed, so far as this case is concerned, depend on the suggestion in the petition that, by his discharge, the plaintiff was deprived of his property without due process of law. States We shall not discuss that suggestion, because we are of opinion that, in any event, the repealing words that we have quoted do not apply to the special jurisdiction of the district court sitting as a court of claims. Suits against the United States can be maintained, of course, only by permission of the United States, and in the manner and subject to the restrictions that it may see fit to impose. Kawananakoa v. Polyblank, 205 U. S. 349, 353, 51 L. ed. 834, 836, 27 Sup. Ct. Rep. 526. It has given a restricted permission, and has created a pattern jurisdiction in the court of claims, with a limited appeal. The right to take up cases from that court by writ of error still is limited as heretofore. It would not be expected that a different rule would be laid down for other courts that, for convenience, are allowed to take its place, when originally the rule was the same. It does not seem to us that Congress has done so unlikely a thing. The act of March 3, 1891, chap. 517, 26 Stat. at L. 826, U. S. Comp. Stat. 1901, p. 488, is dealing with general, not special, jurisdiction. It has been decided in some cases of special jurisdiction that there is an implied exception to almost equally broad words in the same act. United States v. Dalcour, 203 U. S. 408, 51 L. ed. 248, 27 Sup. Ct. Rep. 58. Congress, when its mind was directed to the specific question, determined for all courts what the amount must be before the grace of the Sovereign power would grant more than one hearing. It has not changed that amount for the usual case. A change looking to the ordinary business of the courts should not be held to embrace that, merely on the strength of words general enough to include it, when the policy of the repealing law, and the policy of the law alleged to be repealed, have such different directions, and when it appears that the general policy of the latter still is maintained. The [539 limitation with reference to amount unquestionably remains in force for the district court in cases outside of the act of 1891,. § 5, as well as for the court of claims. In our opinion, the act of 1891, § 5, was not intended to create exceptions, when no such exceptions exist for the court of claims. We observe that the plaintiff in error gives a hint at dissatisfaction with the government for raising this point. But jurisdiction is not a matter of sympathy or favor. The courts are bound to take notice of the limits of their authority, and it is no part of the defendant's duty to help in obtaining an unauthorized judgment by surprise. Writ of error dismissed. JOHN MCLEAN, Plff. in Err., V. STATE OF ARKANSAS. (See S. C. Reporter's ed. 539-552.) Constitutional law U. - police power. liberty of contract 1. The liberty of contract secured by S. Const., 14th Amend., against state invasion, is not infringed by the provision of Ark. Acts 1905, chap. 219, § 1, under which miners employed at quantity rates are prevented from contracting for wages upon the basis of screened coal instead of duced in the mine, but such statute is a the weight of the coal as originally provalid exercise of the police power. [For other cases, see Constitutional Law, 605 607, in Digest Sup. Ct. 1908.] Constitutional law-equal protection of the laws classification. 2. The exemption of coal mines not emtion of Ark. Acts 1905, chap. 219, § 1, under ploying ten or more men from the operawhich miners employed at quantity rates are prevented from contracting for wages upon the basis of screened coal instead of the weight of the coal as originally pro NOTE. As to what constitutes due process of law-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865. As to constitutional equality of privileges, immunities, and protection-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579. As to the constitutionality of statutes restricting contracts and business-see note to State v. Loomis, 21 L.R.A. 789. |