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"Agency is a legal relation, founded upon the express or implied contract of the parties, or created by law, by virtue of which one party-the agent-is employed and authorized to represent and act for the other-the principal-in business dealings with third persons. The distinguishing features of the agent are his representative character and his derivative authority." Mechem on Agency, § 1. We fail to see a single element of such relationship in the record before us. The Western Trust & Investment Company may not have informed the appellants in so many words that they were interested in the purchase, and the appellants may not have known of such interest to a moral certainty; but their suspicions were aroused, and they made no inquiry, for the all-sufficient reason that at that time they did not care. The appellants concede that loose expressions in the correspondence militate against their present claims, and we can find nothing but loose expressions in their favor. Ordinarily a court of equity will not seize upon mere loose expressions for the sole purpose of enabling parties to reap where they have not

ing: "If you can do anything for me on these terms, I shall be glad to hear from you." This expression, and the subsequent acceptance of a commission by the Western Trust & Investment Company, are the only facts or circumstances in the record tending in the remotest way to substantiate the claim of agency. The matter of the commission we will refer to later. In their letter of December 5th the Western Trust & Investment Company said: "To cut it short, our people will pay you $25,000 net for the property." This offer would seem to preclude a claim for commission or a claim of agency, and the reply of the appellants that $245 per acre already fixed was the best they could do should also be construed as a net offer. In fact, the entire correspondence shows that the appellants and the Western Trust & Investment Company were dealing at arms' length, and that the latter represented the purchase, if anybody. Thus, in their letter of February 14, 1905, the appellants say to the respondent Lawyer: "If you do not wish to pay so much, there is no compulsion upon you to take it. We are willing to risk holding it for a higher price." In their letter to their bankers they say: "The inclosed deed is to be delivered to Mr. Jay Lawyer of the Western Trust & Investment Co., Jamison Blk., Spokane, on the following conditions: He is to pay $26,950 (as mentioned in deed) less 5 per cent. commission and less also $18.00 for abstract. That he is to pay a net sum of $25,584.50. Besides, he is to show you tax receipt for 1904 taxes: Mr. Lawyer understood that this is the condition, we having refused to reduce our pur-(Supreme Court of Washington. Oct. 7, 1907.) chase price by these amounts." COURTS-STATE COURTS-JURISDICTION-PUBLIC LANDS.

Now, as to the acceptance of the commission on the sale by the Western Trust & Investment Company. In the first place, In the first place, they were clearly not entitled to a commission as a matter of law, because of their interest in the purchase. In the second place, in our opinion they were not entitled to a commission as a matter of contract; and, while their subsequent conduct in accepting a commission is in a measure inconsistent with their statement that they expected none, yet we think that statement is fully borne out by the testimony. In their letter transmitting the opinion of their attorney on the abstract, they referred to the taxes of 1904, the old city taxes, the cost of the abstract, and the claim on account of a deficiency in acreage, but made no reference to a commission, and no provision whatever was made for its payment. From all the circumstances, therefore, we are constrained to hold that the Western Trust & Investment Company were not entitled to a commission as a matter of law or contract and expected none. Its subsequent acceptance is a circumstance against them; but an agency existed or did not exist pending the negotiations for the sale, and could neither be created nor abrogated by what subsequently transpired.

91 P.-61

sown.

There is no error in the record, and the judgment is affirmed.

HADLEY, C. J., and FULLERTON, DUNBAR. and ROOT, JJ., concur. CROW, J., took no part.

(47 Wash. 249) COLUMBIA CANAL CO. v. BENHAM.

A state court has no jurisdiction to enjoin defendant from proceeding to obtain title to public lands, for which he has filed an entry in the proper land office, and to require him to file a relinquishment of his claims thereto and to appoint a commissioner to file a relinquishment on defendant's failure to do so; the court being powerless to grant relief until the title passes from the government.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 1333.]

Appeal from Superior Court, King County; R. B. Albertson, Judge.

Action by the Columbia Canal Company against W. L. Benham. From a decree for plaintiff, defendant appeals. Reversed and

remanded.

Jesse A. Frye, for appellant. Shank & Smith, for respondent.

RUDKIN, J. This is an appeal by the defendant from the following decree entered against him in the court below: "It is hereby ordered, adjudged, and decreed that the defendant be, and he hereby is, restrained and enjoined from proceeding further in any manner whatever, in person or by agent or attorney, to obtain title to the northwest quarter (N. W. 4) of section ten (10), in township seven (7) north, range thirty-one

(31) east, in Walla Walla county, Washingtion, whether under his entry of the said land as desert land, filed in the United States Land Office, at Walla Walla, Washington, on, to wit, August 2, 1906, or otherwise, and that defendant, his agents, or attorneys and each of them be, and they hereby are, forbidden and enjoined from taking any steps in the matter of the said entry or any other proceedings in the land office of the United States in connection with the said land, save and except only as hereinafter directed. And it is further ordered and decreed that the defendant do forthwith file, or cause to be filed, in the United States Land Office at Walla Walla, Washington, a relinquishment of all claims to said land and the whole thereof. and that, in the event of his failure so to do within twenty (20) days from this date, Heber M. Hoyt, Esquire, a member of the bar of this court, who is hereby appointed commissioner for the purpose, shall forthwith, in the name and as the act of said defendant, execute such relinquishment in due and proper form, and cause the same to be filed in said land office, with certified copies of findings, conclusions, and decree. But such relinquishment by the commissioner shall not of itself relieve the defendant from making relinquishment in person as hereinabove ordered."

In view of the conclusion we have reached on the question of the court's authority to enter such a decree, we deem it unnecessary to make a further statement of the case, except to say that the lands described in the decree are public lands of the United States, and the appellant has made entry thereof under the provisions of the desert land act in the proper land office. Notwithstanding the innumerable attempts that have been made through the courts to control the action of the land department in disposing of the public domain, the respondent has been unable to cite a single precedent for such a decree; and, after an exhaustive examination of the authorities, this court has been equally unsuccessful. We are satisfied, however, that the authority to enter the decree has been repeatedly denied by the Supreme Court of the United States in analogous cases. Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800, the court, speaking through Mr. Justice Miller, said: "It plainly appears from this, first, that defendants had not the legal title; second, that it was in the United States; and, third, that the matter was still in fieri, and under the control of the land officers. Nothing in record of the case before us gives evidence that any further steps in that department have been taken in the case. We have repeatedly held that the courts will not interfere with the officers of the government while in the discharge of their duty in disposing of the public lands, either by injunction or mandamus. Litchfield y. Register and Receiver. 9 Wall. (U. S.) 575, 19 L. Ed. GS1; Gaines v. Thompson, 7 Wall. (U.

S.) 347, 19 L. Ed. 62; Secretary v. McGarrahan, 9 Wall. (U. S.) 298, 19 L. Ed. 579. And we think it would be quite as objectionable to permit a state court, while such a question was under the consideration and within the control of the executive departments, to take jurisdiction of the case by reason of their control of the parties concerned, and render decree in advance of the action of the government, which would render its patents a nullity when issued. After the United States has parted with its title, and the individual has become vested with it, the equity subject to which he holds it may be enforced, but not before. Johnson v. Towsley, 13 Wall. (U. S.) 72, 20 L. Ed. 485; Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424. The doctrine of this case has been reaffirmed in many subséquent cases in the same court. United States v. Schurz, 102 U. S. 378, 26 L. Ed. 167; Carrick v. Lamar, 116 U. S. 423, 6 Sup. Ct. 424, 29 L. Ed. 677; Cruickshank v. Bidwell, 176 U. S. 73, 20 Sup. Ct. 280, 44 L. Ed. 377; Kirwin v. Murphy, 189 U. S. 35, 23 Sup. Ct. 599, 47 L. Ed. 698: Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301, 23 Sup. Ct. 692, 24 Sup. Ct. 860, 47 L. Ed. 1064; Humbird v. Avery, 195 U. S. 480, 25 Sup. Ct. 123, 49 L. Ed. 286; Oregon v. Hitchcock, 202 U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935. To the same effect, see Casey v. Vassor (C. C.) 50 Fed. 258; Forbes v. Driscoll, 4 Dak. 336, 31 N. W. 633; Vantongeren v. Heffernan, 5 Dak. 180, 38 N. W. 52; Hays v. Parker, 2 Wash. Ter. 198, 3 Pac. 901. In McCord v. Hill, 104 Wis. 457, 80 N. W. 735. the court said: "It is only after the United States has parted with its title and the individual has become vested with it that the equities on which he holds it may be enforc ed, and not before. * * * Such being the law, a complaint which seeks to have the court adjust equities between rival claimants to government land is fatally defective if it fails to show that the title has become vested in the individual against whom it is sought to enforce supposed equities."

In Sims v. Morrison, 92 Minn. 341, 100 N. W. SS, the court said: "The rule applies with greater force to the case at bar, for here the legal title to the land is in the general government, with no certainty that it will ever become vested in defendants, and the rights of both are purely equitable. The government has the paramount and sole authority to dispose of its lands, and, until it parts with and conveys its title, the courts are powerless to aid litigants in controversies affecting or involving individual claims thereto." So far as we have been able to discover, there is no dissent from these views. The right of the respondent to maintain this action must rest upon some equity it has or claims in the land sought to be entered, which is now public land of the United States. If it has such an equityand upon that question we express no opinion-the courts are powerless to grant relief

until the title passes from the general government. The respondent cites the case of Rader v. Stubblefield from this court, reported in 86 Pac. 560, in support of its contention. The difference between enjoining the prosecution of an action inter partes in another court, and enjoining the prosecution of a claim for public land before the special tribunal charged with the administration of the public land laws, is apparent. The judgment appealed from was in excess of the jurisdiction of the court, and is without warrant or authority in law.

Reversed and remanded.

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Const. art. 3. § 9, vests the pardoning power in the Governor under such restrictions as may be prescribed by law. Ballinger's Ann. Codes & St. § 6997. authorizes the granting of a pardon under such conditions and with such restrictions and limitations as the Governor may think proper, and provides that he may issue his warrant to all proper officers to carry into effect such pardon or commutation, which war rant shall be obeyed and executed instead of the sentence, if any, originally given. No other regulations or restrictions have been prescribed by law, nor any other method provided for determining when the conditions of a pardon have been broken. Held, that the provision that the Governor may issue his warrant to carry the pardon into effect provides a method for the revocation of the pardon for breach of conditions, and is not limited to affording a method of release of the person pardoned.

2. SAME-CONDITIONS.

Under Const. art. 3. § 9, vesting the pardoning power in the Governor under such restrictions as may be prescribed by law, the Governor has power to grant pardons on any conditions capable of performance which are neither illegal nor immoral.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Pardon, §§ 4, 64, 8.]

3. SAME-BREACH OF CONDITIONS - REVOCATION.

Where the Governor issued a conditional pardon to petitioner, the Governor was authorized to enforce the performance of the conditions, and to issue his warrant revoking the pardon, according to its terms, on a breach of conditions.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 37, Pardon, § 31.]

4. HABEAS CORPUS-BURDEN OF PROOF.

Where a conditional pardon was revoked by the Governor for alleged breach of the conditions, the court was authorized in a habeas corpus proceeding to place the burden on the state of showing the violation of such conditions.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 25. Habeas Corpus, $ 78.]

5. SAME-APPEAL-MODE OF TRIAL.

A habeas corpus proceeding being triable de novo on appeal, the order will not be reversed because of the improper admission of evidence. [Ed. Note.--For cases in point, see Cent. Dig. vol. 25, Habeas Corpus, § 114.]

6. SAME PARDON CONDITIONS BREACHI -EVIDENCE.

Petitioner was pardoned because of his invalid condition, on condition that he be cared for and supported by his relatives so long as he lived, and that he be placed in the care and surveillance of a certain doctor. He remained with his relatives not more than two or three days after release, and they did not provide for or support him. He supported himself, and was married shortly before his rearrest. On revocation of the pardon, it was also shown that he frequented houses of prostitution and saloons, and often became intoxicated. Held sufficient to show a breach of the conditions of the pardon.

Rudkin. Dunbar, and Fullerton, JJ., dissenting in part.

Appeal from Superior Court, Walla Walla County: Thos. H. Brents, Judge.

Habeas corpus on petition of Edward Spencer against A. Frank Kees, superintendent of the state penitentiary. From an order remanding petitioner to custody, he appeals. Affirmed.

John H. Pedigo and Garrecht & Dunphy, for appellant. John D. Atkinson, E. C. Macdonald, Otto W. Rupp, and Lester S. Wilson, for respondent.

MOUNT, J. This appeal is from an order in habeas corpus refusing to discharge the appellant from prison. appellant from prison. On June 4, 1903, the appellant, having been convicted of murder in the second degree, was sentenced by the superior court for Spokane county to imprisonment in the penitentiary for the term of 13 years. He was thereupon incarcerated in the penitentiary. On May 8, 1905, the Governor granted a conditional pardon which, after reciting the facts above stated, is as follows: "Whereas, it has been represented to me by Dr. Yancy C. Blalock, physician at the said penitentiary, that the said Edward Spencer is an invalid, is failing in health. and cannot live, which statement is indorsed by Hon. Jesse T. Mills, chairman of the state board of control, who also recommends the granting of executive clemency to the said Edward Spencer, now, therefore, I, Albert E. Mead, Governor of the state of Washington, by virtue of the authority in me vested, do hereby pardon the said Edward Spencer, on the condition and understanding that he be placed immediately under the care and surveillance of Dr. Yancy C. Blalock, who shall report immediately to the governor any violation of the conditions on which this pardon is granted, and on further condition that the relatives of the said Edward Spencer provide for and support him so long as he shall live, and that failure on their part so to do, or on the part of the said Edward Spencer to remain with them and under the surveillance of the said Dr. Yancy C. Blalock shall cause the revocation of this pardon and the recommitment of the said Edward Spencer to the penitentiary to serve out the remainder of his term according to the sentence imposed on him by the court hereinbefore mentioned. And I hereby authorize the superintendent of the penitentiary to liberate the said Ed

ward Spencer on the conditions named herein." The terms and conditions of this pardon were accepted by Spencer, and, in pursuance thereof, he was released from the penitentiary on May 14, 1905. Thereafter, on May 16, 1906, the Governor revoked the conditional pardon by issuing under his hand and the seal of state his declaration as follows: "To all of whom these presents shall come, greeting: Whereas, on the eighth day of May, 1905, a conditional pardon was granted to Edward Spencer, a prisoner in the state penitentiary, on representations made to the Governor that the said Edward Spencer was an invalid in an advanced stage of consumption, who could live but a short time, that his friends and relatives living in the county of Walla Walla stood ready to receive and care for him, and that his condition was such that it would be but an act of common humanity to permit him to leave the prison so that he might die outside of its walls. And, whereas, the conditions of the said conditional pardon as set forth therein were as follows, to wit: "That he (the said Edward Spencer) be placed immediately under the care and surveillance of Dr. Yancy C. Blalock, who shall report immediately to the Governor any violation of the conditions on which this pardon is granted, and on the further condition that the relatives of the said Edward Spencer provide for and support him so long as he shall live, and that failure on their part so to do, or on the part of the said Edward Spencer to remain with them and under the surveillance of the said Dr. Yancy C. Blalock, shall cause the revocation of this pardon and the recommitment of the said Edward Spencer to the penitentiary to serve out the remainder of his term according to the sentence imposed on him by the court hereinbefore mentioned.' And, whereas, the said Edward Spencer has violated each and every one of the abovementioned conditions, thereby rendering the conditional pardon null and void: Now. therefore, I, Albert E. Mead, Governor of the state of Washington, by virtue of the authority in me vested, do hereby revoke and cancel the conditional pardon granted to the said Edward Spencer, and by these presents do order and direct the superintendent of the state penitentiary to apprehend the said Edward Spencer, and return him forthwith to the state penitentiary to serve out the remainder of his term according to the sentence imposed on him by the judge of the superior court of the state of Washington in and for the county of Spokane on the 4th day of June, 1903." In pursuance of this revocation of pardon, the superintendent of the penitentiary apprehended the appellant and imprisoned him in the penitentiary. Appellant thereupon applied to the superior court for Walla Walla county for a writ of habeas corpus, alleging his original conviction and sentence and the conditional pardon as above stated, and his release thereunder, that he had complied with all the terms thereof, and

that the respondent wrongfully and without authority detains the appellant in custody. The writ was issued, and, for a return thereto, the respondent alleged the revocation of the conditional pardon, for the reason that all the conditions thereof had been violated, and also alleged that the pardon was void because it was obtained by fraudulent representations. Appellant moved to strike out of the return the allegations relating to the violation of the conditions of the pardon and the allegations of fraud. This motion was overruled by the court. Appellant then denied the allegations of the return, and. upon these issues, the cause was tried to the court without a jury. appellant's demand for a jury being denied. The court ruled that the burden of proof was upon the state to show that appellant had violated the terms of the pardon. After hearing the evidence the court, without making any findings of fact, denied the application for discharge, and remanded the appellant to the custody of the superintendent of the penitentiary to serve out his original sentence. This appeal is prosecuted from that order.

It is argued by counsel for appellant that the court erred in refusing to strike out the allegations in the return to the writ, to the effect that the conditions of the pardon had been violated and that the pardon was procured by fraud, for the reason that questions of this character cannot be tried on an ap plication for habeas corpus. This raises the question whether the Governor was authorized to issue his warrant declaring the conditional pardon void and ordering the appellant to be again taken into custody without giving the appellant an opportunity to be heard. The Constitution, at section 9, art. 3, vests the pardoning power in the Governor "under such regulations and restrictions as may be prescribed by law." Section 6997, Ballinger's Ann. Codes & St., provides that, in all cases in which the Governor is authorized to grant pardons, he may grant a pardon under such conditions and with such restrictions and under such limitations as he may think proper, "and he may issue his warrant to all proper officers to carry into effect such pardon or commutation, which warrant shall be obeyed and executed instead of the sentence, if any, which was originally given." No other regulations or restrictions have been prescribed by law, and no other method has been provided for determining when the conditions of a pardon have been broken. The appellant insists that the provision that the Governor may issue his warrant to carry such pardon into effect refers only to the manner of release, and was not intended to provide a method of revocation. There would be much force in this contention if other provisions had been made for determining when conditional pardons have been violated, but there are none. We are of the opinion, therefore, that the provision above stated reposes power in the Governor, not only to effect the

release, but to make conditional pardons effective. There can be no doubt that the Governor was authorized to grant the pardon upon the conditions named, or any others which were capable of being performed and which were not illegal or immoral, and, when the appellant accepted the conditional pardon as given, he was bound by all its provisions. If the pardon had been unconditional, the release under it would have been final, and the Governor and the courts would have been without power to again enforce imprisonment under the original sentence. But this was a conditional pardon, such as the Governor had power to impose. He granted it as a matter of grace, and not of duty. He did not intend to completely exonerate the appellant or to release him from the force and effect of the sentence, but expressly provided that a failure to comply with the conditions "shall cause the revocation of this pardon and the recommitment of the said Edward Spencer to the penitentiary to serve out the remainder of his term according to the sentence." This language manifests a plain intention on the part of the Governor to himself maintain control over the pardon, and to revoke the same upon failure of the conditions. If the provision that the Governor may issue his warrant to carry the pardon into effect refers only to the release of the convict, as contended by the appellant, then the control of a conditional pardon passes from the Governor immediately upon release of the prisoner. We think such result was not intended by the language used. This result, of course, follows from unconditional pardons, because in such case the release is conclusive. There is no more to be done. But in case of a conditional pardon the enforcement of the conditions is carrying the pardon into effect, as much so as the release. We are therefore of the opinion that the Governor had power to enforce the performance of the conditions, and, when he became satisfied that the conditions of the pardon were being violated. he was authorized to issue his warrant revoking the pardon under the express terms of the pardon and under the statute. In Woodward v. Murdock. 124 Ind. 439, 24 N. E. 1047, the court said: "As we have already said, the Governor had authority to grant the parole, but, as he did it as a matter of grace and not as a duty it was his right to impose such conditions as he saw proper, and when the appellant accepted it he, by implication, as well as express agreement, did so subject to all of its terms and conditions. We have examined the following authorities cited by the Attorney General, and find them pertinent. Ex parte Wells, 18 How. (U. S.) 314, 15 L. Ed. 421; United States v. Wilson, 7 Pet. (U. S.) 149, 8 L. Ed. 640; cases cited on page 481 of 6 Crim. Law Mag.; State v. Smith, 1 Bailey, Law (S. C.) 283, 19 Am. Dec. 679; Ex parte Lockhart, 1 Disney (Ohio) 105:

State v. Fuller, 1 McCord (S. C.) 178; Flavell's Case, 8 Watts & S. (Pa.) 197; Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395. Under the circumstances the appellant was at large merely at the will of the Governor. The Governor had it in his power to order the appellant to prison at any time." See, also, Turner v. Wilson, 49 Ind. 581; Kennedy's Case, 135 Mass. 48; State v. Smith, 1 Bailey, Law (S. C.) 283, 19 Am. Dec. 679; Ex parte Marks, 64 Cal. 29, 28 Pac. 109, 49 Am. Rep. 684; Ex parte Hawkins, 61 Ark. 321, 33 S. W. 106, 30 L. R. A. 736, 54 Am. St. Rep. 209: Commonwealth v. Halloway, 44 Pa. 210, 84 Am. Dec. 431. If the appellant was entitled to a trial upon the allegation that he had violated the conditions of the pardon, the court granted that right to him in this proceeding and placed the burden upon the state to show that appellant had violated the terms of the pardon. It has been held that this may be done in cases of this kind. Ex parte Brady, 70 Ark. 376, 68 S. W. 34; Ex parte Alvarez, 50 Fla. 24, 39 So. 481; 6 Current Law, p. 876.

Appellant also alleges that the court erred in receiving certain evidence. The cause is heard de novo here upon the facts, and we shall therefore not consider evidence which we think is not proper. We find no evidence that the pardon was obtained by fraud; but we are satisfied that the judgment of the court is supported by reason of the breach of the conditions of the pardon. The conditions were that the appellant should be placed under the care and surveillance of Dr. Blalock, that his relatives should provide for and support him so long as he should live, and that appellant should remain with his relatives. The evidence conclusively shows that appellant did not remain with his relatives more than two or three days, and that appellant's relatives neither provided for him nor supported him, but that appellant was permitted to support and provide for himself, ad was married shortly before his arrest by order of the Governor. The evidence also shows that he frequented houses of prostitution and saloons and often became intoxicated. It is true the evidence of these last-named facts was objected to, but we think they served to show that appellant was not under the surveillance of Dr. Blalock. We think the trial court upon these facts properly found that the conditions of the pardon had been violated.

The order refusing a discharge was therefore correct, and is affirmed.

HADLEY, C. J., and CROW and ROOT, JJ., concur. RUDKIN, DUNBAR, and FULLERTON, JJ., are of opinion that the respondent failed to show any violation of the conditions upon which the pardon was granted, and therefore dissent.

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