the land is situate, but also filed at Union Agency at a date prior to the date upon which the lease to Gunsburg and the Southwestern Petroleum Company was received. "It is also contended that he had no actual notice, and an attempt has been made to show that the lessor had conveyed the idea to Mr. Anicker or his agent that the only lease he had executed when approached by Mr. Anicker, was the lease in favor of the Eastern Oil Company. It will be noted in the testimony that an unsuccessful effort was made to secure an admission from Eastman Richard that would corroborate this contention. "For the purposes of this case I do not consider it necessary to determine at this time whether or not the evidence at hand shows that such representations were made by the lessor; even admitting that the lessee was misled by the lessor, the regulations which provide thirty days within which a lease may be filed, if binding upon parties interested in securing leases, should be considered as heretofore, as giving that lease priority which bears the prior date of execution and is filed with the papers required, within the 30-day period. "An examination of the lease to David Gunsburg and the Southwestern Petroleum Company discloses the fact that this lease was filed with in thirty days, in accordance with the regulations, and that the same was executed prior to the lease in favor of Mr. Anicker. Concerning the contention of Mr. Anicker that the date of filing should be regarded as the date of priority, which carries with it the contention that the regulations of the Secretary of the Interior allowing thirty days within which to file a lease is not within the power conferred on the Secretary of the Interior, under the law, which provides in part (section 2, Act of Congress of May 27, 1908 [35 Stat. L. 312]): That leases of restricted lands for oil and gas mining purmay be made with the approval of the Secretary of the Interior under rules and regulations provided by the Secretary of the Interior and not otherwise.'" poses * After upholding the right of the Secretary of the Interior to make rules and regulations the superintendent further said: Upon hearing before the First Assistant Secretary of the Interior that officer reached a like conclusion. A motion to reconsider was denied, the Secretary concluding: "If there were any advantage in the prior filing of a lease which was entered into and executed after another lease, both having been filed at the agency within the time required by regulation, Anicker would have had that advantage. The Act of March 1, 1907 (34 Stat. 1026), makes the filing at Union Agency legal notice. Anicker's lease is stamped as filed at the Agency March 30, 1912. Until approved by the Secretary, it was not a completed instrument and the fact of its having been recorded in a county office cannot estop the Secretary from finding that another lease regularly executed and filed is more for the allottee's interest and better entitled to approval." [1] The plaintiff's bill was filed upon the theory that the lease to Gunsburg and Southwestern Petroleum Company had been approved by the Secretary by mistake of law, and that, but for the mistake, the lease of plaintiff in error would have been approved, and the bill sought to charge the defendants in error as trustees for the complainant, and to require an assignment of the lease to him. The District Court held against complainant, and that decree was affirmed by the Circuit Court of Appeals, 226 Fed. 176, 141 C. C. A. 174. In order to maintain a suit of this sort the, complainant must establish not only that the action of the Secretary*was wrong in approving the other lease, but that the complainant was himself entitled to an approval of his lease, and that it was refused to him because of an erroneous ruling of law by the Secretary. Bohall v. Dilla, 114 U. S. 47, 5 Sup. Ct. 782, 29 L. Ed. 61. The statutes of the United States provide: Section 20 of the Act of April 26, 1906, 34 Stat. 145, c. 1876: "The Secretary clearly having the right to fix a reasonable period within which time lessees may and must file their leases for approval, it "All leases and rental contracts, except leases follows that if such a regulation is made all les- and rental contracts for not exceeding one year, sees must receive the same treatment, both as to for agricultural purposes, for lands other than the benefits or privileges of taking the time al- homesteads, of full-blood allottees of the Choclowed, or on the contrary the penalty, if they taw, Chickasaw, Cherokee, Creek and Seminole fail to comply with the regulation. If this Tribes shall be in writing, and subject to appolicy was not followed, the rule might as well proval by the Secretary of the Interior, and be abolished, but this would lead to many oppor- shall be absolutely void and of no effect withtunities of double dealing on behalf of both les-out such approval: Provided, * sees and lessors. It being almost a physical impossibility to execute, complete the papers and file leases simultaneously, a reasonable time must be given. The thirty-day rule has been in effect since the early days of oil lease development in the Five Tribes and persons taking leases almost universally understand that the date of the lease, if filed within the thirty-day period, governs, instead of the date of filing. * * "The lease of Mr. Anicker must also be disapproved not because he was in any way delinquent himself, but because of the prior lease of David Gunsburg and the Southwestern Petroleum Company filed with all papers required within even a shorter period than that allowed by the Department." * * that all leases entered into for a period of more than one year, shall be recorded in conformity to the law applicable to recording instruments now in force in said Indian Territory." Section 2 of the Act of May 27, 1908, 35 Stat. 312, c. 199: "That leases of restricted lands for oil, gas or other mining purposes, may be made, with the approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not other wise." The Act of March 1, 1907, 34 Stat. at Large, 1026, c. 2285: "The filing heretofore or hereafter of any The superintendent concluded that the lease in the office of the United States Indian lease in favor of Anicker should be disap-Agent, Union Agency, Muskogee, Indian Terriproved, and the lease to Gunsburg and South-tory, shall be deemed constructive notice." western Petroleum Company should be ap- Under the authority to make rules the Sec. proved. retary of the Interior provided: *119 "All leases shall be in quadruplicate, and, and filed, is more to the allottee's interest with the papers required, shall be filed within and better entitled to approval. It does not thirty days from and after the date of execution by the lessor with the United States In- appear that had he disapproved the Gunsdian Agent at Union Agency, Muskogee, Okla-burg lease, he would have approved the one homa." to appellant, and until this affirmatively appears, he has no standing which permits a court by its decree to award the leasehold to him. [2] Whatever may be the effect of this rule providing for the filing of leases within thirty days from and after their execution, in view of the requirements of the statutes, the lease can have no validity without the Secretary's approval. The protection of the Indian's rights is left to the Indian Bureau of which the Secretary is the head, and the courts may only interfere to protect the rights of others when they are in 'aded by clearly unauthorized action. [4] We find nothing in this record to indicate that the Secretary of the Interior has exceeded the authority which the law vests in him. The fact that he has given reasons in the discussion of the case, which might not in all respects meet with approval, does not deprive him of authority to exercise the discretionary power with which by statute he is invested. United States ex rel. West v. Hitchcock, 205 U. S. 80, 85, 86, 27 Sup. Ct. 423, 51 L. Ed. 718. It follows that the decree of the United States Circuit Court of Appeals must be Affirmed. (246 U. S. 121) GREAT NORTHERN RY. CO. v. Much stress is placed in argument upon the provisions of section 20 of the Act of April | 26, 1906, requiring leases entered into for a period of more than one year to be recorded in conformity with the law requiring the recording of conveyances in force in the Territory; and upon the Act of March 1, 1907, providing that the filing of the lease in the office of the Indian Agency shall be deemed constructive notice. An elaborate argument is based on these requirements, and the stat- (Argued Jan. 31, 1918. Decided March 4, 1918.) utes of Arkansas in force in the Territory are set out in the brief, which, it is contended, show the necessity of recording such instruments in order to give constructive notice to persons dealing with the title. But these requirements do not relieve the appellant of the primary difficulty of maintaining this suit; the lack of a showing that his lease would have been approved but for a mistake of law which resulted in the approval of the lease to another. [3] The statute is plain in its provisionsthat no lease, of the character here in question, can be valid without the approval of the Secretary. Such approval rests in the exercise of his discretion; unquestionably this authority was given to him for the protection of Indians against their own improvidence and the designs of those who would obtain their property for inadequate compensation. It is also true that the law does not vest arbitrary authority in the Secretary of the Interior. But it does give him power to consider the advantages and disadvantages of the lease presented for his action, and to grant or withhold approval as his judgment may dictate. *There is nothing in this record to show that approval of the appellant's lease has been given by the Secretary as required by the statute. On the contrary, it appears that the Secretary approved another lease of the same land, and has withheld his approval of the one under which the appellant claims. The Secretary declares in substance in the finding which we have quoted, being his final action in the case, that the prior recording of one lease does not abridge his authority to find that another lease, regularly executed 1. COURTS No. 172. >399(2) FEDERAL SUPREME COURT REVIEW OF DECISIONS OF STATE COURT QUESTIONS OF FACT. - On writ of error to a state court, it is not the province of the federal Supreme Court to weig conflicting evidence, where the record shows testimony supporting the verdict. 2. MASTER AND SERVANT 204(2)—ASSUMPTION OF RISK VIOLATION OF "STATUTE ENACTED FOR SAFETY OF EMPLOYÉS. The federal Employers' Liability Act (Act April 22, 1908, c. 149, § 4, 35 Stat. 66 [Comp. St. 1916, § 8660]) provided that in actions thereunder employés shall not be held to have assumed the risk, where the violation by the employés contributed to the injury or death. carrier of any statute enacted for the safety of The federal Boiler Inspection Act (Act Feb. 17, 1911, c. 103, § 2, 36 Stat. 913 [Comp. St. 1916, 8631]) provides that it shall be unlawful for interstate carriers to use any locomotive engine, propelled by steam power, unless the boiler and the appurtenances thereto are in proper condition and safe to operate without unnecessary peril to life or limb, and that all boilers shall be inspected from time to time, and be able to withstand such tests as may be prescribed thereunder. Held, that this last-mentioned act is a "statute enacted for the safety of employés," within the Employers' Liability Act. 3. MASTER AND SERVANT 295(1, 7), 296(3)— Liability Act for the death of an employé re- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 2. That the boiler was not provided with fusible safety plugs; 3. That scale was negligently allowed by defendant company, its officers and employés, to accumulate upon the crown sheet in the boiler. was not in proper condition and safe to operate | direct heat produced by the oil fuel used on in the active service of defendant in moving the locomotive; traffic, without unnecessary peril, by reason of defendant's negligence in any of the respects alleged, then deceased did not assume the risk, and was not guilty of contributory negligence; but that if such boiler and appurtenances were in proper condition and safe for such use, but due to defendant's negligence were defective in some of the respects alleged, and decedent had actual knowledge of such defects, or they were The answer of the company denied negliso plainly observable that in the reasonable exercise of his faculties he should have known gence, and specifically set up the defense of of them, and might be presumed to have known contributory negligence and assumed risk on thereof and the danger surrounding him, then the part of the deceased. In the trial court he assumed the risks and could not recover. the plaintiff recovered a verdict and judgHeld, that this instruction was more favorablement, and the judgment was affirmed in the to defendant than the law required. 4. MASTER AND SERVANT 278(6)-ACTIONS Supreme Court of the state of Washington. EVIDENCE LOCOMOTIVE FOR INJURIES BOILERS. In an action under the federal Employers' Liability Act, evidence held insufficient to show an approval by government inspectors of the use of the large type of button head on the crown bolts of the boiler of oil-burning engines. 5. MASTER AND SERVANT 124(9)-LIABILITY FOR INJURIES-INSPECTION BY PUBLIC AUTHORITIES-EFFECT. Boiler Inspection Act, § 2, requiring locomotive boilers to be safe for use without unnecessary peril to life or limb, and requiring them to be inspected from time to time, does not prevent liability for injury or death caused by some particular feature of construction which is in fact unsafe, though it has not been disapproved by the federal boiler inspector. In Error to the Supreme Court of the State of Washington. Action by Adaline Donaldson, as administratrix of Vance H. Thoms, deceased, against the Great Northern Railway Company. Α judgment for plaintiff was affirmed by the Supreme Court of Washington (89 Wash. 161, 154 Pac. 133), and defendant brings error. Affirmed. Messrs. F. G. Dorety, of Seattle, Wash., and E. C. Lindley, of St. Paul, Minn., for plaintiff in error. Mr. James McCabe, of Seattle, Wash.. for defendant in error. *Mr. Justice DAY delivered the opinion of the court. 89 Wash. 161, 154 Pac. 133. The ground of reversal principally urged here is that the testimony did not warrant a recovery by the plaintiff, and when properly considered required an instruction to the jury to find a verdict in favor of the company. An examination of the record discloses that there was testimony tending to support the allegations of negligence set forth in the amended complaint. That the engine upon which the deceased was working had been a coal-burning engine but that at the time of the explosion the fuel used in its operation was, and for some time had been, oil. That the button heads on the bolts of the crown sheet at the top of the fire box (this sheet also formed the bottom of the water compartment over the fire box) were large ones when the engine with the change of fuel from coal to oil. was fired with coal, and were not changed That these button heads because of their size became overheated when oil was used for fuel, resulting in the deterioration and weakening of the strength of their material, and from the consequent giving away of the button heads, the crown sheet came down and the explosion resulted. There is also testimony tending to show that there was an accumulation of scale and a want of use of fusible plugs. [1] On the part of the company there was testimony tending to meet and refute that introduced by the plaintiff, and a considerable Adaline Donaldson, as administratrix of amount of testimony was introduced tending the estate of Vance H. Thoms, deceased, to show that the water in the boiler was too brought suit in the superior court of Sno-low, thereby causing the explosion from the* homish county, Wash., under the federal Em- fault of the deceased engineer in allowing it ployers' Liability Act (Act April 22, 1908, c. to become so. There was testimony for the 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-plaintiff to the effect that the water was not 8665]), to recover damages for injuries received which resulted in the death of Vance H. Thoms, by reason of a boiler explosion upon one of the defendant's engines upon which decedent was employed as an engineer. The charges of negligence, in the amended complaint alleged to have resulted in the injury and death of the decedent were: That the boiler on the engine was insufficient in that: 1. The button heads of the crown bolts of the boiler were excessively and unnecessarily large and consequently unduly exposed to the too low at the time of the explosion. The trial court submitted these issues to the jury, with the result that a verdict was found in favor of the plaintiff. The circuit court held that there was evidence sufficient to sustain the verdict, and refused to disturb it. The Supreme Court of Washington affirmed the judgment. In this situation it is enough to say that it is not the province of this court to weigh conflicting evidence. The record shows testimony supporting the verdict, and that is as far as this court enters upon a consideration of that question. For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes Complaint is made that the trial court failed to give an instruction requested by the company as to assumption of risk, and as to the effect of the federal Boiler Inspection Act. [2] Section 4 of the federal Employers' Liability Act (35 Stat. 65) provides: "That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé." Comp. St. 1916, § 8660. That the federal Boiler Inspection Act was enacted for the safety of employés is obvious. Section 2 of that act (Act Feb. 17, 1911, c. 103, 36 Stat. 913 [8 U. S. Comp. Stats. 1916, 8 8631]) provides: peril to life and limb; and that no employé shall be deemed to have assumed any risk of death by reason of any locomotive engine operated in violation of said law, and that no employé injured or killed by reason of a locomotive engine operated in violation of said law shall be held to have been guilty of contributory negli gence. "Therefore, if you shall believe, from a fair preponderance of all the evidence in the case, that the boiler of the locomotive engine No. 1902 or the appurtenances thereof were not in proper condition and safe to operate in the active service of the defendant in moving traffic without unnecessary peril to life or limb, by reason of the negligence of the defendant, in any one or more of the three respects alleged in the complaint, then and in that case Vance H. Thoms assumed no risk of death and was guilty of no contributory negligence, and the affirmative defenses must fail. The charge requested is inconsistent with the provisions of section 4 of the federal Employers' Liability Act and section 2 of the Boiler Inspection Act. As given it is enough to say that it is more favorable to the company than the law requires. See Chesapeake & Ohio Ry. v. Proffitt, 241 U. S. 462. 468, 36 Sup. Ct. 620, 60 L. Ed. 1102. "However, if such boiler and appurtenances were in proper condition and safe for such use in moving traffic, but due to defendant's negli"That from and after the first day of July, gence were defective in one or more of the renineteen hundred and eleven, it shall be unlaw-spects alleged in the complaint and Vance H. ful for any common carrier, its officers or Thoms had actual knowledge of such defect or agents, subject to this act to use any locomotive defects, or such defects were so plainly observengine propelled by steam power in moving in- able that in the reasonable exercise of his faculterstate or foreign traffic unless the boiler of ties he should have known of such and may be said locomotive and appurtenances thereof are presumed to have known thereof and the dangers in proper condition and safe to operate in the that surrounded him, then Vance H. Thoms asservice to which the same is put, that the same sumed the risks of injury and the plaintiff canmay be employed in the active service of such not recover in this action." carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for." Counsel for the company at the trial upon assumed risk requested the following charge: "You are instructed that even where an employer, such as a railroad company, is negligent in the construction or maintenance of its tools or equipment, such as a locomotive, yet an employé who accepts, or continues his employment, knowing of the existence of such defects or negligence, and knowing the danger therefrom, assumes the risk of the injury to himself from such defects and cannot recover if he is injured as a result of them. This would not be true in the present case, if the negligence or defects involved some violation of a United States statute, but there is no evidence of any violation of such a statute in this action, so that the rule which I have just given to you would apply in this case. Therefore, even if you find that the defendant company had been negligent in adopting an improper type of bolt, or in failing to install fusible plugs, or in some other particular in the construction or maintenance of this boiler, and even though you should also find that such negligence caused the explosion, still, the plaintiff cannot recover in this action, if you should also find that the deceased, V. H. Thoms, was familiar with the type of construction used, or the particular form of negligence involved, and knew the danger likely to arise therefrom, or if, in the exercise of a reasonable care, he should have known of these things prior to the time of his injury." [3] But the court charged upon this subject: "You are instructed that the law provides that it shall be unlawful for any common car [4] The further contention is that the effect of this charge was to leave to the jury to determine the type of boiler construction, in respect to the use of the large button heads which are alleged to have made the engine unsafe to operate. And it is contended that there is testimony tending to show that the use of either the large or small kind of button heads was approved by the federal department of boiler inspection. Attention is directed to the testimony of an expert witness, offered by the defendant for the purpose of showing that low water was the cause of the explosion, in which he spoke of the use of the button heads of the larger and also of the smaller or taperhead kind, and was asked whether the United States government made certain requirements as to how boilers and engines should be constructed, to which he answered: "No. Not as long as we have the proper factor of safety. They have a factor of safety, and the factor of safety is five on the shell of the boilers; that is if we have a 200-pound pressure boiler it should stand up to a test of 1,000 pounds; five to one." Asked whether the government inspects engines and locomotives in general, he answered, "Yes, by the United States inspector," and that there was a standard to which locomotives must be built in order to pass Asked as to the type of the rier, as was the defendant, engaged in interstate commerce, to use any locomotive engine propelled by steam power, unless the boiler of the locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of said inspection. carrier in moving traffic, without unnecessary crown bolt permitted, he answered that el ล ther type is acceptable when properly ap- or six inches below the top of the tie; and plied. It is evident that this testimony, whatever might be its effect, is far from showing an approval by government inspectors of the use of the large type of button head upon an oil-burning engine. [5] Nor can we agree with the contention of the plaintiff in error that so long as the large button head had not been disapproved by the government inspector such fact is conclusive of the sufficiency of the type in use. We find nothing in the Boiler Inspection Act to warrant the conclusion that there is no liability for an unsafe locomotive, in view of the provisions of section 2 of the act, because some particular feature of construction, which has been found unsafe has not been disapproved by the federal boiler inspector. stumbling, he fell and dislocated his knee. The defect in the tie could have been discovered by sounding with an iron rod and the standard of maintenance of roadbed prescribed by the Railway was to ballast to the top of the ties. But neither the condition of the tie, nor the failure to ballast to the top of the tie, was a defect of a character to impair safety in operation. Plaintiff knew that there were always some ties on the line which were partly decayed, and also that the ballast was occasionally below the top of the ties. Upon these facts Nelson sought in a state, court of North Carolina to recover damages from the Railway under the Federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]). Other errors are assigned, so far as they The trial court refused defendant's motion are open here we have examined these as- for a non-suit; and the jury rendered a versignments and find in none of them reason dict for plaintiff. Judgment thereon was refor the reversal of the judgment of the Su-versed by the Supreme Court of the State preme Court of Washington, and that judg-| (170 N. C. 170, 86 S. E. 1036) on the ground ment is Affirmed. (246 U. S. 253) NELSON v. SOUTHERN RY. CO. (Argued Jan. 8, 1918. Decided March 4, 1918.) No. 129. MASTER AND SERVANT 112(2)-INJURIES TO A railway company is not liable under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1916, §§ $657-8665]) to its civil engineer, who slipped when a decayed spot on a tie gave way and allowed his foot to fall in the space between the ties where the ballasting was low, neither the defect in the tie nor in the ballasting, which was not according to rule, rendering the track unfit for use. that there was no evidence of negligence; (246 U. S. 79) PEOPLE'S TOBACCO CO., Limited, v. AMERICAN TOBACCO CO. (Argued Jan. 4-7, 1918. Decided March 4, 1918.) No. 124. 1. CORPORATIONS 668(9)-FOREIGN CORPORATIONS-AGENT FOR SERVICE. Where a foreign corporation conveyed its branch within a state pursuant to a trust dissolution decree, its agent therein resigned, and In Error to the Supreme Court of the State his power of attorney was revoked by filing an of North Carolina. Action by Philip Nelson against the Southern Railway Company. A judgment for plaintiff was reversed by the North Carolina Supreme Court (170 N. C. 170, 86 S. E. 1036), and plaintiff brings error. Affirmed. Mr. A. L. Brooks, of Greensboro, N. C., for plaintiff in error. Mr. Garland S. Ferguson, Jr., for defendant in error. Mr. Justice BRANDEIS delivered the opinion of the Court. Nelson a civil engineer who had been in the employ of the Southern Railway eleven years, was directed to make a survey in one of its yards. While doing so he walked on the main track between the rails where he had seen others walk. As he stepped upon a cross-tie, a small V-shaped piece of it one and a half inches by six, being rotten, slivered off under his weight. His foot slipped down between the ties where the ballast was five instrument in the Secretary of State's office, his agency to accept service for the foreign corporation ceased. 2. CORPORATIONS 668(9) FOREIGN CORPORATIONS-REVOKING POWER OF ATTORNEY. An instrument revoking a power of attor ney to accept service for a foreign corporation attested by its seal is not ineffectual because signed by such corporation's vice president and not formally sanctioned by the directors, where the vice president apparently had the necessary authority. 3. CORPORATIONS 642(1)—FOREIGN CORPOBATIONS-DOING BUSINESS WITHIN STATE. To subject a foreign corporation to service of process, it must be doing business of such a nature and character as to warrant the inference that it has subjected itself to the local jurisdiction and is, by its duly authorized offitrict. cers or agents, present within the state or dis4. CORPORATIONS 642(1)-FOREIGN CORPO BATIONS "DOING BUSINESS." A foreign tobacco corporation which sold its business within a state pursuant to a trust distherein so as to subject it to service of process, solution decree held not to be "doing business" although it owned stock in local subsidiary com For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |