244 U. S.

Statement of the Case.

further steps were taken concerning the reinstatement of his homestead entry, and after the elapsing of more than a year from his death the entry-woman, Barnes, dismissed her contest and relinquished her homestead entry. On the same day, November 26, 1906, Luttie B. Fearnow, as the widow of Fearnow, filed a relinquishment of his homestead entry and on that day also made her own application to enter in her own individual right the land as a homestead and this application was allowed. The following month the plaintiffs in error, asserting themselves to be the heirs of Hollen H. Fearnow, and as such entitled under the law to the benefits of his homestead entry and to complete the same, contested the application of Luttie B. Fearnow on the ground that she was not his widow and not entitled to the land as such because she bore such a relation of consanguinity to her alleged deceased husband as to cause the pretended marriage relation between them to be incestuous under the laws of Oklahoma where the land was situated as well as under the laws of Kansas where the marriage between them purported to have been celebrated. The local land office rejected the contest following previous decisions of the Land Department holding that the question of the existence of a marriage was one for judicial cognizance and until its nullity was declared or found by a competent court the marriage was binding on the Land Department. The Commissioner of the General Land Office in reviewing, recited the previous facts as to the Barnes contest, the action taken upon it, the cancellation of the Fearnow homestead entry, the setting aside of the contest proceeding and the order made in it and affirmed the action on the authorities which the local land office had relied upon. In reviewing and sustaining this action on appeal the Secretary.of the Interior decided that the subject matter of the marriage and its nullity was not primarily cognizable in the Interior Department. Independently of this, however, his

action was placed in addition on distinct and different grounds, as follows:

"But independent of this contestants have presented no grounds upon which their contest can be sustained. They do not allege a priority of right to make entry or that the entryman has not complied with the law. Their claim rests upon their relationship to Hollen H. Fearnow and if they have any right whatever by virtue of their heirship to Hollen H. Fearnow it is a right to perfect his entry, not to make entry in their own right. To avail themselves of this right it would be necessary to reinstate that entry and to show that it was improperly cancelled not by reason of any technical objection in the procedure, but upon its merits. Furthermore their delay in not presenting their claim, even if valid, is a sufficient reason for rejecting their application to contest this entry."

The consequence was to definitely reject the contest and affirm the right to enter of Luttie B. Jones, she having in the meantime remarried, and on the making of final proof and compliance with the legal requirements a patent for the land to her issued in March, 1909. This suit, as we have said, was then begun for the purpose previously stated, the basis of the relief being substantially the claim which had been pressed in the controversy in the Depart

ment.

Mr. Samuel Herrick, with whom Mr. Milton Brown, Mr. L. A. Maris and Mr. Cody Fowler were on the briefs, for plaintiffs in error.

Mr. J. F. King, with whom Mr. W. P. Hackney and Mr. L. D. Moore were on the brief, for defendants in error.

MR. CHIEF JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

It cannot be seriously disputed that if the agreement was made by Fearnow, the original applicant, that he

would make the homestead entry not for himself but for the benefit of another, would during the time that he was apparently taking the steps to complete the entry pay rent for the land to such other person and when the patent was issued deed the land to such person, such agreement caused that entry to be absolutely void for repugnancy to § 24 of the Act of Congress of May 2, 1890, c. 182, 26 Stat. 81. But as it was expressly stipulated that the facts as to such agreement were true, it must follow necessarily that the entryman derived no right from his entry and transmitted none to his heirs and vested them with no right after his death to complete that which was not susceptible of being completed.

Moreover as it is not disputable that the Land Department in its final ruling against the contestants placed its action upon the prior cancellation of the homestead entry because of the particular agreement referred to which was the basis of the Barnes contest, it must necessarily result that there is an absence of the essential foundation upon which alone the asserted rights of the plaintiffs in error could possibly rest. But putting this latter view aside, we are of opinion that the court below was clearly right in holding that as the facts were admitted which absolutely destroyed the effect of the original Fearnow homestead entry and therefore caused it to be impossible for that entry to be the generating source of rights in favor of the plaintiffs in error, no equitable rights arose in their favor growing out of the cancellation of that entry and the issue of the patent to the defendant in error. It seems superfluous to reason to demonstrate that no equitable right to hold the patentee as a trustee could possibly arise in favor of the plaintiffs in error since the application to enter upon which they rely was in legal contemplation nonexistent and hence could afford no basis for equitable rights of any character.

Affirmed.

Opinion of the Court.

244 U.S.

SEABOARD AIR LINE RAILWAY v. BLACKWELL.

ERROR TO THE COURT OF APPEALS OF THE STATE OF

GEORGIA.

No. 213. Submitted April 24, 1917.-Decided June 4, 1917.

That provision of the "Blow-Post" law of Georgia (Civil Code, 1910, §§ 2675-2677), which requires railroad companies to check the speed of trains before public road crossings so that trains may be stopped in time should any person or thing be crossing the track there, is a direct and unconstitutional interference with interstate commerce as applied to the state of facts specifically pleaded by the defendant interstate carrier in this case, whereby it appears that, to comply with the requirement, the interstate train in question would have been obliged to come practically to a stop at each of 124 ordinary grade crossings within a distance of 123 miles in Georgia extending from Atlanta to the South Carolina line, and that more than six hours would thus have been added to the schedule time of four hours and thirty minutes. Southern Railway Co. v. King, 217 U. S. 524, distinguished.

16 Ga. App. 504, reversed.

THE case is stated in the opinion.

Mr. Lamar C. Rucker, Mr. Andrew J. Cobb, Mr. Howell C. Erwin and Mr. W. L. Erwin for plaintiff in error.

No appearance for defendant in error.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This writ of error is directed to a judgment entered upon a verdict for the sum of $1,000 in the city court of Elberton, Georgia, for the death of a son of defendant in error alleged to have been caused by the railway company.

The judgment was affirmed by the Court of Appeals of Georgia.

The facts as charged are: That the deceased was driving a horse and buggy along a public road in the county of Elbert and while crossing the railroad track of the railway company at a public crossing outside of the city of Elberton he was struck by the engine of one of the company's passenger trains and received injuries from which he died three days later.

That the employees of the company in charge of the train failed to blow the engine whistle at the blow-post 400 yards south of the crossing, failed to keep blowing it until the train arrived at the crossing, and failed to check the speed of the train at such blow-post and keep it checked until the train reached the crossing, and, so failing, the company was guilty of negligence.

That the employees of the company failed to keep the train under control and approached the crossing at a high and dangerous rate of speed so that they could not stop the same in time to save the life of the deceased, and that such conduct was negligence. And that "such conduct was negligence if they saw said deceased on the crossing, and it was negligence if they did not see him, and it was negligence under the blow-post law,1 and it was negligence regardless of the blow-post law."

"Sec. 2675. A post to be erected. There must be fixed on the line of said roads, and at the distance of four hundred yards from the center of each of such road crossings, and on each side thereof, a post, and the engineer shall be required, whenever he shall arrive at either of said posts, to blow the whistle of the locomotive until it arrives at the public road, and to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road.

"Sec. 2676. Neglecting to erect such posts. Should any company fail or neglect to put up said posts, the superintendent thereof shall be guilty of a misdemeanor.

"Sec. 2677. Failing to blow whistle. If any engineer neglects to blow