the operation of the desert land law, as much | so as if it had already been conveyed to a private owner, and conclude that, being so wholly separated from the reach of that law, an attempted entry thereunder is absolutely void, and may be abandoned by the entryman at any time. It seems a little strange to have this contention pressed upon us in view of the fact that a patent for lands within a railroad land grant was not disturbed by that decision, and a claim to recover an excess payment was repudiated. Nowhere [829]in the opinion is there an intimation that the patentee did not acquire a perfect title, no suggestion that the whole proceeding was void and the land patented still the property of the government, or even that it had the right to maintain a suit to set aside the patent as a cloud upon its title. And certainly if the title conveyed by the patent was absolutely void, then the patentee had paid, not only the half which he sought to recover, but the entire purchase money for nothing, and should at least have been allowed to recover the half which he sued for.

lamation, and permitted the entry of not exceeding 640 acres. The only substantial advantages of an entry under the desert land act over an ordinary pre-emption were in the amount of land and the time of payment Six hundred and forty acres could be taken under the one, and only one hundred and sixty under the other. The price was the same, but under the one only twenty-five cents per acre was payable at the time of the entry, and the balance was not required until, at the end of three years, the reclamation was complete; while under the other the entire $1.25 was payable at the time of the entry. These advantages were offered to induce reclamation of desert and arid lands.

Now, it is a well-known fact that along the lines of many land-grant railroads are large tracts of arid lands-desert lands within the very terms of the statute. Indeed, nearly every transcontinental line runs for long distances through these desert lands. Did Congress act on the supposition that no inducenient was necessary to secure the reclamation of the arid public lands within the place limits of those grants? Do not the reasons for legislation in respect to lands remote from railroads have the same potency in respect to lands contiguous thereto? If Congress had intended to exclude lands within the place limits of railroads from the scope of this act would it have said "any desert land," or defined "desert lands" as broadly as it did by section 2, which reads:

"Sec. 2. That all lands, exclusive of timber lands and mineral lands, which will not, without irrigation, produce some agricultural crops, shall be deemed desert lands within the meaning of this act, which facts shall be ascertained by proof of two or more credible witnesses under oath, whose affidavits shall be filed in the land office in which said


It may be well to refer to the several stat-
utes of Congress. The general policy in re-
spect to railroad grants, expressed in the
many statutes making such grants, and finally
carried into the Revised Statutes in section
2357, is that while the ordinary price of pub-
lic lands is $1.25 an acre, "the price to be
paid for alternate reserved lands, along the
line of railroads within the limits granted
by any act of Congress, shall be $2.50 per
One hundred and sixty acres might
be pre-empted at that price, or eighty acres
homesteaded. Rev. Stat. § 2289. In other
words, Congress, in no manner limiting eith-
er the right of pre-emption or homestead,
simply declared that these alternate reserved
lands should be considered as worth $2.50
instead of $1.25, the ordinary price of pub-tract of land may be situated."
lic lands. All appropriations by individuals
were based upon that valuation, but the
right to appropriate was in no manner
changed. The reason for this addition to
the price of alternate reserved sections with-
in a railroad grant has been often stated by
this court, and is referred to in the opinion
in United States v. Healey, supra. It is that
a railroad ordinarily enhances the value of
contiguous lands, and when Congress grant-
ed only the odd sections to aid in the con-
struction of one it believed that such con-
struction would make the even and reserved
sections of at least double value.

*The reasons which established and justi-[331) fied the policy of double price for the former apply as fully to lands which had to be reclaimed before they could be cultivated as to lands which needed no reclamation. Contiguity to the railroad is the same fact in each. The significance of this was recog nized in the Healey Case. Indeed, the whole controversy in that case was as to the matter of price, and grew out of the fact that after the passage of the desert land act the Interior Department at first ruled that its effect was to reduce the price of even sections within railroad place limits, entered under it, from $2.50 to $1.25 an acre, while in 1889 a change was made in its rulings, and it was thereafter held that the act worked no such reduction. Secretary Noble, in Tilton's Case, decided March 25, 1889 (8 Land Dec. 368, 369), said, and his language was quoted in our opinion:

This difference in price was based, as will be perceived, solely on the matter of location, and not at all upon any distinction in the character or quality of the land, and the difference in price was the only matter that distinguished between an entry of lands [330] within and those without the place limits of a railroad. Such being the general policy of "Under such construction, section 2357 of the government in respect to public lands, the Revised Statutes and the desert land act Congress in 1877 passed the desert land act. do not conflict, but each has a separate and This act, while limited in its operation to appropriate field of operation; the former, certain states and territories, in terms ap-regulating the price of desert lands reserved plied to "any desert land" within them. It to the United States along railway lines; provided for reclamation by irrigation, gave and the latter, the price of other desert lands three years in which to accomplish such rec-not so located. There is nothing in the na

ture of the case which renders it proper that desert lands be made an exception to the general rule any more than lands entered under the pre-emption laws. Lands reserved to the United States along the line of railroads are made double minimum in price because of their enhanced value in consequence of the proximity of such roads. Desert lands subject to reclamation are as much liable to be increased in value by proximity to railroads as any other class of lands, and hence the reason of the law applies to them as well as to other public lands made double minimum in price. To hold desert lands an exception to the general rule regulating the price of lands reserved along the lines of railroads would be to make the laws on this subject inharmonious and inconsistent."

the entire opinion, manifestly was intended
to mean no more than that the desert land[333]
act was not applicable in the matter of price
to the reserved sections within a railroad
land grant. This conclusion appears also in
the last paragraph above quoted, where wo
say that "lands such as those here in suit,
although within the general description of
desert lands, could not properly be disposed
of at less than $2.50 per acre." Not that
they could not be disposed of at all under the
desert land law, but only not at the price
fixed by that law.

"Giving effect to these rules of interpretation, we hold that Secretaries Lamar and Noble properly decided that the act of 1877 did not supersede the proviso of section 2357 of the Revised Statutes, and therefore did not embrace alternate sections reserved to the United States by a railroad land grant.

"It results that prior to the passage of the act of 1891 lands such as those here in suit, although within the general description of desert lands, could not properly be disposed of at less than $2.50 per acre. Was a different rule prescribed by that act in relation to entries made previously to its passage?" 160 U. S. 147 [40: 373].

The first of these paragraphs is one of the sentences referred to by counsel and quoted in their brief. In it we do say "that Secretaries Lamar and Noble properly decided that the act of 1877 .. did not embrace alternate sections reserved to the

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 [832]by counsel was used. *That language must be interpreted in view of the fact that the only contention was as to the price. It means simply that the court did not consider the desert land act applicable as a whole and solidly to the reserved sections along a railroad so as to subject them to all its provisions. Jn other words, the desert land act did not supersede and destroy the proviso of section 2357 in reference to a double price for such reserved sections. We closed the discussion in reference to this matter in these words:

at least as to the price to be paid for the lands entered-to be governed by the law in force at the time the entry was made. So far as the price of the public lands was concerned, the act of 1891 did not change, but expressly declined to change, the terms and conditions that were applicable to entries made before its passage. Such terms and conditions were expressly preserved in respect of all entries initiated before the pas sage of that act." 160 U. S. 149 [40: 374].

We may remark in passing that the entry in this case was before the act of 1891, and therefore, under the language just quoted, it is unnecessary for us to notice any of its provisions.

United States by a railroad land grant," but the full meaning of that language is disclosed only when we replace the omitted words "did not supersede the proviso of section 2357 of the Revised Statutes, and, therefore." And when we turn to what Secretaries Lamar and Noble decided, we find that they ruled, not that lands within the place limits of a railroad land grant could not be entered under the desert land law, but simply that they could not be entered for the price named in that law, $1.25 per acre, but were subject to the general provision of double price. The other sentence referred to by counsel is similar, and, while taken literally and disconnectedly, may give some countenance to their contentions, yet, when read in the light of

The same conclusion appears subsequently, when, reviewing the act of 1891, it was held that it had no effect upon the price of lands entered before its date, our language being

It follows from these considerations that if the petitioner Ingram had fully complied with the terms of the desert land act he could, by the payment of $2.50 an acre, have acquired title to the lands he sought to enter. Voluntarily abandoning his entry, he has no cause of action for the sum which he paid to initiate it. There is nothing in Frost v. Wenie, 157 U. S. 46 [39: 614], which conflicts with this conclusion, for there the decision simply was that lands which Congress held under a trust to sell for the benefit of Indians could not be given away under the homestead law, and hence that such law must be limited, in its application to the[334] Fort Dodge reservation, to such lands as were not covered by the trust.

The judgment of the Court of Claims is reversed, and the case remanded to that court, with directions to enter a judgment for the defendant.

S. H. H. CLARK et al., Receivers of the Union Pacific Railway Company, Plffs. in Err.,


CITY OF KANSAS CITY, Kansas, et al.

(See S. C. Reporter's ed. 334-338.)
What is not a final judgment.

The reversal of a judgment, with directions to

sustain a demurrer, is not a final judgment on which a writ of error will lie to a state court

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which excepts from its operation any tract
or tracts of land used for agricultural pur-
poses, when the same is not owned by any
railroad or other corporation, it is in viola-
tion of that part of the Fourteenth Amend-
ment to the Constitution of the United
States, which reads as follows: 'Nor shall
any state deprive any person of life, liberty,

deny to any person within its jurisdiction
the equal protection of the laws." "

The defendants, other than the township
of Wyandotte and school district No. 9, filed
a general demurrer to the petition, which
was overruled. The defendants, the town-
ship of Wyandotte and school district No. 9,
did not plead in any way. *The demurring[336]
defendants electing to stand upon their de-
murrer, a perpetual injunction was granted
as prayed for against them. They appealed
to the supreme court, where the judgment
of the lower court was reversed, and an order
was made directing that court to sustain the

the statute was presented to the supreme The question of the constitutionality of court of Kansas, and that court held that it violated neither the Federal nor state Con


This is a writ of error to the supreme court of the state of Kansas to review a judgment of that court overruling a demurrer of the nisi prius court to the petition of plaintiffs in error for an injunction to restrain the col-stitutions. The same question is presented lection of taxes, levied by the city of Kansas here in six assignments of errors. City, on lands brought into that city under specific contention is that the Kansas statute act of the legislature of Kansas authorizing violates that portion of the Fourteenth cities of the first class having a population Amendment which provides: "Nor shall of 30,000 or more, which shall be subdivided 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 the equal protection of the laws."

"Nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction equal protection of the laws." "And plaintiffs are advised, and so charge the fact to be, that in so far as said statute attempts to authorize the taking of said lands within the limits of Kansas City, Kansas, as attempted in said ordinance, Exhibit 'A,' it is unconstitutional, null, and void, in this, to wit:

"That by reason of that portion of the act

be bounded on three fourths of its boundary line by platted territory of or adjacent to such city, or by the boundary line of such city, or by both, the same may be added to and made part of the city by ordinance duly passed. There was a provision in the law as follows: "But nothing in this act shall be taken or held to apply to any tract or tracts of land used for agricultural purposes when the same is not owned by any railroad or other corporation."

An ordinance was passed, pursuant to the statute, extending the city boundaries so as to include large tracts of land belonging to the Union Pacific Railway. A portion of the lands were used for right of way and other railroad purposes, and a large part of them were vacant and unoccupied, which were held by the company for its future uses.

Taxes were levied by the city upon the property, and the suit was brought to enjoin their collection. The petition presented the facts, and contained the following allegation:

The defendants in error, however, object to the jurisdiction of this court, and urge that the judgment appealed from is not a final one, and is not therefore reviewable in

this court.

It is further urged that the record does not show that anything was done in the lower court after decision in the supreme court, but that error is prosecuted directly to the judgment of the supreme court,and that that determined only a question of pleading, and that its direction has not yet been acted on, and that no judgment of any kind has been entered against Wyandotte township or school district No. 9.

The law of Kansas prescribing action on demurrer is as follows: "If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without costs, as the court, in its discretion, shall direct."

In Bostwick v. Brinkerhoff, 106 U. S. 3 [27: : 73], it was decided that "the rule is well settled and of long standing that a judgment or decree to be final, within the meaning of that term, as used in the acts of Congress giving this court jurisdiction on appeals and writs of error, must terminate the litigation between the parties on the merits of the case, so that if there should be an affirmance here, the court below would have nothing to do but to execute the judgment or decree it had already rendered," for the[337] support of which many cases were cited; and further: "If the judgment is not one which

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disposes of the whole case on its merits, it is
not final. Consequently, it has been uni-
formly held that a judgment of reversal,
with leave for further proceedings in the
court below, cannot be brought here on writ
of error;" also citing cases.

This case and those it cites have been applied many times, but we will confine our notice to instances of demurrer. DeArmas v. United States, 6 How. 103 [12: 361], was of this kind, but the grounds of demurrer urged there made the rule when applied to them not very disputable, and the case is not of much aid.

In Meagher v. Minnesota Thresher Mfg. Co. 145 U. S. 608 [36: 834], the demurrer was overruled with leave to answer over. Upon appeal to the supreme court the order overruling the demurrer was affirmed with costs. The rule of the supreme court provided that "upon the reversal, affirmance, or modification of any order or judgment of the District court by this court, there will be a remittitur to the district court, unless otherwise ordered." Held, that the plaintiffs in error upon the return of the case to the court could plead over, and hence judgment was

not final.

cases of that kind, not because they are sep-
arable in principle from the other cases de-
cided, but to observe and explain the rule in
its special applica tion. That rule is in its
utmost generality hat no judgment is final
which does not terminate the litigation be
If anything
tween the parties to the suit.
substantial remain to be done to this end,
the judgment is not firal. The law of the
case upon the pleadings, and hence as pre-
sented by the demurrer, may be settled, but
if power remain to make a new case, either
by the direction of the supreme court or in
the absence of such direction by the statutes
of the state, the judgment is not final.

The statute of Kansas permitted such
amendment, and the order of the supreme
court did not take it away. Its order pro-
ceeds no further than a direction to sustain
the demurrer to the petition. That done,
the lower court had and has all of its power
under the statute, and may exercise it at the
What they
invocation of plaintiffs in error.
may be advised to do we cannot know. We
can only consider their right and the power
of the court. These existing, if we should
affirm the judgment of the supreme court,
that court, and maybe this court, may be
called upon to determine other issues be-
tween the parties.

It follows from these views that the judgment of the supreme court is not final, and the writ of error must be dismissed, and it is so ordered.

In Werner v. Charleston, 151 U. S. 360 [38: 192], the announcement by the Chief Justice was: "The writ of error is dismissed. Meagher v. Minnesota Thresher Co. 145 U. S. 608 [36: 834]; Rice v. Sanger, 144 U. S. 197 [36: 403]; Hume v. Bowie, 148 U. S. 245 [37: 438]."

The statement of the case shows that it was analogous to the case at bar. The motion to dismiss stated that

UNITED STATES, Petitioner,




(See 8. C. Reporter's ed. 339-343.)

"The judgment brought here by writ of error for review is a judgment of the supreme court of the state of South Carolina, which simply affirmed a decision of the lower court overruling a demurrer, and thereby remanded the case to the court below for a Natural gas free from duty under the tariff hearing on the merits. It is therefore an interlocutory judgment, and is in no sense a final decree.

act of 1890.

"An examination of the record will show that the main ground of the demurrer, interposed in the court below by the plaintiff in error, was the unconstitutionality of the act of 1830. It was claimed both there and in the court above, as well as in this court, to be in violation of due process of law."

Rice v. Sanger and Hume v. Bowie, cited by the Chief Justice, were not rulings on demurrer, and we have confined our notice to

Natural gas imported for use as fuel and for Illuminating purposes is free from duty under 496 (p. 604) of the tariff act of October 1, 1890, as crude bitumen, or under ¶ 651 (p. 607) as crude mineral.

"To this the plaintiff in error replied: "The judgment brought here by writ of error for review is the judgment of the supreme court of the state of South Carolina, holding that a certain act of the general assembly of the state of South Carolina, entitled, "An Act [338]to Authorize the City Council of Charles

[No. 64.]

ton to Fill up Low Lots and Grounds in the Submitted December 2, 1898. Decided Janu

ary 3, 1899.

City of Charleston in Certain Cases and for
Other Purposes,"
on the 18th of
December, 1830, is not in violation of the
Constitution of the United States, thereby
affirming the judgment of the trial court and
so ending the constitutional defense inter-Court of the United States for the Northern
posed by the plaintiff in error.'
District of New York which affirmed the de-
cision of the Board of General Appraisers
that natural gas was exempt from duty un-
der the tariff act of 1890. Affirmed.

OF United
States Circuit Court of Appeals for the
Second Circuit to review a decision of that
court affirming the decision of the Circuit

See same case below, 45 U. S. App. 345. The facts are stated in the opinion. Messrs. Henry M. Hoyt, Assistant Attorney General, for the United States, petitioner.

Mr. Herbert P. Bissell for the Buffalo Natural Gas Fuel Company, respondent.


ion of the court:

[239] *Mr. Justice Peckham delivered the opin-acterize and embrace natural gas, and they
are in the free list, and are known as para-
graphs 496 and 651. *The language used in[341]
each, when taken in its popular and common-
ly received sense, or according to the sense
in which it is used commercially, would
cover and include the substance generally
spoken of and loosely described as natural
gas. The fact that it is not thus named in
the act compelled the collector to assess it
as a raw or unmanufactured article not enu-
merated, a description which does not fit
nearly so well as that which is contained in
each of the paragraphs mentioned above. We
think the evidence shows that natural gas
is included in the language of one or both
en-those paragraphs.

The defendant gas company, doing business at Buffalo, in the state of New York, imports natural gas from the Dominion of Canada, for the purpose of supplying its customers with that article. The gas is brought in pipes under the Niagara river, and is used for consumption as fuel and for illuminating purposes.

In 1893 the gas imported by the company was assessed for duty by the collector of the port of Buffalo as a nonenumerated unmanufactured article at ten per cent, under section 4 of the tariff act of October 1, 1890. 26 Stat. at L. 567, at page 613.

The rule is familiar that in the interpretation of laws relating to the revenues the words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word. Two Hundred Chests of Tea, Smith, Claimant, 9 Wheat. 430 [6: 128].

The importers claimed that the gas was titled to free entry under section 2 of the above act, providing for a free list, either under paragraph 496 (page 604), as crude bitumen, or under paragraph 651 (page 607), as a crude mineral, not advanced in value or condition by refining or grinding, or by any other process of manufacture, not specially [840]provided for in the act. The importers made 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 deural 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 anwas 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 no importance in the view of the legislature. It did not suppose our merchants to be naturalists, or geologists, or botanists. It ap plied its attention to the description of ar |ticles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic." See also Lutz v. Magone, 153 U. S. 105 [38: 651], and cases there cited.

Prior to 1890 natural gas had not been im-
ported, although its existence in this country
and in foreign countries was well known.
After the passage of the tariff act of 1890,
this corporation commenced its importation
from Canada as stated. It appeared in the
evidence that an analysis of the gas thus
imported had been made by competent chem-
ists, and it was found to contain methane, or
marsh gas, to the extent of 95.6 per cent, the
balance being made up principally of hydro-
carbons other than methane.

In the opinion of some of the witnesses the
natural gas thus examined was a crude bitu-[342]
It was stated "that bitumens are mix-
tures of hydrocarbons of various kinds, mixed
with other materials in varying proportions;
a crude bitumen as found in nature is mixed
with other materials." It was also testified
that this natural gas contains 97.2 per cent
of natural hydrocarbon, and the balance of
2.8 per cent is composed of substances usu-
ally found with the hydrocarbons in crude
bitumen; that the term "bitumen" does not
refer to any substance of definite chemical
composition, but is distinctively a generic
term applied to a large number of natural
substances which consist largely or chiefly
of hydrocarbons. These substances may be
gaseous, as natural gas or marsh gas; fluid,

The circuit court affirmed that decision, and upon a review by the circuit court of appeals for the second circuit (45 U. S. App. 345), the decision was again affirmed. The latter court, by Circuit Judge Lacombe, said: "We do not undertake in this case to decide whether or not natural gas is a 'crude bitumen.' If it be such, the provisions of paragraph 496 would control its classification, being more specific than those of paragraph 651. Both paragraphs are in the free list, and since natural gas comes fairly within the general provision for crude minerals, and is therefore free, it is unnecessary now to inquire whether it is also within the more specific description 'crude bitumen,' which is also free. The board of general appraisers properly reversed the collector's assessment of the article for duty; it is not a 'raw or unmanufactured article not enumerated.'”

Circuit Judge Wallace, while concurring in the affirmance of the decision of the circuit court, was of the opinion that the importation in controversy ought to be classi-men. fed under paragraph 496 as crude bitumen, and exempt from duty on that ground.

The decision having been duly entered, this court upon the petition of the government issued a writ of certiorari, and the case has been brought here for review.

We are of opinion that the circuit court of appeals was right in its disposition of the case. The substance that is taken from the bosom of the earth and which burns brightly without any further labor put upon it, is popularly designated as natural gas. This name is not contained in the tariff act, but there are two paragraphs thereof which it is claimed do properly and sufficiently char

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