appropriate relief in all cases within its ju- | tolls, etc., and to restrain the District from
risdiction, enables it to do this without vio prescribing regulations for such market, etc.
lence to principle. If one or the other must affirmed.
give way, good sense unhesitatingly requires See same case below, 6 App. D. C. 34.
that justice and positive rights, founded both
on valid statutes and valid contracts, should Statement by Mr. Justice White:
not be sacrificed to mere questions of mode

*The Washington Market Company was in-[362]
and form.” See also, to the same effect, the corporated by act of Congress approved May
case of Holland v. Challen, 110 U. S. 15 [28: 20, 1870 (16 Stat. at L. 124, chap. 108). Au-

thority was conferred upon the company to Of course, these views are not applicable construct suitable buildings and operate a to cases arising out of interstate commerce, public market on the site of the “Center Mar. where the policy to be enforced is Federal. ket Space,” situated in the northwest section Nor has it been found necessary to consider of the city of Washington, between Seventh whether the agreement between these parties and Ninth streets and B'street and Penn. was, as a contract of life insurance, void be. sylvania and Louisiana avenues. With the cause the defendant had not complied with exception of the sixteenth section, the prothe statutes of Minnesota,

visions of the statute related solely to the The decree of the Circuit Court of Appeals, public market thus authorized, and the oper. affirming that of the Circuit Court, is ao-ation and duration of the franchise. cordingly affirmed.

The sixteenth section is as follows:

“Sec. 16. And be it further enacted, That the city government of Washington shall

have the right to hold and use, under such WASHINGTON MARKET COMPANY,

rules and regulations as the said corporation

may. prescribe, the open space at the inter.
section of Ohio and Louisiana avenues with

Tenth and Twelfth streets, as a market for

the purchase and sale of the following art

icles: to wit, hay, straw, oats, corn, corn (See S. C. Reporter's ed. 361-371.)

meal, seed of all kinds, wood for sale from

the Rules of Washington Market Company

wagon, cattle on the hoof, swine on the power to incur pecuniary liabilities-stat. hoof, country produce sold ’in uantities ute of frauds.

from the wagon, and such other bulky and

coarse articles as the said corporation may 1. The power to establish_rules and regula- designate. And from and after sixty days

tions with respect to the Washington Market from the passage of this act marketing
Company, incorporated by the act of Congress of the products named herein shall be ex.
of May 20, 1870, is given by $ 16 to the city cluded from Pennsylvania and Louisiana

government, and not to the market company. avenues and the sidewalks and pavements
2. The governor, either with or without the thereon."
sanction of the board of public works of the

The present litigation was begun on Jan.
District of Columbia, had no authority un.
der the organic act of February 21, 1871, to uary, 17, 1892, by the filing, on behalf of the
Incur a pecuniary liability with respect to Washington Market Company, of a bill in
the improvement of the market grounds, the the supreme court of the District, the de-
erection of market buildings, and the opera- fendant *named therein being the District of[363]
tion of the market, which were within the Columbia. The bill averred that the com-
province of the legislative assembly.

plainant was vested by the section above 3. A court of equity will not release an in- quoted with authority to establish the rules

dividual from the operation of the statute and regulations therein referred to for the
of frauds, which requires that interest in government of the wholesale market author:
lands be created by an instrument in writing, |ized to be established. It was also averred
and impose an equitable llen upon land in that, under authority of what was claimed to
favor of one who makes improvements there-
on, knowing that the title is in another, – be a contract arising from correspondence
especially where the money is expended under had with the District, complainant, in 1871,
an express understanding with reference there entered into possession of a part of the open
to, had with the owner,—but will leave the market space referred to in said section 16,
party to the remedies, if any, which a court and, in 1886, of the entire space. The cor-
of law provides.

respondence relied on is set out in the

margin.f It was alleged that the complain. (364) [No. 83.)

Washington Market Company,

November 8, 1871. Argued December 9, 12, 1898. Decided Jan Hon. Henry D. Cooke, Governor of the District uary 3, 1899.

of Columbia.

Sir: In section 16 of the charter of this comAppeals of the District of Columbia af- tersection of Oblo and Louisiana avenues with firming the decree of the Supreme Court of said Tenth and Twelfth streets is assigned as a District dismissing a suit in equity brought market for cattle and bulky and coarse articles by the Washington Market Company against to be sold in quantities from the wagon, and the the District of Columbia, seeking a decree marketing of such products in Pennsylvania

and Louisiana avenues is prohibited. against the District for losses occasioned by

Notwithstanding this probibition dealers are it to the market company by the abolition of continuing to occupy Louisiana avenue in de 478

172 U. S.

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ant graded the grounds and made valuable acts of interference by the District and also structures thereon; that it had operated and by recent public 'assertions of an exclusive was still operating a wholesale market there- right to possess and regulate said market,

on, and that it had received and was receiv- the receipts from the operation of the same (365ding the sources of revenue mentioned in the had been greatly diminished, so that the ex

alleged contract, except as to certain charges penses of maintaining the market had been which, it was averred, defendant had wrong. largely in excess of the sum received from its fully abolished.

operation. It was prayed that an account It was charged that, not only by the aboli. might be taken and the District decreed to tion of tolls, above referred to, but by other 'pay the losses occasioned by it; that the fance of law and to the great injury of prop- grain, and wood, and suitable stables, pens, and erty holders on that avenue. This company cattle yards, as soon as the concrete paving comhas been unable to enforce the prohibition be- pany, now occupying the western portion of cause the open space above referred to has not said ground, shall vacate the same; all to be been properly prepared to enable dealers to oc- done to the satisfaction of the District authoricupy the grounds for market purposes as pro- ties, and in such manner as to furnish creditvided in the law.

able accommodations for a wholesale market. By the act of Congress the Washington Mar- In order to more effectually carry out the ket Company is entitled to establish the rules foregoing arrangement, entered into November and regulations which all govern the market & 1871, the company now propose to the govupon the open space, but it is a question whether ernor and to the board of public works, which or not it was the intention of Congress that by law has control of the streets and avenues this company should derive any income there- of the District, that the said company shall be from.

ailowed to collect of dealers in said wholesale Under these circumstances, to meet a press- market the following sums : ing public necessity, this company proposes,

Amount with your permission, properly to grade the

per day. grounds and to place thereon suitable platforms Each one-horse team..

$0.10 of inexpensive construction, which will enable

Each two-horse team. the marketmen to do business on the open space

Each three-horse team.


25 as contemplated by the act, charging them for Each four-horse team. the use of their stands such sums as you and

Each head of neat cattle.

29 the District authorities may prescribe, not to

Each cow and calf.

25 exceed the interest on the actual outlay and

Each swine

05 the actual expenditures for keeping the market Each sheep

05 In order. There can be no possible objection to this

The market company also to charge such rea. course of action, and we trust you will give it sonable rent for storage as may be agreed upon your approval at once, as there is a necessity with the parties using their buildings. for immediate action.

The company will also keep an office open at We have the honor to be, very respectfully,

all hours of the day and night for the accommoT. C. Connelly,

dation of dealers, where produce can be measHallett Kilbourn,

ured and weighed, and will furnish suitable Adole Cluss,

walchmen to take charge of the market and Wm. E. Chandler,

collect the revenues thereof. Committee of the Washington Market Company.

From the revenues collected the market com

pany will retain sufficient to pay all expenses Approved, subject to such regulations as the of managing and keeping in repair and good legislative assembly may hereafter prescribe. condition the buildings and grounds, with ten H. D. Cooke, Governor. per cent annually on the cost of improvements

(which are to be made at the company's charge), Washington Market Company, and the company shall pay over to the District

April 8, 1872. authorities the residue or balance of the reveTo the Governor and Board of Public Works of nne by them collected. the District of Columbia :

If by authority of Congress the company The Wasbington Market Company is now in should at any time be dispossessed of the use possession of the open space at the intersec

and occupancy of the market grounds, it shall tion of Ohio and Louisiana avenues with Tenth be entitled to receive a fair compensation for and 'Twelfth streets, in accordance with the six. its buildings and improvements thereon. teenth section of the act of Congress of May 20,

Washington Market Company, 1870, and the arrangement made with the gov

By M. G. Emery, President. ernor of the District, as per agreement of November 8, 1871, as follows.

Board of Public Works, District of Columbia (Here follows a copy of the letter and ap

Washington. April 26, 1874. proval printed above.)

The Washington Market Company : Since taking possession of the open space thus Iu reply to your communication of April 8, assigned for a wholesale market the company 1872, I have to inform you that the board have have purchased from the District authorities this day passed the following vote: the buildings thereon belonging to the city of prove the arrangement with the Washington Washington, have suitably graded the surface, Market Company proposed in the company's and have also commenced the erection of struc- letter of April 8, 1872, relative to the open space tures thereon necessary for wholesale market at the intersection of Ohio and Louisiana avepurposes, having already completed an open nues and Tenth and Twelfth streets, used as a market or platform shed on the north side of wholesale market : this arrangement not

to B street over 200 feet long: also an open plat. prejudice any lawful future action of the board, form shed 200 feet long on the north side of of the legislative assembly, or of Congress." the grounds, with eating-house and storehouses,

Very respectfully, and have in addition made arrangements to

Alex. R. Shepherd, erect a large open building for loads of bay,

Vice President.

“To ap


District might also be restrained from pre-examine the contentions urged in the order
scribing or attempting to prescribe rules and in which they have been made.
regulations for said market, from interfering As to the claim that the market company
with the sources of revenue mentioned in the is the corporation empowered by section 16

contract, and from forcibly ousting or resort of the charter to establish rules and regula(366]ing to legal proceedings to obtain possession tions with respect to the market therein awof the premises.

General relief was also thorized. prayed.

We do not find in the text of the statute The answer of the District asserted the anything justifying a construction of the invalidity of the alleged contract; averred words "rules and regulations” as employed that the District alone was entitled to occupy in section 16, which would attach to them a said market space and to establish rules and less broad signification than is given to the regulations respecting the conduct of the word “regulations” in the second section, in market; and further averred the legality of which section, with reference to the public any action taken by or on its behalf respect-market authorized to be constructed and ing said market space and the tolls imposed maintained by the Washington Market Com. in the operation of the market.

pany, it was provided that “the municipal The court entered a decree dismissing the government of said city shall at all times bill; and, on appeal, its action was affirmed have the power to make and enforce such by the court of appeals of the District. regulations with regard to said market and 6 App. D. C. 34. An appeal was then taken the management thereof as in their judg. to this court.

ment the convenience, health, and safety of

the community may require." The fact that Afr. William Birney for appellant. the power to establish and enforce regula

Messrs. S. T. Thomas and A. B. Duvall tions with respect to the market to be erected for appellee.

by the market company was vested in the

municipality, and the further fact that a (366). *Mr. Justice White, after making, the voice in the establishment of the amount of

foregoing statement, delivered the opinion rent to be paid for stalls in the market of of the court:

the company was expressly conferred upon It is difficult to determine precisely the the District authorities, prevents the infer. theory upon which appellant predicates its ence that, with reference to the market which right to relief at the hands of a court of the city itself was “to hold and use," the city to possession" of the market grounds is as regulations, or that a broad and comprehenserted to be in complainant, and its right sive authority to establish such rules and reg. not only to prescribe rules and regulations ulations was vested in the market company. with respect to the market is averred, but The grammatical structure of the sentence also a right to the sources of revenue men- also supports the view that the corporation tioned in the alleged contract. Despite, referred to in the sixteenth section was the however, the position thus taken in the plead city government, for the nearest antecedent ings, and the fact that the complainant de to the word "corporation” is the city govern. manded that the District be compelled to ac- ment of Washington, the market company count for the losses which, it is alleged, the not being named at all in the section. complainant had sustained by claimed

As respects the alleged contract stated in wrongful interferences of the District, coun. the bill to have been initiated in 1871 and sel, in the argument at bar, bases the right perfected in 1874. to relief solely upon the prayer for general By the written proposal concerning the relief contained in the bill. In consequence use and occupancy of the open market space, of this abandonment of the specific grounds bearing date November 8, 1871, addressed to stated in the bill, the argument at bar is the governor of the District, the Washington

that while the market company, under the Market Company stated: “This company pro(367]section above referred to, had not "obtained poses, with your permission, properly to grade

a general power to regulate and control the the grounds and to place thereon suitable plat-
market, it was by said section vested with forms of inexpensive construction, which will
the power to locate and assign stands there enable the markeimen to do business on the
in, and that the facts averred and shown by open space as contemplated by the act, charg.
the proofs established an implied contracting them for the use of their stands such
by which the District constituted the com- sums as you and the District authorities may
pany an agent to manage and control the prescribe, not to exceed the interest on the
market and collect and disburse the revenues actual outlay and the actual expenditures for
therefrom. And it is then argued that from keeping the market in order.' And it was
these facts such a situation resulted as that added: “There can be no possible objection
it would be inequitable to permit the Dis- to this course." Upon this letter was placed
trict to interfere in any wise with the possess the following indorsement: “Approved, sub-
sion, control, and management of the market ject to such regulations as the legislative as.
without antecedently “reimbursing appellant sembly may hereafter prescribe. H. D.
for moneys expended as its agent in the ad. Cooke, governor."
ministration of the wholesale market of Irrespective of what may have been the
Washington city."

power possessed by the governor concerning
Disregarding the fact that the claims as the market grounds or market, it is clear that
serted in the pleadings on the one hand and there is nothing in this proposal of the mar.
at bar on the other are divergent, we shall 'ket company, or in the qualified approval of

invoked to uphold the judgment. A suffi- manded, with directions to enter a judgment
cient answer is that neither by pleadings nor for the defendant.
evidence were the proceedings in this other See same case below, 32 Ct. Cl. 147.
case brought before the court of claims in
the present suit. If a party neither pleads Statement by Mr. Justice Brewer:
nor proves what has been decided by a court On August 2, 1890, the appellee, William
of competent jurisdiction in some other case F. Ingram, applied to the local land office at
between himself and his antagonist, he can- Salt Lake City, Utah, under the desert land
not insist upon the benefit of res judicata, act of March 3,1877 (19 Stat. at L. 377, chap.
and this although such prior judgment may 107), to reclaim and enter a tract of land
have been rendered by the same court. containing 236.55 acres. The land so sought
Southern Pacific Railroad Co. v. United to be reclaimed and entered was a part of an
States, 168 U. S. 1 (42: 355), suggests noth-even-numbered section of lands within the
ing contrary to this, for there the prior judg. limits of the grant to the Union Pacific Rail.
ment was offered in evidence, and the only way Company. The entry was approved by
question considered and decided by this the local land office; the claimant paid the
court was the effect of an alleged failure to sum of $118.28, being 50 cents per acre, the
fully plead res judicata.

preliminary payment thereon, and received
But further, not only did the petitioner an ordinary certificate of entry. He failed,
fail to either plead or prove the former judg- however, to reclain the land by conducting
ment, but also the record when produced dis water on to it, as provided by the desert land
closed that the court found that the advance act, and abandoned his entry, which, on De-
In price was during the prolonged term. cember 19, 1895, was canceled. Thereafter
Counsel propose by stipulation to change this suit was brought to recover the money
that finding so as to make it show that part which he had paid to the local land officers.
of the sum named therein was for the ad. The court of claims, while expressing an
vance during the contract term, and the opinion, on a demurrer to the petition, ad.
other part for the advance during the pro- versely to the contention of the petitioner
longed term. In other words, counsel seek (32 Ct. Cl. 147), finally entered a decree in
without pleading or proof to use a prior judg. his favor, from which decree the United
ment as res judicata, and also by stipula- States appealed to this court.
tion to change the findings of fact which
were made in that case. It is clear this can- Messrs. George Hines Gorman and Lou.
not be done.

is A. Pradt, Assistant Attorney General, The judgment of the Court of Claims will for appellant. be reversed, and the case remanded to that Messrs. Russell Duane, Harvey Spald. court with directions to enter a judgment for ing, and E. W. Spalding for appellee. the claimant, less the two amounts of $12,608.71 and $14,815.66, the increased cost of *Mr. Justice Brewer delivered the opin.[328] Jabor and material.

ion of the court:

The contention of the appellee is that no valid entry can be made under the desert

land act of land within the place limits of a (327) UNITED STATES, Appt.,

land grant to railroad corporations; that

therefore the attempted entry was absolutely WILLIAM F. INGRAM.

void, and that if he had fully complied with

the provisions of that act he could not have (See S. C. Reporter's ed. 327-334.)

acquired a good title to the lands entered;

that he was therefore justified in abandonDesert land actrecovery of money paid for ing the entry which he had attempted to entry of public lands.

make; that the government had received

money which it had no right to receive, and 1. Valid entrles can be made under the desert was under an implied obligation to return it

land act, of land within the place limits of -an obligation which could be enforced by a land grant to rallroad corporations.

action in the court of claims. His main re2. One who voluntarily abandons a valid en liance is on United States v. Healey, 160 U.

try of public lands under the desert land act s. 136 (40: 369], but the singular fact is cannot recover back the money which he paid that in that case a title by patent to an to the local land officers to initiate it.

even-numbered section within the limits of

a railroad land grant acquired under the (No. 82.)

desert land act was not questioned, and a

claim of the patentee to recover the differ. Argued December 9, 1898. Decided Januaryence between $2.50 per acre, which he had 3, 1899.

paid in accordance with the statute in re

spect to railroad land grants, and $1.25 A

Claims in favor of the claimant, William pay under the deseri lala act, was rejected. F. Ingram, for the recovery from the United Counsel for appellee pick out a sentence or States of money which he had paid to the two in the opinion in that case, and severing local land officers under the desert land act to them from the balance, insist that this court initiate his entry, the entry having been aft. decided that land within the place limits of erwards abandoned. Reversed, and case re- a railroad land grant is wholly removed from 172 U. S U. 8., BOOK 43.





the operation of the desert land law, as much | lamation, and permitted the entry of not so as if it had already been conveyed to a exceeding 640 acres. The only substantial private owner, and conclude that, being so advantages of an entry under the desert land wholly separated from the reach of that law, act over an ordinary pre-emption were in the an atienpted entry thereunder is absolutely amount of land and the time of payments void, and may be abandoned by the entry- Six hundred and forty acres could be taken man at any time. It seems a little strange under the one, and only one hundred and to have this contention pressed upon us in sixty under the other. The price was the view of the fact that a patent for lands with same, but under the one only twenty-five in a railroad land grant was not disturbed cents per acre was payable at the time of the by that decision, and a claim to recover an entry, and the balance was not required un

excess payment was repudiated. Nowhere til, at the end of three years, the reclamation (329]in the opinion is there an intimation that was complete; while under the other the en

the patentee did not acquire a perfect title, tire $1.25 was payable at the time of the en-
no suggestion that the whole proceeding was try. These advantages were offered to in-
void and the land patented still the property duce reclamation of desert and arid lands.
of the government, or even that it had the Now, it is a well-known fact that along
right to maintain a suit to set aside the pat- the lines of many land-grant railroads are
ent as a cloud upon its title. And certainly large tracts of arid lands- desert lands with.
if the title conveyed by the patent was abso- in the very terms of the statute. Indeed,
lutely void, then the patentee had paid, not nearly every transcontinental line runs for
only the half which he sought to recover, but long distances through these desert lands.
the entire purchase money for nothing, and Did Congress act on the supposition that no
should at least have been allowed to recover inducenient was necessary to secure the rec-
the half which he sued for.

lamation of the arid public lands within It may be well to refer to the several stat- the place limits of those grants? Do not the utes of Congress. The general policy in re- reasons for legislation in respect to lands respect to railroad grants, expressed in the mote from railroads have the same potency many statutes making such grants, and finally in respect to lands contiguous thereto? If carried into the Revised Statutes in section Congress had intended to exclude lands with. 2357, is that while the ordinary price of pub- in the place limits of railroads from the lic lands is $1.25 an acre, “the price to be scope of this act would it have said "any paid for alternate reserved lands, along the desert land,” or defined "desert lands” as line of railroads within the limits granted broadly as it did by section 2, which reads: by any act of Congress, shall be $2.50 per “Sec. 2. That all lands, exclusive of tim.

One hundred and sixty acres might ber lands and mineral lands, which will not, be pre-empted at that price, or eighty acres without irrigation, produce some agricultural homesteaded. Rev. Stat. § 2289. In other crops, shall be deemed desert lands within words, Congress, in no manner limiting eith- the meaning of this act, which facts shall er the right of pre-emption or homestead, be ascertained by proof of two or more cred. simply declared that these alternate reserved ible witnesses under oath, whose affidavits lands should be considered as worth $2.50 shall be filed in the land office in which said instead of $1.25, the ordinary price of pub-tract of land may be situated.” lic lands. All appropriations by individuals *The reasons which established and justi-[331) were based upon that valuation, but the fied the policy of double price for the former right to appropriate was in manner apply as fully to lands which had to be re. changed. The reason for this addition to claimed before they could be cultivated as the price of alternate reserved sections with to lands which needed no reclamation. Conin a railroad grant has been often stated by tiguity to the railroad is the same fact in this court, and is referred to in the opinion each. The significance of this was recog. in United States v. Healey, supra. It is that nized in the Healey Case. Indeed, the whole a railroad ordinarily enhances the value of controversy in that case was as to the matter contiguous lands, and when Congress grant. of price, and grew out of the fact that after ed only the odd sections to aid in the con- the passage of the desert land act the Intestruction of one it believed that such con- rior Department at first ruled that its effect struction would make the even and reserved was to reduce the price of even sections withsections of at least double value.

in railroad place limits, entered under it, This difference in price was based, as will from $2.50 to $1.25 an acre, while in 1889 a be perceived, solely on the matter of location, change was made in its rulings, and it was and not at all upon any distinction in the thereafter held that the act worked no such character or quality of the land, and the reduction. Secretary Noble, in Tilton's Case, difference in price was the only matter that decided March 25, 1889 (8 Land Dec. 368,

distinguished between an entry of lands 369), said, and his language was quoted in (830)within and those without the place *limits of our opinion:

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


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