♦180

the Secretary of the Interior shall be conclusive ( Civilized Tribes is stated in the enrollment evidence as to the quantum of Indian blood of record to be a certain number of years old any enrolled citizen or freedman of said tribes and the day of his enrollment is stated there and of no other persons to determine questions in, he shall be unable to convey his lands so arising under this act and the enrollment rec- long as the rolls do not show affirmatively ords of the Commissioner to the Five Civilized that he is 21 years old. For this contention there is no support in the words of the statute; nor is there any in reason. As well might

Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman."

The enrollment record introduced in evi- it be contended that where the record states dence, so far as material, is as follows:

*Gilcrease insists that the entry "June 9/99," near the lower right-hand corner of the enrollment card, signifies that the application for his enrollment was made on June 9, 1899; that in giving his age as "9," the roll declared him to be exactly 9 years old on June 9, 1899; and that, consequently, in the absence of other evidence to the contrary in the enrollment record, he must be deemed to have been under age on February 8, 1911. But there was no declaration or finding of fact by the Commission that Gilcrease was exactly 9 years old on June 9, 1899. The declaration that a person is 9 years of age signifies, in the absence of conditions requiring exact specification, merely that he has reached or passed the ninth anniversary of his birth and is still less than 10 years old. There was neither a statute nor a regulation of the Commission which required an exact specification of age. Nor did the printed blank used for the enrollment provide a space either for entering the date of applicant's birthday or for entering the number of months and days by which his age exceeded a full year. Furthermore, the enrollment card itself bears positive evidence that it did not purport to represent the applicant as be ing exactly 9 years old on the day of application. For this same card records, in like manner, on the assumed date of application, also the ages of his mother, of three brothers, and a sister. Is the court expected to believe that the Commission found, that the six members of the family were all born on the 9th day of June?

Gilcrease insists, however, that the act makes the enrollment record not merely "conclusive," but the exclusive "evidence as to the age" of the citizen; or, in other words, that Congress has provided, not a rule of evidence, but the following rule of substantive law: Whenever a member of the Five

the number of the applicant's years, but gives only the year and not the day or the month of the application of enrollment, evidence could not be introduced to show that the application was made before December 31st of the year given, or that if no age whatever appeared in the enrollment record the citizen must for 21 years after the date of enrollment be conclusively presumed to be a minor. The enrollment record is, of course, conclusive as to that which it in terms recites or which is necessarily implied from the words and figures used. But there is no indication of an intention on the part of Congress that facts not inconsistent with the recitals of the record shall not be proved, whenever relevant. The roll had already been held to be practically conclusive as to facts, the determination of which was a condition precedent to enrollment. Compare United States v. Wildcat, 244 U. S. 111, 37 Sup. Ct. 561, 61 L. Ed. 1024. The purpose of section 3 of the Act of May 27, 1908, seems to have been simply to make the record conclusive as to age in so far as it purports to state age. The cases in the lower federal courts, the recent decisions in the Supreme Court of Oklahoma, and the great weight of all the authorities support the proposition that, when the age is stated simply in years or whenever the age is not stated definitely by the addition of the months or days, other evidence may be introduced to supplement the record by proving these and thus establish the exact date of birth.1

Affirmed.

1 Etchen v. Cheney, 235 Fed. 104, 148 C. C. A. 598;

McDaniel v. Holland, 230 Fed. 945, 145 C. C. A. 139;
Cushing v. McWaters (Okl.) 175 Pac. 838; Tyrell v.
Shaffer (Okl.) 174 Pac. 1074; Jordan v. Jordan
Pac. 650. Compare also Hutchison v. Brown (Okl.)
167 Pac. 624, 626; Jackson v. Lair, 48 Okl 269, 150
Pac. 162. For earlier case, contra, see Rice v. An-
Compare also Li-
derson, 39 Okl. 279, 134 Pac. 1120.
nam v. Beck, 51 Okl. 727, 152 Pac. 344; Henley v.
Davis (Okl.) 156 Pac. 337, 338.

(Okl.) 162 Pac. 758; Heffner v. Harmon (Okl.) 159

The petitioner in his brief sets out a number of letters from the Land Department on the question is to be considered the date of birth, when date of of whether, under section 3, the date of application birth not given. In all the communications where the question is considered it is stated in effect, as in that of August 24, 1908, from Mr. Leupp, Commissioner of the General Land Office, to the Secretary of the Interior (Land 56330-1908 E. B. H.), that the "application for enrollment shall be construed, for the purposes of the government, as representing the age of the applicant at that time, and that the date of the application shall be held to be the anniversary of the date of birth, except where the records show otherwise." It is always stated that the act

(249 U. S. 63)

WITHNELL v. RUECKING CONST. CO.

(Argued and Submitted Jan. 16, 1919. ed March 3, 1919.)

No. 142.

Broadway in the city of St. Louis. Withnell, plaintiff in error, is the owner of propDecid-five lots in city block No. 2069, five lots in erty assessed, fronting on Broadway, being city block No. 2608, and unplatted property in city blocks Nos. 2620 and 2621.

The validity of the tax bills was affirmed by the Supreme Court of Missouri. Ruecking Const. Co. v. Withnell, 269 Mo. 546, 191 S. W. 685. The case is here because of alleged violation of the Fourteenth Amendment to the federal Constitution in assessing the lien of these tax bills upon plaintiff in error's property. The assessment was levied in accordance with the charter of the city of St. Louis. An assessment for improving other portions of the street than are here involved,

made under the terms of the St. Louis char

ter, was before this court in Gast Realty Company v. Schneider Granite Company, 240 U. S. 55, 36 Sup. Ct. 254, 60 L. Ed. 523. In that case 2. COURTS 399(1)—Error TO STATE COURT the assessment was held invalid in part. Aft-QUESTIONS REVIEWABLE.

On error to the state court on the ground that assessment for street improvement violated the Fourteenth Amendment, decision of state court as to manner of laying out district and whether it conformed to charter is conclusive. 3. CONSTITUTIONAL LAW 233-EQUAL PROTECTION- - DUE PROCESS STREET IMPROVEMENTS-ASSESSMENTS.

1. CONSTITUTIONAL LAW 290(3)—DUE PROCESS-STREET IMPROVEMENT ASSESSMENT

NOTICE AND HEARING "LEGISLATIVE ACT." The charter of the city of St. Louis, adopted by vote of the people under authority of the Constitution of Missouri, is in effect a "legislative act," within the principle that, when an assessment is made in accordance with a fixed rule adopted by a legislative act, opportunity to be heard in advance on question of amount and extent of assessment and benefits is not essential to due process.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Legislative Act.]

The method of making assessments under the charter of the city of St. Louis, as stated in Gast Realty Company v. Schneider Granite Company, supra, is as follows: One-fourth of the total cost is levied upon all the property fronting upon or adjoining the improvement according to frontage and three-fourths

Attack on the system authorized by St. Louis City Charter of assessing three-fourths of cost of street improvement on abutting property according to area, ascertained by prescrib-according to area ascertained as follows:

ed method, as denying the protection afforded by the Fourteenth Amendment, can only succeed if it has produced results as to the complaining party's property palpably arbitrary or grossly unequal.

"A line shall be drawn midway between the street to be improved and the next parallel or converging street on each side of the street to be improved, which line shall be the boundary of the district, except as hereinafter pro*vided, namely: If the property adjoining the

In Error to the Supreme Court of the street to be improved is divided into lots, the State of Missouri. district line shall be so drawn as to include the entire depth of all lots fronting on the street to be improved. * If there is no parallel or converging street on either side of the street improved, the district lines shall be drawn three hundred feet from and parallel to the street to be improved; but if there be a parallel or converging street on one side of the street to be improved to fix and locate the district line, then the district line on the other side shall be drawn parallel to the street to be improved and at the average distance of the opposite district line so fixed and located."

Suit by the Ruecking Construction Company against William W. Withnell. Judgment for plaintiff was affirmed by the Supreme Court of Missouri (269 Mo. 546, 191 S. W. 685), and defendant brings error. Af firmed.

Messrs. E. T. Allen and C. B. Allen, both of St. Louis, Mo., for plaintiff in error.

Messrs. Frank B. Coleman and George M. Block, both of St. Louis, Mo., for defendant in error.

er being remanded to the Supreme Court of Missouri, and a second judgment, the case was again before this court. 245 U. S. 288, 38 Sup. Ct. 125, 62 L. Ed. 292.

In the Gast Realty Company Case the area assessment was held invalid because it assessed a large and disproportionate part of the plaintiff in error's property. The memorandum appended to the opinion shows that the foot-front assessment was not disturbed. And see the subsequent consideration of the

shall be so construed "for the purposes of the gov-matter in Schneider Granite Company v. ernment." This does not purport to be a result Gast Realty Company, 245 U. S. 288, 38 Sup. reached on a careful interpretation of the act; but Ct. 125, 62 L. Ed. 292, supra. was apparently adopted simply as a practical working rule of the Department. McDaniel v. Holland, 230 Fed. 945, 948-950, 145 C. C. A. 139.

[1] In support of the constitutional objection it is contended that the plaintiff in error

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*70

supreme control, and it delegates to municipal corporations such measure thereof as it deems best. The city of St. Louis occupies a unique position. It does not, like most cities, derive its powers by grant from the Legislature, but it framed its own charter under express authority from the people of the state, given in the Constitution. Sections 20 and 21

was not allowed to be heard as to the validity and apportionment of the assessment, and was therefore denied due process of law. The charter provision for notice and hearing is inserted in the margin. But whether a property owner is entitled to be heard in advance upon the questions of benefit and apportionment depends upon the authority under which the assessment is made. When the assessment is made in accordance with a fixed rule adopted by a legislative act, a property owner is not entitled to be heard in advance on the question of the amount and extent of the assessment and the benefits conferred. French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879; Embree v. Kansas City Road District, 240 U. S. 242, 36 Sup. Ct. 317, 60 L. Ed. 624; Wagner v. Baltimore, 239 U. S. 207, 217, 218, 36 Sup. Ct. 66, 60 L. Ed. 230, and cases cited. We are of opinion that the assessment made in accordance with the rule of the St. Louis charter was legislative in character and required no previous notice or preliminary hearing as to the nature and extent of benefits in order to maintain its constitutional validity. The charter of the city of St. Louis was adopted The same view has been repeatedly declarby a vote of the people under state constitu- ed by the Supreme Court of Missouri. tional authority. It was under considera-Meier v. St. Louis, 180 Mo. 391, 409, 79 S. W. tion in St. Louis v. Western Union Telegraph Co., 149 U. S. 465, 13 Sup. Ct. 990, 37 L. Ed.

810. This court said:

"As the legislative power of a state is vested in the Legislature, generally that body has the

of article 9 of the Constitution of 1875 of the
state of Missouri authorized the election of 13
freeholders to prepare a charter to be submit-
ted to the qualified voters of the city which,
when ratified by them, was to become the
* In pursuance
organic law of the city.'
of these provisions of the Constitution, a char-
ter was prepared and adopted, and is therefore
'the organic law' of the city of St. Louis, and
the powers granted by it, so far as they are
a harmony with the Constitution and laws of
the state, and have not been set aside by any
act of the General Assembly, are the powers
vested in the city. This charter is an organ-
ic act, so defined in the Constitution, and is to
be construed as organic acts are construed.
The city is in a very just sense an 'imperium in
imperio.' Its powers are self-appointed, and
the reserved control existing in the General
Assembly does not take away this peculiar fea-
ture of its charter."

In

955, that court declared, citing its previous decisions, that the charter of St. Louis, adopted under the Constitution, had as re spects local assessments all the force of legislative acts.

We reach the conclusion that the attack upon the validity of the assessment for want of advance notice of hearing as to benefits must fail.

[2, 3] Regarding the front-foot method of assessment as being unassailable under the previous decisions of this court (240 U. S. and 245 U. S., supra), we come to consider the area assessment. Objections based on the manner of laying out the district, and whether it conforms to the plan outlined in the city charter are conclusively disposed of by the decisions of the state court. We have to deal only with the questions raised as to the alleged denial of the protection afforded An examby the Fourteenth Amendment. ination of the plat made part of the record, and reproduced in the briefs of counsel, shows that owing to the curvatures in Broadway and the relation thereto of converging and parallel streets, the assessing district laid out in accordance with the charter is of irregular outline. The lots assessed are

1 "No ordinance for the construction or reconstruction of any street, avenue, boulevard, alley or public highway of the city, shall be passed unless recommended by the board of public improvements, as hereinafter provided. The board shall designate a day on which they will hold a public meeting to consider the improvement of any designated streets, avenues, boulevards, alleys or public highways by grading or regrading, by constructing, or reconstructing, by paving or repaving the roadway, including cross-walks and intersections, and shall give two weeks' public notice, in the papers doing the city printing, of the time, place and matter to be considered, stating in such notice the kind of material and manner of construction proposed to be used for the wearing surface of such improvement, naming more than one kind of material or manner of construction, if the board deems it advisable so to do, and also the class of specification and plan for such work, which specification and plan shall be approved by said board, and filed in its office. If within fifteen days after such public meeting, the owners of the major part of the area of the land made taxable by this article for such improvement, shall file in the office of the board of public improvements their written remonstrance against the proposed improvement, or against the material or monstrance, and if said board shall, by a two- by no means uniform in size, nor is their rethirds vote, at a regular meeting, approve of the lation to the improvement uniformly alike. improvement, material or manner remonstrated Some blocks, including some of the plaintiff against, they shall cause an ordinance for the same in error's, are not subdivided into lots, and to be prepared and report the same with the reasons for their action and the remonstrance to the are irregular in shape. But we are not preassembly. If such majority fail to remonstrate pared to hold that the assessment district within fifteen days or shall petition the board for was so laid out with reference to plaintiff in the improvement, said board may by a majority vote approve the same, and shall cause an ordinance to error's property as requires this court to debe prepared and reported to the assembly therefor." | clare the application of the area rule a deni

manner thereof, the board shall consider such re

Acts Ark. 1893, p. 145, providing that no judgment rendered or to be rendered against a county on warrants shall bear interest after passage of the act, does not impair the obligation of contract, in violation of Const. art. 1, § 10, as respects a prior judgment on noninterest-bearing warrants, though the judgment provides for interest from date at a specified

rate.

al of due process of law, or of the equal pro- | give it any greater efficacy than when first rentection of the laws. That the assessment, dered. owing to the difficulties of the situation, 2. CONSTITUTIONAL LAW 152—IMPAIRING made inequalities inevitable, is apparent. OBLIGATION OF CONTRACT-PROVISION OF The Supreme Court of the state finds, and JUDGMENT FOR INTEREST. we are not prepared to disturb its conclusion, that the property east and west of Broadway, in the subdivision of the same for the purposes of assessment, was treated with fairness and with as much equality as the situation permitted. The attack upon constitutional grounds because of the system which the charter authorized in making the assessment can only succeed if it has produced results as to plaintiff in error's property palpably arbitrary or grossly unequal. This system has been sustained in many decisions in the Supreme Court of Missouri, and has long been enforced in practice in that state. Its application in the instance passed upon in Gast Realty Company v. Schneider Granite Company, 240 U. S. 55, 36 Sup. Ct. 254, 60 L. Ed. 523, supra, was found to work so arbitrarily as to require an avoidance of In Error to the District Court of the Unitthe area assessment upon constitutional ed States for the Western District of Arkangrounds. The *frontage rule of assessment, now generally in use, has been frequently sustained by the decisions of this court. It Mandamus by the Missouri & Arkansas may and does in some instances work in- Lumber & Mining Company against the Greenwood District of Sebastian county, equalities in benefits conferred upon propMandamus denied, and erty assessed. In the present case a calcu- Ark., and others. Affirmed. lation found in the brief of the defendant in plaintiff brings error. error, the correctness of which does not seem to be challenged, shows that if the property had been assessed by the front-foot rule, that of the plaintiff in error would have had a larger assessment than the one which resulted from the method employed.

The Supreme Court of Missouri found that no evidence was offered to sustain the allegations of the cross-bill that the tax-bills were confiscatory or disproportionate to the benefits received in that the city escaped paying its just proportion of the cost of the improvement because of its ownership of property within the district.

3. CONSTITUTIONAL LAW 152 DEPRIVING OF PROPERTY WITHOUT DUE PROCESS. Though existing judgment against a county on noninterest-bearing warrants provides for interest from date at a specified rate, judgment creditor is not deprived of property, within the 145, providing that no such judgment shall bear Fourteenth Amendment by Acts Ark. 1893, p. interest after passage of the act.

sas.

Messrs. John H. Vaughn, of Fort Smith, Ark., and B. R. Davidson, of Fayetteville, Ark., for plaintiff in error.

Mr. Thomas B. Pryor, of Fort Smith, Ark., for defendants in error.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Article 16, § 1, Constitution of Arkansas (1874), declares: "Nor shall any county, city, town or other municipality ever issue any interest-bearing evidences of in*debtedness." During 1889 (or about that time) Sebastian county, for the benefit of Greenwood disWe are not prepared to say that the plain-trict, issued certain noninterest-bearing wartiff in error, because of arbitrary legislative action or the abuse of power, was denied due process of law or the equal protection of the laws in this assessment. Affirmed.

(249 U. S. 170)

&

rants payable "out of any money in the treasury appropriated for ordinary purposes" of which plaintiff in error became lawful holder and owner. It sued upon them in the United States Circuit Court, Western District of Arkansas, and obtained a judgment, January 26, 1891, for $13,703.29, "with interest at the rate of six per cent. per annum from this date until paid together with all its costs in and about this case laid out Decided March 3, and expended." So far as not satisfied, this was revived in 1900 and again in 1910; and at different dates from 1896 to 1914 the county made payments thereon aggregating its face value together with six per cent. interest reckoned to March 21, 1893, and all costs.

MISSOURI & ARKANSAS LUMBER
MINING CO. v. GREENWOOD DIST. OF
SEBASTIAN COUNTY, ARK., et al.
(Submitted Jan. 17, 1919.

1919.) No. 149.

1. JUDGMENT 872-REVIVAL-EFFECT. Revivals of judgment merely keep it alive and permit its enforcement beyond the period fixed by the statute of limitations, and do not An act of the Arkansas Legislature ap

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

proved March 21, 1893 (Acts Ark. 1893, p. | part, the owner of a judgment will be entitled 145), provides: "No judgment rendered or to receive and have a vested right in the damto be rendered against any county in the ages which shall have accrued up to the date state on county warrants or other evidences of the legislative change; but after that time of county indebtedness shall bear any in- his rights as to interest as damages are, as when terest after the passage of this act;" and he first obtained his judgment, just what the Legislature chooses to declare. He has no conrelying upon this inhibition the county tract whatever on the subject with the defendclaimed that the above-mentioned payments ant in the judgment, and his right is to receive, fully discharged the judgment against it. and the defendant's obligation is to pay, as Thereupon, May 23, 1916, plaintiff in error damages, just what the state chooses to prepetitioned the court below for a mandamus scribe. * ** The discretion exercised by the to compel payment of alleged accrued in- Legislature in prescribing what, if any, damages terest. Answering, the county denied fur- shall be paid by way of compensation for delay ther liability and then asked for an order in the payment of judgments is based on reasons requiring that the judgment be satisfied of of public policy, and is altogether outside the record. The trial court refused a mandamus ther contention of the plaintiff in error, that he sphere of private contracts. and directed satisfaction as prayed. Wheth- has been deprived of his property without due er plaintiff in error's rights under the federal process of law, can be more readily disposed of. Constitution would be violated by giving If, as we have seen, the plaintiff has actually effect to the statute is the only question pre-received on account of his judgment all that he sented for our consideration. The Supreme is entitled to receive, he cannot be said to have Court of the state sustained its validity in been deprived of his property."

The fur

Read v. Mississippi County, 69 Ark. 365, 63 S. W. 807, 86 Am. St. Rep. 202, where the precise points here involved were presented.

[1] The two revivals in 1900 and 1910 kept the judgment alive and permitted its enforcement beyond the periods fixed by statutes of limitation. Their entry gave it no greater efficacy than it possessed when first

See Barnitz v. Beverly, 163 U. S. 118, 129, 16 Sup. Ct. 1042, 41 L. Ed. 93.

It is insisted that as the judgment now under consideration specified a definite interest rate while the one in Morley v. Lake Shore Railway Co., supra, did not, the doctrine there approved is inapplicable. To this we cannot assent; mere recital of a particular rate does not change the nature of the charge as a penalty or liquidated damages.

It should be noted that the county warrants, upon which plaintiff in error sued, bore no interest; if the parties had lawfully a different question stipulated therefor, would have been presented. The judgment of the court below is Affirmed.

rendered.

[2, 3] Plaintiff in error maintains that the challenged act conflicts with section 10, art. 1, of the Constitution and also the Fourteenth Amendment, forbidding a state from depriving any person of property without due process of law; but we think the contrary is settled by our opinion in Morley v. Lake Shore Railway Co., 146 U. S. 162, 168, 171, 13 Sup. Ct. 54, 56 (36 L. Ed. 925). There the judgment directed that interest should accrue from its entry without mentioning any rate, the statutory one then being seven per centum; later another act fixed six per centum for the future and the debtor claimed SEUFERT BROS. CO. v. UNITED STATES. benefit of it while the creditor maintained that to permit this would violate both the Contract Clause and Fourteenth Amendment. Through Mr. Justice Shiras we said:

(249 U. S. 194)

"After the cause of action, whether a tort or a broken contract, not itself prescribing interest till payment, shall have been merged into a judgment, whether interest shall accrue upon the judgment is a matter not of contract between the parties, but of legislative discretion, which is free, so far as the Constitution of the United States is concerned, to provide for interest as a penalty or liquidated damages for the nonpayment of the judgment, or not to do so. When such provision is made by statute, the owner of the judgment is, of course, entitled to the interest so prescribed until payment is received, or until the state shall, in the exercise of its discretion, declare that such interest shall be changed or cease to accrue. Should the statutory damages for nonpayment of a judgment be determined by a state, either in whole or in

UNITED STATES et al. v. SEUFERT
BROS. CO.

(Argued Jan. 29 and 30, 1919. Decided March 3, 1919.)

Nos. 187, 188.

INDIANS

3-TREATIES-FISHING RIGHTS.

"The right of taking fish at all usual and accustomed places in common with citizens of the territory," reserved to the Yakima Tribes by the treaty of June 9, 1855, 12 Stat. 951, ceding the lands occupied by them on the north side of the Columbia river in Washington, will be construed, according to its natural meaning and their understanding thereof, as shown by their habitual acts thereafter, to give the right to fish in such places on the south or Oregon side of the river, in the country of another tribe, with which similar treaty was made at about the same time.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes