(249 U. S. 79) WHITEHEAD v. GALLOWAY et al. (Submitted Jan. 23, 1919. DEEDS 1919.) No. 184. at Duncan. Pressgrove and wife executed to the Travelers' Insurance Company of Hartford, Connecticut, a mortgage on the Decided March 3, land dated March 22, 1907, recorded April 5, 1907, in the office of the twenty-ninth recording district at Duncan, Indian Territory. Pressgrove and wife executed a mortgage to the Atkinson, Warren & Henley Company 84-VENDOR AND PURCHASER 231(9) PLACE OF RECORD-CREATION OF dated March 22, 1907, recorded April 24, NEW RECORDING DISTRICT. Under Act June 21, 1906, making a new recording district 29 in Indian Territory out of portion of old district 20, and in view of Act Feb. 19, 1903, and Mansf. Dig. Ark. 1884, § 671, made applicable to Indian Territory, deed to land situated in new district could not be validly recorded in old district, and, if so recorded, was not notice to subsequent purchasers, though there was no recording office in new district at time of recording, especially since, if deed had been recorded as soon as possible in new county, it would have been in time to afford notice to subsequent purchaser. 1907, in the office of the twenty-ninth recording district at Duncan. On June 21, 1906, Congress passed an act (34 Stat. 343): "That in addition to the places now provided by law for holding courts in the Southern judicial district of Indian Territory courts shall be held in the town of Duncan, and all laws regulating the holding of the courts in the Indian Territory shall be applicable to the said court hereby created in said town of Duncan. That the territory next hereinafter described shall be known as recording district numbered twenty-nine, beginning at a point where township In Error to the Supreme Court of the State line between townships two and three north reaches the east boundary line of Oklahoma Territory; thence east on said township line twenty-four miles to where it intersects with range line three and four west; thence south on said range line twelve miles to where it interand one south; thence east along said base line sects the base line between townships one north six miles to the range line between ranges two and three west; thence south twelve miles along Mr. Claude S. Arnold, of Enid, Okl., for said range line to the township line between plaintiff in error. townships two and three south; thence west Mr. H. A. Ledbetter, of Ardmore, Okl., for intersects with the east line of Oklahoma Terthirty miles along said township line to where it defendants in error. ritory; thence north along said line twenty-four miles to the place of beginning; and the place *Mr. Justice Day delivered the opinion of of recording and holding court in said district the Court. shall be Duncan." This is a contest between claimants to the Prior to the passage of this act of Congress ownership of a tract of land now part of the lands involved in this case were located Carter county, Oklahoma, and prior to June in the twentieth recording district of the 21, 1906, a part of the twentieth recording Indian Territory, known as the "Ryan disdistrict, Ryan (office of the recording district." But this act made them a part of trict), Indian Territory. Thereafter it was the twenty-ninth recording district, known in the twenty-ninth recording district, Duncan (office of the recording district), Indian Territory. The facts so far as pertinent are: On the twenty-seventh day of June, 1906, Wilburn Adams, who held title to the land, made and delivered a deed for the same to the plaintiff in error, Whitehead, which deed was filed for record in the office of the twentieth recording district at Ryan, Indian Territory, on the twenty-eighth day of June, 1906, and was duly recorded. Afterwards Adams and wife made a warranty deed of the same property to James O. Galloway, dated November 16, 1906, and recorded November 22, 1906, in the office of the twenty-ninth recording district of the Indian Territory at Duncan. Galloway on the 24th day of December, 1906, conveyed the same to Winfield S. Pressgrove and his wife, which deed was recorded as the "Duncan recording district." On June 30, 1906, C. M. Campbell, who was then clerk of the United States Court for the Southern District of the Indian Territory, appointed C. N. Jackson deputy clerk and ex officio recorder for the newly-created twenty-ninth recording district, with headquarters at Duncan. C. N. Jackson took and subscribed the oath of office and filed his bond on June 30, 1906, and his appointment was duly approved by the United States Court at Ardmore on the same day. He arrived at Duncan and first opened his office on July 7, 1906, and the first entry made upon the books was upon that date. No recording office was opened at Duncan prior to July 7, 1906, when C. N. Jackson arrived and opened one. From the time of the conveyance of the lands to Pressgrove (December 24, 1906) he has been in the actual possession thereof. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes #82 The lower court and the Supreme Court of (recorded instruments to the new indexes 32 Oklahoma decided in favor of Galloway and Stat. 842, applied to instruments theretofore his successors, holding that the recording recorded. See Bank v. Keys, 229 U. S. 179, of the deed, made to Whitehead, at Ryan, 33 Sup. Ct. 642, 57 L. Ed. 1140. was not constructive notice to the subsequent purchasers. 153 Pac. 1101, rehearing denied without opinion 157 Pac. xxiii. At the time of the passage of the statute of June 21, 1906, another statute provided in effect (Act Feb. 19, 1903, c. 707, 32 Stat. 841, 10 Fed. Stats. [1st Ed.] 130): That chapter 27 of the Digest of the Statutes *of Arkansas of 1884 be extended to the Indian Territory so far as the same is applicable and not inconsistent with any law of Congress; that the clerk or deputy clerk of the United States court of each of the courts of the territory should be ex officio recorder for his district and perform the duties required of the recorder in the chapter of Mansfield's Digest, hereinafter referred to. The duty was placed on each clerk or deputy clerk to record in the books provided for the office all deeds, mortgages, etc. Instruments theretofore recorded with the clerk of the United States Court for the Indian Territory were not required to be again recorded, but should be transferred to the indexes without further cost, and that such records theretofore made should be of full force and effect. That whenever in said chapter (Mansfield's Digest) the word "county" occurs there should be substituted the word "district" and wherever the words "state" or "state of Arkansas" occur there should be substituted therefor the words "Indian Territory," and wherever the words "clerk" or "recorder" occur there should be substituted the words "clerk or deputy clerk of the United States court." The statute further provides that all instruments of writing, the filing of which is provided by law, should be recorded or filed in the office of the clerk or deputy clerk at the place of holding court in the recording district where said property may be located. The provisions of Mansfield's Digest, which Congress extended to the Indian Territory so far as applicable, provide (Mansfield's Digest 1884, c. 27, § 671): "No deed, bond, or instrument of writing, for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, hereafter made or executed, shall be good or valid against a subsequent purchaser of such real estate for a valuable consideration, without actual notice thereof; or against any creditor of the person executing such deed, bond, or instrument, obtaining a judgment or decree, which by law may be a lien upon such real estate, unless such deed, bond, or instrument, duly executed and acknowledged, or approved, as is or may be required by law, shall be filed for record in the office of the clerk and ex officio recorder of the county where such real estate may be situated." Congress made no provision whereby deeds to lands in the new district were to be recorded at Ryan in the old district pending the opening of the office in the new district at Duncan. The provision as to transfer of Cases cited by plaintiff in error, where statutes provide for the organization of new counties, and holding that until such new counties are organized the place for recording is the old county where the lands are situated, are not apposite. Congress itself declared and defined the new recording district, and the applicable provisions of Mansfield's Digest provided that no conveyance should be constructive notice against a subsequent purchaser unless such deed should be filed for record in the office of the clerk and ex officio recorder of the district where the real estate was situated. The statute is explicit, and when Whitehead bought from Adams the requirement of the law was plain that the deed should be filed for record at Duncan in the new district. See Astor v. Wells, 4 Wheat. 466, 4 L. Ed. 616. But, it is said, at the time of the conveyance to Whitehead, no office had been established at Duncan. This fact, however, did not continue Ryan as the place for recording deeds for lands in the new district. The requirements of the legislation are positive, making Duncan the place for filling the deed in the new recording district where the lands are situated. The plaintiff in error urges that until an office was opened at Duncan it was impossible to record a deed there. This fact does present an anomalous situa. tion, Lot to be remedied, however, by judicial construction in derogation of positive and controlling legislation. Moreover, by the agreed statement of facts it appears that a deputy clerk, who became ex officio recorder, was appointed June 30, 1906, and opened his office for the transaction of business at Duncan on July 7, 1906. The conveyance from Adams to Galloway was made on November 16, 1906. Had Whitehead filed his deed for record at Duncan after the recording office was opened there and prior to November 16, 1906, Galloway and the subsequent purchasers would have had constructive notice by means of this record of the prior conveyance. But all that Whitehead did was to file his deed at Ryan after the land had become part of the Duncan district. After the opening of the Duncan office, it was his duty, if he would charge others with constructive notice, to file his deed in the office at Duncan. Had he done this he would have had a conveyance of record which would have been constructive notice to subsequent purchasers. Such constructive notice was not conveyed to Galloway and the subsequent purchasers by the filing of the deed for record at Ryan in the old district. It results that the judgment of the Supreme Court of Oklahoma must be Affirmed. Under Judicial Code, § 134 (Comp. St. § 1125), relating to jurisdiction of the Circuit Court of Appeals, and in view of sections 241 and 247 (Comp. St. §§ 1218, 1224), and Comp. St. § 3564, and laws relating to Alaska, decision of Circuit Court of Appeals of Ninth Circuit on appeal from District Court of Alaska is final, and not reviewable by Supreme Court on writ of error, though constitutional questions are involved; the court having ample power, under Judicial Code, § 240 (Comp. St. § 1217), to review on certiorari constitutional questions. Error to the United States Circuit Court of Appeals for the Ninth Circuit. Actions by the Territory of Alaska against the Alaska Pacific Fisheries. To review a judgment of the Circuit Court of Appeals (236 Fed. 52, 149 C. C. A, 262; 236 Fed. 70, 149 C. C. A. 280), affirming a judgment of District Court in favor of the Territory, defendant brings error. Writ dismissed. *Mr. Justice DAY delivered the opinion of the Court. These cases were argued and submitted together, and may be disposed of in a single opinion. In case No. 117 the action was brought in the District Court for Alaska to recover moneys alleged to be due under a statute imposing a tax upon prosecuting the business of fishing by means of fish traps in the waters of Alaska. The defendant, the Alaska Pacific Fisheries, filed an answer in which it set up that the act of the Alaska Legislature, under which the suit was brought, was void ander the act of Congress creating the Legislature of Alaska, and under the Constitution of the United States, and set up other defenses not involving the Constitution. In case No. 118 the Territory brought an action to recover taxes claimed to be due under an act of the Legislature of the Territory of Alaska for prosecuting the business of fishing for and canning salmon in Alaska. With other defenses the constitutionality of the law was contested by the defendant. Judgment in each case was rendered in the District Court in sums in excess of $500 Upon against the Alaska Pacific Fisheries. error to the Circuit Court of Appeals for the Ninth Circuit the judgments of the District Court were affirmed. 236 Fed. 52, 149 C. C. A. 262; 236 Fed. 70, 149 C. C. A. 280. Motions to dismiss the writs of error were filed by the Attorney General of the Territory upon the ground that the judgments of the Circuit Court of Appeals are final. Consideration of the motions was passed to the hearing upon the merits. A determination of the motions involves a construction of sections of the Judicial Code regulating appeals and writs of error in the District Court for Alaska and the Circuit Court of Appeals for the Ninth Circuit. Section 134 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1134 [Comp. St. § 1125]) provides: "In all cases other than those in which a writ of error or appeal will lie direct to the Supreme Court of the United States as provided in section 247, in which the amount involved or the value of the subject-matter in controversy shall exceed five hundred dollars, and in all criminal cases, writs of error and appeals shall lie from the District Court for Alaska or from any division thereof, to the Circuit Court of Appeals for the Ninth Circuit, and the judgments, orders, and decrees of said court shall be final in all such cases. But whenever such Circuit Court of Appeals may desire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in any such case, the court may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court proposition certified to it, and its instructions shall give its instruction upon the question or shall be binding upon the Circuit Court of Appeals." Section 247 (36 Stat. 1158 [Comp. St. § 1224]) of the Code provides: "Appeals and writs of error may be taken and prosecuted from the final judgments and decrees of the District Court for the district of Alaska or for any division thereof direct to the Supreme Court of the United States, in the following cases: In prize cases; and in all cases which involve the construction or application of the Constitution of the United States, or in which the constitutionality of any law of the United States or the validity or construction of any treaty made under its authority is drawn in question, or in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States. Such writs of error and appeals shall be taken within the same time, in the same manner, and under the same regulations as writs of error and appeals are taken from the District Courts to the Supreme Court." Section 241 (36 Stat. 1157 [Comp. St. 1218]) of the same Code provides: "In any case in which the judgment or decree of the Circuit Court of Appeals is not made final by the provisions of this title, there shall be of right an appeal or writ of error to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Supreme Court of the United States where the matter in controversy shall exceed one thousand dollars, besides costs." It is the contention of the plaintiff in error that under section 241 the judgments of the Circuit Court of Appeals are not final and there is a right to a writ of error from this court, the matter in controversy exceeding $1,000, besides costs. The District Court of Alaska is a court with the jurisdiction of United States District Courts and general jurisdiction in civil, criminal, equity, and admiralty causes. 4 U. In that court these S. Comp. St. § 3564. suits were brought to recover the taxes in question. As already indicated, the answer in each of the cases raised an issue as to the constitutionality of the statute under which the taxes were levied, and the question which we are now to consider is: Are the judgments of the Circuit Court of Appeals final? In interpreting the sections of the statutes controlling this matter resort must be had to the language of the laws, to the history of the legislation, and the decisions of this court interpreting the Circuit Court of Appeals Act, now substantially carried into the Judicial Code, in so far as the same are applicable. *The sections of the Judicial Code pertaining to Alaska had their origin in prior federal legislation concerning the territory. The committee on revision of the laws in its report to Congress said of section 134: "This section is drawn from section 202 of the Criminal Code for Alaska (Act March 3, 1899, c. 429, 30 Stat. 1307), and from sections 504 and 505 of the Civil Code (Act June 6, 1900, c. 786, 31 Stat. 414, 415), and states what was the existing law on the subject. Those portions of the sections which authorize the taking of writs of error and appeals direct to the Supreme Court are revised in section 247. Formerly capital cases went direct to the Supreme Court. Section 247 was so modified as to take from the Supreme Court its jurisdiction of capital cases, the effect being to vest the right to review on a writ of error in the Circuit Court of Appeals. This is accomplished, so far as this section is concerned, by the omission of the words 'other than capital' after the words 'and in all criminal cases.'" Note by Committee on Revision, 5 Fed. Stat. Ann. p. 644, note to section 134. Sections 504 and 505 of the Alaska Civil Code, as they *stood before the enactment of the Judicial Code, are found in 31 Statutes at Large, pp. 414, 415. These sections are as follows: "Sec. 504. Appeals and writs of error may be taken and prosecuted from the final judgments of the District Court for the district of Alaska or any division thereof direct to the Supreme Court of the United States in the following cases, namely: In prize causes and in all cases which involve the construction or application of the Constitution of the United States, or in 39 SUP.CT.-14 which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority is drawn in question, or in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States; and that in all other cases where the amount involved or the value of the subject-matter exceeds five hundred dollars the United States Circuit Court of Appeals for the Ninth Circuit shall have jurisdiction to review by writ of error or appeal the final judgments, orders, of the District Court. "Sec. 505. The judgments of the Circuit Court of Appeals shall be final in all cases coming to it from the District Court, but whenever the judges of the Circuit Court of Appeals may desire the instruction of the Supreme Court of the United States upon any question or proposition of law which shall have arisen in any case pending before the Circuit Court of Appeals on writ of error to or appeal from the District Court, judges may certify such question or proposition to the Supreme Court, and thereupon the Supreme Court shall give its instruction upon the questions and propositions certified to it, and its instruction shall be binding upon the Circuit Court of Appeals." A reading of these sections shows that two classes of cases were provided for: (1) Prize cases, and cases involving the Constitution and treaties; (2) other cases wherein the amount involved exceeds $500. In thee It is true that section 134 begins by reference to cases other than those which may come to this court, and might be construed to allow appeals to the Circuit Court of Appeals for the Ninth Circuit only in cases which could not be brought directly to this court. But, bearing in mind the sources of the legislation which was enacted into the Judicial Code and the interpretation which this court has placed upon the Circuit Court of Appeals Act of 1891, we are led to the conclusion that it was not the intention of *59 19* Reaching the conclusion that the judg ments of the Circuit Court of Appeals were final in these cases, it follows that the writs of error must be Dismissed. Congress to give practically two appeals in Appeals. By the terms of section 134 the the class of cases which we are now consid- | judgment of that court is made final. ering. Under section 5 of the Circuit Court The contention that the effect of this conof Appeals Act of 1891 (26 Stat. 826, c. 517), struction is to make the Circuit Court of Ap direct appeals might be taken from the Dis- peals a court of final jurisdiction in cases intrict Courts or Circuit Courts to this court | volving questions of the construction and *apin cases which involved the construction or plication of the Constitution, is met by the application of the Constitution of the United suggestion that this court has ample power States, and where such was the only matter under the Judicial Code to review judgments involved an appeal could not be taken to the of the Circuit Court of Appeals, made final Circuit Court of Appeals. Carolina Glass in that court, by writs of certiorari. Section Co. v. South Carolina, 240 U. S. 305, 318, 36 240 (Comp. St. § 1217). Sup. Ct. 293, 60 L. Ed. 658. But in cases wherein issues were involved affecting the *construction and application of the Constitution, as well as others upon which the case might go to the Circuit Court of Appeals under the Circuit Court of Appeals Act, two appeals were not allowed, and the judgment of the Circuit Court of Appeals was final if the case was taken there, and the jurisdic- ALASKA SALMON CO. v. TERRITORY OF tion originally invoked rested solely upon grounds which by section 6 of the Circuit Court of Appeals Act (section 128, Judicial (Argued and Submitted Jan. 20, 1919. Decided Code [Comp. St. § 1120]) made its judgment final. Macfadden v. United States, 213 U. S. 288, 29 Sup. Ct. 490, 53 L. Ed. 801; Robinson v. Caldwell, 165 U. S. 359, 17 Sup. Ct. 343, 41 L. Ed. 745; Loeb v. Columbia Township Trustees, 179 U. S. 472, 21 Sup. Ct. 174, 45 L. Ed. 280; American Sugar Co. v. New Orleans, 181 U. S. 277, 21 Sup. Ct. 646, 45 L. Ed. 859; Boise Water Co. v. Boise City (No. 2), 230 U. S. 98, 33 Sup. Ct. 1003, 57 L. Ed. 1409. Under the original Alaska Act, cases involving the application of the Constitution were directly reviewable in this court, and those reviewable by the Circuit Court of Appeals for the Ninth Circuit, were by the terms of the act made final in that court. The Judicial Code, which is primarily a codification of former statutes, carried the provisions of these sections into that Code with the change which made all criminal cases, capital as well as others, final in the Circuit Court of Appeals. Itow v. United States, 233 U. S. 581, 34 Sup. Ct. 699, 58 L. Ed. 1102. We think Congress, in enacting the Judicial Code, contemplated no change as to the finality of the judgments of the Circuit Court of Appeals for the Ninth Circuit in cases taken to that court from the District Court of Alaska. The plaintiff in error might have taken a writ of error from this court to the District Court. Section 247. It did not choose to do so, and as the cases involved issues other than those relating to the Constitution, sued out a writ of error from the Circuit Court of ALASKA. March 3, 1919.) No. 151. (249 U. S. 62) Error to the United States Circuit Court of Appeals for the Ninth Circuit. Action by the Territory of Alaska against the Alaska Salmon Company. To review a judg 62, 149 C. C. A. 272), affirming a judgment of ment of the Circuit Court of Appeals (236 Fed. the District Court in favor of the Territory, defendant brings error. Writ dismissed. Messrs. Warren Gregory, of San Francisco, Cal., E. S. McCord, and W. H. Bogle, both of Seattle, Wash., and George H. Whipple, of San Francisco, Cal., for plaintiff in error. Mr. George B. Grigsby, of Juneau, Alaska, for the Territory. Memorandum by direction of the Court, by Mr. Justice DAY. This action was brought in the District Court of Alaska by the Territory of Alaska to recover license taxes from the Alaska Salmon Company. Judgment was rendered *in the District Court in favor of the Territory. To review that judgment a writ of error was taken from the Circuit Court of Appeals for the Ninth Circuit. The Circuit Court of Appeals affirmed the judgment of the District Court. 236 Fed. 62, 149 C. C. A. 272. A petition for a rehearing was filed, and denied. Petition for writ of certiorari to the Circuit Court of Appeals was denied in this court. 242 U. S. 648, 37 Sup. Ct. 242, 61 L. Ed. 544. *62 |