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"Because no case is shown in said return why I requisite to effectively assert his rights, to a writ of mandamus should not issue as prayed in the relator's petition."

This demurrer was overruled, and, the relator electing to stand on his demurrer, his

petition was dismissed.

*It will be seen from this statement that although the relator was definitely removed from office as of June 30, 1913, and was forcibly ejected from the government office building on July 20, 1913, he did not file his petition until more than 20 months later, April 30, 1915. His only explanation for this delay is the allegation, which was denied, that he

had made every reasonable effort to have his rights in the premises accorded him and to be restored to office, but without avail.

Without discussion of the authority of the Secretary of the Interior to remove the relator without filing charges against him and giving him an opportunity to answer, the Court of Appeals affirmed the judgment of the Supreme Court of the District of Columbia on the ground of laches, and the case is

here on writ of error.

In this conclusion we fully concur. [1] This court has lately said that while mandamus is classed as a legal remedy, it is a remedial process, which is awarded not as a matter of right, but in the exercise of a

sound judicial discretion and upon equitable principles. Duncan Town Site v. Lane, Secretary, 245 U. S. 308, 38 Sup. Ct. 99, 62 L. Ed. 309. It is an extraordinary remedy which will not be allowed in cases of doubtful right (In re Life & Fire Ins. Co. v. Wilson's Heirs, 8 Pet. 291, 302, 8 L. Ed. 949), and it is generally regarded as not embraced within statutes of limitation applicable to ordinary actions, but as subject to the equitable doctrine of laches (Chapman v. County of Douglas, 107 U. S. 348, 355, 2 Sup. Ct. 62, 27 L. Ed. 378; Duke v. Turner, 201 U. S. 623, 628, 27 Sup. Ct. 316, 51 L. Ed. 652, 9 Ann. Cas. 842).

The remedy is provided for in a separate chapter (chapter 42) of the Code for the District of Columbia with detailed requirements which differ so greatly from the pleading and practice prescribed for ordinary actions that we cannot doubt that Congress intended to continue the special character which has been given the proceeding from our early judicial history (United States v. Judge Lawrence, 3 Dall. 42, 1 L. Ed. 502; 8 Pet. 291, 302, 8 L. Ed. 949, supra), *and we cannot discover any intention to include it within the general provisions for the limitation of actions (section 1265).

the end that if his contention be justified the government service may be disturbed as little as possible and that two salaries shall not be paid for a single service.

[2] Under circumstances which rendered his return to the service impossible, except under

the order of a court, the relator did nothing

to effectively assert his claim for reinstatement to office for almost two years. Such a in the branch of the service to which he was long delay must necessarily result in changes attached and in such an accumulation of unearned salary that, when unexplained, the manifest inequity which would result from reinstating him, renders the application of the doctrine of laches to his case pecul

iarly appropriate in the interests of justice and sound public policy.

In this conclusion we are in full agree ment with many state courts in dealing with similar problems. McCabe v. Police Board, 107 La. 162, 31 South. 662; Stone v. Board of Commissioners, 164 Ky. 640, 176 S. W. 39; Connolly v. Board of Education, 114 App. Div. 1, 99 N. Y. Supp. 737, and cases cited; Clark v. City of Chicago, 233 Ill. 113, 84 N.

E. 170.

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"Troops," as used in the railroad land grant

acts, requiring the railroads to transport free from toll or other charge troops of the United States, and in the land grant equalization agreements, whereby the railroads were to transport such troops at half rates, means soldiers collectively, a body of soldiers, and does not include discharged soldiers or military prisoners, rejected applicants for enlistment returning home from recruiting depots, accepted applicants for enlistment going to recruiting depots, retired soldiers or soldiers on furloughs, traveling as individuals and not as a body.

[Ed. Note.-For other definitions, see Words and Phrases, Troops.]

When a public official is unlawfully removed from office, whether from disregard of the law by his superior or from mistake as to the facts of his case, obvious considerations of public policy make it of first importance that he should promptly take the action | pany against the United States. Judgment

Appeal from the Court of Claims.

Claim by the Union Pacific Railroad Com

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

for the claimant (52 Ct. Cl. 226), and the United States appeals. Affirmed.

Mr. Assistant Attorney General Brown, for the United States.

Messrs. William R. Harr and Charles H. Bates, both of Washington, D. C., for appel


Mr. Justice BRANDEIS delivered the opinion of the Court.

Most of the acts of Congress which granted lands in aid of railroads provide that they shall be "free from toll or other charge upon the transportation of any property or troops of the United States." This clause was construed in Lake Superior & Mississippi Railroad Co. v. United States, 93 U. S. 442, 23 L. Ed. 965, as conferring only the free use of the roadbed as a highway. Since then, under appropriate legislation, payment has come to be made by the government for the transportation of property and troops at rates equal to 50 per cent. of those charged private parties. The Union Pacific, having entered into an agreement to that effect, claimed payment at the full rate for certain persons carried as passengers upon the request of the government. The Auditor of the War Department refused to allow payment for these passengers at more than half fares, on the ground that they were within the provision for transporting "troops of the United States"; and his ruling was sustained by the Comptroller of the Treasury. 21 Decisions of the Comptroller, 651. Thereupon this suit was brought in the Court of Claims for the amount disallowed; and judgment was rendered for the railroad. 52 Ct. Cl. 226. The case is here on appeal. The questions presented are *whether any of the following classes of persons are to be deemed "troops of the United States" within the provision of the land grant acts:

for •

1. Discharged soldiers; that is, former enlisted men of the army en route to their homes after discharge.

2. Discharged military prisoners; that is, discharged enlisted men en route to their homes or elsewhere after serving sentence as military prisoners.

3. Rejected applicants for enlistment in the army; that is, men who having passed the required tests at the recruiting stations and having been forwarded to the recruiting depots for final examination and enlistment, were there rejected and were being returned to the recruiting stations from which they came.

4. Accepted applicants for enlistment in the army; that is, applicants examined at general recruiting stations, found mentally, morally, and physically fit for service, and being forwarded to recruiting depots for final examination and enlistment.

5. Retired soldiers; that is, enlisted men of the army en route to their homes after


6. Furloughed soldiers; that is, enlisted men of the army on furlough en route back to their proper stations.

None of these persons traveled as part of a moving army, troop, or body of soldiers; that is, they traveled separately as individuals, and (with few exceptions) each on a different day and to widely scattered desti


Under recent acts of Congress and Army Regulations, the transportation of persons of some of these classes is paid for by the government.

In defining the transportation rights secured to the United States, these land grant acts draw a broad distinction beAll "propertween freight and passengers. ty" of the government, whatever its character and intended use, is to be carried "free of toll or other charge"; but of the many persons in its service, only "troops." The history of the legislation shows that both the broad term, "any property," and the narrower one, "troops," was adopted deliberately. The earliest land grant act in which

1 Circular No. 16, Quartermaster General's Office, 1912, entitled "Schedule of Land-Grant and BondAided Railroads of the United States," p. 28 et seq. Act Sept. 20, 1850, c. 61, § 4, 9 Stat. 466, 467. A few of the acts granting lands in aid of railroads provided that the grant is "subject to such regulations the provision appears is that of September as Congress may impose restricting the charges 20, 1850 (9 Stat. 466, 467, c. 61, § 4), under government transportation." Act July 27, 1866, c. 278, § 11, 14 Stat. 292, 297. The army ap- which the Illinois Central was constructed. propriation acts make provision for payment under The bill as introduced3 provided for the both classes of statutes, payment in neither case free transportation of "troops and munitions to exceed 50 per cent. of the rates charged private of war." It was amended so as to read "any parties. See Act July 16, 1892, c. 195, 27 Stat. 174, 180; Act March 2, 1913, c. 93, 37 Stat. 704, 715. Fifty property or troops." There had been an per cent. has been adopted by the War Department earlier act granting land to the state of Illias the standard rate of payment. The Union Pa-nois for the construction of a canal (Act cific on May 15, and June 3, 1911, became a party March 30, 1822, c. 14, 3 Stat. 659), which to the so-called "Land Grant Equalization Agree

ments" entered into by the Quartermaster General was amended (Act March 2, 1833, c. 87, 4 of the United States with most of the important Stat. 662) so as to permit, on the same roads of the United States in other than New Eng- terms, the use and disposition of the land land or Trunk Line territories. By these agreements, the several roads consented (with certain exceptions) to accept the same net rate on both passenger and freight traffic via their respective lines as are effective via land grant lines. "Freight and Passenger Land Grant Equalization Agreements and List of Carriers Participating," Circular No. 6, Office of Chief, Quartermaster Corps, 1913.

See acts cited in note 4, infra. Army Regulations, 1913, §§ 145, 1235, 1379, 1115. Army Regulations, 1913, wherever cited herein, refers to the edition corrected to April 15, 1917.

Congressional Globe, 1850, 31st Congress, 1st Ses. sion, vol. 21, pt. 1, p. 844.




for railroads. That act provided for the free transportation of "any property of the United States or persons in their service."

*Second. Applicants for enlistment who have been accepted provisionally, but have yet to be subjected to the final examination at the recruiting depots and to take the oath before they become a part of the soldiery of the nation, are not "troops of the United States." It is the actual enlistment, the oath of allegiance, that changes the status from a civilian to soldier. Compare In re Grimley, 137 U. S. 147, 156, 157, 11 Sup. Ct. 54, 34 L. Ed. 636; Tyler v. Pome roy, 8 Allen (Mass.) 480; 19 Decisions of the Comptroller, 367; Army Regulations, 1913, § 847. The officers at the recruiting stations

In 1850 the word "troops" had (and it has ever since had) an established meaning, namely, "soldiers collectively-a body of soldiers." Thus the army appropriation act of that year (Act Sept. 28, 1850, c. 78, § 1, 9 Stat. 504, 506) provides for the "transportation of the army including the baggage of the troops when moving either by land or water" and for "mileage, or the allowance made to officers for the transportation of themselves and baggage when traveling on duty without troops." The contemporary are expressly forbidden to administer this legislation draws a clear distinction also between troops, that is, those then having the status of soldiers, and those who once had been in, or were seeking to enter, the military service. Thus the army appropriation act of March 2, 1847 (9 Stat. 149, 151, c. 35), which provides in substantially the same terms as that of 1850 for the transportation of troops, makes specific provision for "forwarding destitute soldiers to their homes," for the "comfort of discharged soldiers," and for "expenses of recruiting," which include the cost of transportation. See Army Regulations, 1857, § 1321. And the resolution of March 3, 1847, 9 Stat. 206 (No. 7), authorizes the refund of moneys expended by the states and individuals "in organizing, subsisting, and transporting volunteers previous to their being mustered and received into the service of the United States for the present war, and for subsisting troops in the service of the United States." In view of the established meaning of the term "troops" as used by Congress the duty of the court is merely to apply the provisions of the act to the several classes of persons described above.

First. The first three classes, namely, discharged military prisoners, discharged enlisted men, and rejected applicants for enlistment, are clearly not "troops of the United States." Their status is that of the civilian. They form no part of the military establishment. They may go where they please and do what they please, subject to no more interference by the military authorities of the government, than if they had never been, or had never sought to be, connected with the army. They were traveling for their own personal ends. Congress recognizes the distinction between those forming part of the army and those who do not, because they are recruits or have been discharged; and it makes special provision for their transportation.4 Such had formerly been also the opinion of the Comptroller of the Treasury. Compare Digest, Second Comptroller's Decisions, vol. 4, §§ 354 and


E. g., Act March 2, 1913, c. 93, 37 Stat. 704, 715; Act April 27, 1914, c. 72, 38 Stat. 351, 364; Act March 4, 1915, c. 143, 38 Stat. 1062, 1076.

oath. Army Regulations, 1913, § 841. Such applicant is then not eyen a potential soldier; for he may be rejected on final examination. And it is the actual and not the potential status that must govern. Compare Alabama Great Southern Railroad Co. v. United States, 49 Ct. Cl. 522, 537. The fact that under the Army Regulations he receives the same rations as an enlisted man, and that he is subject to the same medical attention, does not effect a change of status. And the fact that the transportation is for the purposes of the government in connection with its military establishment is immaterial. Workmen in armor plants and civilian clerks in the War Department at Washington travel for purposes of the government, but are obviously not "troops of the United States" within the meaning of the land-grant legislation. The army appropriation acts make specific provision for the transportation of "troops" and of "recruits."7

*Third. Retired enlisted men en route to their homes after retirement are also not "troops of the United States." They travel for their own purposes. Congress has declared that such retired men shall for certain purposes be deemed a part of the army (Act Feb. 2, 1901, c. 192, § 1, 31 Stat. 748 [Comp. St. § 1717]); but they may be employed only after Congress has authorized the raising of volunteer forces, and not even then for field duty (Act April 25, 1914, c. 71, § 11, 38 Stat. 347, 350 [Comp. St. § 2026h]). The Army Regulations for 1913 make no provision requiring any service from retired enlisted men. Practically they have retired from, and not simply into a different branch of, the army. Compare Murphy v. United States, 38 Ct. Cl. 511, 522; Army Regulations, 1913, article 20. See also United

Of the 45,111 applicants in the several recruiting districts of the United States provisionally acceptly rejected at the recruiting depots; 3,993 provied in the year ending June 30, 1915, 5,866 were finalsionally accepted applicants are recorded as having "declined to enlist at depots or eloped en route." Report of the Adjutant General, War Department, Annual Reports, 1915, vol 1, pp. 202, 203.

• Army Regulations, 1913, §§ 1224, 1225, 1232, 1473, 1476.

See, for example, acts cited in note 4, supra.



States v. Tyler, 105 U. S. 244, 26 L. Ed. 985. [ ants was reversed with directions to enter The fact that they may thereafter be called judgment for plaintiff (95 Kan. 794, 149 into the army does not make them "troops Pac. 399), and the defendants bring error. of the United States." Any male citizen Affirmed. may at some time be called into the service. Compare Alabama Great Southern Railroad Co. v. United States, supra.

Fourth. The furloughed soldier is, of course, a part of the army or troops of the United States; but his transportation back to the proper station, is not "transportation of troops" within the meaning of the land

Messrs. A. E. Crane, of Topeka, Kan., and F. T. Woodburn, of Holton, Kan., for plain

tiffs in error.

Messrs. Robert Stone, George T. McDermott, and H. O. Caster, all of Topeka, Kan., for defendant in error.

Mr. Chief Justice WHITE delivered the

opinion of the Court.

grant acts. The furloughed soldier travels for his own purposes. The government Under the Act of February 8, 1887 (24 merely advances to him the cost of trans-Stat. 388, 389, c. 119), Mish-no, a member of portation and subsistence while on furlough; and does this, only if the soldier lacks funds to bear the expense himself. The advance must be repaid. Army Regulations, 1913, § 110.

We have no occasion to consider whether persons not enlisted as soldiers, but forming a part of a moving army or detachment are to be deemed "troops of the United States" within the provision of the land grant acts; nor whether a soldier traveling for the purposes of the government, but not for any purpose connected with war *or the preparation for war, falls within the provisions. 19 Opinions of the Attorney General,


The judgment of the Court of Claims granting full compensation for carriage of persons within the six classes considered is Affirmed.

(249 U. S. 308)

MILLER et al. v. McCLAIN.

the Prairie Band of the Pottawatomies, was allotted land in Kansas, which was to be held in trust by the United States and subject to the restrictions on the power of the allottee to deal with the land, provided by that act.

Mish-no leased the land for the year 1912 for a rental of one-half the corn and stalks to be produced. In May of that year' he sold his right to his share of the prospective crop to McClain, and in the autumn when the crop was made again sold his share to Cooney, who sold and delivered it to Miller.

The writ of error before us is prosecuted by Miller and Cooney to reverse the judgment of the court below, sustaining the purchase by McClain, with a resulting liability in Miller and Cooney to McClain for the corn or its value. The case as made by the argument turns exclusively upon the correctness of the interpretation affixed by the court below to section 5 of the Act of 1887 (U. S. Comp. St. § 4201), to the effect that as by the law of Kansas a growing crop is a chattel, the sale to McClain was valid and not

(Submitted Nov. 13, 1918. Decided March 31, in conflict with the following provision of

1919.) No. 19.


Act Feb. 8, 1887, § 5 (Comp. St. § 4201) declaring void conveyances and contracts regarding Indian allotted lands, does not prevent an allottee from leasing his land pursuant to Act June 25, 1910, § 4 (Comp. St. § 4221), and regulations of Secretary of the Interior adopted thereunder which authorize such leases under certain conditions.

2. INDIANS 16(7)-LEASES-CROP RENTAL. Act Feb. 8, 1887, § 5 (Comp. St. § 4201), prohibiting conveyances and contracts regarding Indian allotted lands, does not prohibit an allottee from selling the crop rental reserved by him in a lease made pursuant to Act June 25, 1910, 4 (Comp. St. § 4221), and the regulations of the Secretary of the Interior made thereunder. In Error to the Supreme Court of the State of Kansas.

Action by B. O. McClain against Robert Miller and another. Judgment for defend

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[1, 2] But we are of opinion that the solution of the case does not require a consideration of this question since it only exacts that we ascertain whether the particular contract in question was by law excepted from the operation of the prohibition of the Act of 1887, thus rendering an analysis and application of that prohibition negligible.

As we have seen, what was sold to McClain was not an undivided share of a growing crop of the allottee, but was that portion of the total crop of the tenant fixed by the lease as due for rent. The lease, there

fore, and the power to make it, was the criterion by which to determine the application of the prohibition of the Act of 1887. If it *be that the lease was inconsistent with

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that Act, it would follow that the stipula- | patent, or the heirs of such allottees who
tion as to the rent which it contained would may be deemed by the superintendent in
perish with the contract. If on the con- charge or any competency commission to
trary it be that the lease was valid, the have the requisite knowledge, experience,
authority to make it would include the right and business capacity to negotiate lease con-
to stipulate for the rental. As it cannot be tracts, to make their own contracts for leas-
questioned that a contract leasing land is ing their lands." The scope of such regula-
one touching the land, it is indisputable that tions is further made clear by the following
the lease was void under the Act of 1887 provision dealing with the rental to result
unless its validity may be excepted by some from the lease by the Indian of his allotted
other statutory provision.
land under the power given:

By a course of legislation beginning in 1891 and extending to 1900 authority was conferred upon the Secretary of the Interior to sanction, when enumerated and exceptional conditions existed, leases of land allotted under the Act of 1887, and the pow

er was given to the Secretary to adopt rules and regulations governing the exercise of the right (Acts of February 28, 1891, c. 383, 26 Stat. 794, 795; August 15, 1894, c. 290, 28 Stat. 286, 305; June 7, 1897, c. 3, 30 Stat. 62, 85; May 31, 1900, 31 Stat. 221, 229, c. 598). The general scope of the legislation is shown by the following provision of the Act of 1900, which does not materially differ from the prior acts:

"That whenever it shall be made to appear to the Secretary of the Interior that by reason of age, disability, or inability, any allottee of Indian lands cannot personally and with benefit to himself occupy or improve his allotment or any part thereof, the same may be leased upon such terms, regulations, and conditions as shall be prescribed by the Secretary for a term not exceeding five years for farming purposes only."

The regulations for the purpose of carrying out the power given prescribed a general form of lease to be used under the exceptional circumstances which the statute contemplated and subjected its execution and the subjects connected with it to the scrutiny of the Indian Bureau and to the express or implied approval of the Secretary. (See "Amended Rules and Regulations to be *Observed in the Execution of Leases of Indian Allotments," approved by the Secretary of the Interior March 16, 1905).

The foregoing provisions were enlarged by the Act of June 25, 1910 (36 Stat. 855, 856, c. 431 [Comp. St. § 4221]), as follows:

"That any Indian allotment held under a trust patent may be leased by the allottee for a period not to exceed five years, subject to and in conformity with such rules and regulations as the Secretary of the Interior may prescribe, and the proceeds of any such lease shall be paid to the allottee or his heirs, or expended for his or their benefit, in the discretion of the Secretary

of the Interior."

And the regulations of the Secretary which were adopted under this grant of power in express terms modified the previous regulations on the subject "so far as to permit Indian allottees of land held under a trust

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"The question of consideration, whether a cash rental or share of the crops grown on the land, shall be left to the determination of the lessor." (Regulations, approved Sept. 19, 1910.)

The right of an allottee under stated conditions to lease and to stipulate for such rental as he deemed adequate, whether in money or crop, having been thus undoubtedly provided for by the statute and the regulations, the only question is, had the capacity of the allottee in this case been recog nized conformably to the statute and regulations so as to justify his exercise of the right? That question would seem to be free from difficulty for the following *reasons: (a) Because in the narrative statement of the testimony on behalf of the plaintiff it is said that, "Written permission had been given by the government to Mish-no to lease his own allotment and he had leased the same for the year 1912"; (b) because there is no denial or controversy as to the correctness of this statement; (c) because the court below in its opinion treated the matter as indisputable by stating, "Written permission was given him (Mish-no) by the government to lease his allotment"; and (d) because the fact thus stated clearly refers to the authority and capacity provided for by the Act of 1910 and the regulations thereunder, that is, not to the authority of the government to lease for the allottee, but to the right to give the allottee permission to lease his allotted land for himself as the result of a conclusion that he had capacity to do so.

As it results that Mish-no, the allottee, had by virtue of the statute of 1910 and resulting regulations the power to make the lease and to stipulate for the rental for which it provided, it follows, as the greater power includes the lesser, that the contract for the sale of the growing crop made with McClain was also within the statute and regulations and excluded from the prohibition of the Act of 1887.

For the reasons which we have stated we

affirm the judgment of the court below which sustained a like conclusion, although we have not found it necessary to express any opinion as to the correctness of the reasoning by which the court below was controlled in its action.

Judgment affirmed.


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