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v. Harrington, 111 U. S. 350, 353, 4 Sup. Ct. [plication of the doctrine was a great bur428, 28 L. Ed. 452; Anvil Hydraulic Co. v. Code, 182 Fed. 205, 206, 105 C. C. A. 45.

It is plain that the draftsman of the act of 1903 had this settled rule in mind, for the bill as introduced, with enacting clause in the same form as finally passed, had this proviso:

den upon the oil miner; and that this, uaving been brought to the attention of Congress was the moving cause of the enactment of the act of February 12, 1903. This contention finds no support in the enacting clause, and but little in the proviso. It gives to the somewhat indefinite language of the proviso an effect that would greatly enlarge instead of confining the meaning of what precedes,

and would render the statute a radical departure from the previous policy of the mining laws. The legislative history of the act, as well as its phraseology, fails to support the contention.

"Provided, that said labor will benefit or tend to the development of such contiguous claims."

By committee amendment in the House the words "benefit or" were struck out, and after the word "development" the following were inserted, "or to determine the oil bearing character," presumably regarded as peculiarly appropriate to oil lands. House Rep. No. 2657, 57th Cong. 1st Sess.; Senate Rep. No. 2756, 57th Cong. 2d Sess.; 36 Cong. Record, pt. 1, p. 83; pt. 2, pp. 1561, 1682. The committee report contains this explanation of the object of the bill:


Nor is there great force in the suggestion that with respect to oil claims upon which discovery already had been made there was no need to encourage the doing of work tending to determine their oil-bearing character, because this would already have been established by the antecedent discovery. It hard

"The law now requires that upon each min-ly is necessary to say that *the discovery of ing claim there shall be performed each and oil upon several contiguous claims does not every year at least $100 worth of work. The render it wholly unimportant that assesscourts have held with reference to lode-mining ment work thereafter done by the common claims that this annual labor may be done upon owner upon one of the claims, in order to be any one of a group of mining claims, provided credited to him as if it had been distributed the said work tends to benefit the entire group, among the several claims, shall be of generbut the Land Department of the government al benefit to the group. This is the object seems to be of opinion that the annual labor of the act, and except as the proviso specifiupon placer-mining claims must be done upon cally declares "determination of oil-bearing each of said claims. There is good reason for character" to be of benefit to the contiguous this holding when applied to the ordinary placer claim containing deposits of gold, because in claims, little is added to the effect of section such case the gold lies upon the surface or near 2324, Rev. Stat., respecting group assessthe surface, and general development work be- ment work. But we cannot declare a detering upon and near the surface does not tend mination of the "oil-bearing character" of a to benefit other claims than the one upon which claim upon which oil already has been disthe work is actually done, but in the case of covered to be a matter so idle as to require oil-mining claims the situation is different. It us to seek a strained construction of the is necessary to bore wells for great depths in statute. order to determine whether or not oil exists in paying quantities. These wells are expensive, and it is the opinion of the committee that the industry itself will be more benefited by permitting the owner to spend his means in sinking a single well in order to demonstrate the possibilities of the property than it would to require him to distribute his means among several claims. In other words, it is better that $500 should be spent in one place until the character of the oil deposit has been demonstrated than it is to require the same amount of money to be spent in five different places."

[4] The argument for plaintiff in error, while conceding the general rule to have been established that assessment work could avail nothing except when performed upon or for the benefit of a claim in which a discovery of mineral already had been made, insists that the difficulty and great expense attendant upon the sinking of wells to make discovery of oil made it evident that the ap

In our opinion the act shows no purpose to dispense with discovery as an essential of a valid oil location or to break down in any wise the recognized distinction between the pedis possessio of a prospector doing work for the purpose of discovering oil and the more substantial right of possession of one who has made a discovery and performs annual development work to maintain his right to the mineral until patent is obtained. Hence the Supreme Court of California did not err in overruling the contention that by force the act discovery work upon the "Sampson claim" having a tendency to determine the oil-bearing character of the contiguous "Rawley-Schley claim" conferred upon plaintiff in error inchoate rights in the latter claim, of which it was not in possession and upon which it had made no discovery.

Judgment affirmed.

(249 U. S. 472)

gave two reasons for refusing the request. SOUTHERN PAC. CO. v. STATE OF ARI- The first of these was that the company had ZONA. contracted for the transportation of another show, under an agreement not to carry a

(Submitted March 13, 1919. Decided April 14, second one within 30 days, which had not


expired; and the second, that the company was not a common carrier of shows and would not make the customary contract with Campbell, but would serve him only at certain published interstate rates, which it regarded as applicable. These were many times greater than had been charged for the same show and than had been the customary charge by the Southern Pacific and other companies for similar service.

Upon receiving this refusal, an application by the owner of the shows to the Arizona in an order to the Southern Pacific Company Corporation Commission for relief, resulted and the Arizona Eastern Railroad Company, operating a connecting line, to show cause why they should not publish, on one day's A federal question, not asserted in the an- notice a special rate, designated in the order swer filed in the state court, or even in the of the Commission, for ne transportation of assignment of error in the Supreme Court, can- the shows between the points named. The not be considered. reasonableness of the required rate is not 3. CARRIERS 2-CONSTITUTIONAL LAW contested, and the order permitted the South242-EQUAL PROTECTION OF THE LAWS-DECISION OF STATE COMMISSION-CONTRACT BY CARRIERS.

No. 238.


The transportation of a traveling show be tween two points within a state is not "interstate commerce," though the show had come into the state over the lines of another carrier and expected later to leave the state; no contract for transportation out of the state having as yet been entered into.

[Ed. Note.-F'or other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]


An order of the state Corporation Commission, requiring a railroad to transport a show at a special rate and providing that the company might enter into a contract for the transportation on terms similar to existing contracts with other shows, does not deprive the carrier of its right to contract as private carrier for the transportation of traveling shows, and thereby deprive it of equal protection of the laws.

In Error to the Supreme Court of the State of Arizona.

Suit by the State of Arizona against the Southern Pacific Company to recover a fine for violation of an order of the Arizona Corporation Commission. Judgment for plaintiff was affirmed by the state Supreme Court, and defendant brings error. Affirmed.

See same case below, 165 Pac. 303.

That the proposed movement of the shows was "interstate in character" because they were engaged in a tour, beginning at the city of El Paso, Texas, and designed to extend through the states of Arizona and New Mexico into the state of California, of which tour the movement from Tucson to Phoenix was a part; that in its necessary operation the order would require the company to accept a rate lower than its published, interstate rate would be a direct burden upon interstate commerce; and that, for these reasons, the order for the transportation was in contravention of the provisions of article

* Mr. Justice CLARKE, delivered the opin- 1, section 8, of the Constitution of the United ion of the Court.

States, and the fine for contempt was unlawfully imposed and void.

The judgment of the superior court was in favor of the state, the company appealed to the Supreme Court of Arizona, which affirmed the judgment, and the case is here on writ of error.

[1] The only claim of error argued in this

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

Messrs. C. W. Durbrow, Henley C. Booth, and William F. Herron, all of San Francisco, Cal., for plaintiff in error.

Mr. Wiley E. Jones, of Phoenix, Ariz., for the State of Arizona.

An agent for Campbell's United Shows applied to the Southern Pacific Company to transport 18 cars, carrying a carnival show equipment, including employés and animals, from Tucson, via Maricopa, to Phoenix, Ari

ern Pacific Company to make the special
terms for transportation of the shows which
had been customary with it in like cases.
*The company refused to obey the order
and the Commission issued to it a second
rule to show cause why it should not be pun-
ished for contempt for such disobedience.
On this second rule a hearing was had, and
the company was adjudged in contempt and
fined $1,500, which it refused to pay.

Thereupon the state of Arizona instituted this suit in a Superior Court of that state to recover the amount of the fine.


In reply to this application the company

In its answer to the complaint of the state, the Southern Pacific Company alleged:



court which is properly presented by the record is: Whether the persons and property which the Commission ordered the railroad company to carry were in interstate transportation when the order was made for the service between two stations in Arizona. the shipment was then in interstate commerce the order was void, and if it was not the order was valid and the judgment of the Supreme Court of Arizona must be affirmed. The evidence which was before the courts and the Commission was as follows:

Early in February, 1914, an agent for the shows applied to the Southern Pacific Company for their transportation from El Paso, Texas, to various towns in Arizona where it was desired to exhibit, and ultimately to Cochise, Arizona, from which point another line would be taken into Tucson. Nothing came of this application and an arrangement was made for carriage to Tucson by another road. Before the shows arrived at Tucson the application out of which this suit arose was made. The agent for the shows testified that the tentative purpose of the management was to go from Tucson to Prescott, to Clarkdale, to Kingman, all in Arizona, and then to Needles, California, exhibiting in each town, but when testifying on March 23d, when his show was exhibiting in Tucson, he said that although he had made application to the Santa Fé Railroad Company for a contract for transportation beyond Phoenix, he had not at that time received a reply.

The agent for the Santa Fé Company at Phoenix testified that about March 20th an application was made to him for a rate and contract for the transportation of the shows over his line from Phoenix to Prescott, "possibly to Clarkdale and to Needles, California."

Two contracts with the Santa Fé Company were introduced in evidence, one dated April 3d, providing for the transportation of the shows from Phoenix to Prescott, to Kingman and to Needles, and the other dated April 16th, providing for transportation from Prescott direct to Bakersfield, California.

The shows were actually carried by the Southern Pacific Company on March 29th or 30th from Tucson to Phoenix, but at an interstate rate insisted upon in defiance of the Commission's order. At Phoenix the transportation ended so far as the Southern Pacific Company was concerned, and the contract with the Santa Fé Company to carry the shows beyond that city was not concluded, as we have seen, until April 3d-in its modified form not until April 16th.

This statement of the case decides it. Whether a shipment was at a given time in interstate commerce is a question of fact, Railroad Commission of Ohio v. Worthington, 225 U. S. 101, 108, 32 Sup. Ct. 653, 56

stituting the shipment of the shows here involved were in progress of interstate transportation when the Arizona Commission entered its order on March 25th that the company should accept the intrastate shipment from Tucson to Phoenix. For at that time the shows were in the exclusive possession and control of the owner, exhibiting for six days at Tucson, and the application to the Southern Pacific Company, which was refused shows, incontrovertibly, that the transportation to Tucson had terminated, and that no other transportation had then been contracted for. The company itself proved that interstate transportation was not subsequently arranged for until April 3d certainly

and probably not until April 16th-and then was via another line from Phoenix, after two weeks for exhibition in that city.

The mere intention of the shipper to ultimately continue his tour beyond the state of Arizona did not convert the contemplated intrastate movement into one that was interstate. The case is ruled by Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715; Chicago, Milwaukee & St. Paul Ry. Co. v. State of Iowa, 233 U. S. 334, 34 Sup. Ct. 592, 58 L. Ed. 988; Gulf, Colorado & Santa Fé R. R. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540; Arkadelphia Milling Co. v. St. Louis Southwestern Railway Co., decided March 3d last, 249 U. S. 134, 39 Sup. Ct. 237, 63 L. Ed. 517.

It is further argued by the plaintiff in error that the order of the State Commission deprived it of its right to make or refuse to make a contract as a private carrier for the transportation of traveling shows, and thereby deprived it of the equal protection of the laws and of its property without due process of law.

[2, 3] It would be enough to say of this contention that no such claim was asserted in the answer of the company in the state court, or even in the assignments of error in this court, and that, therefore, it cannot be considered here. But this omission is not an oversight, for the record shows that it had been in prior practice of the plaintiff in error to transport such shows on application under special contract-a short time before it had transported another show and the year before it had accepted these same shows for transportation-and that the order of the Commission was:

"It is understood •

that the

company may enter into a contract covering this transportation, the terms of which shall not be in substantial variance with the contract now existing between the Arizona & Eastern Railroad Company and the Sells-Floto Shows Company, with respect to details, as to the responsibility, service, conditions and equipment"

L. Ed. 1004; and it is plainly impossible-which contract was on file with the Comto say that the property and persons con- mission, and was dated March 4, 1914. This

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form of contract was one also used by the (na D. Matters, the appellant, alleged to be a Southern Pacific Company. resident of the state of Illinois.

Thus this second claim, obviously an afterthought, is so clearly without merit that it cannot be considered and the judgment of the Supreme Court of Arizona is


(249 U. S. 375)

The petition for habeas corpus charged that the said child was born to petitioner ten months before in a hospital in Ottawa, but shortly after the birth of the child she was kidnapped by the respondent, who secreted her until August, when she brought the child by railroad journey to Chicago from Ottawa and there illegally detained her. It was charged that the cause of action arose under the law of the United States, in that the

Decided April 14, immigration laws of the United States forbade the bringing of an alien child under 16 years of age from Canada into the United States without being accompanied by its father or mother, in the absence of permission by the immigration authorities of the United States. An order was entered allowing the prosecution of the habeas corpus proceedings in forma pauperis, and the writ


(Submitted Jan. 16, 1919. 1919.)

No. 141.


The controlling question on the face of the petition for habeas corpus being maternity, and consequent right of custody, of a child, averment that the case is governed by the immigration laws of the United States, the only basis therefor being an allegation that defendant, pretending to be the child's mother, brought her from Canada without complying with the administrative requirements of the immigration laws, does not make the case involve a federal question adequate to sustain the jurisdiction of a federal court, especially in the absence of power of petitioner to champion the enforcement of the immigration laws.



On the return, after hearing, jurisdiction was maintained, the return was held insufficient, and the petitioner was decreed to be entitled to the custody of the child and the

appellant was commanded to deliver her. This direct appeal on the question of jurisdiction alone was then taken.

[1] It is settled that "the jurisdiction of courts of the United States to issue writs of habeas corpus is limited to cases of persons alleged to be restrained of their liberty in violation of the Constitution or of some law or treaty of the United States, and casCares arising under the law of nations." fer v. Caldwell, 200 U. S. 293, 296, 26 Sup. Ct. 264, 265, 50 L. Ed. 488; In re Burrus, 136 U. S. 5S6, 591, 10 Sup. Ct. 850, 34 L. Ed. 1500; Andrews v. Swartz, 156 U. S. 272, 275, 15 Sup. Ct. 389, 39 L. Ed. 422; Storti v. Massachusetts, 183 U. S. 138, 142, 22 Sup. Ct. 72, 46 L. Ed. 120. It is obvious that on the face of the petition the sole question at

Mr. Chief Justice WHITE delivered the issue was the maternity and custody of the opinion of the Court. child, and as that question was in its naOn the 20th of May, 1916, Margaret Ryan, ture local and nonfederal there was noththe appellee, alleging herself to be a sub-ing to sustain the jurisdiction unless the ject of the King of Great Britain residing averment that the case was governed by in Ottawa, Canada, applied for a writ of the immigration laws of the United States habeas corpus to obtain the possession of had that effect. But when it is observed her alleged minor child, Irean, by taking that the only basis for that assertion rested her from the asserted illegal custody of An- upon the allegation that the defendant, pre

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

The question whether a federal court can take jurisdiction in habeas corpus on averments of diversity of citizenship and pecuniary

interest, without assertion of a federal right, does not arise, where the suit is brought exclusively on the assumption of necessity of a federal question to give jurisdiction, and there is no averment of jurisdictional amount.

Appeal from the District Court of the United States for the Northern District of Illinois.

Habeas corpus by Margaret Ryan against Anna D. Matters. Decree for petitioner, and defendant appeals. Reversed and remanded, with directions.


The respondent denied the averments of possession and kidnapping. She alleged that she had a child of her own about 10 months of age, and that if such child was the one referred to in the petition for habeas corpus, the *petitioner had no right to the custody of the same. The existence of any right in the petitioner to champion the enforcement of the immigration laws of the United States was denied, and the jurisdiction of the court to entertain the controverSy was expressly challenged.

Messrs. Horace Kent Tenney, Roger Sherman, and Harry A. Parkin, all of Chicago, Ill., for appellant.

tending to be the mother of the infant child, had brought her from Canada into the United States without complying with the ad- Andrew D. Barbour was convicted of viministrative requirements of the immigra-olation of the liquor law of Georgia, and tion laws, we are of opinion that the case judgment was affirmed by the Supreme Coun made involved no federal question adequate of that state (146 Ga. 667, 92 S. E. 70), and to sustain the jurisdiction, because of the to review the decision defendant brings erunsubstantial and frivolous character of the ror. Affirmed. contention made in that respect.

In Error to the Supreme Court of the State of Georgia.

We are constrained to this conclusion since we are unable to perceive the possible basis upon which it can be *assumed that the local question of maternity, and consequent right to custody, which dominated and controlled the whole issue could be transformed and made federal in character by the assertion concerning the immigration laws. And this becomes all the more cogent when the absence of power on the part of the petitioner to champion the enforcement of the immigration laws is borne in mind.

[2] Whether a case might arise where a court of the United States could take jurisdiction of a petition for habeas corpus upon averment of diversity of citizenship and pecuniary interest, without the assertion of a federal right, does not here arise (a) because the suit was brought exclusively under the assumption that it was governed by the law of the United States which requires a federal question to give jurisdiction, and (b) because, in any event, there is here no averment of jurisdictional amount.

It follows that the decree below must be 237 of the Judicial Code. and it is

Reversed and the case remanded with directions to dismiss the writ of habeas cor


(249 U. S. 454)

BARBOUR v. STATE OF GEORGIA. (Submitted Jan. 24, 1919. Decided April 14,

That a state which has enacted a prohibitory law may forbid the mere possession of liquor within its borders was decided in Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304; but it did not appear there when the liquor had been acquired. Whether the prohibition of sale may be constitutionally applied to liquor acquired before the enactment of the statute was raised in Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929, and Beer Co. v. Massachusetts, 97 U. S. 25, 32, 33, 24 L. Ed. 989, but was not decided. The question presented here, however, is simpler. For the exact date when Barbour acquired the liquor is not shown; and we must assume, as the Supreme Court of Georgia did, that it The application of Laws Ga. (Ex. Sess.) was, acquired during the period of five 1915, pt. 1, tit. 2, §§ 16 and 30, making it illegal months and twelve days between the enactto have in possession more than one gallon of ment of the law and the date when it became vinous liquor, to the possession of liquor ac-effective. Does the Fourteenth Amendment. quired after the law was enacted, but before it became effective, does not render that act invalid as depriving of property without due process of law.

1919.) No. 191.


by its guaranty to property, prevent a state from protecting its citizens from liquor so acquired?


Messrs. A. A. Lawrence and W. W. Os borne, both of Savannah, Ga., for plaintiff in error.

A federal question, first raised by defendant in an amended motion for new trial, which could not be considered by the state court under the state practice, does not present the question to the Supreme Court on writ of er


Mr. Clifford Walker, of Monroe, Ga., for the State of Georgia.

[1] A state, having the power to forbid the manufacture, sale, and possession of liquor within its borders, may, if it concludes to exercise the power, obviously postpone the date when the prohibition shall become effective, in order that those engaged in the business and others may adjust themselves to the new conditions. Whoever acquires, after the en

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

*Mr. Justice BRANDEIS delivered the opinion of the Court.

The Georgia prohibitory liquor law was approved November 18, 1915, but, by its terms, did not become effective until May 1, 1916. Under it Barbour was convicted for having in his possession on June 10, 1916, more than one gallon of vinous liquor. Georgia Laws, Extraordinary Session 1915, part 1, title 2, No. 4, §§ 16 and 30, pp. 90, 99, 105. He asserted that the liquor had been acquired by him before May 1st, and contended that the statute, if construed to apply to liquor so acquired, was void under the Fourteenth Amendment. The Supreme Court of the state overruled this contention and affirmed the sentence. 146 Ga. 667, 92 S. E. 70. The case comes here on writ of error under section



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