cery court specifically directed the receiver, later decisions of this court. Hale v. Allinplaintiff herein, to bring this suit in the District Court of the United States for the Southern District of Ohio, Western Division. The material parts of the sections of the Code of Alabama (1907, vol. 2, pp. 430, 433), pertinent to this case, provide as follows: * The assets of insolvent corporations constitute a trust fund for the payment of the creditors of such corporations, which may be marshaled and administered in courts of equity in this state." "3509. Section 3511 provides for the dissolution of corporations by action of the stockholders, and enacts that the court ** * shall appoint a receiver of all the books, property, and assets of the corporation * (who) shall, under the direction of the court, collect all debts due the corporation, and sell all the property, real and personal, of the corporation, pay the debts thereof ratably or in full as the funds realized may admit, and divide the residue after the debts and costs are paid, among the several classes of stockholders, according to the amount owned by each, and according to the preferences, if any, of the several classes as provided in the certificates of incorporation." son, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380; Great Western Mining & Manufacturing Co. v. Harris, 198 U. S. 561, 575, 577, 25 Sup. Ct. 770, 49 L. Ed. 1163; Keatley v. Furey, 226 U. S. 399, 403, 33 Sup. Ct. 121, 57 L. Ed. 273. This practice has become general in the courts of the United States, and is a system well understood and followed. It permits an application for an ancillary receivership in a foreign jurisdiction where the local assets may be recovered and, if necessary, administered. The system established in Booth v. Clark has become the settled law of the federal courts, and, if the powers of chancery receivers are to be enlarged in such wise as to give them authority to sue beyond the jurisdiction of the appointing court, such extension of authority must come from legislation and not from judicial action. Great Western Mining & Manufacturing Co. v. Harris, supra, 198 U. S. page 577, 25 Sup. Ct. 770, 49 L. Ed. 1163. [3] Counsel for petitioner insists that the case is not ruled by the doctrine of Booth *Section 3512 covers the application for re v. Clark, and that under the Alabama statceivership and dissolution of insolvent cor-utes and the decisions of the Supreme Court porations upon bill of creditors or stockholders in the chancery court, and provides: * The court may appoint a receiver of all the property and assets of the corporation *(who) under the direction of the court, must exercise the same powers and perform the same duties as are required of receivers in the next preceding section, and otherwise manage the affairs of the corporation pending final settlement thereof as the court shall direct. * * * There is also a provision for proceedings by the attorney general (page 444): "3560. Proceedings when bank found not solvent-Whenever the treasurer finds that a bank or corporation chartered by the laws of this state and doing a banking business, is not in a solvent condition, he shall immediately report the condition of the bank to the governor, and the governor shall direct the attorney general to institute proceedings in a court having jurisdiction in the county where the bank or parent bank is located, to put the bank in the hands of some competent person, who shall give bond in an amount to be fixed by the judge for the faithful discharge of his duties, and said person so appointed shall immediately take charge of the business of said bank, collecting its assets and paying off its liabilities under the law and rules of such court." The question presented for our consideration is whether the receiver appointed in the chancery court is authorized to sue in the federal court for the recovery of such prop erty. of that state the title to the property of the Trust Company is vested in the receiver in such wise that he is authorized to sue for its recovery in the courts of a foreign jurisdiction. If this contention is well founded there is no question of the authority of the receiver to prosecute the action. Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337; Hawkins v. Glenn, 131 U. S. 319, 9 Sup. Ct. 739, 33 L. Ed. 184; Bernheimer v. Converse, 206 U. S. 516, 534, 27 Sup. Ct. 755, 51 L. Ed. 1163; Converse v. Hamilton, 224 U. S. 243, 257, 32 Sup. Ct. 415, 56 L. Ed. 749, Ann. Cas. 1913D, 1292; Keatley v. Furey, 226 U. S. 399, 403, 33 Sup. Ct. 121, 57 L. Ed. 273. The Alabama cases, Oates v. Smith, 176 Ala. 39, 57 South. 438; Montgomery Bank & Trust Co. v. Walker, 181 Ala. 368, 61 South. 951; Cobbs, Receiver, v. Vizard Investment Co., 182 Ala. 372, 62 South. 730, Ann. Cas. 1915D, 801; Coffey v. Gay, 191 Ala. 137, 67 South. 681, L. R. A. 1915D, 802; Hundley v. Hewitt, 195 Ala. 647, 71 South. 419-are fully reviewed in the opinion of the Circuit Court of Appeals. To rehearse them now would be but a repetition of what is sald in that opinion. *An examination of the sections of the stat utes, here involved, in the light of the de[1, 2] Since the decision of this court in cisions of the Supreme Court of Alabama, Booth v. Clark, 17 How. 322, 15 L. Ed. 164, does not in our opinion warrant the concluit is the settled doctrine in federal juris- sion that title is vested in the receiver as prudence that a chancery receiver has no assignee or as statutory successor of the inauthority to sue in the courts of a foreign solvent corporation in such wise as to aujurisdiction to recover demands or property thorize the action to recover in a foreign therein situated. The functions and author- jurisdiction. Collectively, these sections proity of such receiver are confined to the juris-vide for a receivership to administer the diction in which he was appointed. The reasons for this rule were fully discussed in Booth v. Clark and have been reiterated in property and assets of the insolvent corporation under the authority and direction of the appointing court. The statutes do not un $78 dertake to vest in the receiver an estate in [property on subscription without a license, the property to be administered for the ben- which may be had on payment of specified efit of creditors as was the case in Bern- fees. The plaintiff in error argues that the heimer v. Converse, supra, and Converse v. application of this law should be determined Hamilton, supra, in which the right to sue by the general course of business, not by an in the courts of a foreign jurisdiction was isolated transaction, and the argument has sustained. force. It depends, however, on the construction of the ordinance, and as the State Court has construed it to apply to and forbid the act proved, the judgment must be affirmed. Judgment affirmed. The Circuit Court of Appeals left open the question of the right to apply for an ancillary receivership in the District Court, and the effect of such appointment, if made, upon the pending suit. We pursue the like course, and as such an application could only originate in the District Court we express VAN DYKE et al. v. ARIZONA EASTERN no opinion concerning it. The decree of the Circuit Court of Appeals is affirmed. (248 U. S. 65) WATTERS v. PEOPLE OF STATE OF MICHIGAN. R. CO. (248 U. S. 49) (Argued Nov. 19, 1918. Decided Dec. 9, 1918.) No. 59. 1. PUBLIC LANDS 92-LOCATION OF RIGHT OF WAY UNDER FEDERAL ACT. Definite location by railroad of right of way under Act Cong. March 3, 1875 (Comp. St. 1916. (Submitted Nov. 19, 1918. Decided Dec. 9, §§ 4921-4926), occurs by actual construction of road. 1918.) No. 58. COURTS 366(6) FEDERAL COURTS FOL- The state court having construed an ordinance declaring it unlawful to engage in peddling any goods without a license to apply to an isolated transaction, a sale of two small articles at rest in the state before the sale, though de fendant's business was otherwise interstate commerce, judgment of state court must be affirmed. In Error to the Supreme Court of the State of Michigan. Harvey Watters was convicted of peddling without a license. Judgment of conviction was affirmed by the Supreme Court of Michigan (192 Mich. 462, 158 N. W. 865), and defendant brings error. Affirmed. 2. PUBLIC LANDS 92-LOCATION OF RAILROAD RIGHT OF WAY-FOREST RESERVATION -DISCRETION OF SECRETARY OF INTERIOR. Under Act Cong. March 3, 1875 (Comp. St. 1916, §§ 4921-4926) and Act March 3, 1899 (Comp. St. 1916, § 4945), railroad which platted line across public lands, filing in local land office map of definite location some months after land was incorporated in forest reserve, held to have acquired part of land involved, as against homesteader, despite change in right of way, as constructed, from filed map; Secretary of Interior having given permission to enter reserve and approved map. 3. PUBLIC LANDS 92-LOCATION OF RAILBOAD'S RIGHT OF WAY-ULTRA VIRESRIGHT TO OBJECT. Homesteaders of lands in forest reserve, claimed by railroad as within right of way under Act Cong. March 3, 1875 (Comp. St. 1916, $$ 4921-4926) and Act March 3, 1899 (Comp. St. 1916, § 4945), could not object, as against Mr. Maurice B. Dean, of New York City, railroad, that it was beyond its charter powers for plaintiff in error. *Mr. Justice HOLMES delivered the opinion of the Court. The plaintiff in error was complained of for having engaged in peddling goods and having canvassed and taken orders from house to house for the sale of goods in the city of Munising, Michigan, without having received a license as required, by a city ordinance. It may be assumed that much the greater part of his business was interstate commerce and free from any obligation that the ordinance imposed. But in the course of his business he did sell two cans of toilet cream that were at rest in the state before the sale, and it is admitted that this transaction was not protected from state legislation. Bacon v. Illinois, 227 U. S. 504, 33 Sup. Ct. 299, 57 L. Ed. 615. On this ground the Supreme Court of the State sustained a conviction and fine. People v. Watters, 192 Mich. 462, 158 N. W. 865. The ordinance makes it unlawful to engage in peddling any goods or to canvass from house to house for the sale of to construct line involved, that being matter for In Error to the Supreme Court of the State of Arizona. Action by the Arizona Eastern Railroad Company against Cleve W. Van Dyke and others. From judgment for plaintiff, defendants appealed to the Supreme Court of Arizona, which affirmed (18 Ariz. 220, 157 Pac. 1019), and defendants bring error. Judg ment affirmed. Messrs. Richard E. Sloan, of Phoenix, Ariz., and William C. Prentiss, of Washington, D. C., for plaintiffs in error. Messrs. Charles L. Rawlins, of Globe, Ariz., and Eugene S. Ives, of Tucson, Ariz., for defendant in error. *Mr. Justice McKENNA delivered the opinion of the Court. Error to review a judgment of affirmance of a judgment rendered in the Superior Court of Gila County, Arizona, quieting the title of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the Railroad Company to 2.23 acres of land | its amended map and profile of its right of in the N. W. 4 of the S. E. 4, Sec. 30, T. 1 way in the local land office which was reguN., R. 15, E., Gila County Arizona. larly and duly approved March 4, 1911. The trial court made findings of fact which Van Dyke attempted to show that he had were concurred in by the Supreme Court. established residence upon the land prior to 18 Ariz. 220, 157 Pac. 1019. And we see no December 22, 1909, the date upon which he reason for not accepting them, notwithstand-filed his homestead entry. But it is clear that ing plaintiffs in error urge a review of them. he did not go upon the land prior to its incluThey are as follows: The railroad, as the successor of the Gila Valley Globe & Northern Railway Company, acquired its rights, including rights of way and all other assets. In March, 1906, the latter company platted a line of railroad from Globe to Miami, Arizona, about nine miles in length, passing over and across certain public land, and, November 5, 1908, filed in the local land office its map or profile of definite location as provided by the Act of Congress of March 3, 1875. Prior to that time the land covered by the map as well as the land in dispute was thrown into the Crook National Forest Reserve. April 16, 1909, written ap plication to the United States Department of Agriculture, Forest Service, with map of right of way attached, was made by the railroad to enter and extend its line across a portion of the forest reserve. The railroad was given permission on July 6, 1909, to enter the reservation and to locate and construct its road therein. The map and profile of its road was approved September 21, 1909, by the Secretary of the Interior in accordance with the act of Congress. In April, 1909, the Globe Company commenced the construction of its road and completed it in September of that year, and it and the appellee company have operated trains ever since October, 1909. Before construction was commenced, to wit, in November and December, 1908, *the Globe Company amended its line of survey and changed the course of its road upon and across the land in dispute and along its entire length to the extent of 100 feet in width on each side of the center line of its railroad and constructed its road on the amended location conforming on the ground to the staked and marked line. At the time of the amended location the land was held by the Miami Land & Improvement Company, a corporation, as mineral land and the Globe Company accepted a deed from it to a right of way across the land. By executive order the land in dispute was restored to the public domain December 22, 1909, on which date appellant, Cleve Van Dyke, filed upon the same under the homestead law. He had theretofore accepted it under an option to purchase as a mineral location from the Miami Improvement Company. On that date he went off the land, but immediately returned and established his residence with a view to homesteading. In due course he made final proof and on February 12, 1912, a patent without any reservation was issued to him for his homestead. December 30, 1909, the Globe Company filed sion in the Forest Reserve. He was upon the land under the option to purchase mentioned and he attempted to show that he was there under a verbal permit from the Forest Supervisor with the intention of entering the land as a homestead and that he made application to the Forestry Department for an examination and listing thereof under the Act of June 11, 1906; application, however, was rejected. *That he did not rely upon the settlement prior to December 22, 1909, is clearly shown by his testimony. He said: "It is a fact that about midnight on the 22d of December, 1909, I took up residence in the ground and back on again at midnight." house testified to. That is, I went off the December 22d was the first time the land could have been settled upon without permission from the national government, and this permission he did not obtain. Upon these facts the Supreme Court said certain contentions arose: (1) It is that of the railroad that its rights were fixed and established in August and September, 1909, when it completed the construction of its railroad. (2) Opposing, plaintiffs in error assert that because the railroad changed its route as located by its original map and profile approved by the Secretary of the Interior it acquired no rights until it filed with the local land office on December 30, 1909, its amended map of location, which was too late; Van Dyke having taken the land as a homestead December 22, 1909. And to the contention of the company that if the land was public it was not bound to follow the line as shown on its map and profile, plaintiffs in error reply that the land had ceased to be public land by being thrown into the National Forest Reserve and It is that the railroad was hence restricted to the specific right of way shown on its approved map and profile; or, if changed to another and different route, the consent of that such permission had not been given the Interior Department was necessary and and hence the railroad acquired no rights, at least against plaintiffs in error. conceded, however, that the railroad company was entitled to a right of way to the extent of 50 feet on each side of the center of its line of track acquired by deed from the Miami Land & Improvement Company, in the execution of which deed Van Dyke "acquiesced." Therefore, as said by the Supreme Court: of the track, or one hundred feet of the right "Fifty feet on each side of the center line of way, are not involved in this suit. The area in question being the excess of one hundred feet up to two hundred feet, amounting to 2.23 | the Secretary of the Interior pursuant to acres." [1] We have had occasion to consider the Act of March 3, 1875, c. 152, 18 Stat. 482 (Comp. St. 1916, §§ 4921-4926), and what constituted a definite location of the right of way under it, and have decided that such event occurs by the actual construction of the road. Jamestown & Northern Railroad Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. Ed. 698; Minneapolis, etc., Ry. Co. v. Doughty, 208 U. S. 251, 28 Sup. Ct. 291, 52 L. Ed. 474; Stalker v. Oregon Short Line, 225 U. S. 142, 32 Sup. Ct. 636, 56 L. Ed. 1027. the Act of Congress of March 3, 1875. The road was constructed, and, as we have said, completed in September, 1909, and put in operation in October. And these successive steps were before the date on which Van Dyke attempted to initiate a homestead right. The discretion of the Secretary of the Interior was therefore exercised, and we agree with the Supreme Court that we cannot infer a rule of the Department which precluded the granting of permission upon the original map and profile. [3] Plaintiffs in error contend that the railroad company had no power to construct a road from Globe to Miami, Arizona, because its charter failed to designate such a line as within the project for which it was incorporated. This was made an issue by the pleadings and the court found against it. Besides, it is not within the province of plaintiffs in error to make the objection; it was a matter for the Secretary of the In [2] It was found by the courts below that the construction of the railroad was commenced in April, 1909, and completed September, 1909, and that trains have been operated on it ever since. This satisfies the condition expressed in the cited cases of the appropriation of a right of way. But it is objected that the land was not then subject to appropriation, being within a Forest Re-terior to determine. And, again, plaintiffs in serve. In reply the Act of Congress of March 3, 1899, c. 427, 30 Stat. 1233 (Comp. St. 1916, § 4945), is adduced. It reads as follows: "That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby." Of this act we said, in Chicago, Milwaukee & St. Paul Ry. v. United States, 244 U. S. 351, 357, 358, 37 Sup. Ct. 625, 61 L. Ed. 1184, that it commits to the Secretary of the Interior the question of determining whether the public will be injuriously affect ed by the grant of a right of way to a railroad through a forest reserve and authorizes him to file and approve surveys and plats of the right of way. The measure of his discretion is large and only through his approval can a right of way be acquired. The condition was satisfied in this case. The Globe Company-to the rights of which defendant in error *succeeded-in 1906, in preparation for the construction of its road, platted its road and filed in the local land office its map and profile of definite location under the Act of 1875, in November, 1908. Several months prior to the latter date the land of the platted line and the land in dispute were thrown into the Crook National Forest Reserve. In the following year the railroad company made application to the Commissioner of the General Land Office for permission to enter the reserve and to locate and construct its road thereon. And the application was communicated to the Department of Agriculture and approved by the Acting District Forester; the permission was granted and the map and profile of the road was approved September 21, 1909, by error have not such relation to the railroad (248 U. S. 151) MacMATH v. UNITED STATES. (Argued and Submitted Nov. 22, 1918. Decided Dec. 9, 1918.) 94 No. 79. 1. OFFICERS 2. CUSTOMS DUTIES 60-SUBORDINATE OF- Widow of one originally appointed assistant weigher of customs, statutes not providing for such assistants, later appointed by collector clerk, class 3, new office, to act as acting United States weigher, and still later appointed clerk, class 4, could not recover from United States salary of her deceased husband as United States weigher of customs from time of appointment as clerk, class 3, up to his death, though he performed some or all duties of weigher. Appeal from the Court of Claims. Action against the United States by Jessie McCarthy MacMath, administratrix. From judgment of the Court of Claims dismissing the petition (51 Ct. Cl. 356), petitioner appeals. Affirmed. Messrs. William E. Russell, of New York City, and L. T. Michener, of Washington, D. C., for appellant. Mr. Assistant Attorney General Thomp son, for the United States. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Mr. Justice BRANDEIS delivered the weigher does not operate to promote him opinion of the Court. [1] When an office with a fixed salary has been created by statute, and a person duly appointed to it has qualified and entered upon the discharge of his duties, he is entitled during his incumbency to be paid the salary prescribed by statute; and effect will not be given to any attempt to deprive him of the right thereto, whether it be by unauthorized agreement, by condition, or otherwise. United States v. Andrews, 240 U. S. 90, 36 Sup. Ct. 349, 60 L. Ed. 541; Glavey v. United States, 182 U. S. 595, 21 Sup. Ct. 891, 45 L. Ed. 1247. automatically to the statutory office of weigher. And the fact that his appointment as clerk in 1909 was made as a part of a reorganization of the service, whereby four of the five positions of United States weigher were abolished, is immaterial; except as showing even more clearly that it was the intention not to appoint him weigher. No contention is, or could successfully be, made that the weighing should be paid for as an extra service, even if it was not a duty attaching to his position as clerk. See United States v. Garlinger, 169 U. S. 316, 18 Sup. Ct. 364, 42 L. Ed. 762. We have, therefore, no occasion to consider whether effect should be given to the agreement by the intestate not to make claim to compensation as acting weigher, or *to his acceptance of the lower compensation without protest during the entire term of his service; nor need we consider the effect of section 2 of the act of July 31, 1894, c. 174 (28 Stat. 162, 205 [Comp. St. 1916, § 3231]), which provides that— Section 3 of the Act of July 26, 1866, c. 269 (14 Stat. 289), provides, that weighers at the port of New York shall receive an annual salary of $2,500. Section 2621 of the Revised Statutes (Comp. St. 1916, § 5359) authorizes collectors to employ, with the approval of the Secretary of the Treasury, weighers at the several ports; and it does not prescribe their number. Section 2634 authorizes the Secretary of the Treasury to fix the number and compensation of clerks to be employed by any collector. The statutes ap pear to have made no specific provision for the appointment of assistant or acting United States weighers. On May 12, 1909, plaintiff's intestate (who had been appointed on August 1, 1896, "assistant weigher of customs" at a salary, "when employed," of $3 per diem, and had later received a like appointment at $4 per diem) was appointed by the collector "clerk, class 3, new office, to act PAYNE et al. v. STATE of KANSAS ex rel. BREWSTER, Atty. Gen. as acting U. S. weigher" with compensation "No person who holds an office the salary or to the sum of two thousand five hundred dollars annual compensation attached to which amounts shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law." The judgment of the Court of Claims is affirmed. No. 49. (248 U. S. 112) 1. CONSTITUTIONAL LAW 206(4)—LICENSES at the rate of $1,600 per annum. On August (Argued Nov. 15, 1918. Decided Dec. 9, 1918.) 18, 1911, he received a like appointment as clerk, class 4, at the rate of $1,800 per annum. He continued to perform the duties assigned and was paid the salary named until his death, October 8, 1913. In February, 1915, his administratrix filed with the Auditor of the Treasury a claim for salary of her intestate as "United States weigher of customs" at the rate of $2,500 per annum, from May 12, 1909, to and including October 7, 1913. Upon disallowance of the claim she brought this suit in the Court of Claims for the amount, namely, $11,013.89. The court found for the defendant and entered judgment dismissing the petition. 51 Ct. Cl. 356. The case comes here on appeal. Laws Kan. 1915, c. 371, forbidding sale of license from state board of agriculture, on propfarm produce on commission without annual er showing of character, responsibility, etc., is not violative of Const. U. S. Amend. 14, as depriving dealers of equal protection of laws. LICENSES CONSTITUTIONAL LAW 287 m7(1) DUE PROCESS KEGULATION OF COMMISSION Dealers. 3. [2] There is a fundamental objection to the allowance of the claim or any part thereof. MacMath was never appointed weigher and never held office as such. His only ap- Laws Kan. 1915, c. 371, forbidding sale of pointment was that of clerk; his oath of farm produce on commission without annual office being "as clerk and acting U. S. weigh-license from state board of agriculture, on proper showing of character, responsibility, etc., er, class 3." The Secretary of the Treasury is not violative of Const. U. S. Amend. 14, as clearly had the right to create and the col- depriving such dealers of their property without lector to make appointment to the position due process of law. of clerk and to designate duties of the appointee. The fact that the incumbent performed also some or all the duties of a In Error to the Supreme Court of the State of Kansas. Original proceeding in mandamus by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |