up to two hundred feet, amounting to 2.23 | the Secretary of the Interior pursuant to acres." 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. [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. [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 error have not such relation to the railroad March 3, 1899, c. 427, 30 Stat. 1233 (Comp. company as to complain of the exercise of St. 1916, § 4945), is adduced. It reads as power outside of its charter. follows: Judgment affirmed. [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 "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 (248 U. S. 151) MacMATH v. UNITED STATES. (Argued and Submitted Nov. 22, 1918. Decided Dec. 9, 1918.) No. 79. 1. OFFICERS 94 CREATION OF SALARIED OFFICE-RIGHT TO COMPENSATION. When an office with a fixed salary has been created by statute, and a person duly appointed he is entitled, during incumbency, to be paid to it has qualified and entered upon his duties, salary prescribed by statute, and effect will not be given to any attempt to deprive him thereof, whether by unauthorized agreement, by condition, or otherwise. 2. CUSTOMS DUTIES 60-SUBORDINATE OFFICERS-CLAIM OF WIDOW OF CLERK-SALARY AS ACTING WEIGHER. Widow of one originally appointed assistant weigher of customs, statutes not providing for clerk, class 3, new office, to act as acting United such assistants, later appointed by collector States weigher, and still later appointed clerk, class 4, could not recover from United States salary of her deceased husband as United States clerk, class 3, up to his death, though he perweigher of customs from time of appointment as formed 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 $152 *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. 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 appear 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. as acting U. S. weigher" with compensation BREWSTER, Atty. Gen. 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 an (248 U. S. 112) No. 49. num. He continued to perform the duties 1. CONSTITUTIONAL LAW 206(4)—LICENSES 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 ment dismissing the petition. 51 Ct. Cl. 356. The case comes here on appeal. 7(1)-CLASS LEGISLATON-REGULATION OF COMMISSION DEALERS IN FARM PRODUCE. Laws Kan. 1915, c. 371, forbidding sale of farm produce on commission without annual license from state board of agriculture, on proper showing of character, responsibility, etc., is not a violation of Const. U. S. Amend. 14, as abridging rights and privileges of dealers as citizens of United States. 2. CONSTITUTIONAL LAW 240(1)—LICENSES 7(1)-EQUAL PROTECTION OF LAWS-REGULATION OF COMMISSION DEALERS. Laws Kan. 1915, c. 371, forbidding sale of judg-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. 3. CONSTITUTIONAL LAW 287 - LICENSES 7(1) DUE PROCESS COMMISSION DEALERS. REGULATION OF [2] There is a fundamental objection to the allowance of the claim or any part there of. MacMath was never appointed weigher and never held office as such. His only appointment was that of clerk; his oath of office being "as clerk and acting U. S. weigh er, class 3." The Secretary of the Treasury learly had the right to create and the collector to make appointment to the position of clerk and to designate duties of the appointee. The fact that the incumbent performed also some or all the duties of a 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— "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. - Laws Kan. 1915, c. 371, forbidding sale of farm produce on commission without annual license from state board of agriculture, on proper showing of character, responsibility, etc., is not violative of Const. U. S. Amend. 14, as depriving such dealers of their property without due process of law. 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 State of Kansas, on the relation of S. M. Xemorandum opinion by Mr. Justice The validity of chapter 371, Laws of Kan- meter, responsibility, etc., and a ditioned to make honest accounting. Ate is required. Pantis in error maintain that the adass legislation which abridges and privileges, that it deprives sheetal protection of the laws and herperty without due process of parition of the Fourteenth Mr. Ray Campbell, of Wichita, Kan, for for defendants. Messrs. J. L. Hunt and James P. Coleman, of Topeka, Kan., and T. F. Railsback, Insas City, Kan., for defendant in error. Kutty the purpose of the state was to before his death, Slimmer, Sr., had conspired 128 129 18 asendelft the state of Iowa of taxes which, by son of his domidie in Iowa, might and Gimmer it, ʼn Minnewa, all his property, * rata de salary Himmer, na sain ma doston, STATE OF IOWA v. SLIMMER, JR. statutes are there subject to probate proceed On Motion for Leave to File Original Bill. Mr. H. M. Havner, of Des Moines, Iowa, for complainant. Mr. Thomas D. O'Brien, of St. Paul, Minn., opinion of the Court. With a view to collecting ultimate at a resident of and domiciled in Iowa, died may enact ine, tending otect public reasonably hough propcommerce; ely in excess lared void as - INSPECTION URE-JUDI in determinoils and gasnot be lightly mining whethproducts, movtitutes burden e character of nue, instead of NOTICE-STATE s for inspection cate of Minnesoand Indexes r he m ted ars nto #152 *Mr. Justice BRANDEIS delivered the weigher does not operate to promote him opinion of the Court. 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. [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. 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— "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 hereafter specially authorized thereto by law." or 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 appear 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 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. (248 U. S. 112) No. 49. [2] There is a fundamental objection to the allowance of the claim or any part there of. MacMath was never appointed weigher and never held office as such. His only appointment was that of clerk; his oath of office being "as clerk and acting U. S. weigh er, class 3." The Secretary of the Treasury learly had the right to create and the collector to make appointment to the position of clerk and to designate duties of the appointee. The fact that the incumbent performed also some or all the duties of a The judgment of the Court of Claims is affirmed. 1. CONSTITUTIONAL LAW 206(4)—LICENSES 7(1)-CLASS LEGISLATON-REGULATION OF COMMISSION DEALERS IN FARM PRODUCE. Laws Kan. 1915, c. 371, forbidding sale of farm produce on commission without annual license from state board of agriculture, on proper showing of character, responsibility, etc., is not a violation of Const. U. S. Amend. 14, as abridging rights and privileges of dealers as citizens of United States. 2. CONSTITUTIONAL LAW 240(1)—LICENSES 7(1) EQUAL PROTECTION OF LAWS-REGULATION OF COMMISSION DEALERS. 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. 3. CONSTITUTIONAL LAW 287 m7(1) DUE PROCESS COMMISSION DEALERS. LICENSES REGULATION OF Laws Kan. 1915, c. 371, forbidding sale of farm produce on commission without annual license from state board of agriculture, on proper showing of character, responsibility, etc., is not violative of Const. U. S. Amend. 14, as depriving such dealers of their property without due process of law. 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 *154 On Motion for Leave to File Original Bill. Motion by the State of Iowa for leave to file an original bill against Abraham Slimmer, Jr., and others. Motion denied. State of Kansas, on the relation of S. M. | statutes are there subject to probate proceedBrewster, Attorney General, against J. C. ings and inheritance taxes. Mohler, as Secretary of the State Board of Agriculture, W. S. Payne, L. H. Powell, and others. To review judgment of the Supreme Court of Kansas allowing the writ (98 Kan. 465, 158 Pac. 408), respondents W. S. Payne, L. H. Powell, and others bring error. Affirmed. Mr. H. M. Havner, of Des Moines, Iowa, for complainant. Mr. Thomas D. O'Brien, of St. Paul, Minn., Mr. Ray Campbell, of Wichita, Kan., for for defendants. plaintiffs in error. Messrs. J. L. Hunt and James P. Coleman, both of Topeka, Kan., and T. F. Railsback, of Kansas City, Kan., for defendant in error. *Mr. Justice BRANDEIS delivered the opinion of the Court. With a view to collecting ultimately at least $13,750 for taxes which the state of Memorandum opinion by Mr. Justice Iowa alleges it is entitled to have assessed MCREYNOLDS. The validity of chapter 371, Laws of Kansas 1915 "An act in relation to the sale of farm produce on commission"-is challenged by certain grain dealers carrying on business in that state. It forbids the sale of farm produce on commission without an annual license, to be procured from the State Board of Agriculture upon a proper showing as to character, responsibility, etc., and a bond conditioned to make honest accounting. A fee of $10 is required. [1-3] Plaintiffs in error maintain that the statute is class legislation which abridges their rights and privileges, that it deprives them of the equal protection of the laws and also of their property without due process of law-all in violation of the Fourteenth Amendment. Manifestly, the purpose of the state was to prevent certain evils incident to the business of commission merchants in farm products by regulating it. Many former opinions have pointed out the limitations upon powers of the states concerning matters of this kind and we think the present record fails to show that these limitations have been transcended. Rast v. Van Deman & Lewis, 240 U. S. 342, 36 Sup. Ct. 370, 60 L. Ed. 679, L. R. A. 1917A, 421, Ann. Cas. 1917B, 455; Brazee v. Michigan, 241 U. S. 340, 36 Sup. Ct. 561, 60 L. Ed. 1034, Ann Cas. 1917C, 522; Adams v. Tanner, 244 U. S. 590, 37 Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. 1917D, 973. The judgment of the court below is affirmed. (248 U. S. 115) STATE OF IOWA v. SLIMMER, JR., et al. and levied against the property of Abraham Slimmer, deceased, it asks leave to file in this court an original bill of complaint against the state of Minnesota, Abraham Slimmer, Jr., and Charles Bechhoefer, citizens of Minnesota, and Adolph Lipman, a citizen of Wisconsin. The bill alleges in substance as follows: All of (1) Slimmer, who had for many years been a resident of and domiciled in Iowa, died there testate on August 15, 1917, leaving personal property valued at $550,000, and *consisting, with the exception of personal effects and a few United States Liberty Bonds, wholly of promissory notes. this property, except the personal effects and one note for $3,000, was then in Minnesota in the possession of Slimmer, Jr., who had had custody of the decedent's property for at least five years before his death. The $3,000 note was brought by him and Bechhoefer into Minnesota immediately thereafter. (2) For the period of at least five years before his death, Slimmer, Sr., had conspired with Slimmer, Jr., and Bechhoefer to defraud the state of Iowa of taxes which, by reason of his domicile in Iowa, might and should have been assessed there against his property during his lifetime; and to this end he had arranged with them that his will (if he should leave one) should be probated in Minnesota, had placed in the custody of Slimmer, Jr., in Minnesota, all his property, except his personal effects and the one note for $3,000, and had concealed his property from the Iowa officials and refused to return the same for taxation there. (3) Pursuant to this conspiracy Slimmer, Jr., and Bechhoefer filed his will for probate (Argued April 15, 1918. Decided Dec. 9, 1918.) in Minnesota on or about August 21, 1917, COURTS No. Original. 514-SUPREME COURT OF UNITED STATES ORIGINAL SUIT BY STATE-LEAVE. and procured the appointment of Bechhoefer as special administrator, and by falsely Leave will be denied a state to file an orig- claiming that decedent was domiciled there, inal bill in the Supreme Court of the United secured ex parte a finding to that effect, the States against another state and others; it not probate of the will, and the appointment of being entitled to the only effective relief sought, themselves as executors. From this decree, to enjoin further administration by the courts the defendant Lipman, claiming to be an of defendant state of the estate of a decedent resident of plaintiff, who died leaving personal heir, appealed; and this appeal, which is property in defendant state, which under its now pending, has the effect of suspending the For other cases see same topic and KEY NUMBER in all Key-Numbered Digests and Indexes 39 SUP.CT.-3 |
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