stances giving rise to an implied contract to [ (39 Sup.Ct.) "In the present case, as we have said, there is nothing to show that the government expected to use the engine and appurtenances without compensation. It did not dispute the mortgage, and the findings of fact clearly show that if the government had the right to take the property, notwithstanding the mortgage interest which the plaintiff had in it, it made no claim of right to take and use it without compensation as against the prior outstanding mortgage, which distinctly reserved the right to take and sell the property under the circumstances shown and which after the breach of condition vested the right of possession and the right to convert the property in the mortgagee." It was further pointed out that the government had authority under an act of Congress to acquire any property necessary for the purpose stated, and, if need be, to appropriate it. We held that the facts found brought the case within the principles decided in former cases and made the United States liable, not for a tortious act, but upon implied contract. The subject was again reviewed by this court in a case decided at this term, Temple v. United States, 248 U. S. *121, 39 Sup. Ct. 56, 63 L. Ed. 162, in which a suit was brought to recover the value of submerged lands in the Chicago river appropriated by the government without the owner's consent. Former decisions of this court were reviewed, and we said: "If the plaintiff can recover, it must be upon an implied contract. For, under the Tucker Act, the consent of the United States to be sued is (so far as here material) limited to claims founded upon any contract, express or implied'; and a remedy for claims sounding in tort is S. 400, 23 Sup. Ct. 468, 47 L. Ed. 519. expressly denied. Bigby v. United States, 188 Hijo v. United States, 194 U. S. 315, 323, 24 Sup. Ct. 727, 48 L. Ed. 994. As stated in United States v. Lynah, 188 U. S. 445, 462, 465, 23 Sup. Ct. 349, 47 L. Ed. 539: The law will imply a promise to make the required compensation, where property to which the government asserts no title is taken, pursuant to an act of Congress, as private property to be applied for public uses'; or, in other words: 'Whenever in the exercise of its governmental rights it takes property, the ownership of which it concedes to be in an individual, it impliedly promises to pay therefor.' But in the case at bar, both the pleadings and the facts found preclude the implication of a promise to pay. For the property applied to the public use is not and was not conceded to be in the plaintiff." [3] In the case under consideration the United States did not concede title in the Ball Engineering Company, but took the property knowing of the claim of that company to its ownership, and credited its value upon the government contract with the Hubbard Comgov-pany. The government took this action upon request of the White Company, and advised that it would not, under any circumstances, be held liable for the seizure of the property. Under these circumstances, the implication of a contract that the United States would pay, which must be the basis of its liability under the Fifth Amendment, is clearly rebutted. The liability of the government, if any, is in tort, for which it has not consented to be sued. As the findings show that *the* White Company, with knowledge of the facts, procured and used the property of the Ball Company, it ought to have been held liable to that company. It follows that the judgment of the Circuit Court of Appeals must be Reversed. 8 (250 U. S. 101) No. 472. COMMERCE ~27(5)—EMPLOYERS' LIABILITY- Cook in a camp car, on siding near railroad bridge being repaired, who was employed to assist, and was assisting, bridge carpenters by keeping their bed and board close to their place of work, was employed, as they were, in “interstate commerce," within Employers' Liability.whether plaintiff at the time he was injured Act April 22, 1908 (Comp. St. §§ 8657-8665), was engaged in interstate commerce within as amended by Act April 5, 1910. the meaning of the statute. Petitioner, citing Illinois Central R. R. v. Behrens, 233 U. S. 473, 478, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163, and Erie R. R. Co. v. Welsh, 242 U. S. 303, 306, 37 Sup. Ct. 116, 61 On Writ of Certiorari to the Court of Ap- L. Ed. 319, as conclusive to the effect that the peals of the State of Maryland. true test is the nature of the work being done by the employé at the time of the injury, and that what he had been doing before and expected to do afterwards is of no consequence, argues that since plaintiff at the time of the injury and for some weeks prior thereto was and had been working as mess cook and camp cleaner or attendant, for a gang of bridge carpenters who were quartered "for their own convenience" *in a camp car belonging to petitioner, which was not being moved in interstate commerce, but was located and standing on a switch track Mr. Justice PITNEY delivered the opinion in the neighborhood of the bridge upon of the Court. which the carpenters then were and for some weeks prior thereto had been and for some time afterwards were working; and since plaintiff at the moment of the injury was engaged in cooking food which was the property of himself and the carpenters, he was not at the time engaged in interstate commerce. As thus stated, the relation of plaintiff's work to the interstate commerce of his employer would seem to be rather remote. But upon a closer examination of the facts the contrary will appear. Taking it to be settled by the decision of this court in Pedersen v. Delaware, Lack. & West. R. R. Co., 229 U. S. 146, 152, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, that the repair of bridges in use as instrumentalities of interstate commerce is so closely related to such commerce as to be in practice and in legal contemplation a part of it, it of course is evident that the work of the bridge carpenters in the present case was so closely related to defendant's interstate commerce as to be in effect a part of it. The next question is, what was plaintiff's relation to the work of the bridge carpenters? It may be freely conceded that if he had been acting as cook and camp cleaner or attendant merely for the personal convenience of the bridge carpenters, and without regard to the con For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] *102 Action by Alfred H. Smith against the Philadelphia, Baltimore & Washington Railroad Company. Judgment for plaintiff was affirmed by Court of Appeals of Maryland (132 Md. 345, 103 Atl. 945), and defendant brings certiorari. Affirmed. Messrs. Frederic D. McKenney and John Spalding Flannery, both of Washington, D. C., for petitioner. Mr. T. Alan Goldsborough, of Denton, Md., for respondent. the car, engaged in cooking a meal for the bridge carpenters and himself, the engineer of one of defendant's trains, without warning, ran the engine upon the side track and against a car to which the camp car was coupled with such force that plaintiff received injuries, to recover for which his action was brought. Respondent brought his action in a state court of Maryland under the provisions of the federal Employers' Liability Act of April 22, 1908, as amended April 5, 1910 (35 Stat. 65, c. 149 [Comp. St. 88 8657-8665]; 36 Stat. 291, c. 143), to recover damages for personal injuries sustained by him upon one of petitioner's lines of railroad in the state of Maryland over which petitioner was engaged in transporting interstate as well as intrastate commerce. Plaintiff was employed by defendant in connection with a gang of bridge carpenters, who were employed by defendant in the repair of the bridges and bridge abutments upon said line of railway. The gang, including plaintiff, worked over the entire line, and were moved from point to point as the repair work required in what was called a "camp car," furnished and moved by defendant, in which they ate, slept, and lived. Plaintiff's principal duties were to take care of this car, keep it clean, attend to the beds, and prepare and cook the meals for himself and the other members of the gang. On December 23, 1915, the bridge carpenters were engaged in repairing a bridge abutment on defendant's line near Easton, Maryland, and the camp car was on defendant's side track at Easton; and while plaintiff was in firmed by the Maryland Court of Appeals A judgment in plaintiff's favor was af(132 Md. 345, 103 Atl. 945), and the case comes here on a writ of certiorari. The only question we have to consider is *103 duct of their work, he could not properly was cut or removed for use in the state by a have been deemed to be in any sense a par- resident for mining or manufacturing purposes ticipant in their work. But the fact was under rules of the Interior Department, but otherwise. He was employed in a camp car that this shall not enlarge the rights of a railwhich belonged to the railroad company, and road company to cut timber, gives no rights was moved about from place to place along railroad for construction of its road to remainto one cutting timber from public lands for a its line according to the exigencies of the ing slashings which he cuts and sells for mining work of the bridge carpenters, no doubt with and manufacturing purposes. the object and certainly with the necessary effect of forwarding their work, by permit 3. PUBLIC LANDS 96 -AUTHORITY OF LAND OFFICER. ting them to conduct it conveniently at An official of the General Land Office has points remote from their homes and remote from towns where proper board and lodging were to be had. The circumstance that the risks of personal injury to which plaintiff was subjected were similar to those that at tended the work of train employés generally and of the bridge workers themselves when off duty, while not without significance, is of little moment. The significant thing, in our opinion, is that he was employed by defendant to assist, and actually was assisting, the work of the bridge carpenters by keep ing their bed and board close to their place of work, thus rendering it easier for defendant to maintain a proper organization of the bridge gang and forwarding their work by reducing the time lost in going to and from their meals and their lodging place. If, instead, he had brought their meals to them daily at the bridge upon which they happened to be working, it hardly would be questioned that his work in so doing was a This action was brought by appellants to part of theirs. What he was in fact doing recover the value of certain timber cut from was the same in kind, and did not differ the public lands of the United States in the materially in degree. Hence he was employ-state of Colorado, called "tie slash" or "tie ed. as they were, in interstate commerce, slashing," the term being used to describe within the meaning of the Employers' Liabil- the tops of trees the bodies of which have ity Act. been used for making railroad ties. Judgment affirmed. (39 Sup.Ct.) [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Timber.] 2. PUBLIC LANDS 11-CUTTING TIMBERSTATUTE. road company under Act March 3, 1875 (Comp. no authority to enlarge the rights of a railSt. §§ 4921-4926), to necessary timber from public lands for construction of road, so as to give right to cut and sell timber from the remaining slashings. Appeal from the Court of Claims. Action by L. G. Caldwell and another, copartners trading as Caldwell & Dunwody, against the United States. Petition dismissed (53 Ct. Cl. 33), and plaintiffs appeal. Af firmed. Mr. William C. Prentiss, of Washington, D. C., for appellants. Mr. Assistant Attorney General Frierson, for the United States. Mr. Justice MCKENNA delivered the opinion of the Court. The right of recovery is based upon contracts with the Denver, Northwestern & Pacific Railway Company which had been given the right to cut timber upon the public lands adjacent to the line of its road by the Act of Congress of March 3, 1875, c. 152, 18 Stat. 482 (Comp. St. §§ 4921-4926). The Court of Claims sustained a demurrer to the petition and dismissed it. To review that action this appeal has been prosecuted. Appellants were, in June, 1906, by due appointment of the railway company, its timber agents, to cut timber from the public lands for construction of the railroad under the act of Congress, and by agreement with the company they were given all of the "tie slash" of the trees cut down for the purpose. Pursuant to the contract, and prior to October, 1906, they manufactured and delivered to the company 88,797 ties, which left a large amount of "tie slash." By a letter from one N. J. O'Brien, deAct March 3, 1891, § 8 (Comp. St. § 5114), scribing himself as "Chief, Field Division, providing that in prosecutions for trespass on G. L. O.," and expressed to be by instructions public timber lands, or to recover timber or from the Commissioner of the General Land lumber cut, it shall be a defense that timber | Office, there was granted to appellants au For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes thority to cut timber under the act of Con-¡ analogy," and from these appellants argue gress and "to sell and dispose of all tops and that the railway company was entitled to lops of trees that" they "might cut for con- the "tie slash" as incident to its right to struction" of the road which could not be cut under the act of Congress. They adduce used for road construction purposes. In- United States v. Cook, 19 Wall. 591, 22 L. quiry first was to be made of the officers of Ed. 210; Shiver v. United States, 159 U. S. the railway company if they would purchase 491, 16 Sup. Ct. 54, 40 L. Ed. 231; Stone v. the tops and lops appellants had on hand. United States, 167 U. S. 178, 17 Sup. Ct. 778, 42 L. Ed. 127. The letter contained a ruling of the Land Office that contractors should confine their cutting strictly to such timber as was needed by the railway company and that such "refuse" as resulted from such cutting might "be disposed of by the railroad company or by the contractors without violation of existing law." A violation of the law, it was stated, would require a notice to the company to nullify the contract and agency and would subject the contractors to be proceeded against "as in ordinary cases of timber trespass." Thereafter appellants entered into another contract with the company under which they manufactured additional ties and delivered them to it, and a further amount of "tie slash" was left. A large amount of this appellants agreed to sell to the Fraser River Timber Company of Denver, Colorado, and to the Leyden Coal Company of the same place they sold 200 cars of mining props cut by them from the "tie slash," all to be used in the state of Colorado. The instances of the cases, however, are not in analogy to that of the case at bar. In the first the right was given to Indians as a legitimate use of land reserved by them from the cession of a larger tract to the United States, the right of use and occupancy being unlimited. The second case involved the cutting and sale of timber by a homesteader and they were considered a use of the land, his privileges with respect to standing timber being analogous to those of a tenant for life; the third case was of like kind, and the other two cases were cited. Other cases referred to by appellants struggled with the problem without solving it and we need not review or comment upon their reasoning nor consider some state cases. The contention of appellants encounters the rule that statutes granting priviléges or relinquishing rights are to be strictly construed; or, to express the rule more directly, that such grants must be construed favorably to the government and that nothing passes but what is conveyed in clear and explicit being resolved not against but for the government. Wisconsin Central Railway v. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399; United States v. Oregon, etc., Railway, 164 U. S. 526, 17 Sup. Ct. 165, 41 L. Ed. 541. And the government invokes the rule in the present case and cites in implied support of the invocation United States v. Denver, etc., Railway, 150 U. S. 1, 14 Sup. Ct. 11, 37 L. Ed. 975, and in express *support of it United States v. Denver, etc., Railway (C. C.) 190 Fed. 825, 826. And these cases were cited by the Court of Claims for its judgment. March 7, 1907, the land from which the ties had been cut was by presidential proc- language-inferences lamation included in the Medicine Bow National Forest and the officers of the Forest Service permitted appellants to remove the poles already cut from the "tie slash" and also to have all of tops and refuse on the so-called "fireguard" 200 feet wide along the railway for a distance of two miles, but refused to allow them to have any of the remainder of the "tie slash," and took possession of and sold it; and the proceeds were covered into the Treasury of the United States. To recover the sum of the proceeds thus covered into the Treasury, or such other amount as might be found to have been received by the United States from such sale, this action was brought. The rule, it seems to us, is particularly applicable. There was a grant of timber by the Act of March 3, 1875, not of trees, but of timber for purposes of railroad construction, not as a means of business or of profit; nor could it be made an element, as contended, of compensation to the agents employed to cut it. [1] The elements for consideration are not many. The first of these is the act of 1875, supra. It grants a right of way to the railway company [the grant is to railroad companies of a certain description-we make it particular for convenience] through the [2] Appellants invoke the Act of March 3, public lands of the United States to the ex- 1891, c. 561, 26 Stat. 1095, 1099, in justificatent of 200 feet on each side of its central tion and as giving them a right independentline, and the right to take from the public ly of their asserted right derived through lands *adjacent to its line tim- the railway company. Section 8 of that act ber necessary for the construction of said (Comp. St. § 5114) provides that in criminal railroad." The right given is to take "tim- prosecutions for trespass on public timber ber," and this, it is argued, necessarily lands in Colorado (and some other states) means "trees," and as there is no provision or to recover timber or lumber cut, it shall for disposition of what shall be left of them after using such portions for railroad purposes, it must be determined by "reason and be a defense to show that the timber was cut or removed from the lands for use in the state by a resident thereof for agricultural, mining, manufacturing or domestic purposes | States. (39 Sup.Ct.) We think it is clear that appellants are not within the provisions of the act. They are not and were not in the designated classes nor contemplated the uses which the act protects. They were agents of the railway company for so much of the timber as was to be used in railroad construction; of what was left they were simply vendors for profit. To enable them to so use the act or to use it for any but the designated purposes would be a violation of that provision of the act which forbids its operation *"to enlarge the rights of any railway company to cut timber on the public domain"; it would make the act available to a railroad as a means of profit or other purpose than road construction. And its value would be a temptation to do so. In this case it is alleged that the value of the "tie slash" that the officers of the Forest Service took possession of (it was only part of that which was cut) "was, and is, $26, 454.90." [3] Finally, appellants rely upon the letter of the Chief, Field Division, General Land Office, supra. The immediate answer is that made by the Court of Claims: the want of power in the officer to enlarge the Act of March 3, 1875, and to give rights in the puolic lands not conferred by it. Judgment affirmed. Mr. Justice MCREYNOLDS took no part in the decision. (250 U. S. 1) No. 381. EMINENT DOMAIN 2(1)-TAKING-FIRING Facts of case, in which recovery was sought on the ground of taking, because of cannon firing across land, held not to differentiate it from Peabody v. United States, 231 U. S. 530, 34 Sup. Ct. 159, 59 L. Ed. 351, where it was held that there was no taking. Petition dismissed (53 Ct. Cl. 210), Appeal from the Court of Claims. Messrs. John Lowell, of Boston, Mass., and Frank W. Hackett, of Washington, D. C., for appellants. Mr. Assistant Attorney General Brown, for the United States. Memorandum opinion by the CHIEF JUSTICE. Recovery was sought in the court below from the United States for property taken by it as the result of the alleged firing of guns in a fortification on the coast of Maine and the passing of the projectiles over and across a portion of the land alleged to have been taken. The court, finding that a former case by it decided against the owners and here affirmed (Peabody v. United States, 231 U. S. 530, 34 Sup. Ct. 159, 58 L. Ed. 351), for taking of the same land resulting from instances of gun fire resulting from the same fort and guns, was identical with this except for some occasional subsequent acts of gun fire, held that case to be conclusive of this and rejected the claim on the merits Coming to consider this action of the court in the light of the findings by it made, we are constrained to the conclusion that it was right, and that no possible difference exists between this and the Peabody Case. Before applying this conclusion we say that we find that the record discloses no ground for the applications here made to remand and for additional findings. Judgment affirmed. (250 U. S. 111) (Argued April 17, 1919. Decided May 19, 1. COURTS 394(1)-ERROR TO STATE COURT To give the Supreme Court jurisdiction of error to state court under Judicial Code, § 237, as amended by Act Sept. 6, 1916, § 2 (Comp. St. 1918, § 1214), mere assertion of a claim in respect of some constitutional right is not enough, but there must be a real and substantial controversy of the required character which deserves serious attention. 2. COURTS 394(9)—Error TO STATE COURT CASE INVOLVING CONSTITUTIONALITY OF STATUTE. Where opinion of state Supreme Court makes no reference to state statute in support of decision, but supports its conclusion by its opinions prior to such statute, relevant and tending to uphold the doctrine applied, the case is not one in which validity of the statute, claimed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |