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responsibility for the damage which might thereafter be occasioned by the insufficient capacity and the location and design of the existing sewers. The estimated cost of restoring the sewer was $3,875. But it was unsafe to both Spearin and the government's property to proceed with the work with the 6-foot sewer in its then condition. The government insisted that the responsibility for remedying existing conditions rested with the contractor. After 15 months spent in investigation and fruitless correspondence, the Secretary of the Navy annulled the contract and took possession of the plant and materials on the site. Later the dry dock, under radically changed and enlarged plans, was completed by other contractors, the government having first discontinued the use of the 6-foot intersecting sewer and then reconstructed it by modifying size, shape and material so as to remove all danger of its breaking from internal pressure. Up to that time $210,939.18 had been expended by Spearin on the work; and he had received from the government on account thereof $129,758.32. The court found that if he had been allowed to complete the contract he would have earned a profit of $60,000 and its judgment included that sum.

[1,2] The general rules of law applicable to these facts are well *settled. Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered. Day v. United States, 245 U. S. 159, 38 Sup. Ct. 57, 62 L. Ed. 219; Phoenix Bridge Co. v. United States, 211 U. S. 188, 29 Sup. Ct. 81, 53 L. Ed. 141. Thus one who undertakes to erect a structure upon a particular site, assumes ordinarily the risk of subsidence of the soil. Simpson v. United States, 172 U. S. 372, 19 Sup. Ct. 222, 43 L. Ed. 482; Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762. But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. MacKnight Flintic Stone Co. v. The Mayor, 160 N. Y. 72, 54 N. E. 661; Filbert v. Philadelphia, 181 Pa. 530; Bentley v. State, 73 Wis. 416, 41 N. W. 338. See Sundstrom v. State of New York, 213 N. Y. 68, 106 N. E. 924. This responsibility of the owner is not overcome by the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work, as is shown by Christie v. United States, 237 U. S. 234, 35 Sup. Ct. 565, 59 L. Ed. 933; Hollerbach v. United States, 233 U. S. 165, 34 Sup. Ct. 553, 58 L. Ed. 898, and United States v. Stage Co., 199 U. S. 414, 424, 20 Sup. Ct. 69, 50 L. Ed. 251, where it was held that the contractor should be relieved, if he was misled by erroneous statements in the specifications.

† 37 Atl. 545.

[3] In the case at bar, the sewer, as well as the other structures, was to be built in accordance with the plans and specifications furnished by the government. The construction of the sewer constituted as much an integral part of the contract as did the construction of any part of the dry dock proper. It was as necessary as any other work in the preparation for the foundation. It involved no separate contract and no separate consideration. The contention of the government that the present case is to be distinguished from the Bentley Case, supra, and other similar cases on the ground that the contract with reference to the sewer is purely collateral is clearly without merit. The risk of the existing system proving adequate might have rested upon Spearin, if the contract for the dry dock had not contained the provision for relocation of the 6-foot sewer. But the insertion of the articles prescribing the character, dimensions and location of the sewer imported a warranty that if the specifications were complied with, the sewer would be adequate. This implied warranty is not over come by the general clauses requiring the contractor to examine the site,1 to check up the plans,2 and to assume responsibility for the work until completion and acceptance.3 The obligation to examine the site did not impose upon him the duty of making a dillgent inquiry into the history of the locality with a view to determining, at his peril, whether the sewer specifically prescribed by the government would prove adequate. The duty to check plans did not impose the obligation to pass upon their adequacy to ac complish the purpose in view. And the provision concerning contractor's responsibility cannot be construed as abridging rights arising under specific provisions of the contract.

[4, 5] Neither section 3744 of the Revised Statutes (Comp. St. 1916, § 6895) which pro *vides that contracts of the Navy Department shall be reduced to writing, nor the parol evidence rule, precludes reliance upon warranty implied by law. See Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 3 Sup.

a

1 "271. Examination of Site.-Intending bidders are expected to examine the site of the proposed dry dock and inform themselves thoroughly of the actual conditions and requirements before submitting proposals."

"25. Checking Plans and Dimensions; Lines and Levels.-The contractor shall check all plans furnished him immediately upon their receipt and promptly notify the civil engineer in charge of any discrepancies discovered therein. ...The contractor will be held responsible for the lines and levels of his work, and he must combine all materials form to the true intent and meaning of the plans and specifications."

properly, so that the completed structure shall con

"21. Contractor's Responsibility.-The contractor shall be responsible for the entire work and every part thereof, until completion and final acceptance by the Chief of Bureau of Yards and Docks, and for

all tools, appliances, and property of every descrip

tion used in connection therewith. .........”

*138

The breach of war- | privilege or act of engaging in interstate commerce, it can tax the carrier's property within the state, though chiefly employed in such com2. COURTS 366(6)—STATE DECISIONS-CON

Ct. 537, 28 L. Ed. 86. ranty, followed by the government's repudiation of all responsibility for the past and for making working conditions safe in the future, justified Spearin in refusing to resume the work. He was not obliged to restore the sewer and to proceed, at his peril, with the construction of the dry dock. When the government refused to assume the responsibility, he might have terminated the contract himself, Anvil Mining Co. v. Humble, 153 U. S. 540, 551, 552, 14 Sup. Ct. 876, 38 L. Ed. 814; but he did not. When the government annulled the contract without justification, it became liable for all damages resulting from its breach.

[6] Second. Both the main and the cross appeal raise questions as to the amount recoverable.

The government contends that Spearin should, as requested, have repaired the sewer and proceeded with the work; and that having declined to do so, he should be denied all recovery except $7,907.98, which represents the proceeds of that part of the plant which the government sold plus the value of that retained by it. But Spearin was under no obligation to repair the sewer and proceed with the work, while the government denied responsibility for providing and refused to provide sewer conditions safe for the work. When it wrongfully annulled the contract, Spearin became entitled to compensation for all losses resulting from its breach.

Spearin insists that he should be allowed the additional sum of $63,658.70, because, as he alleges, the lower court awarded him (in addition to $60,000 for profits) not the difference between his proper expenditures and his receipts from the government, but the difference between such receipts and the value of the work, materials, and plant (as report ed by a naval board appointed by the de*fendant). Language in the findings of fact concerning damages lends possibly some warrant for that contention; but the discussion of the subject in the opinion makes it clear that the rule enunciated in United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168, which claimant invokes, was adopted and correctly applied by the court.

merce.

CLUSIVENESS.

In so far as ruling of state court, that the whether tax was on property or privilege, turns state is not concluded by assessor's entry as to on the authority of the state board and the assessor under the state statute, and the relative effect to be given their acts, it is not reviewable by the national court. 3. CONSTITUTIONAL LAW 284(2)-DUE PRO-' CESS-TAXATION-ASSESSMENT NOTICE.

There is no want of due process within the Fourteenth Amendment because of valuation by erty owner; the mode of enforcing the tax (Rev. board for taxation being without notice to propLaws Nev. §§ 3659-3665) being by a judicial proceeding wherein process issues and an opportunity is afforded for a full hearing, and payment being enforced only after there is a judgment sustaining the tax.

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

Action by the State of Nevada against Wells Fargo & Co. Judgment for plaintiff was affirmed by the Supreme Court of Nevada (38 Nev. 505, 150 Pac. 836), and defendant brings error. Affirmed.

Messrs. Charles W. Stockton, of New York City, Henry M. Hoyt, of San Francisco, Cal., and Harry S. Marx, of New York City, for plaintiff in error.

Mr. William C. Prentiss, of Washington, D. C., for the State of Nevada.

*Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This was an action to enforce a tax levied in Humboldt county, Nevada, against the express company. Several objections were interposed, some presenting local and others federal questions, but all were overruled and payment of the tax directed. 38 Nev. 505, 150 Pac. 836. This writ of error was allowed prior to the Act of September 6, 1916, c. 448, 39 Stat. 726.

The federal questions are all that we can consider, and they are: Whether the tax was laid on the privilege or act of engaging in interstate commerce, whether the tax proceedings were without due process of law and whether they otherwise were such The judgment of the Court of Claims is, as to make the tax a burden on interstate therefore, affirmed.

commerce.

The company is a Colorado corporation enMr. Justice McREYNOLDS took no part gaged in the express business in this and

in the consideration and decision of these cases.

(248 U. S. 165)

WELLS FARGO & CO. v. STATE OF
NEVADA.

(Argued Nov. 14, 1918. Decided Dec. 16, 1918.)

No. 40.

1. COMMERCE 72-INTERSTATE COMMERCE TAXATION OF PROPERTY.

While, under the commerce clause of the federal Constitution, a state may not tax the

other countries. One of its lines extends through Humboldt and other counties in Nevada, over the Southern Pacific Railroad, and is used in both intrastate and interstate commerce, but principally the latter. The tax was for the year 1910.

ute 1 under which the tax was imposed does not provide for a privilege or franchise tax, but only for an ad valorem property tax. Acting under the statute, a state board valued the company's personal property, tangi

As construed by the state court, the stat

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Revised Laws 1912, §§ 3621, 3622, 3624, 3797-3801, 3807.

*166

ble and intangible, used in its express business within the state at $300 per mile of line; and it then became the duty of the assessor of Humboldt county to enter or list on the assessment roll at that valuation so much of the line as was in his county. In making the entry he accurately gave the length of the line in the county, the railroad Cover which the same was operated and the valuation fixed by the state board, but *inaccurately described the property as consisting of the right to carry on an express busi

ness there.

county, and that the tax herein sued for was not otherwise levied or assessed."

[3] A want of due process of law in the sense of the Fourteenth Amendment is asserted because the valuation by the state board was made without notice to the company or according it an opportunity to be heard. Assuming that the premise is correct (as to which the record is not entirely clear), we are unable to accept the conclusion. In Nevada the mode of enforcing a tax such as this is by a judicial proceeding wherein process issues and an opportunity is afforded for a full hearing. Only after there is a judgment sustaining the tax is

3665. This, as repeatedly has been held, satisfies the requirements of due process of law. Hagar v. Reclamation District, 111 U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 537, 16 Sup. Ct. 83, 40 L. Ed. 247; Gallup v. Schmidt, 183 U. S. 300, 307, 22 Sup. Ct. 162, 46 L. Ed. 207.

[1] Looking only at that entry there is strong ground for saying that the tax was laid on the privilege or act of doing an ex-payment enforced. Rev. Laws 1912, §§ 3659press business which was principally interstate. On the other hand, the action of the state board, on which the assessment concededly was predicated, indicates that what was taxed was the company's property in Humboldt county. The difference is vital, for, consistently with the commerce clause of the federal Constitution, the state could not tax the privilege or act of engaging in interstate commerce, but could tax the company's property within the state, although chiefly employed in such commerce. Adams Express Co. v. Ohio, 165 U. S. 194, 220, 17 Sup. Ct. 305, 41 L. Ed. 683; s. c., 166 U. S. 185, 218, 17 Sup. Ct. 604, 41 L. Ed. 965; Galveston, Harrisburg & San Antonio Ry. Co. v. Texas, 210 U. S. 217, 225-227, 28 Sup. Ct. 638, 52 L. Ed. 1031; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 453, 38 Sup. Ct. 373, 62 L. Ed. 827.

It also is asserted that the state board in valuing the property acted on inaccurate data and applied erroneous standards which resulted in a valuation so excessive as to make the tax a burden on interstate commerce. It is true that some inaccurate data and some computations following erroneous standards were presented to the board by a state officer in support of a suggestion that the property be valued at $500 or more per mile of line. But the suggestion was not adopted, and it is not shown that the board's valuation was based on the data and computations so presented. Besides, if the valuation was excessive, the company was entitled in the present suit to show the true value and to have the tax reduced accordingly. Rev. Laws 1912, § 3664. An attempt at such a showing was made, but the state court concluded therefrom that a valuation? of $300 per mile, as fixed by the board, was not excessive. It may be that the showing was not complete, but, even if so, it was the company's showing and was all that was before the court. After examining it we think it discloses no ground for condemning the tax as a burden on interstate commerce. Judgment affirmed.

[2] The company insists that the state is concluded by the entry on the assessment roll. But the state court, as shown in its opinion, rejects that view and holds, in effect, that the entry must be construed in the light of the statute and the action of the state board, and that when this is done it is apparent that the tax was not laid on the privilege or act of engaging in interstate commerce, but on the company's property within the county. We perceive no ground for disturbing that ruling. In so far as it turns on the authority of the state board and the assessor under the statute and the relative effect to be given to their acts it is not reviewable here, and in so far as it relates to what really was the subject of the tax we think it was right. See Cudahy Packing Co. v. Minnesota, supra, 246 U. S. 454, 38 Sup. Ct. 373, 62 L. Ed. 827. Evidently the company at one time took this view of (Argued and Submitted Nov. 21, 1918. Decided

(248 U. S. 169) CAMPBELL v. WADSWORTH et al.

Dec. 16, 1918.)
No. 72.

the tax, for in an amendment to its answer we find an allegation that the state board "valued the property used by this defendant 1. INDIANS 18-SEMINOLE LANDS-DEat the rate or sum of *$300 for every mile of railroad over which this defendant transacted business and apportioned said assessmént or tax to the various counties of the state in accordance with the number of miles of such railroad so situated within said

SCENT TO CREEK MOTHER AND DAUGHTERS. Under agreement between United States andSeminoles of October 7, 1899, ratified by Act Cong. June 2, 1900, providing that, if any member of tribe shall die, property "shall descend to his heirs who are Seminole citizens," Creek widow of one finally enrolled as Seminole, and her two daughters by him, Creeks by Creek

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

[blocks in formation]

2. INDIANS 13-ROLLS OF SEMINOLE TRIBE -ATTACK FOR FRAUD AND MISTAKE.

The rolls of the Seminole Tribe, compiled by the Commission to the Five Civilized Tribes, a quasi judicial tribunal, approved by the Sec retary of the Interior, and made final by statute, are, like the judgments of courts, subject to attack only for fraud and mistake.

tober 7, 1899, and ratified by Act of Congress June 2, 1900 (31 Stat. 250, c. 610), the essential parts of which are as follows:

"First. That the Commission to the Five Civ

ilized Tribes, in making the rolls of Seminole citizens, pursuant to the Act of Congress approved June twenty-eighth, eighteen hundred and ninety-eight, shall place on said rolls the names of all children born to Seminole citizens up to and including the thirty-first day of December, eighteen hundred and ninety-nine,

In Error to the Supreme Court of the and the names of all Seminole citizens then livState of Oklahoma.

Action by Annie Wadsworth and others against D. Campbell and others. To review judgment for defendants, plaintiffs brought error in the Supreme Court of Oklahoma, which reversed (154 Pac. 60), and defendant Campbell brings error. Judgment reversed,

and case remanded.

ing; and the rolls so made, when approved by the Secretary of the Interior, as provided by said Act of Congress, shall constitute the final rolls of Seminole citizens, upon which the allotment of lands and distribution of money and other property belonging to the Seminole Indians shall be made, and to no other persons.

"Second. If any member of the Seminole tribe of Indians shall die after the thirty-first day of December, eighteen hundred and ninety-nine, the lands, money, and other property to which

Mr. C. Dale Wolfe, of Wewoka, Okl., for he would be entitled if living, shall descend to plaintiff in error.

his heirs who are Seminole citizens, according to the laws of descent and distribution of the

Mr. Samuel Herrick, of Washington, D. C., state of Arkansas, and be allotted and distributfor defendants in error.

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

The defendants in error brought suit to quiet title to the lands in controversy in this case, the facts involved being agreed upon as follows:

Louis Cox, whose name appears in the final rolls of the Seminole Tribe of Indians, died intestate, on July 4, 1901, and left surviving him the defendants in error, Annie Cox, his widow, now Annie Wadsworth, and two daughters, Maggie Cox, now Maggie Beamore, and Nancy Cox, now Nancy Alexander. These three women were all duly enrolled on the Creek tribal roll in 1890, and in July, 1901, after the death of Cox, upon an application made in May, 1901, they were enrolled as citizens of the Creek Nation by the Commission to the Five Civilized Tribes, but neither of the three appears on the Seminole rolls. Certified copies of the "final" Seminole roll bearing the name of Louis Cox and of the Creek roll bearing the names of his wife and daughters are in the record. On the former is the notation "Wife and family Creeks," and in the latter Louis Cox is described as an enrolled Seminole.

No allotment of land had been made to Cox at the time of his death, but subsequently the land in controversy was allotted by the United States as his distributive share of the Seminole tribal lands.

The plaintiff in error claims title through one Lucy Wildcat, the only surviving relative of Cox whose name apears on the approved Seminole roll. The widow and daughters claim as heirs of Louis Cox.

[1] The decision of the case depends upon the application to the facts thus stated of the second paragraph of the *agreement between the government of the United States and the Seminole Tribe of Indians, dated Oc

ed to them accordingly: Provided, that in all cases where such property would descend to the parents under said laws the same shall first go to the mother instead of the father, and then to the brothers and sisters, and their heirs, instead of the father."

Plainly the facts agreed upon bring the case within the scope of the second paragraph thus quoted, and whether Lucy Wildcat, the only surviving Seminole relative of the deceased, or the wife and daughters of Cox, inherited the land in controversy de pends upon the effect to be given to the phrase, "shall descend to his heirs who are Seminole Indians."

*The Supreme Court of Oklahoma seemingly had little difficulty in concluding that this expression excluded "heirs" who were not Seminoles and it adopted unanimously as its own the opinion by the Commission (154 Pac. 60), which found in favor of the plaintiff in error, containing the following:

"The act under consideration says that such property shall descend to his heirs who are Seminole citizens.' Who are Seminole citizens as here designated? Section 1 of the act set out above provides for the enrollment of the Seminole citizens and says that in making out this roll the names of all citizens living on the 31st day of December, 1889, and all the children born to Seminole citizens up to that date, shall constitute the final rolls of Seminole citizens. In section 21 of the Original Curtis Act (Act Cong. June 28, 1898, c. 517, 30 Stat. 502), which provided for the enrollment of the citizens of the Five Civilized Tribes, which included the Seminole Nation, there is a provision which reads as follows:

"The rolls so made, when approved by the Secretary of the Interior, shall be final, and the persons whose names are found thereon, with their descendants thereafter born to them, with such persons as may intermarry according to the tribal laws, shall alone constitute the several tribes which they represent.'

"From the reading of these two sections last above set out it plainly appears that neither the widow of decedent, Louis Cox, nor their two children. can be denominated 'Seminole citizens.' The widow undoubtedly is not so included because she is of the Creek blood and a citizen of that tribe, and the two children are

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

excluded because they were born before De-homa Supreme Court for its second conclucember 31, 1899, and were not enrolled as Seminole citizens, and thus do not come within the provisions defining Seminole citizens."

But upon a rehearing of the case the court "withdrew" its former opinion and held that Congress intended that "the words "Seminole citizens" in the second paragraph of the act should have a more elastic meaning than was in terms given to them in the first paragraph and, by interpreting them so as to include the wife and daughters of the deceased, it | found the title to the lands to be in the latter subject to the dower estate of the former. This judgment, being within the provisions of section 2 of the Act approved September 6, 1916 (39 Stat. 726, c. 448), amending section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156 [Comp. St. 1916, § 1214]), is properly before us for review on writ of error.

The first paragraph of the argeement, which we have quoted, prescribes the persons whose names shall go upon the Seminole roll and it declares that the rolls so made, when approved by the Secretary of the Interior, "shall constitute the final rolls" of "Seminole citizens" and that to these "and to no other persons" shall allotment of property be made. This definition of "Seminole citizens" is followed in the second paragraph with the provision that the property of an intestate, such as we have in this case, shall descend to his heirs who are "Seminole citizens."

There is nothing in the act to indicate an intention on the part of Congress or of the tribe that the words, "Seminole citizens," as used in the second, shall have any other meaning than that specifically given to them in the first paragraph but, on the contrary, both the natural and the legal inference from their being used in such juxtaposition is that the same meaning shall be given them and that if a different or more comprehensive meaning had been intended it would have been expressed.

But there are other cogent reasons why courts should not modify these final rolls by liberal interpretation of this statutory provision.

[2] The rolls of the Seminole Tribe were compiled by the Commission to the Five Civilized Tribes, a quasi judicial tribunal, to which large powers were given by statute for that specific purpose, and the action of the Commission, when approved by the Secretary of the Interior, made "final" by the statute, so conclusively settles all questions within its jurisdiction as to membership in the tribe and as to the rights of the Indians to tribal property, that they are subject to attack, as the judgments of courts are, only for fraud and mistake-of which there is no suggestion in this record. United States v. Wildcat, 244 U. S. 111, 37 Sup. Ct. 561, 61 L. Ed. 1024.

sion is that, the daughters of Cox being children born to a Seminole citizen prior to the 31st day of December, 1899, were entitled to enrollment as Seminole Indians under the first paragraph of the agreement and if so enrolled would be strictly within the terms of the act and would inherit the land.

We think it very clear that this reason is not sound.

The Seminole Tribe was derived from the Creek, and the tribal customs and traditions of the two had much in common. While this record does not show specifically what the tribal custom of the Seminoles was with respect to tribal recognition of children born of mixed marriages, it does show definitely that by the Creek Indians, and it is with enrolled Creek Indians that we are dealing, the children of mixed marriages were treated and enrolled as members of the tribe of their mother, for the names of the daughters of Cox are found on the tribal roll of the Creek Indians of 1890, when they were very young children, and again in 1901, when Maggie was 20 years of age and Nancy was 17, apparently on their own application, they and their mother, were placed by the Commission on the final roll of the Creek Tribe. This Creek roll also shows that the father of the children, Louis Cox, was a Seminole, and the Seminole roll on which Cox's name appears bears the notation, "Wife and family Creeks." Thus it is plain that it was not through any mistake or "oversight that the children of Cox were omitted by the Commission from the Seminole roll and were placed upon the Creek roll, but that this was done for the sufficient reason that tribal custom and tradition required their enrollment as Creeks, and the law nowhere provided for their enrollment in more than one tribe. The final rolls, alike of the Seminoles and of the Creeks, thus made up by the Commission, were placed by the Act of Congress, as we have seen, beyond amendment by the courts on such a record as we have here, and it is impossible for us to conclude that the daughters of Cox were entitled to enrollment as members of the Seminole Tribe, or that having been enrolled as Creeks they may now be given the rights of enrolled "Seminole citizens."

The Supreme Court also says that "only the most powerful and impelling reasons" could induce it to hold that it was the intention of the Indians to exclude their own children from participation in the distribution of their property after death.

While it is true that it seems unnatural for the Indians to have preferred more distant relatives to their own children in providing for the descent and distribution of their property, yet from the terms of the act before us, and also from the provisions of the Supplemental Creek Agreement that "only citizens of the Creek Nation, male and fe

The principal reason given by the Okla- male, and their Creek descendants shall in

39 SUP.CT.-5

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