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In Error to the Court of Appeals of the direct, that is, the power of the Land Office District of Columbia. under the cited statutes and the facts re

Petition for mandamus by the United cited in the petition. This power, we may

States, on the relation of the Alaska Smokeless Coal Company, against Franklin K. Lane, as Secretary of the Interior, and Clay Tallman, as Commissioner of the General Land Office. From a judgment dismissing the petition, relator appealed to the Court of Appeals, which affirmed (46 App. D. C. 443), and relator brings error. Judgment affirmed. Messrs. Dean Burkheimer and Charles E. Shepard, both of Seattle, Wash., James R. Caton, of Alexandria, Va., and A. A. Hoehling, Jr., Stanton C. Peelle, and C. F. R. Ogilby, all of Washington, D. C., for plaintiff in

error.

Mr. Assistant Attorney General Nebeker, for defendants in error.

Mr. Justice MCKENNA delivered the opinion of the Court.

Petition for mandamus to require the Secretary of the Interior and the Commis$550

sioner of the General Land Office *to approve and pass to patent the application of the petitioner for certain coal claims, or to show cause why they have not done so.

Respondents replied that they are constituted by law the sole agents of the government in the administration and disposal of the public lands by and through the means appointed by Congress and have exclusive jurisdiction to determine the validity of all claims or applications to enter or acquire any part of them, and that the discharge of that duty involves judgment and discretion. And further replied that petitioner sought to acquire title to the coal claims under the Act of April 28, 1904, c. 1772, 33 Stat. 525 (Comp. St. §§ 5071-5074), and the Act of May 28, 1908, c. 211, 35 Stat. 424 (Comp. St. §§ 50755078), by virtue of the locations set out in the petition. That the locations came on to be heard and that they, respondents, after considering all of the evidence and applying the law thereto, found and determined that the locations involved were invalid, the locators not having opened or improved any mine or mines of coal on any of the tracts of land in controversy, as required by the cited statutes, and that petitioner was not entitled to purchase the same, and thereupon respondents in the exercise of their discretion and judgment rejected the application.

Hence they prayed that the rule against them be discharged and the petition dismissed.

*551

say at the outset, necessarily is something more than ministerial, the mere yielding to and registry of any demand, *and yet, on the other hand, not arbitrary, without statutory direction or regulation by settled rules and principles. In other words, the Land Office is like any other tribunal-its institution and purpose defining and measuring its power, the determining elements being those of fact and law, upon which necessarily judgment must be passed.

What are the elements of fact and of law in the present case? As set forth in the petition they are these:

Sections 2347 to 2352 of the Revised Statutes (Comp. St. §§ 4659-4664) provide for the entry of vacant coal lands, 160 acres to an individual, 320 acres to an association, who have opened and improved, or shall "open and improve [italics ours], any coal mine or mines upon the public lands." Section 2348.

These sections were extended to Alaska by an act passed June 6, 1900 (31 Stat. 658, c. 796), and the latter act was amended by the Act of April 28, 1904, supra, section 1 of which provides:

"That any person or association of persons qualified to make entry under the coal land laws of the United States, who shall have opened or improved [italics ours] a coal mine or coal mines on any of the unsurveyed public lands of the United States in the district of Alaska, may locate the lands upon which such mine or

mines are situated. *

Section 2 of the act provides for the application for and issue of patent.

The Act of May 28, 1908, provides for the consolidation of claims and their inclusion in a single claim. It is otherwise of no importance.

It will be observed that the only substantial difference between the sections of the Revised Statutes and the act extending them to Alaska is that by the former the right of location is granted to one or those "who have opened and improved" a mine or mines, and by the latter the grant is to one or those "who have opened or improved" a mine or

mines.

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[2] Petitioner in great volume asserts locations under the *Act of April 28, 1904, to which locations it has succeeded. The facts concerning them are not in dispute; but whether what was done constituted an opening or improvement of mines, and constrained a decision other than that given by the Land Office, is in dispute.

Eight locations were made, all of which were conveyed by the asserted locators to petitioner in March, 1909. Surveys were made of the locations, which surveys were duly examined and filed in the proper land office in Alaska; and in 1909 petitioner paid

Petitioner demurred to the reply on the ground that it did not set forth any substantial or legal defense. The demurrer was overruled, and, petitioner electing to stand upon it, the rule to show cause was discharged and the petition dismissed. The judgment was affirmed by the Court of Appeals. [1] The question in the case, therefore, is to the Treasurer of the United States $10

(40 Sup.Ct.)

for each acre surveyed, in the aggregate besides are cited with the assertion that in $9,905.74, and made application to the then Secretary of the Interior through the local land office for a patent, tendering due proof of the locations of each applicant. Notice was posted.

April 26, 1912, at the local land office (Juneau), under the direction of the Commissioner of the General Land Office, proceedings were instituted against the application of petitioner upon the ground, among others, that neither of the claimants prior to making the locations or at any time thereafter and prior to filing notice of the locations, opened or improved any mine or mines of coal on any of the tracts of land as required by the Act of April 28, 1904.

Proofs were taken upon the charges, and the register and receiver sustained them and decided and recommended that the application for a patent be rejected.

Upon an appeal to the Commissioner the decision of the local officers was approved after a circumstantial review of the case; and again, upon appeal from the Commissioner's decision, by the Secretary of the Interior. All of the officers decided that the acts of Congress contemplated as a basis of a valid location the opening and developing of a producing mine of coal and that work performed upon a claim for prospecting purposes does not fulfill the requirement. And that such was the character of the work done upon the

*553

claims in question was the de*duction of the officers. "Shallow surface cuts and openings" the work was denominated, and not made "for the purpose of the opening or improving of a producing coal mine or mines."

The characterization, purpose and effect thus ascribed to the work of the claimants

are contested, and it is insisted that the amount and effect of the work done constituted an opening and improving of mines and constrained an opposite conclusion and judgment from that of the Land Office, and it is insisted, indeed, that a contrary conclusion was constrained not only by the provisions of the statutes but by previous rulings of the department, under the assurance of which the locations were made and thereby acquired the quality of vested rights to be recognized by the issue of patent as a matter of course-an irresistible right, therefore, having legal remedy in mandamus. It is hence insisted that:

"The respondent [Secretary of the Interior] and his said subordinates have erred, not in the facts, but in their interpretation and construction of the acts of Congress and of the law pertaining to coal mines in or under public lands of the United States in Alaska and to the rights of location, application and patent thereof by locators and their assigns * thereby exceeding his and their powers and jurisdiction.

and

such situation there is no room for the exercise of "discretion," but that it is the imperative duty of the Secretary to issue a patent, the right to it having become vested.

Undoubtedly there may be cases in which rights had actually accrued and nothing remained to the Secretary but their recognition, and counsel have collected and urged such as they deem in point; but the present

*554

case lacks *their essential condition. The decision of the local land officers and that of the Commissioner and Secretary disproves the assumption that counsel make that there was only an interpretation and construction of the acts of Congress. On the contrary there was a painstaking consideration and review of the evidence and a determination of its probative strength, and the deduction was that what was done was for prospecting purposes merely and did not satisfy the requirements of the acts of Congress-a purpose to open or improve a mine or mines. And necessarily there is a difference in the purposes, a difference between a mere discovery or exposition of a vein of mineral and its development. Counsel's contention confounds the difference and insists that it is established by the rulings in prior cases in the department that a mine is opened or improved by an "actual excavation of the earth, whether by open cut or tunnel, so as to expose a vein of coal, which is the coal mine." And this, it is contended, has become a principle of decision and has the insistent quality of stare decisis-commanding a specific conclusion, superseding by its automatism any discretionary function in the land officers.

It is not necessary to review the cases. It is enough to say that they have not the inflexibility ascribed to them. And this can be illustrated. Counsel speak of exposition of a vein by a "cut or tunnel." How deep or extensive must either be to invoke the principle? And is the principle confined to such or is it applicable whatever the kind or extent of the work-by any disturbance of the surface or without any disturbance if the

*555

vein be above the sur*face? Manifestly judgment in all cases must be exercised-judgment not only of the law but what was done under the law, and its sufficiency to avail of the grant of the law.

In Riverside Oil Co. v. Hitchcock, 190 U. S. 316, 23 Sup. Ct. 698, 47 L. Ed. 1074, it was said that Congress has constituted the Land

1 Cudney v. Flannery, 1 L. D. 165; M., K. & T. Ry. v. Buck (L. D unreported); Miner v. Mariott, 2 L. D. 709; Milne v. Ellsworth, 3 L. D. 213; Henry W. Fuss, 5 L D. 167; Oliver v. Thomas, 5 L. D. 289; Watts v. Forsyth, 5 L. D. 624; Williams v. Loew, 12 L. D. 297; James B. Weaver, 35 L. D. 553; Roy McDonald, 36 L. D. 205; Oliver v. Bates, 36 L. D. 423; Bertram C. Noble, 43 L. D. 75; Fisher v. Heirs of Rule, 43 L. D. 217; Siletz Indian Lands, 42 L. The contention is repeated in petitioner's D. 244; Rough Rider and Other Lode Mining Claims, brief in varicus ways and illustrations. Cases 42 L. D. 584.

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[3] Counsel contest the application of these cases and distinguish them from that at bar by the difference between ministerial and judicial action, and assert:

"That the Secretary has essentially altered the law by converting the essential terms of it, upon which our rights are based, to terms of another meaning, and that that is an arbitrary act which the courts can control and overrule."

If the accusation were true the conclusion

last car of every train to be equipped at its rear end with a platform 30 inches in width, guard rails, and steps, could not apply to trains in interstate commerce; the field of regulation having been occupied by the federal authorities. Mr. Justice Clarke dissenting.

In Error to the Superior Court of the State of Pennsylvania.

Proceeding by the Public Service Commission of the Commonwealth of Pennsylvania and others against the Pennsylvania Railroad Company. From an order of the Commission, the Railroad Company appealed to the Superior Court of Pennsylvania, which sustained the order (67 Pa. Super. Ct. 575), and, after appeal to the Supreme Court of Penn

might follow; but the accusation is not true. sylvania was refused, the Railroad brings er

We rest on this declaration. It would extend this opinion too much to trace through the ingenuity of counsel's reasoning in a very long brief and the citation and analysis of many cases the distinction they rely on, that is, the distinction between formal and dis

cretionary action. Undoubtedly there is that distinction. Lane, Secy., v. Hoglund, 244 U. S. 174, 37 Sup. Ct. 558, 61 L. Ed. 1066. But where there is discretion, as we think there is in this case, even though its conclusion be disputable, it is impregnable to mandamus. Riverside Oil Co. v. Hitchcock and Ness v. Fisher, supra.

Judgment affirmed.

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ror. Judgment reversed.

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Mr. Justice HOLMES delivered the opinion of the Court.

This case was begun by a complaint to the Public Service Commission of Pennsylvania that the plaintiff in error, the Pennsylvania Railroad, ran a specified train the last car of which was not equipped at its rear end with a platform thirty inches in width, guard rails and steps, as required by a statute of Pennsylvania. Act of June 19, 1911 (P. L. 1054) § 7. The train was moving in interstate commerce. The Railroad Company admitted the facts but contended that it was not bound by the statute because the rear car was a

(Argued Oct. 24, 1919. Decided Nov. 10, 1919.) mail car constructed in accordance with the

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1. PUBLIC SERVICE COMMISSIONS 6
GRANT BY STATE OF POWER TO VIOLATE LAWS
OF UNITED STATES.

Whatever powers a state may deny to its Public Service Commissions, it cannot give them power to do what laws of the United States forbid, whether their action be called administrative or judicial.

2. COMMERCE 8(1)-STATES MAY NOT SUPPLEMENT FEDERAL REGULATIONS OF INTER

STATE COMMERCE.

When the United States has exercised its exclusive powers over interstate commerce, so far as to take possession of the field, the states no more can supplement its requirements than they can annul them.

3. COMMERCE 8(4)-OCCUPATION OF regu-
CONGRESS EXCLUDING
LATION
STATE REGULATION.

BY
FIELD

In view of federal Safety Appliance Act (Comp. St. §§ 8605-8612) and the regulations of the Interstate Commerce Commission, Act Pa. June 19, 1911 (P. L. 1054) § 7, requiring the

regulations of the Post Office Department, and because the Government of the United States had assumed control of the matter so far as to exclude such intermeddling on the part of a State. The Commission made an

568

order that the Railroad Company should operate. its train with the rear end of the rear car equipped as required by the state law. The Railroad Company appealed to the Superior Court, setting up that the order violated the commerce clause of the Constitution (Art. 1, § 8) and that in view of the federal legislation and rules, including the order of the Interstate Commerce Commission dated March 13, 1911, and made under the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [Comp. St. §§ 8605-8612]), and other matters referred to, the State Commission had no power to do what it did.

[1] The Superior Court sustained the order holding itself bound by what it took to be the decision of the Supreme Court of Pennsylvania R. R. Co. v. Ewing, 241 Pa. 581, SS

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

(40 Sup.Ct.)

Atl. 775, 49 L. R. A. (N. S.) 977, Ann. Cas. 1915B, 157, to the effect that nothing had been done by the United States inconsistent with the continued effect of the state law. An appeal to the Supreme Court was refused. On the strength of this it now is argued that the refusal must have been upon the ground that the Commission was a purely administrative body; that it had no judicial power to declare the statute unconstitutional; that therefore no question of the constitutionality of the Act was before the Superior Court, and that this is implied because an appeal to the Supreme Court was a matter of right if the case had involved such a question. But whatever powers a State may deny to its commissions it cannot give them power to do what the laws of the United States forbid, whether they call their action administrative or judicial. The Superior Court treated the question as open. The Supreme Court merely denied an appeal upon a point that probably was thought to have been decided already by the Court.

If

[2] We pass to the merits of the case. all that had been done on behalf of the United States in the way of regulation had been to determine how mail cars should be built, and to exclude a thirty-inch platform, it might be said that the state law could be 569

obeyed by putting a different *car at the end of the train. It would be a tax upon the railroad when the company wished to run a mail train wholly made up of mail cars, but it could be done and it is not necessary to say that the State could not require it. But when the United States has exercised its exclusive powers over interstate commerce so far as to take possession of the field, the States no more can supplement its requirements than they can annul them. Southern Ry. Co. v. Railroad Commission of Indiana, 236 U. S. 439, 446, 35 Sup. Ct. 304, 59 L. Ed. 661: Charleston & Western Carolina Ry. Co. ▼. Varnville Furniture Co., 237 U. S. 597, 604, 35 Sup. Ct. 715, 59 L. Ed. 1137, Ann. Cas. 1916D, 333; New York Central R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 57 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas.

1917D, 1139. In the present instance the rules for the construction of mail cars, admitted to be valid, not only exclude the wide platform but provide an equipment for them when used as end cars. The Safety Appliance Act with its careful requirements for the safety of the men was followed by most elaborate regulations issued by the Interstate Commerce Commission which include three large pages of prescriptions for "Caboose Cars without Platforms." Caboose cars constantly are used as end cars and these pages

like the Post Office order as to mail cars recognize the lawfulness of an end car such as the Pennsylvania statute forbids.

[3] The question whether Congress and its commissions acting under it have so far exercised the exclusive jurisdiction that be

longs to it as to exclude the State, must be answered by a judgment upon the particular case. The subject-matter in this instance is peculiarly one that calls for uniform law and in our opinion regulation by the paramount authority has gone so far that the statute of Pennsylvania cannot impose the additional obligation in issue here. The Interstate Commerce Commission is continually on the alert, and if the Pennsylvania law represents a real necessity, no doubt will take or recommend steps to meet the need. Judgment reversed.

*570

*Mr. Justice CLARKE dissenting.

Of course I agree with the majority of the court that if the United States had taken possession of the field involved in this controversy, the State could not supplement or annul its requirements or regulations, and it is because it seems to me clear that it has done nothing of the kind that I dissent from the conclusion of the court.

The Interstate Commerce Commission has never assumed control over the manner in which trains shall be made up, or manned, or moved, so far as I know; certainly there is nothing in the record in this case to indicate that it has done so.

The section of the State statute held in

valid has to do, not with individual cars, but with high speed trains of cars in operation, and it does not prescribe what the construction of mail or express cars shall be, but only that the rear car of trains made up of mail or express cars shall be equipped with a platform as prescribed, with "exits free from obstruction." It may be a mail car, or an express car, or a passenger coach or a caboose; the only requirement is that it shall have a platform with guard rail and steps.

For the reason that federal authority had not occupied the field, this court has upheld state laws prescribing the number of men who must be employed to operate trains, Chicago, R. I. & Pac. Ry. Co. v. State of Arkansas, 219 U. S. 453, 31 Sup. Ct. 275, 55 L. Ed. 290, the manner in which the cars of passenger trains shall be heated, N. Y., N. H. & H. Rd. Co. v. New York, 165 U. S. 628, 17 Sup. Ct. 418, 41 L. Ed. 853, the kind of headlight which engines shall carry, Atlantic Coast Line Rd. Co. v. State of Georgia, 234 U. S. 280, 34 Sup. Ct. 829, 58 L. Ed. 1312, and that trainmen shall be subject to state examination as to their qualifications, Smith v. Alabama, 124 U. S. 465, 8 Sup. Ct. 564, 31 L. Ed. 508, Nashville, &c., Ry. v. Alabama, 128 U. S. 96, 9 Sup. Ct. 28, 32 L. Ed. 352.

In this case the action of the court is rest

ed chiefly on the single circumstance that

*571

the Interstate Commerce Commission has prescribed requisites for "Caboose Cars without Platforms," and since caboose cars are constantly used as end cars, therefore it is concluded the Commission recognizes as law

ful a type of end car which the state statute the discharge of other duties without excescondemns.

sive danger that the statute was enacted, and it seems to me, for the reasons stated, that permitting the use of cabooses without platforms does not cover the rear end require ments of fast express and mail trains, and that the court, in its decision, makes a mis application of that permission.

It will excite surprise in many minds that the plaintiff railroad company does not make, as it is believed many carriers do make, such provision as this statute requires, or its equivalent, from motives of economy, as a protection, from injury to employés and danger to property as well as from the humanitarian motive so obviously involved.

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If the construction prescribed for "Caboose Cars without Platforms" at all resembled or was even approximately the equivalent of the construction of express or mail cars in the respects essential to the safety and promptness of service on the rear end of fast trains, or if it appeared that such cabooses are or could be used on such trains, the inference might be justified, but the difference between the two is radical and fundamental. As thus: The illustrations in the record show that mail and express cars have only narrow stirrups and single handholds at the side doors and at their ends, and the ends are equipped with vestibule frames, which render access difficult and dangerous to the brake wheel and markers (signal lights and flags) and to the handholds and stirrups for mounting or alighting. But the requisites prescribed for a "Caboose without Platform" are a curved and a straight handhold on opposite sides of each side door and "SideDoor Steps" under each door, with a minimum length of five feet, a minimum width of six inches, a minimum height of backstop of three inches, and hung a maximum height of only twenty-four inches from the top of rail, Such handholds, with such a long, wide and lowhanging step give facilities for mounting or alighting from such a caboose, when in motion, comparable in safety to those of an end platform, and are obviously much better and safer than those on mail or express cars. (Argued Oct. 15, 1919. Decided Nov. 10, 1919.) The importance of rear end signals cannot be overstated, yet the construction of the 1. APPEAL AND ERROR 781(1) ends of express and mail cars, as shown in the illustrations in the record, is such that such signals can be observed by trainmen with difficulty, when the train is moving, and

*572

can be put in place or removed only with great risk of injury, especially in time of storm of wind or rain or when the precarious foothold on the narrow ledge of the slightly extended end sill is covered with ice or snow. Such danger is entirely obviated by use of the inexpensive platform prescribed by the state statute.

To this we must add that a caboose is used only on slowly moving freight trains, while the state act deals only with fast trains, which start so rapidly that mounting them is especially dangerous for men, who, in the discharge of duty, must usually be on the ground to the last moment, for observation and for signalling, and with whom a few moments in alighting, when the emergency sig nal is given, may mean the difference between safety and disaster to themselves and to passengers and property on such and other trains.

It was to furnish facilities to employés for prompt and reasonably safe mounting and alighting from these fast trains and for

Believing, as I do, that the section of the State statute is a humane, reasonable and intelligent provision for promoting the safety of employés, passengers and property arising from special conditions on the lines of railway, and that there is no federal provision having a like purpose, I decline to share in striking down as unconstitutional a law passed by the Legislature of Pennsylvania, approved by the Public Service Commission of that State as reasonable and necessary and, as I think, by its highest court as con

stitutional.

(250 U. S. 607) GROESBECK et al. v. DULUTH, S. S. & A. RY. CO.

No. 254.

SUIT TO ENJOIN RATE-FIXING STATUTE NOT RENDERED MOOT BY REPEAL.

Appeal of defendants, in a railroad's suit to enjoin enforcement of a state rate-fixing statute as confiscatory, does not become moot by the repeal of the statute, where the railroad has been required to issue to intrastate passengers receipts agreeing to refund, if the statute should be held valid, the excess fare paid; a large fund having accumulated pending litigation, and the refund coupons being outstanding. 2. CARRIERS 12(6)

ALL DIVISIONS OF ROAD CONSIDERED IN FIXING RATES.

In determining, at a railroad's suit, whether a state statute fixing rates for intrastate passenger traffic is confiscatory, a division of the railroad built, not in a desire to serve local needs, but to establish a through line traversing sparsely settled country between two points, for the convenience largely of interstate traffic, cannot be excluded from the calculation; the state statute (Pub. Acts Mich. 1911, No. 276) having clearly applied the doctrine of averages to the problem of rates.

3. CARRIERS 12(6)—INCLUSION OF INTERSTATE LINE IN DETERMINING WHETHER RATE FIXED WAS CONFISCATORY.

In determining at a railroad's suit whether a state statute fixing rates for intrastate passenger traffic is confiscatory, a line of the railroad originally built by a competitor, paralleling the

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

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