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(Comp. St. § 1214), and the present writs of [ error were applied for and allowed within interest in the tri*bal land nor any vendible the time permitted by section 7 of the amending act.
interest in any particular tract, and because the attempted conveyance was in conflict with the provisions of sections 15 and 16 of the Supplemental Agreement to the effect that lands allotted should not be affected by *In Franklin v. Lynch, 233 U. S. 269, 34 any deed, debt, or obligation contracted prior Sup. Ct. 505, 58 L. Ed. 954; a white woman, to the time at which such land might be widow of a Choctaw Indian, having applied alienated under the act, and should not be to be admitted as a member of the tribe by alienable except after issuance of patent. It intermarriage, made a warranty deed in was contended that the prohibicon against October, 1905, for lands exclusive of home- sale, in its application to the particular case, stead which might be finally allotted to her, had been removed by Act April 21, 1904, c. with an accompanying agreement to make 1402, 33 Stat. 189, 204, providing that “all conveyance when the land should be actually restrictions upon the alienation of lands of allotted. Thereafter she was enrolled as an all allottees of either of the Five Civilized intermarried citizen, made her selection, and Tribes of Indians who are not of Indian received a patent for land, all of which, ex-blood" should be removed. But we held that cept the homestead, she sold for value to while this removed the restriction to the exother parties. This court held (affirming the tent of permitting members who were not of Supreme Court of Oklahoma) that the earlier Indian blood to sell land after it had been deed and the agreement were void because actually allotted in severalty, it did not peruntil allotment the Indian had no undivided mit even a non-Indian to sell a mere float or
Pertinent provisions of the Supplemental Agreement are set forth in the margin.1
It is insisted that a different rule must be applied with respect to lands allotted pursu ant to section 22 in the name of a deceased
111. There shall be allotted to each member of the Choctaw and Chickasaw Tribes, as soon as practicable after the approval by the Secretary of the Interior of his enrollment as herein provid- member for the benefit of his heirs, as to ed, land equal in value to three hundred and twen- which there is no express restriction upon ty acres of the average allottable land of the Choc-alienation like those found in sections 15 and taw and Chickasaw Nations, and to each Choctaw 16, and, in the absence of such restriction, and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal in value to forty acres of the average allottable land of the Choctaw and
Chickasaw Nations. ...
12. Each member of said tribe shall, at the time
of the selection of his allotment, designate as homestead out of said allotment land equal in value to one hundred and sixty acres of the average al
lottable land of the Choctaw and Chickasaw Nations, as nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead.
no obstacle in the way of the owner conveying his equitable interest after allotment, as was held by this court in Mullen v. United States, 224 U. S. 448, 457, 32 Sup. Ct. 494, 56 L. Ed. 834 (and see like rulings, as to the corresponding provisions of the Creek Agreement, in Skelton v. Dill, 235 U. S. 206, 210, 35 Sup. Ct. 60, 59 L. Ed. 198, and Woodward v. De Graffenried, 238 U. S. 284, 319, 35 Sup. Ct. 764, 59 L. Ed. 1310). But the decision in Franklin v. Lynch, supra, was based not alone upon the express restrictions, but upon the absence of individual interest in the tribal land prior to allotment and the general policy of the Agreement not to permit the improvident sales that would result if a prospective allottee were enabled to sell his expectancy.
We have not overlooked the fact that in *594
15. Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt,
or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided.
16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent: Provided, that such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value.
22. If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement and before receiving his allotment of land the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in Chapter forty-nine of Mansfield's Digest of the Statutes of
Arkansas: Provided, that the allotment thus to be made shall be selected by a duly appointed administrator or executor. ...
construing a *treaty made October 27, 1832 (7 Stat. 399), between the United States and the Pottawatomie Indians, ceding their possessory interest in certain lands to the United States, with a reservation of a considerable number of sections to particular named Indians to be granted to them when selected, it was held by this court in two cases that the treaty itself converted the reserved sections into individual property and created an equitable interest that was the subject of sale and conveyance, and that warranty deeds made prior to selection operated to vest the title in the grantee as soon as the lands were selected and patented. Doe v. Wilson (1859) 23 How. 457, 16 L. Ed. 584; Crews v. Burcham (1861) 1 Black, 352, 17 L. Ed. 91. Nor
that a similar result was reached in Jones v. Meehan, 175 U. S. 1, 21, 23, 32, 20 Sup. Ct. 1, 44 L. Ed. 49, under the provisions of a treaty with certain bands of Chippewa Indians made October 2, 1863, by which a particular reservation was set apart for one of their principal chiefs.
But we deem it impossible in right reason to apply the doctrine of these decisions to the case in hand. Section 22 of the Supplemental Agreement provides, not for any special grant or reservation in favor of particular Indians upon any special meritorious consideration, but makes a substituted provision, in the allotment scheme, in favor of the heirs of any enrolled Indian who might happen to die after the ratification of the Agreement and before selection of his allotment. In the absence of anything to the contrary, the lands prior to allotment were to remain communal, without private interest that was capable of descent or alienation. Gritts v. Fisher, 224 U. S. 640, 642, 32 Sup. Ct. 580, 56 L. Ed. 928; Sizemore v. Brady, 235 U. S. 441, 449-451, 35 Sup. Ct. 135, 59 L. Ed. 308. And no reason is suggested, nor does any occur to us, for creating by implication from the provisions of section 22 a separate in- (Argued Oct. 14, 1919. Decided Nov. 10, 1919.) terest or equity in the heirs of a deceased member prior to allotment that by the general scheme of the act and the express provisions of sections 15 and 16 was withheld from a member entitled to receive an allot*595
ment in his own right. The *implication is clearly to the contrary; and we hold that not only by the terms of section 22 does the equity of the heir of a deceased member take its inception at the selection of the allotment, but that any previous attempt to sell his expectancy is contrary to the spirit and policy of the act.
Mullen v. United States, 224 U. S. 448, 457, 32 Sup. Ct. 494, 56 L. Ed. 834, cited by plaintiff in error, is not in point, for the lands there in controversy had been duly allotted, and the only question was whether they might be alienated thereafter and before the issuance of patent, a question affirmatively answered by reference to the proviso of section 19 of the act of April 26, 1906 (34 Stat. 137, 144, c. 1876).
In confirmation of our view as to the meaning and effect of section 22 of the Supplemental Agreement, reference may be made to several acts of Congress respecting restrictions upon the lands of the Five Civilized Tribes, containing some provisions for their removal, and others for their maintenance except so far as removed, the language of which is inconsistent with the theory that there was any individual interest or equity in such lands prior to the selection of an allotment. Act April 21, 1904, c. 1402, 33 Stat. 189, 204; Act April 26, 1906, c. 1876, § 19, 34 Stat. 137, 144; Act May 27, 1908, c. 199, 35 Stat. 312. They amount to a legisla
tive declaration of the true intent and meaning of the Agreements respecting allotment of the lands of these tribes.
The provisions of the Supplemental Agreement having permitted no conveyance of an interest in the tribal lands prior to allotment, it is obvious that this policy cannot be evaded by giving to a conveyance with warranty or its equivalent, made prior to actual allotment, effect as a covenant to convey an allotment thereafter to be selected, either upon the ground of estoppel or because of any state statute having like force. Starr v. Long Jim, 227 U. S. 613, 624, 33 Sup. Ct. 358, 57 L. Ed. 670; Monson v. Simonson, 231 U. S. 341, 347, 34 Sup. Ct. 71, 58 L. Ed. 260. Judgments affirmed.
(250 U. S. 549)
UNITED STATES ex rel. ALASKA SMOKE-
1. MINES AND MINERALS 40-POWER OF GENERAL LAND OFFICE IN PASSING ON COAL CLAIMS NOT MINISTERIAL.
The power of the General Land Office to approve and pass to patent an application for certain coal claims necessarily is something more than ministerial, and yet is not arbitrary, without statutory direction or regulation by settled rules and principles; 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, on which judgment necessarily must be passed.
2. MANDAMUS 85-To COMPEL PATENT OF
COAL CLAIMS AFTER ADVERSE FINDING BY
Where a local land office of the United States in Alaska, the Commissioner of the General Land Office, and the Secretary of the Interior in succession decided that Rev. St. §§ ed to Alaska by Act Cong. June 6, 1900, amend2347-2352 (Comp. St. §§ 4659-4664), as extended by Act April 28, 1904 (Comp. St. §§ 50715074), contemplated as a basis of a valid location of coal claims the opening and developing of a producing mine of coal, and that the work to be performed upon a claim for prospecting purposes only does not fulfill the requirement, also that such was the character of the work done on the claims involved, there is no right, in the company seeking to patent the claims, to Commissioner to prove and pass them to patent. mandamus to require the Secretary and the
3. MANDAMUS 72-NO CONTROL OF DISCRE
TIONARY OFFICIAL ACTION.
Where there is discretion in official action, even though the conclusion of the authority be disputable, it is impregnable to mandamus.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
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 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.
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
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
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.
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 impor
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
 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.
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.  The question in the case, therefore, is to the Treasurer of the United States $10
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
for each acre surveyed, in the aggregate | besides are cited with the assertion that in $9,905.74, and made application to the then such situation there is no room for the exSecretary of the Interior through the local ercise of "discretion," but that it is the imland office for a patent, tendering due proof perative duty of the Secretary to issue a of the locations of each applicant. Notice patent, the right to it having become vested. was posted.
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
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
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 * * and thereby exceeding his and their powers and jurisdiction.
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.
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.
"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 might follow; but the accusation is not true.
We rest on this declaration. It would extend
cretionary action. Undoubtedly there is that
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.
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.
In Error to the Superior Court of the State of Pennsylvania.
Proceeding by the Public Service Commis-
ror. Judgment reversed.
*Messrs. Frederic D. McKenney, of Washington, D. C., and Francis I. Gowen, of Philadelphia, Pa., for plaintiff in error.
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) §
(250 U. S. 566)
PENNSYLVANIA R. CO. v. PUBLIC SERV-7. The train was moving in interstate comOF COMMON- merce. The Railroad Company admitted the ICE COMMISSION facts but contended that it was not bound WEALTH OF PENNSYLVANIA et al. by the statute because the rear car was a (Argued Oct. 24, 1919. Decided Nov. 10, 1919.) mail car constructed in accordance with 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
Messrs. William N. Trinkee, of Philadelphia, Pa., G. F. Snyder, of Washington, D. C., and Berne H. Evans, of Harrisburg, Pa., for
defendants in error.
2. COMMERCE 8(1)-STATES MAY NOT SUPPLEMENT FEDERAL REGULATIONS OF INTER
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.
order that the Rail* road 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.
 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, 88 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
3. COMMERCE 8(4)-OCCUPATION OF reguCONGRESS EXCLUDING
Mr. Justice HOLMES delivered the opinion of the Court.
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