(40 Sup.Ct.) was the south boundary of the other, and this | tation upon the amount of land in a single was shown in the surveyor's return. On body that might be entered in that way. April 26, 1906, after the survey, he presented Thus an assignee having rights aggregating at the local land office two applications six hundred and forty acres could use them whereby he sought to make separate entries in entering that amount of land in a compact of the two tracts with his soldiers' additional body one mile square, if only he did so rights-some of the rights being used on one through four entries of one hundred and sixtract and the others on the other tract. The ty acres each. And, if he had rights the applications were approved and passed to aggregate of which was sufficient, he could entry and patent-the patent for the 160 in a like way enter a body of land three miles acres being issued a considerable period after square or even an entire township. See Rev. the other. Stat. §§ 2289, 2304, 2306 (Comp. St. §§ 4530, 4592, 4594); Webster v. Luther, 163 U. S. 331, 16 Sup. Ct. 963, 41 L. Ed. 179; Diamond Coal Co. v. United States, 233 U. S. 236, 243, 34 Sup. Ct. 507, 58 L. Ed. 936; Robinson v. Lundrigan, 227 U. S. 173, 178, 179, 33 Sup. Ct. 255, 57 L. Ed. 468; 3 Land Dec. 472; Edgar Boice, 29, Land Dec. 599, and Edgar O'Keefe, Id., 643; 30 Land Dec. 285; 31 Land Dec. 441; 32 Land Dec. 418; Ole B. Olsen, 33 Land Dec. 225; 45 Land Dec. 236, par. 3; General Circular of 1904, pp. 11, 26–28. In these circumstances the complaint charges that the 319.75 acres, although surveyed in the form of two tracts, were but a single body of land in the sense of the provision in question; that the land officers in passing both applications to entry and patent acted upon a misconception of the law and of their authority; and that in consequence the later patent, whereby Poland's acquisition was made to exceed one hundred and sixty acres in a single body, was issued in violation of law and should be canceled. [1] The complaint also contains an allegation that that patent was fraudulently procured in that among the proofs presented to the land officers was an affidavit falsely representing, in effect, that the two tracts were more than eighty rods apart, when in truth they were adjoining tracts. But this allegation must be put out of view, first, because the words of the affidavit as set forth in the complaint do not sustain the pleader's conclusion as to what was represented, and, second, because the complaint makes it certain that the application and other entry papers clearly disclosed that the two tracts were contiguous to the extent of having a common boundary one-half mile in length. *225 [2] With this understanding of the circum*226 stances in which the provision was incorporated into the Act of 1903 extending the homestead laws to Alaska, we think the meaning and purpose of the provision are manifest. It is in form a proviso and says "no more than one hundred and sixty acres shall be entered in any single body" by means of soldiers' additional homestead rights. A purpose to prevent the use of these rights in entering a large acreage in a single body hardly could be more plainly expressed. There is nothing in the provision indicating that it is concerned merely with what may be taken by a single entry; and to construe it in that way would make it practically useless, for a large acreage in a single body still could be taken by merely resorting to two or more entries. Besides, the amount of land that could be taken by a single entry had long been limited to one hundred and sixty acres, and of course to say that no greater amount should be taken in a single body by a single entry would add nothing to that limi *In approaching the consideration of the provision whose meaning and purpose are in question, it is well to recall what soldiers' additional homestead rights are and what use could be made of them outside Alaska when the provision was adopted. They are rights to enter and acquire unappropriated nonmineral public land without settlement, tation. But the provision does not speak of residence, improvement, or cultivation, and without payment of any purchase price. They are not personal to the original beneficiaries but are transferable at will, and the number that may be assigned to the same person is not limited. A single right is always for less, and generally much less, than one hundred and sixty acres, but rights aggregating many times that number of acres may be and often are held by a single assignee. When the provision was adopted there were almost no restrictions upon the use of such rights outside Alaska. Indeed, the only restriction of any moment was one, uniformly respected, preventing the inclusion of more than one hundred and sixty acres in a single entry. But the number of such entries that might be made by the same person was not restricted, nor was there any limi40 SUP.Cr.-9 a single entry but only of the amount that may be "entered in any single body," and if it is to have any real effect it must be construed according to the natural Import of its words; that is to say, as limiting the amount of land in a compact or single body that may be entered by means of soldiers' additional homestead rights, whether the entering be by one or several entries. We conclude therefore that the provision, while leaving one who holds several rights free to exercise all of them and to make as many entries as his rights will sustain, prohibits him from using them to enter and acquire more than one hundred and sixty acres in a compact or single body. The court in Alaska regarded the provision as sufficiently like that relating to the area of placer mining claims (Rev. Stat. §§ 2330, 2331 [Comp. St. §§ 4629, 4630]) to require that right, Id., 459), and also to ask repayment it be similarly construed. But we think there is a marked difference between the two provisions. That in the placer mining law says "no location" shall exceed a prescribed *227 under the Act of June 16, 1880, c. 244, 21 Stat. 287 (Comp. St. §§ 4595-4598), of the fees and commissions paid, to the land officers. Decree reversed. CJ. S. 259) SOUTHERN PAC. CO. v. INDUSTRIAL AC- (Submitted Dec. 18, 1919. Decided Jan. 5, No. 118. COMPENSATION ACT TO INJURY IN INTERSTATE In this the court apparently confused the present provision, which operates in the same way in all parts of Alaska, with another and 1. COMMERCE 8(6) INAPPLICABILITY OF wholly distinct provision, which relates only to entries along the shore. Their independence and the subjects to which they relate are best shown by quoting both in the order in which they appear in the statute, which we do: There is in this case no question as to what distance along the shore an entry may extend, or as to what space shall be reserved between claims along the shore, but only a question as to whether making separate entries of lands which in point of contiguity and compactness constitute a single body of 319.75 acres is in contravention of the provision first quoted, where both entries are by the same person and are based upon soldiers' additional homestead rights. That question we answer in the affirmative for the reasons before indicated. [3, 4] It follows that, if the facts be as alleged in the complaint, the second patent was issued in violation of law and the Government is entitled to demand that it be canceled, unless, as is asserted in the brief for the defendants, one of them is a bona fide purchaser. The complaint does not show that he is such, and the rule is that this is an *228 *affirmative defense, which he must set up and establish. Wright-Blodgett Co. v. United States, 236 U. S. 397, 403, 35 Sup. Ct. 339, 59 L. Ed. 637; Great Northern Ry. Co. v. Hower, 236 U. S. 702, 710, 35 Sup. Ct. 465, 59 L. Ed. 798. [5] If the patent is canceled, Poland, or his assignee, will be free to exercise the rights with which the patent was obtained (see Harlan Cole, 6 Land Dec. 290, and John E. Court If the work in which a railroad's electric lineman was engaged when he received a fatal electric shock was part of interstate commerce, the Workmen's Compensation Act of the state is inapplicable. 2. COMMERCE 27(5)—INJURY IN INTERSTATE COMMERCE NECESSARY TO RELIEF UNDER FED- eral Employers' Liability Act (Comp. St. §§ EVIDENCE SHOWING INJURY TO LINEMAN IN INTERSTATE COMMERCE. Where a railroad's electric lineman, when he sustained a fatal shock, was wiping insulators supporting a wire carrying electric power so intimately connected with the propulsion of cars that if it had been short-circuited through his body they would have stopped instantly, the work was directly connected with interstate transportation as an essential part, and the federal Employers' Liability Act, not the state Workmen's Compensation Act, governed the case and the rights of the lineman's dependents. Mr. Justice Clarke, dissenting. On Writ of Certiorari to the Supreme Court of the State of California. Application for compensation by the de pendents of Wm. T. Butler, opposed by the Southern Pacific Company, the employer. To review award of the Industrial Accident Commission, the employer petitioned for certiorari to the Supreme Court of the State of California, which affirmed the award (171 Pac. 1071), and the employer brings certiorari. Judgment in the Supreme Court of California reversed, and cause remanded for further proceedings. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) Messrs. Henley C. Booth and William F. Herrin, both of San Francisco, Cal., for petitioners. Messrs. Christopher M. Bradley and Warren H. Pillsbury, both of San Francisco, Cal., for respondent. 262 [3] Power is no less essential than tracks or bridges to the movement of cars. The accident under consideration occurred while deceased was wiping insulators actually supporting a wire which then carried electric power so intimately connected with the propulsion of cars that if it had been short *Mr. Justice MCREYNOLDS delivered the circuited through his body, they would have opinion of the Court. William T. Butler, husband of respondent Mary E. Butler, was killed at Oakland, California, while employed by the Southern Pacific Company as an electric lineman. The Supreme Court of the State affirmed an award rendered by the California Industrial Commission against the company, and the cause is properly here by writ of certiorari. [1] The fatal accident, which occurred June 21, 1917, arose out of and happened in the course of deceased's employment. He "received an electric shock while wiping insulators, which caused him to fall from a steel power pole, producing injury which proximately caused his death." At that time the company a common carrier by railroad, maintained a power house at Fruitvale, California, where it manufactured the electric stopped instantly. Applying the suggested test, we think these circumstances suffice to show that his work was directly and immediately connected with interstate transportation and an essential part of it. The judgment of the court below is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. Mr. Justice CLARKE dissents. (251 U. S. 228) PRODUCERS' TRANSP. CO. v. RAILROAD COMMISSION OF STATE OF CALIFORNIA et al. current which moved its cars engaged in both (Argued Dec. 12, 1919. Decided Jan. 5, 1920.) interstate and intrastate commerce. From the generators this current passed along main lines or cables, through a reduction and transforming station, to the trolley wires, and thence to the motors. When he received the electric shock, deceased was engaged in work on one of the main lines necessary to keep it in serviceable condition. If such work was part of interstate commerce, the Workmen's Compensation Act of the State (St. 1917, p. 831) is inapplicable and the judgment below must be reversed. Otherwise, it must be affirmed. Employers' Liability Act *April 22, 1908, ch. 149, 35 Stat. 65 (Comp. St. §§ 8657-8665); New York Central R. R. Co. v. Winfield, 244 U. S. 147, 37 Sup. Ct. 546, 61 L. Ed. 1045, L. R. A. 1918C, 439, Ann. Cas. 1917D, 1139; New York Central R. R. Co. v. Porter, 249 U. S. 168, 39 Sup. Ct. 188, 63 L. Ed. 536. *263 [2] Generally, when applicability of the federal Employers' Liability Act is uncertain, the character of the employment, in relation to commerce, may be adequately tested by inquiring whether, at the time of the injury, the employé was engaged in work so closely connected with interstate transportation as practically to be a part of it. Pedersen v. Delaware, L. & W. R. R. Co., 229 U. S. 146, 151, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153; Shanks v. Delaware, L. & W. R. R. Co., 239 U. S. 556, 558, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; New York Central R. R. Co. v. Porter, supra; Kinzell v. Chicago, M. & St. P. Ry. Co., 250 U. S. 130, 133, 39 Sup. Ct. 412, 63 L. Ed. 893. No. 219. 1: CARRIERS 4-CONSTITUTIONAL LAW 297-CONVERSION OF PRIVATE PIPE LINE INTO COMMON CARRIER VIOLATION OF DUE PROCESS CLAUSE. If a petroleum pipe line was constructed solely to carry oil for particular producers un. der strictly private contracts, and never was devoted by its owner to public use, that is, to carrying for the public, a state could not, by mere legislative fiat or any regulating order of make its owner a common carrier, for so to a commission, convert it into a public utility, or do would be taking private property for a pubtion of the due process of law clause of the lic utility without just compensation, in violaFourteenth Amendment of the federal Constitution. 2. CARRIERS 10-PETROLEUM PIPE LINE A COMMON CARRIER OR UTILITY SUBJECT TO STATE REGULATION. If in the beginning or during its subsequent operation a petroleum pipe line was devoted by its owner to public use, and the right thus extended the public has not been withdrawn, the pipe line is a public utility, and its owner a common carrier, whose rates and practices are subject to public regulation by a state through its Railroad Commission. 3. CARRIERS 4-PETROLEUM PIPE LINE A COMMON CARRIER. Petroleum pipe line held voluntarily devoted to the use of the public in transporting oil, in view of the articles of incorporation of the quiring right of way it resorted to the power company owning the line, the fact that in acof eminent domain, admissible, under Code Civ. Proc. Cal. §§ 1237, 1238, only if the condemnation was for a public use, and, under Civ. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Code, § 1001, was by an agent of the state, OF REGULATION. A common carrier, as a petroleum pipe line, by making contracts for future transportation, or by mortgaging its property or pledging its income, cannot prevent or postpone subsequent exertion by the state of power to regulate rates and practices. TION OF CARRIER. *230 er notice and *a full hearing; is based upon a finding that the Producers' Transportation Company, the plaintiff in error, has a pipe line from the San Joaquin oil fields to Port Harford, on the Pacific Coast, whereby it transports crude oil for pay in such circumstances that the statute requires that it be regarded and dealt with as a common carrier; and directs the filing with the commission of the company's schedule of rates or charges and the rules and regulations under which the transportation is conducted. In the state court the company contended 5. CONSTITUTIONAL LAW 154(2)—CONTRACT that the evidence before the commission, all CLAUSE DOES NOT PREVENT STATE REGULA- of which was before the court, conclusively established that the pipe line was constructThe clause of the federal Constitution, pro-ed solely to carry crude oil for particular prohibiting impairment of the obligation of con- ducers from their wells to the seacoast under tracts by state action, does not interpose any strictly private contracts, and that there had obstacle to exertion by the state of its power to been no carrying for others, nor any devoregulate the rates and practices of a common carrier, as a petroleum pipe line, after the tion of the pipe line to public use; and the carrier has made contracts for future trans- company further contended that the statute, portation, mortgaged its property, or pledged as applied to this pipe line, was repugnant to its income. the due process of law clause of the Fourteenth Amendment and the contract clause of In Error to the Supreme Court of the State section 10 of article 1 of the Constitution, of California. Action by the Producers' Transportation Company against the Railroad Commission of the State of California and others. Το review judgment for defendants in the Supreme Court of the state of California (176 Cal. 499, 169 Pac. 59), plaintiff brings error. Affirmed. *229 *Messrs. A. V. Andrews, Lewis W. Andrews, and Thomas O. Toland, all of Los Angeles, Cal., for plaintiff in error. and that the order of the commission was void as offending against these clauses. The state court sustained both the statute and the order, 176 Cal. 499, 169 Pac. 59, and the company sued out this writ of error. The company was organized under the laws of California in 1909 and its pipe line was put in operation in 1910. The statute in question took effect August 10, 1913, and the order was made December 31, 1914. [1, 2] It is, of course, true that if the pipe line was constructed solely to carry oil for Mr. Douglas Brookman, of San Francisco, particular producers under strictly private Cal., for defendants in error. Mr. Justice VAN DEVANTER delivered the opinion of the Court. We here are concerned with a statute of California and an order made thereunder by the state Railroad Commission, both of which are said to be repugnant to the Constitution of the United States, and therefore invalid. The statute declares that every private corporation or individual operating "any pipe line or any part of any pipe line * for the transportation of crude oil, directly or indirectly, to or for the public, for hire, * and which said pipe line is constructed or maintained upon, along, over or under any public highway, and in favor of whom the right of eminent domain exists," shall be deemed a common carrier and subject to the provisions of a prior act investing the Railroad Commission with extensive powers over the rates and practices of those who operate public utilities. Stats. 1913, c. 327; Stats. 1911, Ex. Sess. c. 14. contracts and never was devoted by its owner to public use, that is, to carrying for the public, the state could not, by mere legislative fiat or by any regulating order of a commission, convert it into a public utility or make its owner a common carrier; for that would be taking private property for public *231 use without just compensation, which no state can do consistently with the due process of law clause of the Fourteenth Amendment. Chicago, Burlington & Quincy Ry. Co. v. Drainage Commissioners, 200 U. S. 561, 593, 26 Sup. Ct. 341, 50 L. Ed. 596, 4 Ann. Cas. 1175; Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585, 595, 35 Sup. Ct. 429, 59 L. Ed. 735, L. R. A. 1917F, 1148, Ann. Cas. 1916A, 1; Associated Oil Co. v. Railroad Commission, 176 Cal. 518, 523, 526, 169 Pac. 62, L. R. A. 1918C, 849. And see Munn v. Illinois, 94 U. S. 113, 126, 24 L. Ed. 77; Louisville & Nashville R. R. Co. v. West Coast Naval Stores Co., 198 U. S. 483, 495, 25 Sup. Ct. 745, 49 L. Ed. 1135; Weems Steamboat Co. v. People's Steamboat Co., 214 U. S. 345, 357, 29 Sup. Ct. 661, 53 L. Ed. 1024, 16 The order of the commission was made aft- Ann. Cas. 1222; Chicago & Northwestern Ry. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Co. v. Ochs, 249 U. S. (40 Sup.Ct.) 416, 419-420, 39 Sup. | mentioned were entered into before the statCt. 343, 63 L. Ed. 679. On the other hand, if ute was adopted or the order made is not in the beginning or during its subsequent material. A common carrier cannot by makoperation the pipe line was devoted by its ing contracts for future transportation or owner to public use, and if the right thus ex- by mortgaging its property or pledging its tended to the public has not been withdrawn, income prevent or postpone the exertion by there can be no doubt that the pipe line is a the state of the power to regulate the carpublic utility and its owner a common carrier's rates and practices. Nor does the conrier whose rates and practices are subject to public regulation. Munn v. Illinois, supra. [3] The state court, upon examining the evidence, concluded that the company voluntarily had devoted the pipe line to the use of the public in transporting oil, and it rested this conclusion upon the grounds, first, that one of the things which the company was authorized to do, if it so elected, as shown in its articles of incorporation, was "to establish and carry on * * a general transportation business for the purpose of transporting any of the oils produced * * by this corporation or any other person, firm, partnership, associa tract clause of the Constitution interpose any VIS et al. Decided Jan. 5, 1920.) (251 U. S. 256) tion or corporation"; second, that in acquir- MERGENTHALER LINOTYPE CO. v. DAing its right of way it resorted to an exercise of the power of eminent domain-admissible only if the condemnation was for a "public (Submitted on Motion to Dismiss Dec. 8, 1919. use," Code Civ. Proc. §§ 1237, 1238; and was by "an agent of the state," Civ. Code, § 1001 -and in that proceeding asserted, and obtained a judgment reciting, that it was engaged in transporting oil by pipe line "as a common carrier for hire," and that the right of way was sought for "a public use"; and, *232 third, that look*ing through the maze of contracts, agency agreements and the like, under which the transportation was effected, subordinating form to substance, and having due regard to the agency's ready admission of new members and its exclusion of none, it was apparent that the company did in truth carry oil for all producers seeking its service, in other words, for the public. See Pipe Line Cases, 234, U. S. 548, 34 Sup. Ct. 956, 58 L. Ed. 1459. No. 192. 1. APPEAL AND ERROR 76(1)-ERROR LIES Judgment of Missouri Court of Appeals, after the state Supreme Court had on certiorari quashed the prior judgment of the Court of Appeals and remanded the cause to it for decision, held, under the Missouri practice, final within Judicial Code, § 237 (Comp. St. § 1214), so as to allow error thereto from the national Supreme Court. and Phrases, First and Second Series, Final [Ed. Note.-For other definitions, see Words Decree or Judgment.] 2. COURTS 396(6)-RAISING FEDERAL QUESTION ON REHEARING IN STATE COURT TOO LATE. on The point that the state statutes conflict with the federal Constitution, having been first advanced in the state appellate court for sustaining error from the national Supreme motion for rehearing, came too late to be ground Court. While some criticism is made of this conclusion and the grounds upon which it is rested, we are of opinion that the grounds have adequate support in the evidence and that they sustain the conclusion. True, one witness stated that "the pipe line was not laid upon the right of way which was obtained in the condemnation suit"; but, as his further testimony disclosed that he meant 3. APPEAL AND ERROR 5-CLAIM THAT CONonly that a part of the right of way so obtained was not used when the pipe line was laid, we think the state court rightly regardClaim that a lease contract was made in ed the company as having acquired some of its actual right of way by exercising the pow-fore was not subject to state statutes, was inthe course of interstate commerce, and thereer of eminent domain as a common carrier. sufficient to challenge validity of the statutes, If it was a common carrier at the time of but at most asserted a title, right, privilege, or the condemnation suit it is such now, for immunity under the federal Constitution, not nothing has occurred in the meantime to ground for error from the national Supreme change its status. Court to the state court, though it might afford TRACT WAS NOT SUBJECT TO STATE STATUTES [4, 5] That some of the contracts before basis for certiorari. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes. |