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person's earning power, irrespective of its provision debar a state from adopting other effect upon his mere capacity for work.

Under ordinary conditions of life, a serious and unnatural disfigurement of the face or head very probably may have a harmful effect upon the ability of the injured person to obtain or retain employment. Laying aside exceptional cases, which we must assume will be fairly dealt with in the proper and equitable administration of the act, such a disfigurement may render one repulsive or offensive to the sight, displeasing, or at least less pleasing, to employer, to fellow em*602 ployés, and to patrons or customers. See Ball v. Wm. Hunt & Sons, Ltd., [1912] App. Cas. 496.

methods, or a composite of different methods, provided the result be not inconsistent with fundamental rights. As was stated in the Arizona case, 250 U. S. 429, 39 Sup. Ct. 559, 63 L. Ed. 1058:

"If a state recognizes or establishes a right of action for compensation to injured workmen upon grounds not arbitrary or fundamentally unjust, the question whether the award shall be measured as compensatory damages are measured at common law, or according to some prescribed scale reasonably adapted to produce a fair result, is for the state itself to determine."

And we see no constitutional reason why *603

But we cannot concede that impairment of earning power is the sole ground upon which a state may not, *in ascertaining the amount compulsory compensation to injured work- of such compensation in particular cases, men legitimately may be based. Unques- take into consideration any substantial phystionably it is a rational basis, and it is adopt-ical impairment attributable to the injury, ed for the generality of cases by the New whether it immediately affects earning caYork law. But the Court of Appeals has pacity or not. construed the 1916 amendment as permitting For the reasons thus outlined, it was not an allowance for facial or head disfigure- unreasonable, arbitrary, or contrary to funment although it does not impair the claim-damental right to embody in the New York ant's earning capacity. Matter. of Erickson Workmen's Compensation Law a provision v. Preuss, 223 N. Y. 365, 368, 119 N. E. 555; for a special allowance of compensation for and see opinion of Judge Cardozo in the pres- a serious disfigurement of the face or head. ent case, 226 N. Y. 199, 200, 123 N. E. 82. Nor is there any ground for declaring that In view of this, and there being no specific the allowance prescribed by the 1916 amendfinding of such impairment in these cases, ment exceeds the constitutional limitations it is proper to say that in our opinion the upon state power. "due process of law" clause of the Fourteenth Amendment does not require the states to base compulsory compensation solely upon loss of earning power.

[2] Whether an award for such disfigurement should be made in combination with or independent of the compensation allowed for the mere inability to work is a matter The New York law as at first enacted, the of detail for the state to determine. The Washington, and the Arizona laws presented same is true of the question whether the for our consideration three different methods compensation should be paid in a single sum, adopted for the purpose of imposing upon or in installments. Arizona Employers' Liathe industry the burden of making some com- bility Cases, 250 U. S. 400, 429, 39 Sup. Ct. pensation for the human wastage attributa-553, 63 L. Ed. 1058.

Judgments affirmed.

ble to the hazards of the work. We were unable to find that any of these ran counter to the "due process" clause. Nor does that

Mr. Justice MCREYNOLDS dissents.

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(40 Sup.Ct.) (251 U. S. 1)

District Court found that the charge was UNITED STATES v. SOUTHERN PAC. CO.

true and entered a decree of cancellation, et al.

and this was reversed by the Circuit Court (Argued March 5 and 6, 1919. Decided Nov. of Appeals, one judge dissenting. Southern 17, 1919.)

Pac. Co. v. United States, 249 Fed. 785, 162

C. C. A. 19.
No. 179.

[1] "All mineral lands” other than those 1. PUBLIC LANDS Om78 RAILROAD GRANT containing coal or iron were excluded from EXCLUDING "MINERAL LANDS' BARS OIL

the grant, and this exclusion embraced oil

lands. Burke v. Southern Pacific R. R. Co., The exclusion from a railroad land grant of | 234 U. S. 669, 676-679, 34 Sup. Ct. 907, 58 “all mineral lands," other than those contain- | L. Ed. 1527. As will be seen presently, ing coal or iron, embraces oil lands.

there can be no doubt that the patent was [Ed. Note.-For other definitions, see Words procured by representing that the lands were and Phrases, First and Second Series, Mineral not mineral. Whether this representation Land.]

was false turns upon the character of the 2. PUBLIC LANDS O120—CANCELLATION OF lands as known when the patent was sought

RAILROAD GRANT OF LANDS KNOWN AS OIL and obtained. If they then were known to LANDS.

be valuable for oil, as the government asEvidence in suit by the government to can- serts they were, they were mineral in the cel for fraud a patent to a railroad company sense of the granting act. for indemnity lands held to entitle it to the

To compensate for losses to the grant withrelief, as showing that, when the patent was sought and obtained on' affidavit that the lands in its primary limits the railroad company were nonmineral, they were known by the

was entitled to select other lands of like company's officers to be valuable for oil; that area within the indemnity limits, approval is, that the then known conditions were such as by the Secretary of the Interior being esto reasonably engender the belief that the lands sential to passing the selections to patent. contained oil of such quality and in such quan- | The established mode of making the selectity as would render its extraction profitable tions was by presenting at the local land and justify expenditures to that end.

office selection lists designating the lands

lost and those selected, with supporting afAppeal from the United States Circuit fidavits showing, among other things, that Court of Appeals for the Ninth Circuit. the lands selected were of the character

Suit by the United States against the contemplated, that is to say, were not minerSouthern Pacific Company and others. De vits would then bé examined in that office

al but agricultural. These lists and affidacree of District Court for the United States and in the General Land Office, and ultiwas reversed by the Circuit Court of Appeals (249 Fed. 785, 162 C. C. A. 19), and mately the selections would be passed to the the United States appeals. Decree of Cir. Secretary of the Interior for his action. cuit Court of Appeals reversed, and decree That course was followed here. of District Court affirmed.

The original list was presented November

14, 1903, but it encountered obstacles which *Messrs. J. Crawford Biggs, of Raleigh, N. led to the presentation of a substituted list C., and Assistant Attorney General Kearful, for the United States.

covering the same lands on Septem*ber 6, Messrs. Charles R. Lewers, and William 1904. Both lists were presented by the comF. Herrin, both of San Francisco, Cal., for pany's land agent, Mr. Eberlein, and were appellee.

accompanied by affidavits made by him stating that the lands selected “are not inter

dicted mineral," but "are of the character *Mr. Justice VAN DEVANTER delivered

contemplated by the grant,” and that "he the opinion of the Court. This is a suit by the United States to can

has caused" them “to be carefully examined cel a patent issued December 12, 1904, to the by the agents and employés of said comSouthern Pacific Railroad Company for pany as to their mineral or agricultural eight full and two partial sections of land character, and that to the best of his knowlwithin the indemnity limits of the grant

edge and belief none of the lands returned made to that company by an act of Congress in said list are mineral lands.” In acting (Act July 27, 1866, c. 278, 14 Stat. 292), it on the substituted list the officers of the being charged in the bill that the railroad Land Department relied upon and gave ef

fect to the statements in the supporting afcompany *fraudulently obtained the patent fidavits, and the selections were accordingly by falsely representing to the land department approved and passed to patent. that the lands were not mineral but agri- In truth Mr. Eberlein had not examined cultural, when it was known that they were the lands or caused them to be examined by mineral. From the evidence presented the others. Nor had any examination of them

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

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been made on behalf of the railroad com- were requested to designate the lands to be pany, save such as is inferable from the con- thus leased and as a result of their investiduct of its geologists and others presently to gation and recommendation several sections be noticed.

adjacent to and some immediately adjoining The lands were in the Elk Hills in Kern those in suit were included. The lease was county, California; were rough, semi-arid to be signed on behalf of the railroad comand unfit for cultivation; were devoid of pang by Mr. Eberlein as land agent and was timber, springs or running water; and had laid before him for that purpose on August but little value for grazing. Oil had been 2, 1904. Perceiving at once that its execudiscovered in that region as early as 1899; tion would not be in ac*cord with his action and this had been followed by development in pressing the pending selection list he took and production on an extensive scale. In 1903 and 1901 there were many producing

the matter up with some of his superiors.

To one he said in a letter: wells about 25 miles to the east and many within a much shorter distance to the west “We have selected a large body of lands in. and south, some within 3 or 4 miles. The terspersed with the lands sought to be convey. railroad company was then maintaining a

ed by this lease, and which we have represent. corps of geologists—all informed by experi-istence of this lease become known it would go

ed as non-mineral in character. Should the er. ence in the California oil fields-and under

a long way toward establishing the mineral their supervision was searching for, develop character of the lands referred to, and which ing and producing oil for fuel purposes. are still unpatented. We could not successfulIn 1902, upon the recommendation of one ly resist a mineral filing after we have practiof its geologists, it withdrew from sale many cally established the mineral character of the of its patented lands surrounding and adja- land. I would suggest delay at least until this cent to those in suit "because they were in or

matter of patent can be adjusted." near oil territory," and early in 1903 it entered upon a systematic examination of its

To the same officer he protested against

the action of the geologists in examining unlands in *that territory “to determine as far patented lands because "it was charging the as can be done from surface indications and company with notice.” And to another, in geological structure where oil is to be ex- New York, he explained "all phases of the pected in this region.” In a letter to Mr. matter,” with the result that the "improKruttschnitt, one of the company's vice priety of the lease at that time" and the presidents, the chief geologist said when | “very ambiguous position in which we would about to take up the examination:

be placed” were recognized, and he was in"So far as I can judge from the trip I have structed to withhold his signature and to just made over this territory, this work prom- place and keep all correspondence and papers ises results of greatest value to the company.” relating to the lease in a separate and pri

vate file not accessible to others. He folThe lands in suit were surveyed in 1901 lowed the instruction and the special or and the approved plat was filed in the local secret file remained in his possession "until," land office in May, 1903. The field notes as he testified, “it was pried out" at the denominated the lands as mineral and de- hearing. scribed them as in a mineral district "with- But, notwithstanding what was brought to in which many successful oil wells have been his attention through the proposed oil lease. developed." As before stated, the original Mr. Eberlein continued actively to press the selection list was presented November 14, pending selection, and when, about a month 1903. Mr. Kruttschnitt already had writ- later, he presented the substituted selection ten to the company's attorney at Washington list it was accompanied by affidavits where requesting that “special attention” be given in he repeated his prior representation that to securing a patent for the lands when the lands were not mineral. After presentselected, and shortly thereafter Mr. Eberlein ing this list he had a conference with the wrote to the attorney, saying:

chief geologist which prompted the latter,

when writing to a superior officer, to erI am particularly anxious in regard to this list as the lands adjoin the oil territory, and plain that Mr. Kruttschnitt is very solicitous in regard “For reasons of policy regarding certain un.

patented lands it will be best not to execute the lease

at present." Other letters and telegrams show that this

*11 special concern or anxiety persisted until *The leasé was placed by Mr. Eberlein in the patent was issued.

the special or secret file and some time aftIn 1903 the company concluded to lease erward, when an effort was made to find it, such of its lands as were considered “valu- he denied all knowledge of it. The denisi able for oil purposes” to a subsidiary com- was brought to the attention of the chief pany, which was to be a sort of fuel de- geologist, and he at once wrote to Mr. Eberpartment and to have charge of the develop- lein calling attention to the conference just ment and production of oil. The geologists mentioned, and stating:

to it."

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• 13

(40 Sup.Ct.) "You explain that you were rushing certain, and it was apparent that oil in considerable lands for final patent and that the immediate quantity had been seeping or wasting from execution of the lease showing our idea of the sandstone. The dip of the strata was what were oil lands might interfere .with you towards the Elk Hills and there were no and we agreed to defer the execution until that indications of any faulting or thinning in danger was passed."

that direction. Between the outcrop and the

Elk Hills upwards of 200 wells had found The chief geologist was a witness at the hearing and when asked what danger was

the oil-bearing strata and were being prof

itably operated, several of the wells being on meant, answered:

a direct line towards the lands in suit and “The danger that these lands might be delayed within 3 or 4 miles of them. In and beand not be patented because of their mineral yond the Elk Hills were oil seepages and character."

other surface indications of the existence of

oil in the underlying strata, one of the seeAll that has been recited thus far is prov- pages being near the lands in suit. Two ed so well that it is beyond dispute. Fairly wells had been sunk in the Elk Hills, but considered, it shows that when the patent obviously had not gone to an adequate depth was sought and obtained the lands had no

and were not productive, although some oil substantial value unless for oil mining;

was reached by one. that the interest and anxiety displayed by

Geologists and men of wide experience the company's officers in securing the patent and success in oil mining—all of whom had were wholly disproportionate to the value of the lands for any other purpose; that examined that territory and some of whom the lands lay within a recognized and pro- had been familiar with it for years—were ductive oil region which the company's called as witnesses by the government and geologists had been systematically examining gave it as their opinion, having regard to to determine in what lands oil was to be the known conditions in 1903 and 1904, as expected, and that upon the advice and rec- just outlined, that the lands were valuable ommendation of its geologists the company for oil, in that an ordinarily prudent man, was treating and dealing with adjacent and understanding the hazards and rewards of adjoining lands, of which it was the owner, oil mining and desiring to engage therein as valuable for oil. Of course among prac- for profit, would be justified in purchasing tical men the character--whether oil or the lands for such mining and making the otherwise—of these adjacent and adjoining expenditures incident to their development, lands had some bearing on the character of and in that a competent geologist or expert those in suit, and this was given pointed in oil mining, if employed to advise in the recognition when the company's officers halt- matter, would have ample warrant for aded the signing of the proposed oil lease vising the purchase and expenditure. pending action on the selection list and

Other geologists and oil operators, called caused the correspondence and papers relat- by the company, gave it as their opinion ing to the lease to be secreted in a special that the lands were not, under the condiand private file.

tions stated, valuable for oil; but as reWe think the natural, if not the only, con

spects the testimony of some it is apparent •12 clusion from *all this is that in pressing the that they were indisposed to regard any selection the officers of the railroad company

lands as within that category until they were not acting in good faith, but were at

were demonstrated to be certainly such by tempting to obtain the patent by representing wells actually drilled thereon and producing that the lands were not mineral when they oil in paying quantities after a considerable believed the fact was otherwise.

period of pumping. This is a mistaken test, The observable geological and other phys- in that it takes no account of geological conical conditions at the time of the patent ditions, adjacent discoveries and other exproceedings, as shown by the 'evidence, were ternal conditions upon which prudent and as follows: The area called the Elk Hills experienced men in the oil-mining regions was about 6 miles wide and 15 long and con- are shown to be accustomed to act and make stituted an anticlinal fold or elongated dome large expenditures. And the testimony of -an occurrence favorable to the accumula- some of these witnesses is weakened by the tion and retention of oil. The lands in suit fact that their prior acts in respect of these were about its center. From 5 to 10 miles lands, or others in that vicinity similarly to the west was the Temblor Range, the main situated, were not in accord with the opinuplift of that region. Along the east flank ions which they expressed. of that uplift for a distance of 30 miles was [2] After considering all the evidence, we a series of outcrops or exposures of Monterey think it is adequately shown that the lands (diatomaceous) shales, the source of oil in were known to be valuable for oil when the California, and porous sandstone in which patent was sought and obtained, and by this oil generally finds its ultimate reservoir. we mean that the known conditions at that These strata were of exceptional thickness / time were such as reasonably to engender

40 SUP.CT.-4


the belief that the lands contained oil of States, 234 U. S. 76, 34 Sup. Ct. 725, 58 L, Ed. such quality and in such quantity as would 1220. render its extraction profitable and justify Decree of Circuit Court of Appeals re•14

versed. ex*penditures to that end. See Diamond Coal

Decree of District Court affirmed.
Co. v. United States, 233 U. S. 236, 34 Sup.
Ct. 507, 58 L, Ed. 936.
The railroad company places some reli-

(251 U. S. 15) ance on the fact that after the presentation

STROUD v. UNITED STATES.* of the original selection list and before the substituted one was tendered a special agent (Argued Oct. 22, 1919. Decided Nov. 24, 1919.) of the General Land Office examined the

No. 276. lands and reported them as nonmineral. But there is nothing in this that can help the 1. CRIMINAL LAW O195(1)-TWICE IN JEOPcompany. The agent's report was made in ARDY; CONVICTION OF FIRST DEGREE OF OF. another connection and was not considered FENSE. by the land officers when they approved the Relative to defendant being twice put in selection. It did not relieve the company jeopardy for the same offense, contrary to the from showing that the lands selected were Fifth Amendment, conviction on first trial was not mineral; nor did the company under- of first degree murder, notwithstanding recstand that it had any such effect. Mr. Eber- ommendation of jury under Criminal Code, $ 330

(Comp. St. § 10504), preventing death penalty. lein knew of the report several months before he and other officers of the company be- 2. CRIMINAL LAW Cw193—TWICE IN JEOPABcame troubled over the proposed oil lease


NEW TRIAL, and concluded that, if given publicity, it would endanger the pending selection. Be

Defendant was not twice put in jeopardy sides, if the report could be considered here, for the same offense, contrary to the Fifth

Amendment, where reversal of first conviction, it would be without any real evidential val- with necessary award of new trial, was inue, for it appears from testimony given by voked by his writ of error. the agent at the hearing that he was not a

3. CRIMINAL LAW 121-CHANGE OF VENUE; geologist or familiar with oil mining and that his examination of the lands was at best only superficial.

Change of venue on the ground of local prej.

udice is addressed to the discretion of the trial The company makes the contention that judge. drilling done since the patent was issued has demonstrated that the lands have no value 4. CRIMINAL LAW Ow126(2)—CHANGE OF VENfor oil, assuming, without so deciding, that

UE; ABUSE OF DISCRETION. the contention would help the company if show abuse of discretion in refusing change

Record in a murder prosecution held not to sustained by the evidence, we think it is not venue on the ground of local prejudice. sustained. The drilling relied upon was done after 1909 upon lands in the Elk Hills other 5. CRIMINAL LAW Ow1152(2)—JURY 121– than those in suit. Several wells were start

QUASHING PANEL; DISCRETION AND REVIEW. ed and not more than three were successful.

Motion to quash the panel on the ground of The three were the only ones that were drill- jurors being prejudiced by the reading in their

presence of a statement of defendant's counsel ed in favorable locations and to an adequate proposing a plea of guilty of second degree mur. depth, and they penetrated oil sands of con- der is addressed to the discretion of the trial siderable thickness and produced a large judge; and, the record not showing abuse therequantity of oil, but were shut down for rea- of, refusal of the motion may not be disturbed sons not made clear by the record. They

by the reviewing court. were drilled by an oil company which was 6. CRIMINAL w116612(8) — APPEAL: * 15

HARMLESS ERROR IN DENIAL OF CHALLENGE controlled by the railroad company. *The other wells failed for reasons which prevent

Where defendant, by the statute allowed 20 the outcome from having any significance peremptory challenges, was in fact allowed 22 here. In some the drilling was not carried and it does not appear that any objectionabla to an adequate depth because the right to juror sat on the trial, his right to peremptory proceed was thought to be uncertain by rea-challenge was not abridged to his prejudice by son of an executive withdrawal of the lands. erroneous denial of a challenge for cause.

We conclude that the application of prior 7. CRIMINAL LAW Ow393(1)—SEARCHES AND decisions to the case made by the evidence SEIZURES 7-EVIDENCE; LETTERS COMING entitles the government to the relief sought INTO POSSESSION OF PRISON OFFICIALS. as was held by the District Court. See Unit. There was neither testimony required of ac ed States v. Minor, 114 U. S. 233, 5 Sup. Ct. cused nor unreasonable search and seizure in 836, 29 L Ed. 110; McCaskill Co. v. United violation of his constitutional rights, where letStates, 216 U. S. 504, 30 Sup. Ct. 386, 54 L. Ed. ters written by him while in penitentiary for 590; Diamond Coal Co. v. United States, su- *Rehearing denied 251 U. S. 380, 40 Sup. CL 176, 6* pra; Washington Securities Co. v. United. L. Ed.



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