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 custom*ers. 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. The New York law as at first enacted, the Washington, and the Arizona laws presented for our consideration three different methods adopted for the purpose of imposing upon the industry the burden of making some compensation for the human wastage attributa-553, 63 L. Ed. 1058. 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 Judgments affirmed. [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 of detail for the state to determine. The same is true of the question whether the compensation should be paid in a single sum, or in installments. Arizona Employers' Liability Cases, 250 U. S. 400, 429, 39 Sup. Ct. Mr. Justice MCREYNOLDS dissents. (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. (Argued March 5 and 6, 1919. Decided Nov. 17, 1919.) No. 179. [1] "All mineral lands" other than those "MINERAL LANDS" BARS OIL EXCLUDING The exclusion from a railroad land grant of "all mineral lands," other than those containing coal or iron, embraces oil lands. 1. PUBLIC LANDS 78 RAILROAD GRANT Containing coal or iron were excluded from the grant, and this exclusion embraced oil lands. Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 676-679, 34 Sup. Ct. 907, 58 L. Ed. 1527. As will be seen presently, there can be no doubt that the patent was procured by representing that the lands were not mineral. Whether this representation was false turns upon the character of the lands as known when the patent was sought and obtained. If they then were known to be valuable for oil, as the government asserts they were, they were mineral in the sense of the granting act. To compensate for losses to the grant within its primary limits the railroad company was entitled to select other lands of like area within the indemnity limits, approval by the Secretary of the Interior being essential to passing the selections to patent. The established mode of making the selections was by presenting at the local land office selection lists designating the lands lost and those selected, with supporting affidavits showing, among other things, that the lands selected were of the character contemplated, that is to say, were not mineral but agricultural. These lists and affida vits would then be examined in that office and in the General Land Office, and ultimately the selections would be passed to the Secretary of the Interior for his action. That course was followed here. The original list was presented November 14, 1903, but it encountered obstacles which led to the presentation of a substituted list [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Mineral Land.] 2. PUBLIC LANDS 120-CANCELLATION OF RAILROAD GRANT OF LANDS KNOWN AS OIL LANDS. Evidence in suit by the government to cancel for fraud a patent to a railroad company for indemnity lands held to entitle it to the relief, as showing that, when the patent was sought and obtained on affidavit that the lands were nonmineral, they were known by the company's officers to be valuable for oil; that is, that the then known conditions were such as to reasonably engender the belief that the lands contained oil of such quality and in such quantity as would render its extraction profitable and justify expenditures to that end. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. Suit by the United States against the Southern Pacific Company and others. De cree of District Court for the United States was reversed by the Circuit Court of Appeals (249 Fed. 785, 162 C. C. A. 19), and the United States appeals. Decree of Circuit Court of Appeals reversed, and decree of District Court affirmed. #2 *Messrs. J. Crawford Biggs, of Raleigh, N. C., and Assistant Attorney General Kearful, for the United States. Messrs. Charles R. Lewers, and William F. Herrin, both of San Francisco, Cal., for appellee. *6 *8 covering the same lands on Septem*ber 6, 1904. Both lists were presented by the company's land agent, Mr. Eberlein, and were accompanied by affidavits made by him stating that the lands selected "are not inter *Mr. Justice VAN DEVANTER delivered dicted mineral," but "are of the character contemplated by the grant," and that "he the opinion of the Court. has caused" them "to be carefully examined by the agents and employés of said company as to their mineral or agricultural character, and that to the best of his knowledge and belief none of the lands returned in said list are mineral lands." In acting on the substituted list the officers of the Land Department relied upon and gave effect to the statements in the supporting affidavits, and the selections were accordingly approved and passed to patent. In truth Mr. Eberlein had not examined the lands or caused them to be examined by others. Nor had any examination of them For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and this was reversed by the Circuit Court of Appeals, one judge dissenting. Southern Pac. Co. v. United States, 249 Fed. 785, 162 C. C. A. 19. This is a suit by the United States to cancel a patent issued December 12, 1904, to the Southern Pacific Railroad Company for eight full and two partial sections of land within the indemnity limits of the grant made to that company by an act of Congress (Act July 27, 1866, c. 278, 14 Stat. 292), it being charged in the bill that the railroad *7 company *fraudulently obtained the patent by falsely representing to the land department that the lands were not mineral but agricultural, when it was known that they were mineral. From the evidence presented the 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. (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. (40 Sup.Ct.) (Argued March 5 and 6, 1919. Decided Nov. 17, 1919.) No. 179. 1. PUBLIC LANDS 78 The exclusion from a railroad land grant of "all mineral lands," other than those containing coal or iron, embraces oil lands. RAILROAD GRANT "MINERAL LANDS" BARS OIL [1] "All mineral lands" other than those containing coal or iron were excluded from the grant, and this exclusion embraced oil lands. Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 676-679, 34 Sup. Ct. 907, 58 L. Ed. 1527. As will be seen presently, there can be no doubt that the patent was procured by representing that the lands were not mineral. Whether this representation was false turns upon the character of the lands as known when the patent was sought and obtained. If they then were known to be valuable for oil, as the government asserts they were, they were mineral in the sense of the granting act. To compensate for losses to the grant within its primary limits the railroad company was entitled to select other lands of like area within the indemnity limits, approval by the Secretary of the Interior being essential to passing the selections to patent. The established mode of making the selections was by presenting at the local land office selection lists designating the lands lost and those selected, with supporting affidavits showing, among other things, that the lands selected were of the character contemplated, that is to say, were not minerDe-al but agricultural. These lists and affidavits would then be examined in that office and in the General Land Office, and ultimately the selections would be passed to the Secretary of the Interior for his action. That course was followed here. The original list was presented November 14, 1903, but it encountered obstacles which led to the presentation of a substituted list [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Mineral Land.] 2. PUBLIC LANDS 120-CANCELLATION OF RAILROAD GRANT OF LANDS KNOWN AS OIL LANDS. Evidence in suit by the government to cancel for fraud a patent to a railroad company for indemnity lands held to entitle it to the relief, as showing that, when the patent was sought and obtained on affidavit that the lands were nonmineral, they were known by the company's officers to be valuable for oil; that is, that the then known conditions were such as to reasonably engender the belief that the lands contained oil of such quality and in such quantity as would render its extraction profitable and justify expenditures to that end. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. Suit by the United States against the Southern Pacific Company and others. cree of District Court for the United States was reversed by the Circuit Court of Appeals (249 Fed. 785, 162 C. C. A. 19), and the United States appeals. Decree of Circuit Court of Appeals reversed, and decree of District Court affirmed. #2 *Messrs. J. Crawford Biggs, of Raleigh, N. C., and Assistant Attorney General Kearful, for the United States. Messrs. Charles R. Lewers, and William F. Herrin, both of San Francisco, Cal., for appellee. *6 and this was reversed by the Circuit Court of Appeals, one judge dissenting. Southern Pac. Co. v. United States, 249 Fed. 785, 162 C. C. A. 19. *8 covering the same lands on Septem*ber 6, 1904. Both lists were presented by the company's land agent, Mr. Eberlein, and were accompanied by affidavits made by him stating that the lands selected "are not interdicted mineral," but "are of the character contemplated by the grant," and that "he has caused" them "to be carefully examined by the agents and employés of said company as to their mineral or agricultural character, and that to the best of his knowledge and belief none of the lands returned in said list are mineral lands." In acting on the substituted list the officers of the Land Department relied upon and gave effect to the statements in the supporting affidavits, and the selections were accordingly approved and passed to patent. company *fraudulently obtained the patent by falsely representing to the land department 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 *Mr. Justice VAN DEVANTER delivered the opinion of the Court. This is a suit by the United States to cancel a patent issued December 12, 1904, to the Southern Pacific Railroad Company for eight full and two partial sections of land within the indemnity limits of the grant made to that company by an act of Congress (Act July 27, 1866, c. 278, 14 Stat. 292), it being charged in the bill that the railroad *7 been made on behalf of the railroad company, save such as is inferable from the conduct of its geologists and others presently to be noticed. The lands were in the Elk Hills in Kern county, California; were rough, semi-arid and unfit for cultivation; were devoid of timber, springs or running water; and had but little value for grazing. Oil had been discovered in that region as early as 1899, and this had been followed by development and production on an extensive scale. In 1903 and 1904 there were many producing wells about 25 miles to the east and many within a much shorter distance to the west and south, some within 3 or 4 miles. The railroad company was then maintaining a corps of geologists-all informed by experi-istence of this lease become known it would go ence in the California oil fields-and under their supervision was searching for, developing and producing oil for fuel purposes. In 1902, upon the recommendation of one of its geologists, it withdrew from sale many of its patented lands surrounding and adjacent to those in suit "because they were in or near oil territory," and early in 1903 it entered upon a systematic examination of its "We have selected a large body of lands interspersed with the lands sought to be conveyed by this lease, and which we have represented as non-mineral in character. Should the ex a long way toward establishing the mineral character of the lands referred to, and which are still unpatented. We could not successfully resist a mineral filing after we have practically established the mineral character of the land. I would suggest delay at least until this matter of patent can be adjusted." *9 lands in that territory "to determine as far as can be done from surface indications and geological structure where oil is to be expected in this region." In a letter to Mr. Kruttschnitt, one of the company's vice presidents, the chief geologist said when about to take up the examination: "So far as I can judge from the trip I have just made over this territory, this work promises results of greatest value to the company." The lands in suit were surveyed in 1901 and the approved plat was filed in the local land office in May, 1903. The field notes denominated the lands as mineral and described them as in a mineral district "within which many successful oil wells have been developed." As before stated, the original selection list was presented November 14, 1903. Mr. Kruttschnitt already had written to the company's attorney at Washington requesting that "special attention" be given to securing a patent for the lands when selected, and shortly thereafter Mr. Eberlein wrote to the attorney, saying: were requested to designate the lands to be 10 "I am particularly anxious in regard to this list as the lands adjoin the oil territory, and Mr. Kruttschnitt is very solicitous in regard to it." Other letters and telegrams show that this special concern or anxiety persisted until the patent was issued. In 1903 the company concluded to lease such of its lands as were considered "valuable for oil purposes" to a subsidiary company, which was to be a sort of fuel department and to have charge of the development and production of oil. The geologists To the same officer he protested against the action of the geologists in examining unpatented lands because "it was charging the company with notice." And to another, in New York, he explained "all phases of the matter," with the result that the "impropriety of the lease at that time" and the "very ambiguous position in which we would be placed" were recognized, and he was instructed to withhold his signature and to place and keep all correspondence and papers relating to the lease in a separate and private file not accessible to others. He followed the instruction and the special or secret file remained in his possession "until,” as he testified, "it was pried out" at the hearing. But, notwithstanding what was brought to his attention through the proposed oil lease, Mr. Eberlein continued actively to press the pending selection, and when, about a month later, he presented the substituted selection list it was accompanied by affidavits wherein he repeated his prior representation that the lands were not mineral. After presenting this list he had a conference with the chief geologist which prompted the latter, when writing to a superior officer, to explain that "For reasons of policy regarding certain unpatented lands it will be best not to execute the lease at present." #11 *The lease was placed by Mr. Eberlein in the special or secret file and some time afterward, when an effort was made to find it, he denied all knowledge of it. The denial was brought to the attention of the chief geologist, and he at once wrote to Mr. Eberlein calling attention to the conference just mentioned, and stating: |
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