court below in respect to an allowance for use and occupation. The court does not mention the subject in the opinion and it is not referred to in the application for an appeal.

In Shoemaker v. United States, 147 U. S. 282, 321, 13 Sup. Ct. 361, 37 L. Ed. 170, and Bauman v. Ross, 167 U. S. 548, 598, 17 Sup. Ct. 966, 42 L. Ed. 270, to which both counsel refer, the point here decided was not involved, since the court held that under the express terms of the acts there in question the United States were not entitled to possession of the land until the damages had been assessed and actually paid. The judgment below is Affirmed.

Mr. Justice McREYNOLDS took no part in the consideration and decision of this case.

OMAHA TRIBE OF INDIANS v. UNITED

STATES. (Argued March 18, 1920.

1920.)
Nos. 243, 244.

5. COURTS

389-FINDING OF COURT OF

CLAIMS HELD ONE OF FACT, OR MIXED FACT
AND LAW, AND NOT REVIEWABLE.

A finding of the Court of Claims that a building constructed by the government as an infirmary for certain tribes of Indians was not used, and was not such a building as was conUNITED STATES v. OMAHA TRIBE OF templated by treaties with one of such tribes, INDIANS.

(253 U. S. 275)

was either a finding of fact, or a finding of mixed facts and law, with the question of law inseparable, and in either case was not reviewable.

1. INDIANS 6-TREATY OBLIGATION TO PRO-
TECT FROM HOSTILE TRIBES HELD TO IMPOSE
NO LIABILITY, WHERE PROTECTION NOT DEEM-
Ed NECESSARY BY PRESIDENT.

Under article 7 of the treaty of March 16, 1854, with the Omaha Indians, providing that the United States would protect such Indians from hostile tribes as long as the President might deem such protection necessary, no liability rests on the government because of the killing of members of the tribe and the stealing of their horses by hostile tribes, where there is no finding of a failure to provide protection deemed necessary by the President.

2. COURTS 468 - FINDING OF COURT OF CLAIMS AS to DEATH OF CATTLE PURCHASED FOR INDIANS CONSTRued.

dians, the tribe are entitled to payment for the value of cattle purchased in such bad condition, or so badly cared for on the way to the reservation, that they died.

Decided June 1, 6. COURTS 449 (4)—CONSTRUCTION OF UN-
FIT BUILDING HELD "MISAPPROPRIATION OF
FUNDS," WITHIN ACT GIVING COURT OF
CLAIMS JURISDICTION.

A finding of the Court of Claims that cattle purchased by the government for Indians of the Omaha Tribe under a provision of the treaty of March 6, 1865, were in bad condition when they reached the reservation, and that 50 of them died, necessarily imports that they either were in bad condition when purchased, or were badly cared for on the way to the reservation.

4. COURTS 468-FINDING OF COURT OF CLAIMS AS to CONSTRUCTION OF BUILDING FROM INDIANS' MONEYS CONSTRued.

3. INDIANS 7-DEATH OF CATTLE PURCHAS-
ED FOR INDIANS IN BAD CONDITION or bad-
LY CARED FOR HELD TO CONSTITUTE CLAIM
AGAINST GOVERNMENT.

Under the treaty of March 6, 1865, with the Omaha Indians, providing that the consideration for lands thereby ceded might be expended by the government for goods, provisions, cattle, etc., for the benefit of the In

A finding of the Court of Claims that a building constructed by the government for an infirmary for certain tribes of Indians, and paid such tribes, was not used and was not such a for in part out of money belonging to one of building as was contemplated by treaties with such tribe, did not mean that a building of that general character was not contemplated, but that the particular building was not what it ought to have been, and not suitable for the use of the Indians.

The construction by the government of a building as an infirmary for certain tribes of Indians, which was not used and was not suitable for the use of the Indians, was a "misappropriation" of the funds of the tribe for purposes not for its material benefit, within Act June 22, 1910, giving the Court of Claims jurisdiction of claims for such misappropriations.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Misappropriation.]

7. UNITED STATES 110-INTEREST HELD

NOT RECOVERABLE ON CLAIM FOR CONSIDERA-
TION FOR CEDED LANDS.

The treaty of March 16, 1854, with the Omaha Indians, containing a cession of lands south of a prescribed line, and providing for a similar cession of lands north of such line at the same price per acre, if they proved unsuitable as a location for such Indians, held not to have deferred the passing of title to the land north of such line until payment of the consideration, and hence under Judicial Code, § 177 (Comp. St. § 1168), interest was not recoverable on a claim for the purchase price until the rendition of judgment by the Court of Claims.

8. UNITED STATES 110-Act RELATIVE TO CLAIMS OF INDIANS HELD NOT TO CHANGE USUAL RULE AS TO INTEREST.

Act June 22, 1910, conferring on the Court of Claims jurisdiction of claims of the Omaha Tribe of Indians against the United States, does not, by giving it authority to hear and

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

(40 Sup.Ct.)

We have here an appeal and a cross-appeal from a judgment of the Court of Claims in a suit brought under the Act of June 22, 1910 (36 Stat. 580, c. 313), which conferred upon that court jurisdiction to hear and determine "all claims of whatsoever nature which the Omaha tribe of Indians may have or claim to have against the United States # * * under the treaty between the Unit ed States and the said tribe of Indians, rati- | fied and affirmed March sixteenth, eighteen

*277

hundred and fifty-four, or under *any other treaties or laws, or for the misappropriation of any funds of said tribe for purposes not for its material benefit, or for failure of the United States to pay said tribe any money due," with authority to hear and deter-ed, mine all legal and equitable claims of the tribe, and also any legal or equitable defense, set-off, or counterclaim, and to settle the rights both legal and equitable of the parties, notwithstanding lapse of time or statutes of limitation.

ment of the treaty funds, who were guilty of defalcations of this and other moneys to the aggregate amount of $18,202.19. This was allowed.

[1] As to the item of $4,560 allowed as the value of horses killed by the Sioux Indians, we conclude that the objection of the government is well founded. The obligation of the treaty was to protect the Omahas from the Sioux and other hostile tribes "as long as the President may deem such protection necessary." The obligation depended upon an exercise of discretion by the President. There is no finding of a failure to provide any protection deemed by the President to be necessary; hence nothing to create a liabillegal or equitable, under the treaty clause.

$279

*By the seventh article of the treaty the United States agreed to protect the Omahas from the Sioux and all other hostile tribes as long as the President might deem such protection necessary. The court found that after the treaty the Sioux made repeated attacks upon the Omahas in the year of removal and subsequent years; that the Unit-ity, ed States was called upon by the Omahas to protect them, and such protection was necessary as soon as they removed to their new home and for several years thereafter, but no protection was afforded them by the United States. The Sioux killed 22 Omahas and stole 152 horses; the latter worth $30 per head. The court allowed $4,560 for the horses, but made no allowance for the Indians

killed.

By a treaty concluded March 6, 1865 (14 Stat. 667), the United States agreed to pay the Omahas for the cession of a part of their reservation the sum of $50,000, to be expended "for goods, provisions, cattle, horses," etc., for their benefit. Pursuant to this, as the

Court of Claims found, 103 head of stock cattle were delivered in the year 1867, for which $3,432.99 was paid out of money belonging to the Omahas. "These cattle, when they reached the reservation, were in bad condition, and 50 of them died," of an average value of $33.33 per head; the 50 being worth $1,666.50. This sum was allowed.

Under article 4 of the treaty of 1854 and

article 2 of the treaty of 1865 certain moneys

were to be or might be expended for the benefit of the Indians in the way of improvements upon their reservation, and in other ways. Under these provisions, in the year 1875 an infirmary was constructed upon the Omaha and Winnebago consolidated reservation. The Court of Claims found that this building was not used, and was not such a building as was contemplated by the treaties with the Omahas, and that, of its cost, $3,127.08 was paid out of money belonging to

them. This sum was allowed.

The principal reason for the government's

The item of $18,202.19 allowed for defalcations of the Indian agents is not disputed.

[2, 3] The government contests the allowance for the stock cattle upon the ground that the fact that they were in bad condition when they reached the reservation is not sufficient to show that they were in such condition when purchased; it being suggested that their defective condition upon reaching the reservation may have been due to the rigors and hardships of the drive from the market to the reservation. We cannot so interpret the finding, deeming its necessary import to be that the cattle either were in bad condition when purchased or were badly cared for on the way to the reservation. In either event the fault lay with the agents of the United States, and the Indians were entitled to credit for the sum allowed on this ac

count.

*281

[4-6] The allowance for the infirmary is

disputed upon the ground that the treaties, fairly construed, gave authority for expending moneys of the Omahas for this purpose, especially the very general language of article 4 of the treaty of 1854, authorizing the President to expend a part of the fund "for such beneficial objects as in his judgment

will be calculated to advance them in civiliWe Zation" and "for medical purposes." construe the finding, "This building was not used, and it was not such a building as was contemplated by the treaties," as meaning, not that a building of this general character was not contemplated, but that the particular building was not what it ought to have been, and not suitable for the use of the Indians. So construed, it is either a finding

*280

appeal lay in the award to the tribe of $94,739.54 for the excess land north of the divid-upon a mere question of fact, or at most a ing line mentioned in the treaty; it having finding of mixed fact and law, where the been contended in the court below that the question of law is inseparable. In the latter tribe owned none of that land. The Court of case, as in the former, the finding, on familClaims having found to the contrary, the iar principles, is not reviewable. Ross v. government moved this court, after taking | Day, 232 U. S. 110, 116, 117, 34 Sup. Ct. 233, appeal, for an order remanding the case, 58 L. Ed. 528, and cases cited. The fact that with directions for further findings on the the building was not used shows that the question. This motion having been overrul- tribe did not accept it, and received no beneed, as well as a counter motion submitted by fit from it. And since, because of its unfitthe claimant for a certification of the entire ness, they were not obliged to accept it, the record to this court, the government concedes expenditure of their money in its construethat it cannot contest the correctness of the tion was a misappropriation of funds of the judgment upon this item. tribe "for purposes not for its material bene

(40 Sup.Ct.)

fit," within the meaning of the jurisdictional respect to the land north of the line as to act. We affirm the allowance of this item. that south of it. In both cases there was [7] Upon the cross-appeal, assignments of *283 error are based upon the disallowance of interest. As to the $94,739.54 awarded for the land north of the dividing line in excess of 300,000 acres, it is contended that payment of this consideration was a concurrent condition of the passing of title to the United States, and as equity considers that as done which ought to be done the purchase money was, potentially, in the Treasury of the United States as a trust fund, and ought to be treated as if invested for the benefit of the Indians at 5 per cent. interest, under

*simply a present cession, with a covenant for payment of the consideration thereafter, no mention being made of interest. Clearly, the provision of section 177, Judicial Code (Comp. St. § 1168), is applicable:

*282

Rev. Stat. *§§ 2095, 2096, and 3659 (Comp. St. §§ 4073, 4074, 6667), or, in the alternative, that the assumption by the United States of title to the land without compliance with the concurrent condition of payment to the Indians and its sale by the United States to settlers was a breach of trust, requiring the

United States to account to the Omahas for the minimum sale price of $1.25 per acre. But the provisions of articles 1 and 4 of the treaty show that the theory that the passing of title was conditioned upon the payment of the consideration money, or any part of it, is untenable; hence there was no such trust as is asserted, and the price of the land was fixed by the treaty itself. By article 1 there was a cession in præsenti of the land south of the described line, with a proviso that if upon exploration the country north of the line did not prove to be a satisfactory and suitable location for the Indians the President might, with their consent, set apart and assign to them a suitable residence, in which case all of the country belonging to them north of the line "shall be and is hereby ceded to the United States by the said Indians, they to receive the same rate per acre for it, less the number of acres assigned in lieu of it for a home, as now paid for the land south of said line." By article 4 the consideration money for the principal cession was to be paid in the future, and either paid to the Indians direct or expended for their use and benefit from time to time, in the discretion of the President; and, by fair construction, the money that the Indians were to receive under article 1 for the additional cession of the land north of the line, in the event of such cession taking effect, was subject to the same terms as to payment, at least to the extent that it was for the President to determine in his discretion whether it should be paid in cash to the Omahas or expended for their benefit "from time to time." Clearly, an intent to defer passing of title until payment of consideration is negatived, and this as truly with

"No interest shall be allowed on any claim up to the time of the rendition of judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest."

[8] It is contended, however, both as to the award for the excess land and as to another claim allowed, that as the jurisdictional

act calls for the consideration of equitable as well as legal claims, the ordinary rule of equity ought to be followed as to the allowance of interest; Himely v. Rose, 5 Cranch. 313, 319, 3 L. Ed. 111, being cited. But the jurisdictional act cannot be regarded as taking the case out of the usual rule. Tillson

a

v. United States, 100 U. S. 43, 46, 25 L. Ed. 543; Harvey v. United States, 113 U. S. 243, 249, 5 Sup. Ct. 485, 28 L. Ed. 987. Nor does United States v. Old Settlers, 148 U. S. 427, 13 Sup. Ct. 650, 37 L. Ed. 509, support the claim for interest, for there the particular question was a subject of difference in the negotiation that preceded the treaty; clause of the treaty itself provided that it should be submitted to the Senate of the United States for decision; the Senate allowed interest; and its determination was accepted by the United States as valid and binding. This court held that the decision of the Senate was controlling, and that therefore interest must be allowed upon that part of the claim to which it applied. See 148 U. S. 433, 449, 451, 452, 478, 13 Sup. Ct. 650, 37 L. Ed. 509.

The contention of claimant that the Court

(253 U. S. 206) strued to apply to this case is void under the FORT SMITH & W. R. CO. et al. v. MILLS Fifth Amendment to the Constitution. The

et al.

bill was dismissed by the District Court, on (Argued December 13, 1917. Decided June 1, motion, for want of equity, and the plaintiffs 1920.)

appealed.

No. 42.

The Act in question, known as the Adamson Law, was passed to meet the emergency created by the threat of a general railroad strike. It fixed eight hours as a day's work and provided that for some months, pending an investigation, the compensation of employees of railroads subject to the Act to Regulate Commerce should not be "reduced below the present standard day's wage," and that time in excess of eight hours should be paid for pro rata at the same rate. The time has expired long since but the rights of the parties require a decision of the case.

In Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1017E, 938, Ann. Cas. 1918A, 1024, it was decided that the Act was within the constitutional power of Congress to regulate commerce among the States; that since, by virtue of the organic interdependence of different parts of the

Appeal from the District Court of the United States for the Western District of Union, not only comfort but life would be enArkansas. dangered on a large scale if interstate railSuit by the Fort Smith & Western Rail-road traffic suddenly stopped, Congress could road Company and another against Arthur meet the danger of such a stoppage by legis L. Mills, receiver of the Fort Smith & West-lation, and that, in view of the public interern Railway Company, and another. From est, the mere fact that it required an expenda decree dismissing the bill, complainants iture to tide the country over the trouble appeal. Reversed. would not of itself alone show a taking of

Messrs. A. C. Dustin and C. M. Horn, both property without due process of law. It was of Cleveland, Ohio, for appellants.

Mr. Assistant Attorney General Frierson, for appellees.

MASTER AND SERVANT 69-INSOLVENT RAIL-
ROAD'S WAGE Agreement helD NOT FORBID-

DEN BY FEDERAL ACT.

The Act Sept. 3, 5, 1916 (Comp. St. §§ 8680a-8680d), providing that the compensation of employés of interstate railroads should not be reduced below the then standard and that time in excess of eight hours should be paid for pro rata, did not forbid the doing of work by mutual consent at a less price than the rates laid down, in the case of an insolvent road unable or barely able to pay its way without impairing the mortgage security, where the employés were not merely refraining from demands under the act but, appreciating the situation, desirous of keeping on at the rates fixed by agreement.

Mr. Justice HOLMES delivered the opin

ion of the Court.

This is a bill in equity brought by the Fort Smith and Western Railroad Company and the trustee of a mortgage given to secure bonds of that road, to enjoin the receiver of the road from conforming to the Act of Sep

tember 3, 5, 1916, c. 436; 39 Stat. 721 (Comp:

St. §§ 8680a-8680d), in respect of hours of service and wages, and to enjoin the District Attorney of the United States from proceed

*208

*held that these principles applied no less when the emergency was caused by the combined action of men than when it was due

to a catastrophe of nature; and that the expenditure required was not necessarily un

constitutional because it took the form of requiring the railroad to pay more, as it might have required the men to take less, during the short time necessary for an investigation ordered by the law.

But the bill in Wilson v. New raised only

the general objections to the Act that were common to every railroad. In that case it was not necessary to consider to what ex*207 tremes the law might be carried or what ing to enforce the Act. The bill alleges that were its constitutional limits. It was not the physical property is worth over $7,000,- decided, for instance, that Congress could 000, but that no dividends ever have been or did require a railroad to continue in buspaid upon the stock, that no interest has iness at a loss. See Brooks-Scanlon Co. v. been paid upon the bonds since October 1, Railroad Commission of Louisiana, 251 U. S. 1907, and that there is a yearly deficit in 396, 40 Sup. Ct. 183, 64 L. Ed. —. It was not the earnings of the road. The receiver was decided that there might not be circumstanc appointed in proceedings to foreclose the es to which the Act could not be applied conmortgage. The bill further alleges that the sistently with the Fifth Amendment, or that railroad now (1917) is being carried on under the Act in spite of its universal language an agreement with the men which the men must be construed to reach literally every desire to keep, but that the receiver, yield- carrier by railroad subject to the Act to Reging to the threats of the District Attorney ulate Commerce. It is true that the first to prosecute him unless he does so, purposes section of the statute purports to apply to substitute the much more onerous terms to any such carrier, and the third to of the Act. It is set up that the Act if con- the compensation of railway employees sub

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