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could not have given so broad a meaning | limited in its applicability to institutions to those words, because they are in a sec- incorporated under the free banking act, a tion treating of crimes, and the rule of question will then be whether the selection strict construction, which is universal in of officers of those institutions and subjectrespect to criminal statutes, forbids its ex- ing them to punishment, when the officers tension to institutions other than those in- of all other banking institutions, guilty of corporated under the act of which it is a similar offenses, are not so subject, is a part; because the title of the original act, denial of the equal protection of the laws. “An Act to Authorize Free Banking,” limits The power of a state legislature to select the scope of the statute, and therefore the certain individuals for the operation of a applicability of every section therein; and, statute is not an arbitrary power, one that further, that, as the free banking act, as it can exercise without regard to any prinoriginally passed, was only to be in force ciple of classification. And yet there is a until the year 1872, it is improbable that a power of selection. The 14th Amendment criminal provision of general application was not designed to prevent all exercise of should be inserted in an act so limited in judgment by a state legislature of what the matter of time. On the other hand, it the interests of the state require, and to is contended by the defendant in error that compel it to run all its laws in the channels the words in § 30, "any banking company," of general legislation. It may deem that embrace all banking institutions in the state social and business conditions, without of Ohio, whether incorporated under the penal legislation, afford ample protection to free banking act or not, and this because the public against wrongdoing by certain the words themselves are broad and com- officials, while such

while such legislation may be prehensive, because there is no other pro- deemed necessary for like protection against vision in the statutes for punishing those wrongdoing by other officials charged with who commit the offenses named in said sec- substantially similar duties. The duties of tion, and it cannot be supposed that the a county or city treasurer may be very like legislature intended that other like officials those of the treasurer of a charitable or should be immune from punishment, and business corporation, and yet if the legislaalso because § 30, both in the original act ture prescribed penalties for misconduct of and also in the Revised Statutes, has no ap- the former, and none for similar misconparent connection with, in no way modifies duct of the latter, it would be giving the or affects, any other sections, and might as Amendment extreme force to make it efwell have been placed in the criminal code ficient to overthrow the statute and thus or by itself in the statutes.

relieve all treasurers from punishment. In are not called upon to decide short, the selection, in order to become obwhich is the correct interpretation. The noxious to the 14th Amendment, must be supreme court of a state is the ultimate arbitrary and unreasonable; not merely tribunal to determine the meaning of its possibly, but clearly and actually so. Carlocal statutes. We are not to assume that roll v. Greenwich Ins. Co. 199 U. S. 401, that which seems more reasonable to us also 411, 50 L. ed. 246, 250, 26 Sup. Ct. Rep. seemed more reasonable to and was adopted 66. Would the singling out for punishby it. Before we can pronounce its judgment of the officers of the free banks be ment in conflict with the Federal Constitu- an arbitrary selection?

arbitrary selection? The free banks, tion it must be made to appear that its though they may be like other banking indecision

necessarily in conflict.stitutions, are not in all respects the same. therewith, and not that possibly, or even But here, too, we are not called upon for probably, it was. It surely is not un- an absolute decision, nor do we deem it worthy of consideration that the legisla- necessary to determine whether there be ture, having before it the question of pun- such differences as will sustain the imposiishment for offenses committed by banking tion of punishment of their officers, when officers, having made provision therefor by none is cast upon the like officers of other one section in which it used the term "any banks. We only refer to these matters to banking company,” may have believed that indicate that there were at least two questhereby it had included in its punitive pro- tions before the supreme court involving visions all banking institutions, and that the validity of g 30, one of which, at least, a repetition of that section in other statutes presents no matter of a Federal nature, and was unnecessary. We do not decide that in respect to each of which something may this was so, but we do hold that, in view be said one way and the other, and until it of the silence of the supreme court, we are is shown what the supreme court did, in not justified in assuming that it held that fact, decide, it is impossible to hold that the it was not so.

section, as construed by it, is in conflict Further, if we assume that the supreme with the Federal Constitution. court was of the opinion that § 30 was Under those circumstances it is clear that

But we

was

one

V.

we have no jurisdiction (Johnson v. Risk, | fault for a collision, to enforce contribution 137 U. S. 300, 34 L. ed. 683, 11 Sup. Ct. Rep. on account of its payment of the entire 111, and cases cited in opinion), and the damage to the cargo of the other vessel. writ of error is dismissed.

Contribution-between vessels in fault for collision.

2. The right of one of two vessels which

were both in fault for a collision to enforce CORWIN D. BACHTEL, Plff. in Err.,

contribution where it has paid the entire

damage to the cargo of the other vessel is R. FRANK WILSON, Sheriff of Stark Coun- not affected by provisions in the latter vesty, Ohio. (No. 447.)

sel's bills of lading, giving her the benefit

of insurance, and fixing the time within HARVEY H. MILLER, Piff. in Err.,

which claims for damage must be made and

suits therefor instituted. R. FRANK WILSON, Sheriff of Stark Coun

Judgment-res judicata.

3. A decree dividing the damage susty, Ohio. (No. 448.)

tained by two vessels held in fault for a WILLIAM L. DAVIS, Piff. in Err.,

collision, but refusing to divide the dam

ages to cargo, because that question was not R. FRANK WILSON, Sheriff of Stark Coun-open under the pleadings, does not prevent

the vessel which has been compelled to pay ty, Ohio. (No. 449.)

the entire cargo damage from bringing a

libel in admiralty against the other vessel CHARLES H. VAN HORN, Piff. in Err.,

to enforce contribution. V. R. FRANK WILSON, Sheriff of Stark County, Ohio. (No. 450.)

[No. 134.]

V.

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These cases are governed by the de- Argued December 14, 1906. Decided Janu. cision in Bachtel v. Wilson, ante, p. 243.

ary 14, 1907.

I

[Nos. 447, 448, 449, 450.]

WRIT of Certiorari to the United ON

States Circuit Court of Appeals for the Argued November 14, 15, 1906. Decided Seventh Circuit to review a decree which January 7, 1907.

reversed a decree of the District Court for

the Northern District of Illinois, enforcing N ERROR to the Supreme Court of the contribution to cargo damage between two

State of Ohio to review four separate vessels held in fault for a collision, and judgments which affirmed judgments of the

ordered the libel dismissed. Decree of Circuit Court of Stark County, in that Circuit Court of Appeals reversed and that state, dismissing writs of habeas corpus of the District Court affirmed. sued out by officers of a bank incorporated

See same case below, 142 Fed. 9. under the free banking act of that state,

The facts are stated in the opinion. who had been indicted for violations of such

Messrs. Charles E. Kremer and W. 0. act. Dismissed.

Johnson for petitioner. Mr. William A. Lynch for plaintiffs in

Messrs. Harvey D. Goulder, Frank S. Maserror.

ten, and S. H. Holding for respondent. Messrs. Charles C. Upham and John W. Craine for defendant in error.

Mr. Justice Holmes delivered the opinion

of the court: Mr. Justice Brewer delivered the opinion This is a libel in admiralty, brought by of the court:

the petitioner as successor

in corporate The same question controls these cases as identity to the Union Steamboat Company, the one just decided, and, for the reasons to recover a part of a sum paid by it to the given in the foregoing opinion, they are dis- respondent as the result of previous admissed.

miralty proceedings which came before this court several times. The former proceed

ings were begun by the respondent, as ERIE RAILROAD COMPANY, Petitioner. owner of the propeller Conemaugh and

bailee of her cargo, to recover for damages ERIE & WESTERN TRANSPORTATION to both by a collision between her and COMPANY.

the propeller New York. After hearings

below (53 Fed. 553, 27 C. C. A. 154, 54 U. Admiralty jurisdiction—suit to enforce contribution.

S. App. 248, 82 Fed. 819, 30 C. C. A. 628, 1. A court of admiralty has jurisdic- 56 U. S. App. 146, 86 Fed. 814) it was detion of a libel brought by one of two ves-cided by this court, on certiorari, that both sels, which were both adjudged to be in vessels were in fault, and that the repre

V.

sentatives of the cargo could recover their their own system, and to finish the adjustwhole damages from the New York. The ment of maritime rights and liabilities. In. New York, 175 U. S. 187, 44 L. ed. 126, 20 deed, we imagine that this would not have Sup. Ct. Rep. 67. Thereupon the district been denied very strenuously had the quescourt entered a decree dividing the damages tion been raised by proper pleadings in consustained by the steamers, requiring the nection with the original suit. But if the New York to pay to the Conemaugh on right is not barred by the former decree, it that account $13,083.33 and interest, and would be still more anomalous to send the further required it to pay all the damages parties to a different tribunal to secure that to the cargo of the latter,-the insurers on right at this stage. For the decree was cargo who had intervened receiving their correct as far as it went, and, by the hy. share, and the Conemaugh receiving the pothesis, might stop where it did without residue as trustee. The owners of the New impairing the claim to contribution. That York then applied to this court for a man claim is of admiralty origin and must be damus directing the district court to divide satisfied before complete justice is done. the damages to cargo. This was denied on It cannot be that, because the admiralty the ground that, if the court below erred, has carried out a part of its theory of justhe remedy was by appeal. Ex parte Union tice, it is prevented by that fact alone from S. B. Co. 178 U. S. 317, 44 L. ed. 1084, 20 carrying out the rest. See The Mariska, 47 Sup. Ct. Rep. 904. Upon that intimation C. C. A. 115, 107 Fed. 989. an appeal was taken to the circuit court of On the merits also we have no great diffiappeals for the sixth circuit, and after a culty. The rule of the common law, even, motion to dismiss had been denied (44 C. that there is no contribution between C. A. 38, 104 Fed. 561) the decree was af- wrongdoers, is subject to exception. Pol. firmed (47 C. C. A. 232, 108 Fed. 102). On lock, Torts, 7th ed. 195, 196. Whatever its a second certiorari that decree was affirmed origin, the admiralty rule in this country by this court. 189 U. S. 363, 47 L. ed. 854, is well known to be the other way. The 23 Sup. Ct. Rep. 504. The New York paid North Star (Reynolds v. Vanderbilt) 106 the damages and brought this suit.

U. S. 17, 27 L. ed. 91, 1 Sup. Ct. Rep. 41; The ground of the last-mentioned decree The Sterling (The Sterling v. Petersen) was that the claim of the New York was 106 U. S. 647, 27 L. ed. 98, 1 Sup. Ct. Rep. not open, and the circuit court of appeals 89; Admiralty rule, 59. Compare The denied leave to amend the pleadings, for the Frankland [1901] P. 161. And it is estabreason that the petitioner would be left lished, as it logically follows, that the divifree to assert its claim in an independent sion of damages extends to what one of the proceeding. 47 C. C. A. 232, 108 Fed. 107. parties pays to the owners of cargo on In the present case the district court fol. board the other. The Chattahoochee, 173 lowed this expression of the circuit court U. S. 540, 43 L. ed. 801, 19 Sup. Ct. Rep. 491. of appeals, and made a decree giving the The right to the division of the latter elepetitioner one half of the damages paid by ment does not stand on subrogation, but it on account of cargo. The circuit court arises directly from the tort. The liability of appeals for the seventh circuit, however, of the New York, under our practice, for all before which the present case came on ap- the damage to cargo, was one of the consepeal, held that the whole matter was res quences plainly to be foreseen, and, since judicata by the final decree in the former the Conemaugh was answerable to the New cause, and ordered the libel dismissed. 142 York as a partial cause of the tort, its reFed. 9. Thereupon a third certiorari was sponsibility extended to all the manifest granted by this court, and the record is consequences for which, on the general now before us.

ground that they were manifest, the New The respondent set up three defenses, be. York could be held. Therefore the conlow and here. It argued that there was tract relations between the Conemaugh and no jurisdiction in admiralty over the claim her cargo have nothing to do with the case. in its present form, that the petitioner had See The Chattahoochee, supra. More speno case upon the merits, and that it was cifically, the last-named vessels liability to concluded by the former decree. The cir- the New York is not affected by provisions cuit court of appeals decided against the in the Conemaugh’s bills of lading, giving first two points before sustaining the third. her the benefit of insurance, and requiring We shall take them up in their order. The notice of any claim for damage to be made jurisdiction appears to us tolerably plain. in writing within thirty days, and suit to If it be assumed that the right to con- be brought within three months. tribution is an incident of the joint lia- It only remains, then, to consider whether bility in admiralty, and is not res judicata, the petitioner is concluded by the former it would be a mere historical anomaly if the decree. If the liability of the Conemaugh admiralty courts were not free to work out' arises, as we have said, out of the tort,

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then it is said to follow that the New Yorkers might sue, some time within six years, either is attempting to split up its cause of and suspend the decree on the ground that action, or to recover in excess of a decree otherwise the defendant might be barred covering the case. It is true that the New from demanding indemnity in case the cargo York was the defendant in the former suit, owners should sue and succeed.

If cargo but the damage to the New York was al- owners should sue one or the other vessels lowed for in the division. If the allow after a division of the damages to the vesance was by way of recoupment, then it sels themselves, it must be that the libellee may be said that the New York, by assert- would be free to require the other to exing a counterclaim for its damages, bound onerate or indemnify it to the same extent itself to present its whole claim to the same as if no such division had taken place. It extent as if it had brought the suit; at would be impossible to do justice otherleast, until it had neutralized the claim wise. As to the English law, see Stoommade against it in the Conemaugh's own vaart Maatschappy Nederland v. Peninsular right. If the allowance was because divi- & O. Steam Nav. Co. L. R. 7 App. Cas. 795, sion is the very form and condition of any 806. claim for damage to vessels in case of If we are right, then this is a strong case mutual fault (The North Star, supra; for holding that the petitioner is not barred. Stoomvaart Maatschappy Nederland v. It stands adjudicated that its pleadings did Peninsular & O. Steam Nav. Co. L. R. 7 not open its present claim. They could not App. Cas. 795, 801, 806), and the mutual have done so, because, at that stage, the rights cancel each other pro tanto as they petitioner not having paid, it had no claim arise, just as in an account current, as dis- for indemnity, but only for exoneration. tinguished from set-off, then it might be It was not bound to adopt the procedure contended that the claim in respect of the permitted to it by rule 59. It did ask leave payment of damage to cargo is an item in to amend so as to protect its rights, but the same account with the one for damage was met by the argument of the respondent to the ship, and that a decree as to one in- and the opinion of the circuit court of apvolves a disposition of the other, and makes peals that it could bring a new suit. This the whole matter res judicata. See The court said the same thing in affirming the Manitoba (Beatty v. Hanna), 122 U. S. 97, decree against the New York. "If, as be111, 30 L. ed. 1095, 1100, 7 Sup. Ct. Rep. tween her and the Conemaugh, she have a 1158.

claim for recoupment, the way is open to But, whatever be the technical theory, recover it.” 189 U. S. 368, 47 L. ed. 857, 23 the right of a defendant to a division of Sup. Ct. Rep. 504. The same proposition the damage to the vessels when both are in was implied in The Juniata (United States fault, and its contingent claim to partial in- v. Juniata), 93 U. S. 337, 340, 23 L. ed. 930, demnity for payment of damage to cargo, 931. Every consideration leads us to admust be separable, from the necessity of here to this statement in the circumstances to case. To illustrate. Suppose, in a case of the case at bar. of collision, one vessel to be sued for dam- Decree of Circuit Court of Appeals reage to the other vessel alone. It could not versed. set up the possibility that the cargo own- Decree of District Court affirmed

V.

NORTHERN LUMBER COMPANY, Appt., The principal question in the case is

whether the land in dispute was embraced WILLIAM O'BRIEN, Albert J. Lammers, by the grant of public lands made by Conand Mary E. Coffin.

gress July 2d, 1864 (13 Stat. at L. 365, 367, Public lands-railroad land grant-effect of Company, in aid of the construction of a

chap. 217), to the Northern Pacific Railroad prior withdrawal from entry.

1. Land which, at the date of the grant railroad and telegraph line from Lake Suby the act of July 2, 1864 (13 Stat. at. L. perior to Puget sound. If it was not, then 365, 367, chap. 217), to the Northern Pacific the decree of the circuit court dismissing the Railroad Company, was withdrawn of record bill was right, as was that of the circuit for the benefit of the Lake Superior & Mis- court of appeals, affirming that decree. sissippi railroad under the prior grant by By the act of May 5th, 1864 (13 Stat. the act of May 5, 1864 (13 Stat. at L. 64, at 1. 64, chap. 79), Congress made a grant chap. 79), was not “public land” within the of public lands to the state of Minnesota in meaning of the later grant, and did not pass under it when or because it was sub aid of the construction of a railroad from sequently ascertained that such land was St. Paul to the head of Lake Superior. This without the line of the definite location of grant was vested in the Lake Superior & the Lake Superior & Mississippi Railroad, Mississippi Railroad Company, and that and was within the place limits of the company, on the 7th day of May, 1864, filed Northern Pacific Railroad, as defined by its its map of general route. This map was map of definite location, but such land, accepted by the Land Department, and a when freed from the earlier grant, became a part of the public domain, subject only copy was transmitted May 26th, 1864, to to be disposed of under the general land the proper local land office, which was inlaws.*

formed of the approval by the Secretary of Public lands-railroad land grant-sufficien- the Interior of a withdrawal of lands for cy of withdrawal order.

the Lake Superior & Mississippi road, and 2. An order of the Land Department that office was ordered to suspend, and it directing the local land office to suspend did suspend, "from pre-emption, settlement, from pre-emption, settlement, and sale a and sale a body of land about 20 miles in “body of land about 20 miles in width” is width,” as indicated on the above map. The not so uncertain and indefinite as to be land in dispute was within the exterior without legal force as to lands which are lines of this general route of the Lake Sucoterminous and within 10 miles of the line of the general route of the railroad for perior & Mississippi road, as defined by its the benefit of which the order was made, map, and was part of the land so withas such route is defined on a map or dia

drawn. gram to which the order refers.

After the acceptance of the map of gen..

eral route of the Lake Superior & Missis[No. 121.]

sippi Railroad, and after the withdrawal

by the Land Department, for the benefit of Argued and submitted December 7, 1906. that company, of the lands covered by that Decided January 14, 1907.

map, Congress, by the above act of July 2d, PPEAL from the United States Circuit declared that there be, and hereby is, grant

1864 (13 Stat. at L. 365, 367, chap. 217), A

Court of Appeals for the Eighth Circuited to the Northern Pacific Railroad Comto review a decree which affirmed a decree of the Circuit Court for the District of Min. pany,' its successors and assigns, for the nesota, dismissing a bill to enjoin the cut- said railroad and telegraph line to the Pa

purpose of aiding in the construction of ting or removing of standing timber from cific coast, and to secure the safe and speedy certain land to which complainant claims ti transportation of the mails, troops, munitle under the Northern Pacific Railroad land tions of war, and public stores, over the grant. Affirmed.

route of said line of railway, every alternate See same case below, 139 Fed. 614.

section of public land, not mineral, desigThe facts are stated in the opinion.

nated by odd numbers, to the amount of Messrs. Charles W. Bunn and James B.

twenty alternate sections per mile, on each Kerr for appellant.

side of said railroad line, as said company Mr. J. N. Searles for appellees.

may adopt, through the territories of the

United States, and ten alternate sections of Mr. Justice Harlan delivered the opinion land per mile on each side of said railof the court:

road whenever it passes through any state, This suit involves the title to the south and whenever, on the line thereof, the Unithalf of the southeast quarter of section ed States have full title, not reserved, sold, twenty-seven, township fifty-two north, granted, or otherwise appropriated, and free range fifteen west, in the state of Minne- from pre-emption or other claims or rights, sota,

at the time the line of said road is definite

*Ed. Note.-For cases in point, see vol. 41, Cent, Dig. Public Lands, $8 237-239,

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