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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 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 But we 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? The free banks, tion it must be made to appear that its though they may be like other banking indecision was one necessarily in conflict stitutions, are not in all respects the same. therewith, and not that possibly, or even probably, it was. It surely is not unworthy of consideration that the legislature, having before it the question of punishment for offenses committed by banking officers, having made provision therefor by one section in which it used the term "any banking company," may have believed that thereby it had included in its punitive provisions all banking institutions, and that a repetition of that section in other statutes was unnecessary. We do not decide that this was so, but we do hold that, in view of the silence of the supreme court, we are not justified in assuming that it held that it was not so.

Further, if we assume that the supreme court was of the opinion that § 30 was

But here, too, we are not called upon for an absolute decision, nor do we deem it necessary to determine whether there be such differences as will sustain the imposition of punishment of their officers, when none is cast upon the like officers of other banks. We only refer to these matters to indicate that there were at least two questions before the supreme court involving the validity of § 30, one of which, at least, presents no matter of a Federal nature, and in respect to each of which something may be said one way and the other, and until it is shown what the supreme court did, in fact, decide, it is impossible to hold that the section, as construed by it, is in conflict with the Federal Constitution.

Under those circumstances it is clear that

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. 111, and cases cited in opinion), and the writ of error is dismissed.

CORWIN D. BACHTEL, Plff. in Err.,

V.

R. FRANK WILSON, Sheriff of Stark ty, Ohio. (No. 447.)

on account of its payment of the entire damage to the cargo of the other vessel. 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 contribution where it has paid the entire damage to the cargo of the other vessel is Counsel's bills of lading, giving her the benefit not affected by provisions in the latter vesof insurance, and fixing the time within which claims for damage must be made and suits therefor instituted.

HARVEY H. MILLER, Plff. in Err.,

V.

R. FRANK WILSON, Sheriff of Stark County, Ohio. (No. 448.)

WILLIAM L. DAVIS, Plff. in Err.,

V.

Judgment-res judicata.

3. A decree dividing the damage sustained by two vessels held in fault for a collision, but refusing to divide the damages to cargo, because that question was not open under the pleadings, does not prevent

R. FRANK WILSON, Sheriff of Stark Coun- the vessel which has been compelled to pay

ty, Ohio. (No. 449.)

CHARLES H. VAN HORN, Plff. in Err.,

V.

R. FRANK WILSON, Sheriff of Stark County, Ohio. (No. 450.)

the entire cargo damage from bringing a libel in admiralty against the other vessel to enforce contribution.

[No. 134.]

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

I

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

ΟΝ

ary 14, 1907.

N WRIT of Certiorari to the United States Circuit Court of Appeals for the

Argued November 14, 15, 1906. Decided Seventh Circuit to review a decree which

January 7, 1907.

N ERROR to the Supreme Court of the State of Ohio to review four separate judgments which affirmed judgments of the Circuit Court of Stark County, in that state, dismissing writs of habeas corpus sued out by officers of a bank incorporated under the free banking act of that state, who had been indicted for violations of such act. Dismissed.

Mr. William A. Lynch for plaintiffs in

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reversed a decree of the District Court for the Northern District of Illinois, enforcing vessels held in fault for a collision, and contribution to cargo damage between two ordered the libel dismissed. Decree of

Circuit Court of Appeals reversed and that of the District Court affirmed.

See same case below, 142 Fed. 9. The facts are stated in the opinion. Messrs. Charles E. Kremer and W. O. Johnson for petitioner.

Messrs. Harvey D. Goulder, Frank S. Masten, and S. H. Holding for respondent.

Mr. Justice Holmes delivered the opinion of the court:

This is a libel in admiralty, brought by the petitioner as successor in corporate identity to the Union Steamboat Company, to recover a part of a sum paid by it to the respondent as the result of previous admiralty proceedings which came before this court several times. The former proceedings were begun by the respondent, as owner of the propeller Conemaugh and bailee of her cargo, to recover for damages to both by a collision between her and the propeller New York. After hearings below (53 Fed. 553, 27 C. C. A. 154, 54 U. S. App. 248, 82 Fed. 819, 30 C. C. A. 628, 56 U. S. App. 146, 86 Fed. 814) it was decided by this court, on certiorari, that both vessels were in fault, and that the repre

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. InNew 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 hyshare, 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 appeals for the sixth circuit, and after a motion to dismiss had been denied (44 C. C. A. 38, 104 Fed. 561) the decree was affirmed (47 C. C. A. 232, 108 Fed. 102). On a second certiorari that decree was affirmed by this court. 189 U. S. 363, 47 L. ed. 854, 23 Sup. Ct. Rep. 504. The New York paid the damages and brought this suit.

The ground of the last-mentioned decree was that the claim of the New York was not open, and the circuit court of appeals denied leave to amend the pleadings, for the reason that the petitioner would be left free to assert its claim in an independent proceeding. 47 C. C. A. 232, 108 Fed. 107. In the present case the district court followed this expression of the circuit court of appeals, and made a decree giving the petitioner one half of the damages paid by it on account of cargo. The circuit court of appeals for the seventh circuit, however, before which the present case came on appeal, held that the whole matter was res judicata by the final decree in the former cause, and ordered the libel dismissed. 142 Fed. 9. Thereupon a third certiorari was granted by this court, and the record is now before us.

The respondent set up three defenses, below and here. It argued that there was no jurisdiction in admiralty over the claim in its present form, that the petitioner had no case upon the merits, and that it was concluded by the former decree. The circuit court of appeals decided against the first two points before sustaining the third. We shall take them up in their order. The jurisdiction appears to us tolerably plain. If it be assumed that the right to contribution is an incident of the joint liability in admiralty, and is not res judicata, it would be a mere historical anomaly if the admiralty courts were not free to work out

The

On the merits also we have no great difficulty. The rule of the common law, even, that there is no contribution between wrongdoers, is subject to exception. Pollock, Torts, 7th ed. 195, 196. Whatever its origin, the admiralty rule in this country is well known to be the other way. North Star (Reynolds v. Vanderbilt) 106 U. S. 17, 27 L. ed. 91, 1 Sup. Ct. Rep. 41; The Sterling (The Sterling v. Petersen) 106 U. S. 647, 27 L. ed. 98, 1 Sup. Ct. Rep. 89; Admiralty rule, 59. Admiralty rule, 59. Compare The Frankland [1901] P. 161. And it is established, as it logically follows, that the division of damages extends to what one of the parties pays to the owners of cargo on board the other. The Chattahoochee, 173 U. S. 540, 43 L. ed. 801, 19 Sup. Ct. Rep. 491. The right to the division of the latter element does not stand on subrogation, but arises directly from the tort. The liability of the New York, under our practice, for all the damage to cargo, was one of the consequences plainly to be foreseen, and, since the Conemaugh was answerable to the New York as a partial cause of the tort, its responsibility extended to all the manifest consequences for which, on the general ground that they were manifest, the New York could be held. Therefore the contract relations between the Conemaugh and her cargo have nothing to do with the case. See The Chattahoochee, supra. More specifically, the last-named vessel's liability to the New York is not affected by provisions in the Conemaugh's bills of lading, giving her the benefit of insurance, and requiring notice of any claim for damage to be made in writing within thirty days, and suit to be brought within three months.

It only remains, then, to consider whether the petitioner is concluded by the former decree. If the liability of the Conemaugh arises, as we have said, out of the tort,

and suspend the decree on the ground that otherwise the defendant might be barred from demanding indemnity in case the cargo owners should sue and succeed. If cargo owners should sue one or the other vessels after a division of the damages to the vessels themselves, it must be that the libellee would be free to require the other to exonerate or indemnify it to the same extent as if no such division had taken place. It would be impossible to do justice otherwise. As to the English law, see Stoomvaart Maatschappy Nederland v. Peninsular & O. Steam Nav. Co. L. R. 7 App. Cas. 795, 806.

then it is said to follow that the New York | ers might sue, some time within six years, either is attempting to split up its cause of action, or to recover in excess of a decree covering the case. It is true that the New York was the defendant in the former suit, but the damage to the New York was allowed for in the division. If the allowance was by way of recoupment, then it may be said that the New York, by asserting a counterclaim for its damages, bound itself to present its whole claim to the same extent as if it had brought the suit; at least, until it had neutralized the claim made against it in the Conemaugh's own right. If the allowance was because division is the very form and condition of any claim for damage to vessels in case of mutual fault (The North Star, supra; Stoomvaart Maatschappy Nederland v. Peninsular & O. Steam Nav. Co. L. R. 7 App. Cas. 795, 801, 806), and the mutual rights cancel each other pro tanto as they arise, just as in an account current, as distinguished from set-off, then it might be contended that the claim in respect of the payment of damage to cargo is an item in the same account with the one for damage to the ship, and that a decree as to one involves a disposition of the other, and makes the whole matter res judicata. See The Manitoba (Beatty v. Hanna), 122 U. S. 97, 111, 30 L. ed. 1095, 1100, 7 Sup. Ct. Rep. 1158.

But, whatever be the technical theory, the right of a defendant to a division of the damage to the vessels when both are in fault, and its contingent claim to partial indemnity for payment of damage to cargo, must be separable, from the necessity of to case. To illustrate. Suppose, in a case of collision, one vessel to be sued for damage to the other vessel alone. It could not set up the possibility that the cargo own

If we are right, then this is a strong case for holding that the petitioner is not barred. It stands adjudicated that its pleadings did not open its present claim. They could not have done so, because, at that stage, the petitioner not having paid, it had no claim for indemnity, but only for exoneration. It was not bound to adopt the procedure permitted to it by rule 59. It did ask leave to amend so as to protect its rights, but was met by the argument of the respondent and the opinion of the circuit court of appeals that it could bring a new suit. This court said the same thing in affirming the decree against the New York. "If, as between her and the Conemaugh, she have a claim for recoupment, the way is open to recover it." 189 U. S. 368, 47 L. ed. 857, 23 Sup. Ct. Rep. 504. The same proposition was implied in The Juniata (United States v. Juniata), 93 U. S. 337, 340, 23 L. ed. 930, 931. Every consideration leads us to adhere to this statement in the circumstances of the case at bar.

Decree of Circuit Court of Appeals reversed.

Decree of District Court affirmed.

NORTHERN LUMBER COMPANY, Appt.,

V.

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.

Public lands-railroad land grant-effect of prior withdrawal from entry.

1. Land which, at the date of the grant by the act of July 2, 1864 (13 Stat. at. L. 365, 367, chap. 217), to the Northern Pacific Railroad Company, was withdrawn of record for the benefit of the Lake Superior & Mississippi railroad under the prior grant by the act of May 5, 1864 (13 Stat. at L. 64, chap. 79), was not "public land" within the meaning of the later grant, and did not pass under it when or because it was subsequently ascertained that such land was without the line of the definite location of the Lake Superior & Mississippi Railroad, and was within the place limits of the Northern Pacific Railroad, as defined by its map of definite location, but such land, when freed from the earlier grant, became a part of the public domain, subject only to be disposed of under the general land laws.*

Public lands-railroad land grant-sufficiency of withdrawal order.

2. An order of the Land Department directing the local land office to suspend from pre-emption, settlement, and sale a "body of land about 20 miles in width" is not so uncertain and indefinite as to be without legal force as to lands which are coterminous and within 10 miles of the line of the general route of the railroad for the benefit of which the order was made, as such route is defined on a map or diagram to which the order refers.

[No. 121.]

gress July 2d, 1864 (13 Stat. at L. 365, 367, chap. 217), to the Northern Pacific Railroad Company, in aid of the construction of a railroad and telegraph line from Lake Superior to Puget sound. If it was not, then the decree of the circuit court dismissing the bill was right, as was that of the circuit court of appeals, affirming that decree.

By the act of May 5th, 1864 (13 Stat. at L. 64, chap. 79), Congress made a grant of public lands to the state of Minnesota in aid of the construction of a railroad from St. Paul to the head of Lake Superior. This grant was vested in the Lake Superior & Mississippi Railroad Company, and that company, on the 7th day of May, 1864, filed its map of general route. This map was accepted by the Land Department, and a copy was transmitted May 26th, 1864, to the proper local land office, which was informed of the approval by the Secretary of the Interior of a withdrawal of lands for the Lake Superior & Mississippi road, and that office was ordered to suspend, and it did suspend, "from pre-emption, settlement, and sale a body of land about 20 miles in width," as indicated on the above map. The land in dispute was within the exterior lines of this general route of the Lake Superior & Mississippi road, as defined by its map, and was part of the land so withdrawn.

After the acceptance of the map of general route of the Lake Superior & Mississippi 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

A

Decided January 14, 1907.

to review a decree which affirmed a decree

map, Congress, by the above act of July 2d, PPEAL from the United States Circuit declared "that there be, and hereby is, grant1864 (13 Stat. at L. 365, 367, chap. 217), Court of Appeals for the Eighth Circuited to the Northern Pacific Railroad Comof the Circuit Court for the District of Min-pany,' its successors and assigns, for the nesota, dismissing a bill to enjoin the cut-purpose of aiding in the construction of nesota, dismissing a bill to enjoin the cut- said railroad and telegraph line to the Pating 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 section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is definite

See same case below, 139 Fed. 614.
The facts are stated in the opinion.
Messrs. Charles W. Bunn and James B.
Kerr for appellant.

Mr. J. N. Searles for appellees.

Mr. Justice Harlan delivered the opinion

of the court:

This suit involves the title to the south half of the southeast quarter of section twenty-seven, township fifty-two north, range fifteen west, in the state of Minne

sota.

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

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