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alone; and these criteria therefore must de

The truth is, as pointed out in the argutermine for figured cloths the duty to which ment for the government, that the element. they are liable under paragraphs 306 and of value is woven through the whole tissue 307. You must not alter words in the of the act. The collector does not know interest of the imagined intent, and the what duty to assess, even under 313, withimporters are entitled to the benefit of out a valuation. It cannot be found out even a doubt.

what. "the duty herein provided” is, or In spite of this reasoning, no one, we whether it is specific or ad valorem, withtake it, has any serious doubt that para-out making a valuation under the previous graph 313 was not intended to affect or paragraphs, just as if 313 did not exist. cut down duties already imposed in clear Paragraphs 306 and 307 tell the collector though general terms. The provisos of the to make it on all cotton and to assess a earlier paragraphs are made applicable to duty on all cotton above a certain value “all cotton cloths” of the sorts described, after the valuation is made. Paragraph in so many words. The qualified reading is | 313 assumes the duty imposed by 306 and due to scruples that hardly would occur ex- 307 to have been assessed. As against these cept to the professional mind. As against plain directions, coupled with the manifest those scruples, it is to be observed, in the intent of the act, the failure to mention first place, that the clauses to which we value along with weight raises no serious have referred and their neighbors, to go doubt in our minds. no further into the general scheme of the Decree reversed. tariff act, consistently raise the amount of the tax on cotton cloth as the cloth becomes more expensive, and that it would reverse the tendency and go counter to the intent CHARLES M. TAYLOR, Appt., expressed everywhere else, if, in this in

V. stance, the more valuable goods were with THOMAS BURNS, John A. Duncan, and

S. R. Kauffman. drawn from the general tax imposed upon their class. It is said that, in some cases, Deeds—what constitutes. the construction contended for even would

1. No transfer of title was effected by make the duty on figured cotton of a high an instrument which recites that the party price less than that on cheap cloth.

of the first part "sells” certain mining In the next place, if the language of claims to the party of the second part for a paragraph 313 is not broad enough to ap- specified consideration, and "upon the terms ply to both classes of duty previously im

and consideration following,” and which, in posed, the easier contention would seem to

its subsequent provisions, authorizes the be that the additional duty created by it party of the second part to sell and negoti

ate the mines for any sum above $15,000, was put only upon the first class, that of and retain out of the purchase price seven the cheaper goods taxed by weight, rather eighths of the excess, the party of the first than that it cut down what already had part agreeing to execute any conveyance been made clear. Such a notion would be thereafter necessary to convey a good title, disposed of by the fact that paragraph 313 and the party of the second part assuming applies to all cotton cloth and to all values, no obligations except a general one by which higher as well as lower than seven cents, other in the negotiation and sale; such docuand by other considerations not necessary ment is not a deed, but simply a power of to state. But, if anything had to yield attorney, and, as such, subject to revocait would be paragraph 313.

tion.* The artificial doubt is raised by assum- Power of attorney-revocation. ing that the collector must start with the 2. An interest in the property upon first part of paragraph 313 and find out which the power is to operate, and not what his assessments are to be from that merely an interest in the exercise of the alone. That is a mistake. He has before power, is essential to make a power of athim the whole act. He has been told in torney one coupled with an interest, so as

not to be subject to revocation. the earlier paragraphs in unmistakable language that all cotton cloth with this

[No. 28.] number of threads and above a certain value must pay 30 or 35 cents ad valorem. Then Submitted October 16, 1906. . Decided Nocomes this paragraph, which on its face

vember 12, 1906. purports to make an addition to some tax Which it assumes to have been imposed by APPEAL from the Supreme Court of the the earlier ones. cotton cloths and all values, and it is in which affirmed a decree of the District tended to be added to a tax already imposed. But this would not be the case if the pres- vol. 16, Deeds, $$ 6-9.

*Ed. Note.-For cases in point, see Cent. Dig. ence of a figure in the cloth changed the

Ed. Note.-For cases in point, see Cent. Dig. rate established by the preceding scheme. vol. 40, Principal and Agent, § 55.

Court for the County of Cochise, in that | On February 27, 1903, Thomas Burns territory, in favor of defendants in a suit executed and filed for record a revocation to quiet title to certain mining claims. of all authority given by the agreement to Affirmed.

Taylor, and notified him by letter of such See same case below (Ariz.) 76 Pac. 623. revocation. On April 6, 1903, Taylor filed

his bill of complaint in the district court Statement by Mr. Justice Brewer: for the county of Cochise, territory of Ari

On March 26, 1901, Thomas Burns, the zona, against Burns, Duncan, and Kauffowner of three mining claims, as party of man, alleging that he was the owner of the the first part, and Charles M. Taylor, as mining claims, that defendants claimed to party of the second part, made the follow have some interest in them, and praying to ing agreement:

have his title thereto quieted. The defend“The said party of the first part, in con- ants answered, and also filed a cross bill, sideration of the sum of $1, lawful money alleging in substance that plaintiff had no of the United States of America in hand title whatever, and praying that their title paid, the receipt whereof is hereby acknowl- be quieted as against him.

be quieted as against him. A trial in the edged, and for the further consideration of district court resulted in a decree in favor money and labor heretofore expended and of the defendants, which was affirmed by of labor to be hereafter expended in and the supreme court of the territory (76 Pac. upon the Magnet mining claim, the Comet 623), and thereupon the case was brought mining claim, and the Victor mining claim, here on appeal. situate in the California mining district, in the Chiricahua mountains, Cochise

Mr. Eugene S. Ives for appellant. county, Arizona territory, sells to the said

Mr. William Herring, and Sarah Herring party of the second part the said mining Sorin, for appellees. claims upon the terms and consideration following, to wit:

Mr. Justice Brewer delivered the opinion “The said party of the second part shall of the court:

This case turns upon the scope and efpay to the party of the first part, whenever he shall negotiate, sell, or place said mines fect of the agreement of March 26, 1901. to any assignee of the said party of the It is claimed by plaintiff that it is a consecond part, forty-five thousand dollars veyance, passing title; by defendants, that ($45,000), and in addition thereto

it is simply a power of attorney, subject to

revocation. Its meaning is eighth () of whatever price the said party

to be

deof the second part may be able to seli

, termined by a consideration of all its terms, place, or negotiate the said mines, for a and not by any particular phrase. The first consideration in excess of said $45,000;

recites a paragraph

a consideration, and that is to say, the party of the second part states that for the consideration the first is authorized to sell and negotiate the said party “sells” the claims to the party of the mines for any price above the sum of $45,- second part. If this were all it would sug000, and may retain out of the said pur- gest a purpose to pass title, but the parachase price seven eighths (5) of said sell. graph closes with a reference to further ing price above such sum of $45,000.

stipulations, its language being "sells to "The said parties hereto hereby mutually the said party of the second part the said agree to aid each other in the negotiation mining claims upon the terms and conand sale of said mining claims to the end sideration following, to wit.” The next that the same may be sold and the consider-paragraph authorizes the party of the secation realized as quickly as possible. And ond part to “sell and negotiate” the mines the said party of the first part hereby agrees for any sum above $45,000, and to retain to execute any deed or deeds or conveyances out of this purchase price seven eighths of that may be hereafter necessary to convey the excess of $45,000, while in the last a good title to said mining claims. This paragraph the party of the first part contract is to take the place of and "agrees to execute any deed or deeds or consupersede any and all other contract or veyances that may be hereafter necessary to contracts heretofore made by said parties convey a good title to said mining claims.” hereto with reference to said mining

Nowhere in the instrument does the party claims."

of the second part assume any obligations, On November 9, 1901, Burns deeded a except the general one in the third paraone fourth interest in the mining claims to graph, by which both parties mutually agree John A. Duncan, and on March 9, 1903, to aid each other in the negotiation and Burns and Duncan conveyed the entire sale of the mining claims. The instrument property to S. R. Kauffman as trustee. does not in terms grant or convey. The

one

V.

nearest approach to a word of conveyance is WILLIAM H. ANDREWS, Plff. in Err., “sells." This is more apt in describing the passing of the title of personal than of real

EASTERN OREGON LAND COMPANY. property. Not that this is decisive, for not infrequently it is held to manifest an intent Error to state court-review of decree set

ting aside finding of fact. to convey the title to the property named,

A judgment of the highest court of whether real or personal. But when the a state, which, reversing the trial court, uppurpose of the transaction is stated the holds as against a pre-emptor a patent from word will ordinarily have no more effect the United States under the Dalles military upon the title than is necessary to accom

to accom- wagon road grant made by the act of Febplish the purpose. The purpose here namedruary 25, 1867 (14 Stat. at L. 409, chap. 77), was the giving of authority to make a sale resting its conclusion upon the general to some third party at not less than a proposition that there was no competent named price, which price would belong to proof to impeach the records of the Land

Department or to overthrow the presumpBurns, less the commission on the sale. tion of validity which attends a patent from For this it was not necessary to pass title the United States, will not be reversed upon with the authority. And it is not ordi- any presumption as to what might have narily to be expected that an owner will been the testimony upon which the trial part with title before receipt of purchase court made its finding that the land was price, or security therefor. Appellant con

situated entirely outside the limits of the tends that by this instrument he became grant, where such testimony, though taken owner, while Burns was only an equitable in the record.

and reported by a referee, is not preserved mortgagee. But no time is fixed for the sale, and therefore no time for the ma

[No. 48.] turity of the supposed debt, nor is any liability cast upon Taylor for the payment of Argued October 19, 1906. Decided Novemany portion thereof. Indeed, its amount is

ber 12, 1906. uncertain, whether $45,000, or $45,000 plus one eighth a price

ERROR to the title passed, then Taylor could immediately which, reversing the Circuit Court of Sher

State Oregon convey to a third party, who, by payment of $45,000, would acquire the property. patent from the United States under the

man County, in that state, upholds a We need not inquire whether there was a Dalles military wagon road land grant as breach of contract for which Taylor could against one claiming title as a pre-emptor. recover damages. The question here is the

Affirmed. effect of the contract upon the title. While

See same case below, 45 Or. 203, 77 Pac. it may be conceded that the meaning and 117. scope of the instrument are not perfectly The facts are stated in the opinion. clear, yet it seems more reasonable to hold

Messrs. S. M. Stockslager, James F. that it was simply a grant of authority to Moore, and George C. Heard for plaintiff in Taylor to "sell and negotiate” the mines, error. and not also a transfer to him of the title Messrs. Aldis B. Browne and Alexander to the property.

Britton for defendant in error. As such an instrument it was subject to revocation. It was not a power of attorney

Mr. Justice Brewer delivered the opinion coupled with an interest. By

By the phrase of the court: "coupled with an interest,” is not meant This case brings before us a judgment of an interest in the exercise of the power, but the supreme court of the state of Oregon. an interest in the property on which the 45 Or. 203, 77 Pac. 117. It involves the power is to operate. Hunt v. Rousmanier, title to lot 3 and the east 1 of the southwest 8 Wheat. 174, 5 L. ed. 589. Now, as we of section 7, township 1 north, range 17

east of the Willamette meridian. The construe this contract, Taylor was to receive, in case he made a sale, seven eighths plaintiff in error claims title as a preof the price in excess of $43,000,—that is, patent from the United States. The land

emptor; the defendant in error under a he was to be paid for making the sale. It patent from the United States. The land was an interest in the exercise of the power, by act of Congress, approved February 25, and not an interest in the property upon 1867 (14 Stat. at L. 409, chap. 77), of which the power was to operate.

three alternate sections on each side of the We see no error in the ruling of the road, to the Dalles Military Wagon Road Supreme Court of the territory of Arizona, Company, a full account of which is to be and its judgment is affirmed.

found in Wilcox v. Eastern Oregon Land

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Co. 176 U. S. 51, 44 L. ed. 368, 20 Sup. Ct. harmony with the general rule of the efRep. 269. If the patent was valid the title fect to be given to a patent of the United to the land was in the defendant, and the States, we are not justified in setting aside judgment of the supreme court of Oregon the judgment upon any presumption of was correct. There being no conflicting what might have been the testimony upon land grant, the question whether the land which the trial court made its findings. was within the territorial limits of that to The judgment of the Supreme Court of the road company is apparently one of fact the state of Oregon is affirmed. only, and the decision of the Land Department on matters of fact is ordinarily conclusive in the courts.

The difficulty in the case arises from the condition of the record. This shows that CHARLES W. CLARK, Piff. in Err., by the trial court findings of fact and conclusions of law were made, one of the find

P. 0. WELLS. ings being that the land is situated entire

Judgment-jurisdiction-service of process. ly outside the limits of the grant, and more than 3 miles from the road as actually sur- be rendered against a defendant without

1. No valid judgment in personam can veyed, platted, and constructed by the com- personal service upon him in a court of company, and certified by the governor of the petent jurisdiction, or waiver of summons, state to the Land Department. No testi- and voluntary appearance therein.* mony is preserved, although it appears that Appearance—for purpose of removing cause the case was referred to a referee, who took -effect. and reported the testimony. The supreme

2. A defendant in a suit in a state court court reversed the judgment of the trial does not, by a special appearance for the court, and, while making no special find- sole purpose of removing the cause to a

Federal circuit court, before service of sumings, in its opinion discusses certain matters of evidence, and, after stating that the the state court, nor, upon removal to the

mons, submit himself to the jurisdiction of testimony tends to show that the land was Federal court, deprive himself of the right in fact within the limits of the grant, rests to object to the manner of service upon its conclusion upon the general proposition him in that court.1 that there is no competent proof to impeach Appearance-effect of removing cause to the records of the Land Department or Federal court. overthrow the presumption of validity 3. The exercise of the right of removwhich attends a patent of the United States. ing a cause from a state to a Federal cirThe certificate of the clerk of the supreme cuit court before service of summons by a court states that the transcript is the full defendant who appeared specially for that and complete record filed in that court and sole purpose does not amount to a general

appearance. upon which the appeal was heard; while the certificate of the clerk of the trial court to

Writ and process-substituted service in the

Federal courts. the record sent to the supreme court is

4. Service by publication in the manner “that the same is a full, true, and correct prescribed by the state statutes for noncopy of the complaint, amended answer, resident defendants cannot be had in the demurrer to the amended answer, reply, Federal circuit court to which a suit in findings of fact and conclusions of law, which an attachment has issued has been reundertaking on appeal, notice of appeal moved from a state court before service of filed in my office in the above-entitled cause,

summons. and of all journal entries made in said Removal of causes-enforcing attachmentcause, and of the whole thereof."

effect of lack of service of process. From this is is contended that the su- 5. The want of any jurisdiction over the preme court, without any evidence before person of defendant in a case removed to a it, set aside the findings of fact made by Federal circuit court from a state court bethe trial court. But it is the judgment of fore service of summons, on a special apthe supreme court whose validity we are to pearance by defendant for that sole purpose, consider, and while it made no special find does not, in view of the provision of the reings, its statement of what was before it moval act March 3, 1875 (18 Stat. for consideration and its conclusions there | 511), § 4, preserving the lien of attachments

471, chap. 137, U. S. Comp. Stat. 1901, p. from are sufficient to sustain its judgment. in the state courts, prevent the Federal True, the record fails to show how the facts court from entering a judgment enforceable were brought to its knowledge, but it is against the real property of defendant which the highest court of the state, and we may had been attached before the case was renot ignore its recital of what it considered, moved, where the state court might, but for especially as it appears that testimony was

*Ed. Note.-For cases in point, see Cent. Dig. taken and preserved. Egan v. Hart, 165

vol. 30, Judgment, $$ 25-33. U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. Ed. Note.-For cases in point, see Cent. Dig. 300. And when its conclusions are in

vol. 3, Appearance, § 50.

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such removal, have rendered such a judg- that the cause was ordered, on October 18, ment on giving notice to defendant.

1904, to be removed to the United States

circuit court for the district of Montana. [No. 42.]

After the filing of the record in the United

States court an affidavit was filed on NoSubmitted October 18, 1906. Decided November 3, 1904, in the office of the clerk of vember 19, 1906.

the United States circuit court for an order

for service by publication upon Clark as a IN N ERROR to the Circuit Court of the nonresident, absent from the state, who

United States for the District of Mon- could not be found therein. An order was tana to review a judgment against defend thereupon made by the clerk of the United ant in a cause which had been removed to States court for service upon Clark by pubthat court before service of summons froin lication in a newspaper in the city of Helena, the District Court of the First Judicial Dis-Lewis and Clark county, and the mailing of trict in and for Lewis and Clark County, iv a notice to San Mateo, California, the althat state. Modified by making the judg. leged place of residence of the defendant. ment collectible only from property which This method of procedure is in conformity had been attached in the state court, and, with the Code of Civil Procedure of Monas so modified, affirmed.

tana, $$ 637, 638. Publication was made, See same case below on motion to quash and a copy of the summons and complaint summons, 136 Fed. 462.

was served upon Clark at San Mateo, CaliThe facts are stated in the opinion. fornia, by the United States marshal in and

Messrs. Walter M. Bickford, George F. for the northern district of California. Shelton, and William A. Clark, Jr., for Mont. Code Civ. Proc. $$ 637, 638. plaintiff in error.

On December 6, 1904, Clark, appearing Mr. N. W. McConnell for defendant in solely for that purpose, filed a motion to error.

'quash the service of summons upon two

grounds: Mr. Justice Day delivered the opinion of “1. That the said summons has never at the court:

all or in any manner been served upon the This case is here upon a question of juris-defendant herein personally in the state and diction of the circuit court, duly certified district of Montana, nor has the defendant under the act of March 3, 1891. 26 Stat. at ever at any time waived service of summons L. 826, chap. 517, U. S. Comp. Stat. 1901, or voluntarily entered his appearance in this

cause. The action below was commenced by “2. That the publication of service herein, Wells against Clark, September 20, 1904, in wherein and whereby the said summons has he district court of the first judicial dis- been published in a newspaper, does not give trict of Montana, in and for Lewis and the court any jurisdiction over the said deClark county, to recover on a promissory fendant, nor is such service by publicanote in the sum of $2,500, with interest and tion permissible or in accordance with the costs. The summons in the action was re- rules of procedure in the United States turned September 22, 1904, with the indorse-court, nor is the same sanctioned or authorment by the sheriff that Clark could not be ized by any law of the United States, and found in his county.

the said pretended service of summons by An attachment was sued out under the publication is wholly and absolutely void statutes of Montana (Code of Civil Pro- under the laws of the United States." cedure, $ $ 890 et seq.), and, on September 22, The court overruled the motion and pro1904, was levied upon all the right, title, and ceeded to render a judgment in personam interest of the defendant Clark in certain against Clark for the amount of the note lots in Butte, Silver Bow county, Montana. and costs.

On October 18, 1904, Clark, appearing for It is contended by the plaintiff in error the purpose of obtaining an order of re- that inasmuch as the removal was made to moval, and no other, and reciting that he the Federal court before service of a sumwaived no right to object to the jurisdiction mons upon the defendant, and, as there was of the court over his person or property, no personal service after the removal, there filed his petition in the district court ofcould be no valid personal judgment in that Lewis and Clark county for the removal of court for want of service upon the defendthe cause to the circuit court of the United ant. And it is insisted that the service by States for the district of Montana, upon the publication, if proper in such cases, could ground that he was a resident of San Mateo, not be made under the state statute, but California, and a citizen of that state, plain- under the act of March 3, 1875 (18 Stat. at tiff being a citizen of Montana.

L. 472, chap. 137, U. S. Comp. Stat. 1901, p. Upon bond filed such proceedings were had' 513), permitting the court to make an order

p. 488.

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