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alone; and these criteria therefore must determine for figured cloths the duty to which they are liable under paragraphs 306 and 307. You must not alter words in the interest of the imagined intent, and the importers are entitled to the benefit of even a doubt.
The truth is, as pointed out in the argument for the government, that the element of value is woven through the whole tissue of the act. of the act. The collector does not know what duty to assess, even under 313, without a valuation. It cannot be found out what "the duty herein provided" is, or whether it is specific or ad valorem, with
paragraphs, just as if 313 did not exist. Paragraphs 306 and 307 tell the collector to make it on all cotton and to assess a duty on all cotton above a certain value after the valuation is made. Paragraph 313 assumes the duty imposed by 306 and 307 to have been assessed. As against these plain directions, coupled with the manifest intent of the act, the failure to mention value along with weight raises no serious doubt in our minds.
In spite of this reasoning, no one, we take it, has any serious doubt that para-out making a valuation under the previous graph 313 was not intended to affect or cut down duties already imposed in clear though general terms. The provisos of the earlier paragraphs are made applicable to "all cotton cloths" of the sorts described, in so many words. The qualified reading is due to scruples that hardly would occur except to the professional mind. As against those scruples, it is to be observed, in the first place, that the clauses to which we have referred and their neighbors, to go no further into the general scheme of the 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 expressed everywhere else, if, in this instance, the more valuable goods were with- THOMAS BURNS, John A. Duncan, and
drawn from the general tax imposed upon their class. It is said that, in some cases, the construction contended for even would make the duty on figured cotton of a high price less than that on cheap cloth.
In the next place, if the language of paragraph 313 is not broad enough to apply to both classes of duty previously imposed, the easier contention would seem to be that the additional duty created by it was put only upon the first class, that of the cheaper goods taxed by weight, rather than that it cut down what already had been made clear. Such a notion would be disposed of by the fact that paragraph 313 applies to all cotton cloth and to all values, higher as well as lower than seven cents, and by other considerations not necessary to state. But, if anything had to yield it would be paragraph 313.
CHARLES M. TAYLOR, Appt.,
S. R. Kauffman.
1. No transfer of title was effected by an instrument which recites that the party of the first part "sells" certain mining claims to the party of the second part for a specified consideration, and "upon the terms and consideration following," and which, in its subsequent provisions, authorizes the party of the second part to sell and negotiate the mines for any sum above $45,000, and retain out of the purchase price seven eighths of the excess, the party of the first part agreeing to execute any conveyance thereafter necessary to convey a good title, and the party of the second part assuming no obligations except a general one by which both parties mutually agree to aid each ment is not a deed, but simply a power of other in the negotiation and sale; such docuattorney, and, as such, subject to revoca
Power of attorney-revocation.
2. An interest in the property upon which the power is to operate, and not merely an interest in the exercise of the power, is essential to make a power of attorney one coupled with an interest, so as not to be subject to revocation.† [No. 28.]
The artificial doubt is raised by assuming that the collector must start with the first part of paragraph 313 and find out what his assessments are to be from that alone. That is a mistake. He has before him the whole act. He has been told in the earlier paragraphs in unmistakable language that all cotton cloth with this 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 purports to make an addition to some tax
vember 12, 1906.
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 intended to be added to a tax already imposed. But this would not be the case if the presence of a figure in the cloth changed the rate established by the preceding scheme.
Territory of Arizona to review a decree which affirmed a decree of the District
vol. 16, Deeds, §§ 6-9.
+Ed. Note.-For cases in point, see Cent. Dig. 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
Statement by Mr. Justice Brewer:
On March 26, 1901, Thomas Burns, the owner of three mining claims, as party of the first part, and Charles M. Taylor, as party of the second part, made the following agreement:
"The said party of the first part, in consideration of the sum of $1, lawful money of the United States of America in hand paid, the receipt whereof is hereby acknowledged, and for the further consideration of money and labor heretofore expended and of labor to be hereafter expended in and upon the Magnet mining claim, the Comet mining claim, and the Victor mining claim, situate in the California mining district, in the Chiricahua mountains, Cochise county, Arizona territory, sells to the said party of the second part the said mining claims upon the terms and consideration following, to wit:
his bill of complaint in the district court for the county of Cochise, territory of Arizona, against Burns, Duncan, and Kauffman, alleging that he was the owner of the mining claims, that defendants claimed to have some interest in them, and praying to have his title thereto quieted. The defendants answered, and also filed a cross bill, alleging in substance that plaintiff had no title whatever, and praying that their title be quieted as against him. A trial in the district court resulted in a decree in favor of the defendants, which was affirmed by the supreme court of the territory (76 Pac. 623), and thereupon the case was brought here on appeal.
Mr. Eugene S. Ives for appellant.
Mr. William Herring, and Sarah Herring Sorin, for appellees.
Mr. Justice Brewer delivered the opinion of the court:
This case turns upon the scope and effect of the agreement of March 26, 1901. It is claimed by plaintiff that it is a conveyance, passing title; by defendants, that it is simply a power of attorney, subject to revocation. Its to be meaning is de
"The said party of the second part shall pay to the party of the first part, whenever he shall negotiate, sell, or place said mines to any assignee of the said party of the second part, forty-five thousand dollars ($45,000), and in addition thereto oneeighth () of whatever price the said party of the second part may be able to sell, termined by a consideration of all its terms, and not by any particular phrase. The first place, or negotiate the said mines, for a consideration in excess of said $45,000; paragraph recites 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 sug 000, and may retain out of the said pur-gest a purpose to pass title, but the parachase price seven eighths (7) of said selling price above such sum of $45,000.
"The said parties hereto hereby mutually agree to aid each other in the negotiation and sale of said mining claims to the end that the same may be sold and the consideration realized as quickly as possible. And the said party of the first part hereby agrees to execute any deed or deeds or conveyances that may be hereafter necessary to convey a good title to said mining claims. This contract is to take the place of and supersede any and all other contract or contracts heretofore made by said parties hereto with reference claims."
to said mining
On November 9, 1901, Burns deeded a one fourth interest in the mining claims to John A. Duncan, and on March 9, 1903, Burns and Duncan conveyed the entire property to S. R. Kauffman as trustee.
graph closes with a reference to further stipulations, its language being "sells to the said party of the second part the said mining claims upon the terms and sideration following, to wit." The next paragraph authorizes the party of the second part to "sell and negotiate" the mines for any sum above $45,000, and to retain out of this purchase price seven eighths of the excess of $45,000, while in the last paragraph the party of the first part "agrees to execute any deed or deeds or conveyances that may be hereafter necessary to convey a good title to said mining claims.”
Nowhere in the instrument does the party of the second part assume any obligations, except the general one in the third paragraph, by which both parties mutually agree to aid each other in the negotiation and sale of the mining claims. The instrument does not in terms grant or convey. The
nearest approach to a word of conveyance is |
As such an instrument it was subject to revocation. It was not a power of attorney coupled with an interest. By the phrase "coupled with an interest," is not meant an interest in the exercise of the power, but an interest in the property on which the power is to operate. Hunt v. Rousmanier, 8 Wheat. 174, 5 L. ed. 589. Now, as we construe this contract, Taylor was to receive, in case he made a sale, seven eighths of the price in excess of $45,000,-that is, he was to be paid for making the sale. It was an interest in the exercise of the power, and not an interest in the property upon which the power was to operate.
We see no error in the ruling of the Supreme Court of the territory of Arizona, and its judgment is affirmed.
WILLIAM H. ANDREWS, Plff. in Err.,
EASTERN OREGON LAND COMPANY.
Error to state court-review of decree setting aside finding of fact.
A judgment of the highest court of a state, which, reversing the trial court, upholds as against a pre-emptor a patent from the United States under the Dalles military wagon road grant made by the act of February 25, 1867 (14 Stat. at L. 409, chap. 77), resting its conclusion upon the general proposition that there was no competent proof to impeach the records of the Land Department or to overthrow the presumption of validity which attends a patent from the United States, will not be reversed upon any presumption as to what might have been the testimony upon which the trial court made its finding that the land was situated entirely outside the limits of the grant, where such testimony, though taken in the record. and reported by a referee, is not preserved
Argued October 19, 1906.
N I Hate of Oregon to review a judgment [N ERROR to the Supreme Court of the State of Oregon which, reversing the Circuit Court of Sherman County, in that state, upholds a patent from the United States under the Dalles military wagon road land grant as against one claiming title as a pre-emptor.
Mr. Justice Brewer delivered the opinion of the court:
This case brings before us a judgment of the supreme court of the state of Oregon. 45 Or. 203, 77 Pac. 117. It involves the title to lot 3 and the east of the southwest north, range 17
of section 7, township 1
east of the Willamette meridian. The
plaintiff in error claims title as a prepatent from the United States. The land emptor; the defendant in error under a was patented as a part of the grant made by act of Congress, approved February 25, 1867 (14 Stat. at L. 409, chap. 77), of three alternate sections on each side of the road, to the Dalles Military Wagon Road Company, a full account of which is to be found in Wilcox v. Eastern Oregon Land
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 road company is apparently one of fact 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 by the trial court findings of fact and conclusions of law were made, one of the findings being that the land is situated entirely outside the limits of the grant, and more than 3 miles from the road as actually surveyed, platted, and constructed by the company, and certified by the governor of the state to the Land Department. No testimony is preserved, although it appears that the case was referred to a referee, who took and reported the testimony. The supreme court reversed the judgment of the trial court, and, while making no special findings, in its opinion discusses certain matters of evidence, and, after stating that the testimony tends to show that the land was in fact within the limits of the grant, rests its conclusion upon the general proposition that there is no competent proof to impeach the records of the Land Department or overthrow the presumption of validity which attends a patent of the United States. The certificate of the clerk of the supreme court states that the transcript is the full and complete record filed in that court and upon which the appeal was heard; while the
certificate of the clerk of the trial court to the record sent to the supreme court is "that the same is a full, true, and correct copy of the complaint, amended answer, demurrer to the amended answer, reply, findings of fact and conclusions of law, undertaking on appeal, notice of appeal filed in my office in the above-entitled cause, and of all journal entries made in said cause, and of the whole thereof."
From this is is contended that the supreme court, without any evidence before it, set aside the findings of fact made by the trial court. But it is the judgment of the supreme court whose validity we are to consider, and while it made no special findings, its statement of what was before it ings, its statement of what was before it for consideration and its conclusions therefrom are sufficient to sustain its judgment. True, the record fails to show how the facts were brought to its knowledge, but it is the highest court of the state, and we may not ignore its recital of what it considered, especially as it appears that testimony was taken and preserved. Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300. And when its conclusions are in
The judgment of the Supreme Court of the state of Oregon is affirmed.
CHARLES W. CLARK, Plff. in Err.,
P. O. WELLS.
Judgment-jurisdiction-service of process. be rendered against a defendant without 1. No valid judgment in personam can personal service upon him in a court of competent jurisdiction, or waiver of summons, and voluntary appearance therein.* Appearance-for purpose of removing cause -effect.
2. A defendant in a suit in a state court
does not, by a special appearance for the sole purpose of removing the cause to a Federal circuit court, before service of sumthe state court, nor, upon removal to the mons, submit himself to the jurisdiction of Federal court, deprive himself of the right to object to the manner of service upon him in that court.† Appearance-effect of removing cause to Federal court.
3. The exercise of the right of removing a cause from a state to a Federal circuit court before service of summons by a defendant who appeared specially for that sole purpose does not amount to a general Writ and process-substituted service in the appearance.†
4. Service by publication in the manner prescribed by the state statutes for nonresident defendants cannot be had in the Federal circuit court to which a suit in which an attachment has issued has been removed from a state court before service of summons.
Removal of causes-enforcing attachmenteffect of lack of service of process.
5. The want of any jurisdiction over the person of defendant in a case removed to a Federal circuit court from a state court before service of summons, on a special appearance by defendant for that sole purpose, does not, in view of the provision of the removal act of March 3, 1875 (18 Stat. at L. 471, chap. 137, U. S. Comp. Stat. 1901, p. 511), § 4, preserving the lien of attachments in the state courts, prevent the Federal court from entering a judgment enforceable against the real property of defendant which had been attached before the case was removed, where the state court might, but for
*Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 25-33.
+Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appearance, § 50.
such removal, have rendered such a judgment on giving notice to defendant.
Submitted October 18, 1906. Decided
vember 19, 1906.
that the cause was ordered, on October 18, 1904, to be removed to the United States circuit court for the district of Montana.
After the filing of the record in the United States court an affidavit was filed on NoNo-vember 3, 1904, in the office of the clerk of the United States circuit court for an order for service by publication upon Clark as a nonresident, absent from the state, who could not be found therein. An order was thereupon made by the clerk of the United States court for service upon Clark by publication in a newspaper in the city of Helena, Lewis and Clark county, and the mailing of a notice to San Mateo, California, the al
N ERROR to the Circuit Court of the United States for the District of Montana to review a judgment against defendant in a cause which had been removed to that court before service of summons from the District Court of the First Judicial District in and for Lewis and Clark County, in that state. Modified by making the judg-leged place of residence of the defendant. ment collectible only from property which had been attached in the state court, and, as so modified, affirmed.
This method of procedure is in conformity with the Code of Civil Procedure of Montana, §§ 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.
The facts are stated in the opinion. Messrs. Walter M. Bickford, George F. Shelton, and William A. Clark, Jr., for plaintiff in error.
was served upon Clark at San Mateo, California, by the United States marshal in and for the northern district of California. Mont. Code Civ. Proc. §§ 637, 638.
On December 6, 1904, Clark, appearing
Mr. N. W. McConnell for defendant in solely for that purpose, filed a motion to 'quash the service of summons upon two grounds:
Mr. Justice Day delivered the opinion of the court:
This case is here upon a question of jurisdiction of the circuit court, duly certified under the act of March 3, 1891. 26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488.
The action below was commenced by Wells against Clark, September 20, 1904, in the district court of the first judicial district of Montana, in and for Lewis and Clark county, to recover on a promissory note in the sum of $2,500, with interest and
The summons in the action was returned September 22, 1904, with the indorsement by the sheriff that Clark could not be found in his county.
An attachment was sued out under the statutes of Montana (Code of Civil Procedure, §§ 890 et seq.), and, on September 22, 1904, was levied upon all the right, title, and interest of the defendant Clark in certain lots in Butte, Silver Bow county, Montana.
On October 18, 1904, Clark, appearing for the purpose of obtaining an order of removal, and no other, and reciting that he waived no right to object to the jurisdiction of the court over his person or property, filed his petition in the district court of Lewis and Clark county for the removal of the cause to the circuit court of the United States for the district of Montana, upon the ground that he was a resident of San Mateo, California, and a citizen of that state, plaintiff being a citizen of Montana.
"1. That the said summons has never at all or in any manner been served upon the defendant herein personally in the state and district of Montana, nor has the defendant ever at any time waived service of summons or voluntarily entered his appearance in this
"2. That the publication of service herein, wherein and whereby the said summons has been published in a newspaper, does not give the court any jurisdiction over the said defendant, nor is such service by publication permissible or in accordance with the rules of procedure in the United States court, nor is the same sanctioned or authorized by any law of the United States, and the said pretended service of summons by publication is wholly and absolutely void under the laws of the United States."
The court overruled the motion and proceeded to render a judgment in personam against Clark for the amount of the note and costs.
It is contended by the plaintiff in error that inasmuch as the removal was made to the Federal court before service of a summons upon the defendant, and, as there was no personal service after the removal, there could be no valid personal judgment in that court for want of service upon the defendant. And it is insisted that the service by publication, if proper in such cases, could not be made under the state statute, but under the act of March 3, 1875 (18 Stat. at 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