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Action by the Encyclopedia Press, Inc., | execution against his wages, directing the against the Endicott-Johnson Corporation. Corporation to pay over each week ten per From a judgment of the Court of Appeals of centum thereof until the execution was satNew York (234 N. Y. 627, 138 N. E. 474), af- isfied. The Corporation failed and refused firming a judgment of the Appellate Divi- so to do, and continued to pay the employee sion (200 App. Div. 847, 191 N. Y. S. 924), his entire weekly wages as they became due. which affirmed judgment for plaintiff, de- The Encyclopedia Press thereupon brought fendant brings error. Affirmed. suit in the Supreme Court against the Corporation, upon the execution, for the ac

*286

*Mr. Maurice E. Page, of Endicott, N. Y., cumulated percentages of the weekly wages for plaintiff in error.

that it had not paid over. Judgment was

Mr. Thomas B. Merchant, of Binghamton, recovered; which, upon successive appeals, N. Y., for defendant in error.

Mr. Justice SANFORD delivered the opin

ion of the Court.

This case involves the constitutional validity of Section 1391 of the New York Code of Civil Procedure relating to the garnishment of wages and other choses in action of a judgment debtor.

This section of the Code, as amended by the Laws of 1919, c. 278,1 provides that where a judgment has been recovered and an execution thereon returned unsatisfied, the judgment creditor may apply to the court without notice to the judgment debtor, and on satisfactory proof that any wages, debts. earnings, salary, income from trust funds or profits, are, or will thereafter become, due and owing to the judgment debtor, to the amount of twelve dollars or more per week, a judge or justice shall order that an execution issue against such wages, etc., of the judgment debtor. On presentation of such execution by the collecting officer to the person from whom such wages, etc., are or may become due and owing, the execution shall become a lien and continuing levy upon such wages, etc., to the amount specified in the execution, not exceeding ten per centum thereof, until the execution is fully satisfied. Any person to whom the execution is presented, who is or becomes indebted to the judgment debtor, shall, while the execution remains a lien upon the indebtedness, pay over to the officer the amount of the indebtedness prescribed by the execution until it is wholly satisfied; and such payment shall be a bar to any action therefor by the judgment debtor. If such person fails or refuses to pay over to the officer the percentage of such indebtedness, he shall be liable to an action therefor by the judgment creditor; and the amount recovered shall be applied towards the payment of the execution. Either party may apply at any time for such modification of the execution as shall be deemed just.

*287

The Encyclopedia Press, Inc., having duly recovered a judgment in the Supreme Court of New York against an employee of the Endicott Corporation receiving weekly wages of more than twelve dollars, was awarded, ex parte, under this section of the Code, an

1 After the institution of this suit this section of the Code was re-enacted as Section 684 of the Civil Practice Act. Laws of 1920, c. 925.

was affirmed, without opinions, by the Appellate Division and the Court of Appeals. 200 App. Div. 847, 191 N. Y. S. 924; 234 N. Y. 627, 138 N. E. 474.2 The record was remitted to the Supreme Court, to which this writ of error was directed.

The Corporation contends that section 1391 of the Code is in conflict with the due process. clause of the Fourteenth Amendment, in that it authorizes the issuance of a garnishment execution without notice to the judgment debtor or affording him a hearing, and, fur

#288

ther, in that it inter*feres with the liberty of contract between the judgment debtor and the garnishee.

1. We assume for present purposes that a garnishee sued upon the execution has, by reason of the nature of the cause of action and the liability which this section imposes upon him, the right to challenge its constitutionality on the ground that it is wanting in due process as against the judgment debtor. See High v. Bank of Commerce, 95 Cal. 386, 30 P. 556, 29 Am. St. Rep. 121.

[1, 2] The words "due process of law," when applied to judicial proceedings, "mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights." Pennoyer v. Neff, 95 U. S. 714, 733, 24 L. Ed. 565; Scott v. McNeal, 154 U. S. 34. 46, 14 S. Ct. 1108, 38 L. Ed. 896. They require a proceeding which, observing the general rules thus established, follows forms of law appropriate to the case and just to the parties to be affected; and which, whenever it is necessary for the protection of the parties, gives them an opportunity to be heard respecting the justice of the judg ment sought. Hagar v. Reclamation District, 111 U. S. 701, 708, 4 S. Ct. 663, 28 L. Ed. 569. However, the established rules of our system of jurisprudence do not require that a defendant who has been granted an opportunity to be heard and has had his day in court, should, after a judgment has been rendered against him, have a further notice and hearen to reach his property in satisfaction of ing before supplemental proceedings are tak

See the opinions of the Supreme Court and Appellate Division in an earlier case involving similar questions. Smith v. Endicott-Johnson Corporation (Sup.) 189 N. Y. Supp. 673; Id., 199 App. Div. 194, 192 N. Y. S. 121.

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(45 S.Ct.)

the judgment. Thus, in the absence of a "the very advantage sought by the writ statutory requirement, it is not essential that would possibly be of no avail, as a disposition he be given notice before the issuance of an could be made of the fund or property before execution against his tangible property; aft- service could be had." er the rendition of the judgment he must take "notice of what will fellow," no further notice being "necessary to advance justice." Ayres v. Campbell, 9 Iowa, 213, 216, 74 Am. Dec. 346; Reid v. Railway Co., 32 Pa. 257, 258; Foster v. Young, 172 Cal. 317, 322, 156 P. 476; McAnaw v. Matthis, 129 Mo. 142, 152, 31 S. W. 344.

*289

*There is no more reason why the judgment debtor should be entitled to notice before the issue of an execution provided by statute as supplemental process to impound, in satisfaction of the judgment, choses in action due to him which cannot be reached by an ordinary execution. No established rule of our system of jurisprudence requires that such notice be given. On the contrary, it has been frequently held in the state courts that in the absence of a statutory requirement, it is not essential that the judgment debtor be given notice and an opportunity to be heard before the issuance of such garnishment. High v. Bank of Commerce, supra, p. 387 (30 P. 556); Coffee v. Haynes, 124 Cal. 561, 565, 57 P. 482, 71 Am. St. Rep. 99; Ketcham v. Kent, 115 Mich. 60, 63, 72 N. W. 1110; Hexter v. Clifford, 5 Colo. 168, 173; Kesler v. St. John, 22 Iowa, 565, 566; Phillips v. Germon, 43 Iowa, 101, 102; Smith v. Dickson, 58 Iowa, 444, 445, 10 N. W. 850; Pistchal v. Durant, 168 App. Div. 100, 102, 153 N. Y. S. 735. And see Daigle v. Baird, 22 La. Ann. 138, 139; Chanute v. Martin, 25 Ill. 63, 65; Cross v. Brown, 19 R. I. 220, 33 A. 147; Winner v. Hoyt, 68 Wis. 278, 286, 32 N. W. 128. In High v. Bank of Commerce, supra, in which the constitutionality of a garnishment statute was challenged because it did not require notice to the judgment debtor before issuance of the writ, the court said:

"So far as the judgment debtor is concerned, he cannot complain; he is a party to the judgment, and is fully aware of the legal effect of it, viz., that what his debtors owe him can be applied, by proper proceedings in the action which is still pending, to the satisfaction of his judgment debts; and due process of law has been had to make him aware of that fact. If, then, anything is due from his debtor, he is not injured if it is so applied. If nothing is due him from such debtor, then the matter is

*

of no concern to him. We therefore see no force in the suggestion that the statute is unconstitutional, in that the judgment debtor has under it no notice of the supplementary proceeding after judgment affecting his rights of property."

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And in Ketcham v. Kent, supra, the court aptly said that if notice were given the judgment debtor before issuing the garnishment,

We conclude that the provision of Section 1391 of the Code authorizing the issue of a garnishment execution on the ex parte application of the judgment creditor, is not in conflict with the due process clause.

[3, 4] 2. Nor does this section deprive the judgment debtor and garnishee of property without due process of law by interference in no wise prevents them from making such with their liberty of contract. The statute contract as they choose, but merely subjects the proceeds of the contract that become due the judgment debtor to the payment of the judgment rendered against him. This is not an interference with the right of contract within the meaning of the due process clause. Compare Philbrick v. Philbrick, 39 N. H. 468, 474, and Laird v. Carton, 196 N. Y. 169, 172, 89 N. E. 822, 25 L. R. A. (N. S.) 189. The suggestion that a substantial constitutional right of the garnishee is impaired because he may be put to some additional expense of bookkeeping in keeping his account with the judgment debtor, is plainly without merit.

[5] 3. It is further contended that this section of the Code is void because contrary to public policy. This, however, does not present a Federal question. Affirmed.

(266 U. S. 291) ENDICOTT-JOHNSON CORPORATION, Plaintiff in Error, v. William H. SMITH.

(Argued Oct. 13, 1924. Decided Nov. 17, 1924.) No. 64.

In Error to the Supreme Court of the State of New York.

Mr. Maurice E. Page, of Endicott, N. Y., for plaintiff in error.

Mr. Moe Goldstein, of Binghampton, N. Y., for defendant in error.

Mr. Justice SANFORD delivered the opinion of the Court.

This case, like Endicott-Johnson Corporation v. Encyclopedia Press, Inc. (No. 41), 266 U. S. 285, 45 S. Ct. 61, 69 L. Ed. just decided, involves the constitutional validity of section 1391 of the New York Code of Civil Procedure. Smith v. Endicott-Johnson Corporation (Sup.) 189 N. Y. S. 673; Id., 199 App. Div. 194, 192 N. Y. S. 121; Id., 234 N. Y. 628, 138 N. E. 474. It is in all respects similar to the Encyclopedia Press Case and governed by the decision therein. The judgment is Affirmed.

(266 U. S. 226)

SUNDERLAND v. UNITED STATES.
(Argued Oct. 16, 1924. Decided Nov. 17,
1924.)
No. 79.

I. Property 6-Tenure, transfer, control,
and disposition of land subject to exclusive
jurisdiction of state.

Generally tenure, transfer, control, and disposition of real property are matters which rest exclusively with state where property lies. 2. Indians 15(1)-Congress may restrain alienation of land purchased for Indian with proceeds from sale of other land originally subject to like restriction.

ity.

3. Indians 15(1)-Secretary of Interior may restrict alienation of land purchased with proceeds of sale of allotted land as condition to removal of restriction on allotted land.

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*Mr. Justice SUTHERLAND, delivered the opinion of the Court.

Nathaniel Perryman, a Creek half-blood Congress may restrict, for limited time, the Indian, was allotted a homestead, with reright of an Indian to alienate land purchased strictions against alienation until April 26, for him with funds arising from sale of other 1931, subject, however, to removal, wholly land originally subject to like restriction, and or in part, by the Secretary of the Interior, exercise of such power does not constitute invasion of, or interference with, state's author-"under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe." Act May 27. 1908, § 1, c. 199, 35 Stat. 312. Upon application, the Secretary removed the restrictions from a portion of the homestead, which was then sold, the proceeds of the sale being retained by the Secretary. Subsequently a portion of the proceeds was used to purchase *another tract of land (the subject of the present controversy), such purchase being authorized by the Secretary upon condition that the deed of conveyance contain a clause restricting the alienation of the land so purchased until April 26, 1931, "unless made with the con

Under Act May 27, 1908, c. 199, § 1, authorizing Secretary of Interior to remove restrictions against alienation of homestead allotted Indian under prescribed rules and regulations, he may, in authorizing sale of Indian's allotted land subject to restriction against alienation until certain date, impose like restriction on land purchased with proceeds.

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4. Indians15(1)-Telegram from Depart-
ment of Interior held sufficient to show re-
strictions on sale of land purchased for In-sent of and approved by the Secretary of the
dian by Secretary of Interior.

Telegram from Department of Interior, authorizing purchase of land for Indian with proceeds of sale of his allotted land and directing use of "a restricted form of deed," held sufficient to show that Secretary of Interior im posed restrictions on sale of land so purchased.

5. Indians 15(1)-Restriction on alienation in recorded deed conveying to Indian land purchased with proceeds of sale of allotted land held notice of restriction to Indian's grantee.

Recorded deed conveying to Indian land purchased with proceeds of sale of his allotted land, containing restrictions on alienation of land so purchased, authorized by Secretary of Interior under Act May 27, 1908, c. 199, § 1, held notice to Indian's grantee of restriction, though telegram from Department of Interior authorizing purchase of land with restricted form of deed was not recorded.

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Interior." The deed was made accordingly
and duly recorded in the records of Tulsa
county, Okl. Perryman, thereafter, without
the consent of the Secretary, sold and con-
veyed the land to the appellant. A decree
of an Oklahoma state court was obtained in
a suit against Perryman, to which the United
States was not a party, quieting title in ap-
pellant. The United States then brought this
suit in the federal District Court for the
Eastern District of Oklahoma to cancel and
set aside the conveyance of the land to appel-
lant and annul the decree of the state court.
The District Court rendered a decree in fa-
vor of the United States, which was affirmed
by the Court of Appeals. 287 F. 468.

Upon the appeal here, appellant does not
seriously challenge the decree in so far as
it annuls the decree of the state court (Bowl-
ing v. United States, 233 U. S. 528, 534-535,
34 S. Ct. 659, 58 L. Ed. 1080; Privett v.
United States, 256 U. S. 201, 203, 41 S. Ct.
455, 65 L. Ed. 889), but confines his attack
to that portion of the decree canceling the
deed. The grounds relied upon are: (1)
That Congress is without power to authorize
the imposition of restrictions upon the sale
of lands within a state which have passed to
private ownership; (2) that Congress has

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(45 S.Ct.)

not, in fact, conferred upon the Secretary | 290; Sperry Oil & Gas Co. v. Chisholm, 264
such authority; and (3) that there is no U. S. 488, 493, 44 S. Ct. 372, 68 L. Ed. 803.
competent, relevant or material evidence suf-
ficient to support the decree of the trial
court.

[1, 2] First. The power of Congress is challenged upon the ground that the land had become subject to the jurisdiction of the state and was exclusively within the control of its laws. The general rule is not to be doubted, that the tenure, transfer, control

*233

and disposition of real property are matters which rest exclusively with the state where the property lies (United States v. Fox, 94 U. S. 315, 320, 321, 24 L. Ed. 192), but it by no means follows that a restriction upon alienation, limited as it is here, may not be imposed by the United States as a condition upon which a purchase of private lands within the state will be made for an Indian ward. The question is argued as though there had been an actual invasion of or an interference with the authority of the state to regulate and condition the transfer of land within its boundaries. But there is no such invasion or interference. If Congress, in fulfillment of its duty to protect the Indians, whose welfare is the peculiar concern of the federal government, deems it proper to restrict for a limited time the right of the individual Indian to alienate land purchased for him with funds arising from the sale of other lands originally subject to a like restriction, we are not aware of anything which stands in the way. The state of Oklahoma is not concerned, since there is no state statute, rule of law or policy, which has been called to our attention, to the contrary effect. If there were, or if the power of state taxation were involved, we should consider the question of supremacy of power; but no such question is presented by this record.

Nor are we called upon to determine whether a qualified and limited restraint upon the alienation of a fee-simple title, imposed by an ordinary grantor upon an ordinary grantee, would be valid, even though not offensive to the rule against perpetuities. However, that may be, we do not doubt the power of the United States to impose such a restraint upon the sale of the lands of its Indian wards, whether acquired by private purchase and generally subject to state control or not. Such power rests upon the dependent character of the Indians, their recognized inability to safely conduct business affairs, and

*234

the peculiar duty of the federal government to safeguard their interests and protect them against the greed of others and their own improvidence. See and compare Libby v. Clark, 118 U. S. 250, 255, 6 S. Ct. 1045, 30 L. Ed. 133; United States v. Paine Lumber Co., 206 U. S. 467, 473, 27 S. Ct. 697, 51 L. Ed. 1139; Blanset v. Cardin, 256 U. S. 319, 326, 41 S. Ct. 519, 65 L. Ed. 950; Bunch v. Cole, 263 U. S. 250, 252, 44 S. Ct. 101, 68 L, Ed. 45 S.CT.-5

And the power does not fall short of the need, but, so long as they remain wards of the Government, justifies the interposition of the strong shield of federal law to the end that they be not overreached or despoiled in respect of their property of whatsoever kind or nature. United States v. Kagama, 118 U. S. 375, 383, 385, 6 S. Ct. 1109, 30 L. Ed. 228.

[3] Second. The statute imposes the restriction upon the alienation of the Indian's allotted lands and this, it is said, precludes an extension of the restraint to lands purchased for him. The authority given the Secretary to remove such restrictions, under prescribed rules and regulations "concerning the terms of sale and disposal of the proceeds for the benefit of the respective Indians," it is further insisted, ends with the disposal of the proceeds and does not extend so far as to permit him to impose restrictions upon the alienation of land purchased with such proceeds. The Secretary did not construe the statute so narrowly, but, acting under it, among other rules, prescribed that:

"Where lands are purchased for the use and benefit of any citizen of the Five Civilized Tribes, of the restricted class, payment for which is made from proceeds arising from the sale of restricted allotted lands 率 * * the superintendent * ** shall cause a conveyance of such lands to be made on a form of conveyance containing a habendum clause against alienation or encumbrance until April 26, 1931.”

*235

When the general protective policy of Congress in dealing with the Indians is borne in mind, it reasonably can*not be doubted that the authority conferred upon the Secretary to make rules concerning the "disposal of the proceeds for the benefit of the respective Indians" is broad enough to justify the rule in question. Since the allotted lands could not be sold or encumbered without his consent, and since the proceeds of any sale thereof were subject to his control and could only be disposed of with his approval and under such rules as he might prescribe for the benefit of the respective Indians, the extension of such control to the property in which the proceeds were directly invested would seem to be within the statute fairly construed. Indeed, we think the authority of the Secretary to withhold his consent to the proposed investment of the proceeds subject to his control, includes the lesser authority to allow the investment upon condi tion that the property into which the proceeds are converted shall be impressed with a like control. See United States v. Law, 250 F. 218, 162 C. C. A. 354; United States v. Thurston County, 143 F. 287, 290-291, 74 C. C. A. 425; National Bank of Commerce v. Anderson, 147 F. 87, 90, 77 C. C. A. 259. It is unnecessary to review the decisions said by appellant to justify the contrary conclu

-------

sion. Upon examination they are all found, 3. Judgment
to be readily differentiated from the case un-
der consideration.

[4-6] Third. The only suggestion contained in appellant's brief which seriously relates to the sufficiency of the evidence, is that the proof fails to establish that the Secretary imposed restrictions specifically upon the sale of the land in question. There was received in evidence a telegram from the Department, purporting to grant authority to purchase the land for Perryman and directing the use of "a restricted form of deed." We are unable to see how this could have referred to

anything else than the requirement of the rule heretofore quoted. It is said further that the telegram was not recorded in any

*236

office so as to *give constructive notice to appellant or the public. It was not necessary that it should have been. The conveyance made by its authority, embodying the restriction required by the rule, was recorded, and that was enough. The remainder of appellant's brief under this head resolves itself into a mere challenge of the competency or rele vancy of certain documentary evidence, including the telegram just mentioned, admitted, over objection, by the trial court. The assignment of errors contains no suggestion that the erroneous admission of evidence would be relied upon. The rulings of the court, therefore, admitting such evidence are not before us.

Decree affirmed.

(266 U. S. 236)

UNITED STATES v. MOSER. (Argued and Submitted Oct. 21, 1924. cided Nov. 17, 1924.) No. 99.

660-Doctrine of res judicata

not applicable to unmixed questions of law; applicable to question of fact, where right determined by erroneous view or application of law.

Though doctrine of rès judicata does not apply to unmixed questions of law, questions of fact or right, distinctly adjudged in original action, cannot be disputed in subsequent action, though determination was reached on erroneous view, or by erroneous application of law. 4. Judgment 725 (2)-Determination of individual's status, on which his right to recover depends, conclusive.

Determination in respect to status of individual, on which his right to recover depends, is as conclusive as a decision on any other matter.

Appeal from the Court of Claims.

Suit by Jefferson F. Moser against the United States. From a judgment of the Court of Claims in favor of claimant (58 Ct. Cl. 164), the United States appeals. Affirmed.

*237

*Mr. James M. Beck, Sol. Gen., of Washington, D. C., Merrill E. Otis, of St. Joseph, Mo., and John G. Ewing, of New York City, for the United States.

*238

*Mr. George A. King, of Washington, D. C., for appellee.

*239 *Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is a suit against the United States to recover the amount of the difference between the pay of a captain and a rear admiral in the navy, based upon section 11 of the Navy Personnel Act of March 3, 1899, c. 413, 30 Stat. 1004, 1007 (Comp. St. § 2641), De- as follows:

1. Judgment 586(1), 725(1)-Doctrine of conclusiveness applied as to same demand and different demands involving same questions.

Judgment on merits is conclusive, and bars subsequent action between same parties on same question, claim, or demand, and also concludes parties on different claim or demand which involves same question as litigated in original action.

2. Judgment 725 (2)-Decision of Court of Claims for cadet in Naval Academy, occupying status of officer who served during civil war, held res judicata in later suits for subsequent installments of salary.

Decision of Court of Claims in suit against

United States that service of officer as cadet in

Naval Academy constituted service during Civil War, within Act March 3, 1899, § 11 (Comp. St. § 2641), entitling him to be retired with rank and three-fourths sea pay of next higher grade, was res judicata in later suits for installments of salary.

"That any officer of the navy, with a creditable record, who served during the civil war, *240

*shall, when retired, be retired with the rank and three-fourths the sea pay of the next higher grade."

Claimant, having served forty years from the date of his entrance into the Naval Academy, was retired under section 1443, R. S. (Comp. St. § 2620), which reads:

"When any officer of the navy has been forty years in the service of the United States he may be retired from active service by the President upon his own application."

The right of the officer turns upon the question whether his service at the Naval Academy constitutes "service during the civil war," within the meaning of the provision first above quoted. Three previous suits for installments of salary-the right of recovery in each depending upon this same basic question-were decided by the Court of Claims in his favor. In each, the contention of the government was the same as it is here, viz. that service as a cadet during the

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