stitutional right of the defendant to a jury trial. This, however, is rather by way of suggestion. It is not necessary to the decision of the question before the court. It was held in Railway Co. v. Humes, 115 U. S. 512, 6 Sup. Ct. Rep. 110, that the legislature of a state may fix the amount of damages beyond compensation to be awarded to a party injured by the negligence of the railroad company, or prescribe the limit within which the jury in assessing such damages may exercise their discretion, and that the additional damages are by way of punishment to the company for its negligence; and it is not a valid objection that the sufferer, instead of the state, receives them. The court in that case said that the statute only fixes "the amount of the penalty in damages proportionate to the injury inflicted. In actions for the injury the company is afforded every facility for presenting its defense." The court also referred to the fact that the

"Statutes of nearly every state in the Union provide for the increase of damages where the injury complained of results from the neglect of duties imposed for the better security of life and property, and makes that increase in many cases double, and in some cases treble, and even quadruple, the actual damages."

The court further said that such legislation was not only favored by experience as a most efficient mode of preventing the commission of injuries, but that its validity has been affirmed by decisions of the highest courts. But that case is clearly distinguishable from the case here, in that the provisions referred to were expressly in addition to the damages to be ascertained by the evidence, and were subject to the discretion of the jury. Here the statute fixes the amount for recovery without reference to the injury sustained, and shuts out all evidence as to the actual damage.

I am clear, however, that the amount fixed in the statute cannot be properly regarded as liquidated damages. The fact that sections 4426 and 4427 authorize an action for damages by reason of the death of a person caused by the wrongful act, neglect, or default of another, and that suits therefor may be brought by the same parties, and in the same manner, as provided in section 4425, and that in such actions the recovery shall be for such damages, not exceeding $5,000, as may be established to the satisfaction of the jury within the rules provided in the section, is strongly confirmatory of the view that section 4425, which relates exclusively to injuries resulting in death by reason of the negligence, etc., of the officers, servants, and employes of railroad companies, is penal in its nature.

I therefore hold that this court has no jurisdiction in this case, upon the well-recognized rule that penal statutes can be enforced only within the sovereignty of their creation, much for the same reason that criminal statutes have no extra-territorial force.

With this conclusion I might dismiss the case, and perhaps should, without considering the question whether this plaintiff has any standing in this court; but, as that has been fully argued, I will express my opinion upon that also.

The general rule is that the expression "natural children" refers exclusively to children born out of lawful wedlock. Plaintiff's counsel claim, therefore, that, as the right is given to the parents of a deceased and unmarried minor, whether such minor be a natural born or adopted child, it includes such a case as this. The answer to this contention is, first, that it has been held that in a statute declaring that adopted children shall have all the rights of natural children the word "natural” was used in the sense of legitimate. Barns v. Allen, 9 Amer. Law Reg. 747. Apart from this view, the language of the section is not in my judgment consistent with the proposition that it confers the right. claimed here, for the right of action is given to the father and mother, who may join in the suit, and each shall have an equal interest in the judgment, or, if either of them be dead, then by the survivor. That the father has no right to sue is perfectly clear, and yet the only provision authorizing father or mother to sue is that just quoted. They may join if living, and the suit can be by one only in case the other be dead. This clearly, in my mind, refers exclusively to cases where father and mother are joined in lawful wedlock. It is urged, however, that the statute, being remedial, should be liberally construed to effectuate the manifest purpose of the legislature to provide damages for parent or parents of minor unmarried children. The liberal rule of construction might be invoked if this were a statute providing compensatory damages merely. But even in that case, inasmuch as the statute creates a right of action which did not exist at common law, that right can be exercised by those only who come within its provisions, which do not include the mother of an illegitimate child.

The case will be dismissed.

CRANE CREEK SHOOTING CLUB Co. v. CEDAR POINT CLUB Co.

(Circuit Court, N. D. Ohio, W. D. May 1, 1891.)

PUBLIC LANDS-SWAMP LANDS-DECISION OF COMMISSIONER.

By Act Cong. Sept. 28, 1850, the commissioner of the general land-office was constituted a special commissioner for determining the character of lands which, under that act, either passed to the state or were lands subject to sale; and where, in an action of ejectment, it appears that the lands in question were a part of a certain list of lands selected by the state, and claimed by it under the act, but that its claim was rejected by the commissioner in 1852; that again, in 1882, the land was claimed by the state as swamp land, and that the claim was again rejected by the commissioner as having been finally adjudicated by the former rejection thereof; and that the action of the commissioner was sustained by the secretary of the interior on appeal,-such decision of the land department will be regarded as conclusive; and the question whether the lands are really swamp lands, within the meaning of the act, will not be considered by the court.

At Law.

J. H. Tyler and A. Farquarson, for plaintiff.

J. D. Ford and Squires, Sanders & Dempsey, for defendant.

v.46F.no.4-18

RICKS, J. The petition in this case was filed on the 2d day of September, 1889, in the court of common pleas for Lucas county, Ohio. On the 2d of October, 1889, the defendant filed its original answer, and on the same day filed its petition and bond for removing the cause to this court. The petition avers that the plaintiff is a corporation created under and by the laws of the state of Ohio, and that the defendant is also an Ohio corporation. The plaintiff further avers that it has a legal estate, and is the owner, in fee-simple, of certain swamp lands formerly owned by the state of Ohio, which lands are more particularly described as follows: "Being lots 1 and 6, in town 10, section 11 south of range 10, East Michigan meridian, in Lucas county, state of Ohio;" and that said plaintiff is entitled to the immediate possession of said lands so described. That the said defendant, the Cedar Point Club Company, has ever since on or about the 1st day of June, A. D. 1889, unlawfully kept, and does now unlawfully keep, the said plaintiff out of possession thereof. Wherefore said plaintiff prays that it be decreed by the court to be the owner of said lots 1 and 6, the above-described premises, and that it have judgment for the recovery thereof; that the defendant be ordered to deliver to the plaintiff the immediate possession thereof. The defendant, in its original answer, admits that it is a corporation, and that ever since June 1, 1889, it has kept the plaintiff out of possession of the real estate described in the petition. It avers that it is the owner, in fee-simple, of the real estate described in the petition, and was for many years prior to this suit, and is now, in possession of the same as owner thereof; that it purchased the same from Philip Lacorse, who conveyed the same to the defendant prior to this suit; that said Lacorse derived his title and ownership by entry and patents from the United States. On the same day, the defendant filed its petition for removal to this court on the ground that the controversy between the parties involved the construction of an act of congress, and thereby conferred jurisdiction upon this court. On the 22d of January, 1890, the defendant, by leave first had and obtained, filed its amended answer, in which it admits and reaffirms all the allegations of the original answer, and, further answering, says that on December 19, 1850, under the swamp-land act of congress of September 28, 1850, the state of Ohio selected a list of swamp lands to which it claimed it was entitled under the provisions of said last-named act, embracing in the aggregate 32,438.15 acres, included in which was the land described in the plaintiff's petition herein. On the 19th of December, 1850, the register of the land-office at Defiance, Ohio, reported to the general land-office at Washington:

"That the list above named contained all the swamp or overflowed lands unfit for cultivation in this district, as far as a determination can be formed from the plats and descriptive notes in this office, made out in pursuance of a circular from the commissioner of the general land-office, dated November 21, 1850."

On the list of land thus reported from the Defiance land-office was a large tract of marsh land, among which was included the land described

by the plaintiff's petition, which was designated and marked on said list as follows:

DISPUTED TERRITORY NORTH OF THE OLD STATE LINE.

Deep marsh covered with water, 9 s., 9 e.,

2,500

1,500

2,000

6,000

Upon full consideration of the facts, including that of the character of the land, the claim of the state of Ohio to all of said 6,000 acres was rejected by the commissioner of the general land-office because said lands were not within the operation of the act of September 28, 1850. Said decision was rendered on the 29th of September, 1852, and said lands, including the lands claimed in the plaintiff's petitition, were designated in the general land-office as "List No. 2, Defiance, Ohio." Said rejection was registered in the general land-office on October 8, 1852, and a duly-certified copy thereof was sent to the register at Defiance, Ohio; and on October 7, 1852, a similar copy was sent to the governor of Ohio, and duly received by him. The answer further avers that the authority to determine all questions relating to the lands affected by the act of September 28, 1850, was vested in the secretary of the interior and the commissioner of the general land-office, and that the decision of the commissioner was final, unless an appeal was taken to the secretary of the interior; and the answer avers that no such appeal was taken by the state of Ohio, and that the decision referred to was therefore conclusive as to the character of said land, and as to the title of the plaintiff thereto. The answer further avers that afterwards, on the 11th day of February, 1882, G. H. Foster, a commissioner appointed under the laws of Ohio to represent her in her swamp-land claims against the general government, filed his application with the commissioner of the general land-office to sell the lands within the limits of the Marston survey, which included the 6,000 acres of land heretofore referred to, and including the land claimed in the plaintiff's petition as belonging to the state of Ohio under the swamp grant of September 28, 1850; act of March 3, 1857; and sections 2479, 2481, and 2484 of the Revised Statutes of the United States. The commissioner of the general land-office again rejected said application, for the reason that the state of Ohio had once been heard on said claim, which had been rejected, and from which decision no appeal had been taken, and that thereby said rejection became a final adjudication of the claim. From said decision an appeal was taken by the commissioner for Ohio to the secretary of the interior prior to March 9, 1882, and a request was made at the same time to stay the public sale of said lands, offered in pursuance to the former decision; and on that day the secretary affirmed the decision of the general land-office, and refused to postpone the sale. And thereafter, on application of the state of Ohio, the secretary gave a rehearing on said appeal, and on the 29th of March, 1882, the former decision was re

affirmed, and it was ordered that said lands be advertised and disposed of as public lands of the United States. The Honorable H. M. Teller having soon thereafter succeeded the Honorable S. J. Kirkwood as secretary of the interior, an application was made to hin on behalf of the state of Ohio, and others interested in said land, to have the decision of his predecessor reviewed. Said application was rejected by the new secretary on the 8th day of June, 1882, for the reason that the former decisions were correct and final, and because the lands had been actually sold under his predecessor's orders, and, such sale having been properly and satisfactorily made, the secretary ordered the patents to issue upon the entries made at the public offering. The answer further avers that the land described in the plaintiff's petition was embraced within all the foregoing adjudications and decisions, which the defendant avers are final as to all claims of the state of Ohio; and that, subsequent to said decisions, Philip Lacorse, the defendant's grantor, received from the government of the United States a regular patent for the lands described in the plaintiff's petition. The defendant further avers that it was duly transferred on the tax duplicate of Lucas county, and that since 1882 it has owned and possessed the same, and paid taxes thereon for city and county purposes in said county. Wherefore it asks that it may be decreed to be the owner thereof, and its title thereto be forever quieted as to all claims of the plaintiff. The plaintiff filed its demurrer to the above amended answer, because "the same does not state facts sufficient to constitute a ground of defense."

These pleadings present the question whether, assuming all the facts to be true as pleaded in the answer, the plaintiff is precluded by the decisions set forth therein from further contesting the validity and conclusive character thereof. Under the act of September 28, 1850, the commissioner of the general land-office was constituted a special tribunal for determining the character of lands which, under that act, either passed to the state, or were held to be lands subject to sale under the provisions of law. In this case, by affirmative action on the part of the state of Ohio, through its land commissioner at Defiance, the question was fairly presented to the commissioner of the general land-office as to the character of the 6,000 acres of land specifically described in List 2, as set forth in the amended answer. After satisfactory hearing, the exact nature of which is not disclosed by the answer, and is not material for the purposes of this opinion, the land-office held that the 6,000 acres referred to were not swamp lands, and therefore did not pass to the state of Ohio under the act of congress referred to. Of this decision due notice was given to the state of Ohio, both to its land commissioner and to the governor thereof. Under the acts of congress, the right to an appeal to the secretary of the interior was given to the state. This right was not exercised, for reasons which must have been satisfactory at the time to the authorities of the state. Nearly 30 years after that decision the state of Ohio again appealed to the land-office, through its land commissioner, to sell the lands within the limits of the Marston survey, which included the lands in controversy in this case, as belonging to the state