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pavement between the tracks, the removal or limitation of the number of tracks, in the interest of public travel, the frequency with which cars should be run for the public convenience, the stopping of cars at street crossings, the use of fenders, the rate of speed to be maintained, the sale of tickets, and generally to details of the conduct and operation of the railway, which experience might show to be necessary, in additon to or in amendment of those specified in the consent for the protection of life, the accommodation of the public, and the avoidance of injury to private property. Such regulations are not invasions of the contract rights of the company, and are just and reasonable." Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 305, 43 L. ed. 702, 709, 19 Sup. Ct. Rep. 465.

The fixing of rates is, as we have already said, among the most vital portions of the agreement between the parties contained in the ordinances. It cannot be supposed for one moment, with regard to a right so fundamental in its nature, that there was any intention to permit the common council in its discretion to thereafter make an alteration which might be fatal to the pecuniary success of the company. For the reasons already given, we think the language used

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Failure to make patentees from the United States of land within the limits of a Spanish land grant parties to a suit for the confirmation of such grant, as required by § 6 of the court of private land claims act, does not af fect the validity of the decree of confirmation, where the patents and the boundaries of the land patented are undisputed, as the only consequence of such omission in such a case is an acknowledgment of the title of such patentees to the land, and of its boundaries.

An unexplained delay of over six years after a land grant has been confirmed by the court of private land claims will defeat the right to recover a money judgment against the United States, under § 14 of the court of private land claims act, for the value of lands within the grant, disposed of and patented by the United States to third parties before the filing of the original petition.

[No. 169.]

Decided March 3, 1902.

PPEAL from the Court of Private Land
Claims to review a judgment against

Statement by Mr. Justice Brown: This was a petition, under the 14th section of the court of private land claims act, for a money judgment against the United States for lands within a Spanish land claim, which lands had been patented by the United States to third parties before the Spanish land grant had been acted upon or confirmed.

does not, in fact, give any such power to Argued and Submitted January 31, 1902. the common council. The ordinances of 1899 are, so far as this record shows, the first wherein the common council has assumed to make any change in the rates of fare without the assent of the company to the United States for the value of lands be affected thereby. From 1862 until 1899 within a Spanish land claim, which had there seems to have been no attempt to ex-been patented to third parties before the ercise this alleged power of alteration by the confirmation of the grant. Reversed. common council without the consent of the railway company. While the rate of fare existed as agreed upon between the city and the railway company, expenditures involving millions of dollars were entered upon, changing the mode of transportation from animal to electric power, and no claim seems ever to have been made on the part of the city of a right of alteration to be exercised in accordance only with its own views of reason and propriety. This in itself is a strong implication of the want of any such power under the various reservations set forth in the foregoing statement of facts and contained in the ordinances specified. But, aside from that and considering only the nature of the right itself growing out of the agreement as to fares, we are of the opinion that not one of the reservations of the right to make further rules or regulations could by any fair construction be held to include the right on the part of the city at its own pleasure to reduce the rates of fare agreed upon in those ordinances.

The original proceeding out of which the present claim for indemnity grew was a suit begun February 28, 1893, by the present appellees, who, with one exception, claimed to be the heirs at law and legal representatives of Juan José Lobato, against the United States, in the court of private land claims, for the confirmation of a grant alleged to have been made to Lobato August 24, 1740, of which juridical possession was given, and the grant ratified and confirmed by the proper authorities June 15, 1744. In their petition it was alleged that the same tract had heen previously granted to Cristobal de TorWe have thus answered the chief objec-res, but that his grant had been revoked in tions of the city to the maintenance of this 1733 and the tract declared to be Crown action. Some others have been made, which lands; that from the date of the grant to we have examined, but do not think it neces-Lobato in 1740 and for a period of 153 sary to further refer to them than to say they are in our opinion not well founded. We think the conclusions arrived at by the court below are correct, and its judgment is therefore affirmed.

years (down to the time of filing the petition) he and his legal representatives had been in peaceable adverse possession of the same, and that "there are no adverse holders, possessors, or claimants of or to any portion

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of said tract." The suit resulted in a decree | years, entertain a supplemental petition for in favor of the claimants (appellees) con- the value of certain parcels disposed of and firming the grant, and finding the title com- patented by the United States to third parplete and perfect in the claimants, at the ties, before the filing of the original petidate of the cession by the treaty of Guada- tion. lupe Hidalgo. The decree fixed the boundaries of the tract as shown in a map annexed to the petition. From this decree no appeal was prosecuted, and becoming final, it was executed by a survey approved by the court, and the land patented to the grantees.

The following sections of the court of private land claims act (26 Stat. at L. 854, chap. 539) are pertinent in this connection: "Sec. 6. That it shall and may be lawful for any person claiming lands within the limits of the territory derived by More than six years after the confirma- the United States from the Republic of Mextion of the Lobato grant the petitioners ico by virtue of any such Spanish filed the present petition, alleging that sev- or Mexican grant which eral parcels of land, amounting to 2,056 have not been confirmed by act of Congress, acres in the aggregate, had been disposed and which are not already complete of, granted, and patented by the United and perfect, in every such case to present a States to certain persons named in an ex-petition, in writing, to the said court, etc. hibit to the petition; that the lands so

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granted lay wholly within the boundaries of "The petition shall set forth fully the nathe Lobato grant as confirmed, and were ture of their claims to the lands, among the most valuable parts of such the name or names of any person or persons grant. The petition concluded with a pray-in possession of or claiming the same, or any er for judgment against the United States part thereof, otherwise than by the lease or for the value of the lands so patented. and

The United States answered, admitting the confirmation of the Lobato grant, and averring that the plaintiffs neglected to make the holders of the patented land parties defendant to the suit as required by law, but that they proceeded to try their cause, obtain a decree of confirmation, which had long since become final; and that by failure to make the patentees parties defendant, and by averring that there were no adverse claimants to any portion of the tract, "they thereby waived and disclaimed all right, if any they had, to challenge any disposition theretofore made under the laws of the United States to any portion of said grant." The petitioners filed a general demurrer to this answer, accompanied by an affidavit to the effect that the plaintiffs, until the survey of said grant, did not and could not know or certainly allege and affirm that the lands granted and disposed of by the United States, as set forth in their petition, were within the exterior limits of their grant, and consequently no allegation with relation thereto was made in their original petition, and that such knowledge only came to the petitioners within the last two years.

permission of the petitioner;

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a copy of such petition, with a citation to any adverse possessor or claimant, shall, immediately after the filing of the same, be served on such possessor or claimant in the ordinary legal manner of serving such process in the proper state or territory," etc.

Sec. 8. That any person or corporation claiming lands in any of the states or territories mentioned in this act under a title derived from the Spanish or Mexican government that was complete and perfect at the date when the United States acquired sovereignty therein, shall have the right (but shall not be bound) to apply to said court in the manner in this act provided for other cases for a confirmation of such title.

"If in any such case a title so claimed to be perfect shall be established and confirmed, such confirmation shall be for so much land only as such perfect title shall be found to cover, always excepting any part of such land that shall have been disposed of by the United States," etc.

"Sec. 14. That if in any case it shall appear that the lands or any part thereof decreed to any claimant under the provi*The demurrer to the answer was sus- sions of this act shall have been sold or tained, the case submitted upon an agreed granted by the United States to any other statement of facts, and a judgment rendered person, such title from the United States against the United States for $2,320.91, for to such other person shall remain valid, not1,856.73 acres at $1.25 per acre, in accord-ithstanding such decree, and upon proof ance with the prayer of the petition,-Justices Sluss and Murray dissenting.

Messrs. Matthew G. Reynolds and John K. Richards, Solicitor General, for appellant.

Messrs. George Hill Howard and Henry M. Earle for appellees.

Mr. Justice Brown delivered the opinion of the court:

being made to the satisfaction of said court of such sale or grant, and the value of the lands so sold or granted, such court shall render judgment in favor of such claimant against the United States for the reasonable value of said lands so sold or granted, exclusive of betterments, not exceeding one dollar and twenty-five cents per acre for such lands; and such judgment, when found shall be a charge on the Treasury of the United States."

This case raises the question whether, aft- Under these sections the holder of a comer a land grant has been confirmed by the plete and perfect title may resort to either court of private land claims, that court of two remedies: He may bring suit in the may, after an unexplained delay of over six 'local courts upon his title against anyone

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well as by the express stipulation of the parties. It is true that in United States v. Moore, 12 How. 209, 223, 13 L. ed. 958, 964, it was said with regard to a similar act that persons holding under patents from the United States "should be compelled to produce their title, so that, if a decree was made for complainant, the court could ascertain what part of the land should be granted to him by patent; and as this could interfering claims, the decree must of necessity specify their boundaries and quantities." But where, as in this case, the quantities and boundaries of the lands patented or otherwise disposed of are expressly stipu lated between the United States and the claimants of the land grant, and the rights of the entrymen cannot be affected by the decree, we see no occasion for making them parties.

in possession of the land covered by the grant, or any portion of it (United States v. Pillerin, 13 How. 9, 14 L. ed. 28; Ainsa v. New Mexico & A. R. Co. 175 U. S. 76, 90, 44 L. ed. 78, 84, 20 Sup. Ct. Rep. 28); or he may file his petition in the court of private land claims under § 8, subject to the condition that the "confirmation shall be for so much land only as such perfect title shall be found to cover, always excepting any part of such land that shall have been dis-only be done by a specific ascertainment of posed of by the United States." In such case, however, while he affirms the title of the patentee of the United States he may, under § 14, if “it shall appear that the lands or any part thereof decreed to any claimant shall have been sold or granted by the United States to any other person," recover a money judgment against the United States "for the reasonable value of said lands so sold or granted."

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As the petitioners in this case elected the The second objection is that the language latter remedy, they are entitled to a re- of § 14, "that if in any case it shall appear course against the United States to recover that the lands or any part thereof the value of the land patented, unless they shall have been sold or granted," limits the have in some way estopped themselves to recovery of the value of such lands to cases make the claim at this time. The argument wherein it appears in the original petition of the government in this connection is that, for confirmation that such lands have been under § 6, the petitioners were bound to set granted, and that the original petition in forth in their original petition "the name or this case having gone to a decree affirming names of any person or persons in posses- the survey, the court lost control of the sion of or claiming the same, or any part grant; and in addition thereto that the petithereof, otherwise than by the lease or per- tioners had, by the lapse of six years, waived mission of the petitioners," and that "a copy and abandoned their claim, and are guilty of such petition, with citation to any ad- of inexcusable laches. The original petition verse possessor or claimant, shall, imme- for confirmation was filed February 28, diately after the filing of the same, be served 1893, the decree of confirmation pronounced upon such possessor or claimant in the ordi- December 4, 1893, and the decree approving nary legal manner," etc., whose duty it shall the survey October 19, 1895. The present be to enter an appearance and plead, answer, petition for the value of the lands granted or demur to said petition; in default of was filed April 23, 1900, over seven years which the court is at liberty to proceed to after the original petition was filed, and hear the case upon the petition and over four years from the time of the decree proofs presented. Apparently, however, the approving the survey. While § 14 evidently only object of requiring notice to be given contemplates that the names of the adverse the adverse possessors or claimants is to holders shall be set forth in the original compel them to show the location and petition, that notice shall be given them and boundaries of their claims and that they are that the claim for a money judgment for the not mere squatters or trespassers, but hold lands granted them shall be incorporated the land under a grant from the United therein, we should not refuse relief solely States, in which case, under § 14, such title upon that ground, if sufficient excuse were from the United States to such other per-shown for the omission to make these granson "shall remain valid notwithstanding tees parties; since it might well be that, if such decree." If, however, it appear, as it the grant were a large one and its bounda does in this case, that the petitioners admit that the adverse possessors or claimants do hold under grants from the United States, and there are no disputed boundaries, there would appear to be no substantial reason for making them parties, inasmuch as they could not be affected by the decree. The only consequence of an omission to serve on them a copy of the petition is an acknowledgment of their title and of its boundaries.

The government could doubtless exonerate itself from payment by showing that it had never granted or disposed of the lands; but no attempt of that kind was made, and the proof that the lands were entered under the homestead laws and subsequently patented comes from the land office at Santa Fé, as

ries indefinite or unsettled, entries might inadvertently be made within the exterior limits of such grant and patents issued therefor in good faith and without the knowledge of the original grantee. In such event the right to reimbursement ought not to be denied, if due diligence to ascertain the facts were exercised at the time the petition for confirmation was filed.

But we are unwilling to admit that a claimant may wait an unlimited time and then, upon a simple allegation that certain lands within the grant had been disposed of, may recover their value. We think the claimant is bound to act with promptness, and if a long delay has occurred, to explain it by proper averments. The original petition for confirmation in this case, not only

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suggested no adverse claimants, but alleged positively that "there are no adverse holders, possessors, or claimants of or to any portion of said tract," when a simple reference to the records of the land office at Santa Fé would have shown the facts stated in Exhibit A annexed to the petition in this case, that fifteen homesteads had been entered upon this tract before the original petition was filed, in all but five of which patents had already issued. Not the slightest effort appears to have been made to ascertain these facts, and it was not until more than seven years thereafter that the petition in this case was filed. The petition sets forth that several parcels of land aggregating 2,056 acres, within the Lobato grant, were disposed of by the United States to other parties, but there is no allegation explaining why these grantees were not made parties to the original petition, or why the long delay occurred in making the claim for a money judgment.

tions must be presented to that court within six years from the time the cause of action accrues (24 Stat. at L. 505, chap. 359), and while there is no limitation of the time for petitions of this character to be filed in the court of private land claims, we have held that a similar act required that cases should be heard and disposed of upon equitable principles, and that we were "bound to give due weight to lapse of time." United States v. Moore, 12 How. 209, 222, 13 L. ed. 958, 963; Indiana v. Kentucky, 136 U. S. 479, 509, 510, 34 L. ed. 329, 332, 10 Sup. Ct. Rep. 1051. We think there has been such unexplained delay in this case as to justify the court in holding that petitioners had abandoned their claim for a pecuniary judgment. *The decree of the Court of Private Land Claims is therefore reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion.

Mr. Justice Harlan and Mr. Justice Gray did not sit in this case.

(184 U. S. 425) ALFRED BOOTH, Plff. in Err.,

บ.

PEOPLE OF THE STATE OF ILLINOIS.
Constitutional law-liberty

against options.

prohibition

The prohibition against options to buy or sell grain or other commodities at a future time, which is made by Ill. Crim. Code, § 130, does not invade the liberty granted to every citi zen by U. S. Const. 14th Amend

[Nc. 201.]

The answer of the United States sets up the failure of the petitioners to make the patentees parties to the original petition, and alleges that they thereby waived and disclaimed all right to a money judgment. Upon the same day this answer was filed, April 26, 1900, a demurrer thereto was filed, together with a deposition or affidavit setting up the fact that "prior and up to the survey of said grant, under the decree of confirmation," neither the original claimants nor their solicitor "knew or could know, or certainly allege and affirm, that the lands granted and disposed of by the United States as set forth and shown in the above said petition were within the exterior limits of the said Lobato grant," and that the facts were not ascertained "until within the past two years." How this affidavit came Argued and Submitted November 6, 1901. upon the record is not shown. No order was made permitting it to be filed. No reference to it or to the allegations it contains was made in the stipulation or agreed statement of facts upon which the case was tried, which affirmed a conviction for a violation nor in the finding of facts incorporated in of the Illinois act against options. Afthe decree of the court. For aught that ap-firmed. pears, it was thrust upon the files without authority. But even if the affidavit were treated as a proper part of the record, it fails to show the slightest diligence to ascertain the real facts, although a map annexed to the original petition exhibited the claimed boundaries of the tract, and a reference to the records of the land office would have shown the description of each parcel entered Mr. Justice Harlan delivered the opinas a homestead. Indeed it virtually con-ion of the court:

Decided March 3, 1902.

N ERROR to the Supreme Court of the

IN to the Supreview a judgment

See same case below, 186 Ill. 43, 50 L. R.
A. 762, 57 N. E. 798.

The facts are stated in the opinion.
Messrs. Charles H. Aldrich and Lee D.

Mathias for plaintiff in error.

Messrs. H. J. Hamlin and Elbert S. Smith for defendant in error.

fesses a neglect to file the petition for two *By § 130 of the Criminal Code of Illinois years after the facts came to the knowledge it is provided that "whoever contracts to of the petitioners. have or give to himself or another the option The case then comes to this: Whether to sell or buy, at a future time, any grain, upon a petition for value filed seven years or other commodity, stock of any railroad after the original petition for confirmation, or other company, or gold, or forestalls the a decree against the United States can be en-market by spreading false rumors to intered upon a simple allegation that certain fluence the price of commodities therein, or parcels had been conveyed and patented by corners the market, or attempts to do so in the United States, without showing some ex- relation to any of such commodities, shall cuse for the delay in presenting the petition, be fined not less than $10 nor more than or some diligence in ascertaining the real $1,000, or confined in the county jail not exfacts. Under the court of claims act peti- 'ceeding one year, or both; and all contracts

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The defendant was found guilty and adjudged to pay a fine of $100 and the costs of the prosecution.

At the trial, by motions to quash the indictment, in arrest of judgment, and for a new trial, the accused insisted that the statute under which he was prosecuted was repugnant to that clause of the 14th Amendment of the Constitution of the United States declaring that no state shall "deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." This contention was overruled both in the trial court and in the supreme court of Illinois. 186 Ill. 43, 50 L. R. A. 762, 57 N. E. 798.

There was no dispute as to the meaning of the above memorandum. It meant that on the 16th day of August, 1899, the defendant, a grain and provision broker, and the Weare Commission Company, made an agreement whereby, in consideration of the sum of $10 paid by Booth, he obtained from the company and was given the option of purchasing from it 10,000 bushels of corn at 31 cents a bushel, the option to remain good until the close of business on the 26th day of August, 1899.

entitled the parties obtaining it to elect on or before a named day whether they would buy the stock described in the agreement.

The supreme court of Illinois, in that case, observed that at common law all gambling! contracts were void, and that an agreement for the sale of property was a mere wager or gambling contract and void, if made with the understanding of the parties that no property was to be delivered or accepted but could be satisfied by an adjustment simply on the basis of the difference between the contract and the market price. It said: "It must be presumed that the object of the legislature was to declare that unlawful which theretofore had been lawful. Prior to this act it was lawful to contract to have or give an option to sell or buy, at a future time, grain or other commodity. Such contracts were neither void nor voidable at the common law. The statute makes them unlawful and void in Illinois."

That such is the scope and effect of the statute in question was recognized by the supreme court of Illinois in the present case. Booth v. People, 186 Ill. 43, 50 L. R. A. 762, 57 N. E. 798.

Taking the statute to mean what the highest court of the state says it means, is

it unconstitutional?

In support of the position that the statute is repugnant to the 14th Amendment, the learned counsel for the plaintiff advance many propositions that meet our entire approval. They cite, as in their judgment controlling, what this court said in Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 427, 431, namely, that the liberty mentioned in the 14th Amendment "means, not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes

above mentioned."

In Schneider v. Turner, 130 Ill. 28, 39, 6 L. R. A. 164, 166, 22 N. E. 497, 498, the question was whether the statute embraced an agreement in these words: "Chicago, November 11, 1885. In consideration of one dollar and other valuable considerations, reThese declarations state, in condensed ceipt of which is hereby acknowledged, I form, principles which had been announced hereby agree to sell to George Schenider, in previous cases, and which may be regardWalter L. Peck, and Fred W. Peck seven-ed as expressing the deliberate judgment of teen hundred and eighty-six shares of the capital stock of the North Chicago City Railway at six hundred dollars per share, if taken on or before the 15th day of December 1885. V. C. Turner."

this court. But those declarations do not, in themselves, determine the question now presented. When it is said that the liberty of the citizen includes freedom to use his faculties "in all lawful ways," and to earn It was contended that that agreement was his living by any "lawful calling," the innou prohibited by the statute; that the leg-quiry remains whether the particular callislature only intended to make such option contracts unlawful as were gambling contracts, that is, option contracts that did not contemplate the delivery or acceptance of any property and which only required a settlement by "differences;" whereas it was insisted, the option there in question had no element of gambling, being only one that

ing or the particular way brought in question in a given case is lawful, that is, consistent with such rules of action as have been rightfully prescribed by the state.

It is, however, said that the statute of the state, as interpreted by its highest court, is not directed against gambling contracts relating to the selling or buying of grain or

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