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Mr. Justice Peckham delivered the opin- | tiff, was a citizen of the United States and ion of the court:

was a bona fide resident of the territory of The government has brought this case here Arizona. And should the evidence in this by writ of error for the purpose of reviewing case fail to establish that, at the time of the a judgment of the supreme court of Arizona, cutting and removal of said timber, the said affirming a judgment entered upon the ver Daniel D. Ross was a citizen of the United dict of a jury in favor of the defendant. The States, and a bona fide resident of the teraction was to recover $183,000, being the al ritory of Arizona, you must find for the leged value of about 5,900,000 feet of timber, plaintiff, without regard to the mineral or said to have been wrongfully cut and taken nonmineral character of the land.” by the defendant from the surveyed and un- * The jury found a verdict for the defend.* surveyed public lands of the United States ant, after which a motion for a new trial in a cañon in the Chiricahua mountains, 60 was made and denied by the trial judge. miles from the town of Wilcox on the South. An appeal from the judginent entered upon ern Pacitic Railroad in the territory of Ariz- the verdict was then taken to the supreme

court of the territory, where it was affirmed. The answer joined issue upon the allega- It thus appears that the judge held, and tions of the complaint, and also set up that so charged the jury, that Ross, who did the the timber was cut by one Ross from public cutting, must have been, not only a bona fide mineral lands of the plaintiff, and was so cut resident of the territory, but also a citizen and removed from those lands under the au- of the United States, and if he were not, then thority of the act of Congress of June 3, the plaintiff was entitled to a verdict. The 1878 (20 Stat. at L. 88, chap. 150) the ma- government now says there was no evidence terial portion of which reads as follows: in the case that Ross was a citizen of the

“That all citizens of the United States and United States, nor any tending to show he other persons, bona fide residents of the was a bona fide resident of Arizona at the state of Colorado, or Nevada, or either* of time the cutting was done, and that unless the territories of New Mexico, Arizona, Ross were such citizen, and also a bona fide Utah, Wyoming, Dakota, Idaho, or Montana, resident of the territory, his cutting of the and all other mineral districts of the United timber was wrongful, and the government States, shall be, and are hereby, authorized was entitled to a verdict. The verdict must and permitted to fell and remove, for build be regarded as a finding that Ross was a cit. ing, agriculture, mining, or other domestic izen of the United States and a bona fide purposes, any timber or other trees grow- resident of the territory when the cutting ing or being on the public lands, said lands was done. If he were, there is no question being mineral, and not subject to entry un- made about his right to cut. The motion on der existing laws of the United States, ex: the part of the government at the close of cept for mineral entry, in either of said the evidence, to direct a verdict for the gov. states, territories, or districts of which suchernment upon all the evidence, and the excitizens or persons may be at the time bona ception to the refusal of the court so to do, fide residents, subject to such rules and reg. would raise the question whether there was ulations as the Secretary of the Interior may any evidence of the citizenship of Ross and prescribe for the protection of the timber of his residence in the territory when the and of the undergrowth growing upon such cutting was done, upon which to base a ver. lands, and for other purposes: Provided, dict, were it not that the bill of exceptions The provisions of this act shall not extend lacks an essential statement for that purto railroad corporations."

pose. The answer further set up that Ross had It does not appear from the bill that it good right and lawful authority to cut and contains all the evidence given upon the remove the timber, and that it was cut and trial. It may be that it does, but we can. removed from such lands in good faith, and not, in the absence of any statement in the at the time that he so cut and removed the bill to that effect, presume it does for the timber Ross was a citizen of the United purpose of reversing the judgment herein, States of America and a bona fide resident upon the assumption that the proper conof the territory of Arizona.

struction of the act of Congress requires A trial was had in the district court be such citizenship as well as residence. When fore a judge and jury, and upon the close this court is asked to reverse a judgment enof the evidence counsel for the government tered upon a verdict of a jury, upon a writ made a motion that the court instruct the of error, upon the ground that there is abso jury to find on the evidence a verdict for lutely no evidence to sustain it, and the the government, which was refused and an court should have directed a verdict, the bill exception taken.

of exceptions must embody a statement, or Among other things the court charged the there must be a stipulation of counsel de los jury as follows:

claring that the bill contains all the evidence "It is also incumbent upon the defendant, given upon the trial, so that the*record shall in order to avail itself of the permission affirmatively show the fact. Russell v. Ely, granted by said act of June 3d, 1878, and 2 Black, 575, 580, 17 L. ed. 258, 260. In the in order to justify its purchase and con. cited case the court, after remarking that sumption of said timber, to show by a pre- the bill of exceptions did not purport to give ponderance of the evidence that Daniel D. all that a certain witness had testified to, Ross, at the time of the cutting and removal said that, according to a well-known rule, of said tinber from the lands of the plain-'the court, under such a condition of the rec

ord, was bound to presume that there was that Ross was a citizen and a bona fide resthat in the witness's testimony which justi. ident, it is admitted that the verdict could fied the instruction. It was then added by not be disturbed by this court. There may the court: “What purports to be the entire have been evidence upon both propositions deposition of Baker is sent up by the clerk sufficient to sustain the verdict. of the district court, and is printed in the The judyment must therefore be affirmeda record before us, and if properly before us might sustain the exception. But this deposition is not incorporated into the bill of

(185 U. S. 499) exceptions, nor so referred to in it as to be SOUTHWESTERN COAL AND IMPROVE made a part of the record of the case. It MENT COMPANY et al., Appts., is only a useless encumbrance of the transcript, and an expense to the litigating par.

HYRAM Y. MCBRIDE et al. ties.” The court thus refused to look at the deposition, which purported to be the entire Statutes-retrospective operation of act pro deposition of the witness, because it was not hibiting collection of royalties under in made a part of the bill of exceptions.

dian coal leases. In this case there is nothing whatever in the bill of exceptions to show that the evi. The collection of royalties due and owing to dence contained therein is all the evidence the lessors of coal mines in the Choctaw na. that was given on the trial, and we cannot tion for coal mined under valid leases prior

to the Curtis act of June 28, 1898, was not presume, for the purpose of reversing the judgment, that there was no evidence given

probibited by the provisions of § 16 of that

act, making it unlawful for any person after upon which the jury might rightfully have

the passage of such act to deinand or receive found the verdict which they did.

any sucb royalty, or for anyone to pay any So, in Teras & P. R. Co. v. Cox, 145 U. S. such royalty to any individual. 593, 606, 36 L. ed. 829, 833, 12 Sup. Ct. Rep. 905, 909, which was an action to recover

(No. 230.) damages against the company for the death of plaintiff's husband, resulting from the neg. Argued April 21, 1902. Decided May 19, ligence of the company, it was remarked, in

1902. regard to the evidence in the case, that "the bill of exceptiones does not pour monte tincorper | A PEELAL from the United States Circuit to hold that the court should have directed cuit to review a judgment affirming a judga verdict for defendants for want of that ment of the Court of Appeals for the Indian which may have existed.”

Territory which affirmed a judgment of the It is true there is printed herein, together United States Court for the Indian Terri. with the bill of exceptions, the statement tory, Central Judicial District, in favor of that a motion for a new trial was made, and plaintiff in a suit to recover royalties due the reinarks of the court are set forth upon under an Indian coal lease. Affirmed. his denial of the motion. The court said See same case below, 43 C. C. A. 683, 104 that, if the verdict were to be set aside, it Fed. 1007. would have to be based solely upon the failure of evidence to show that Ross was a citi. Statement by Mr. Justice White: zen of the United States; but the court also This litigation was begun in the United remarked that at the time when he gave the States court for the Indian territory, central instruction to the jury, that Ross must have judicial district, sitting at Atoka, by the fil. been, not only a bona fide resident of the ing of a bill in equity on behalf of Hyram territory, but a citizen of the United States, Y. McBride, a citizen of the Choctaw Nation. when the cutting of the timber was done, he The defendants named in the bill were the believed it to be a true expression of the law National Bank of Denison, the Southwestern applicable to the case under the pleadings. Coal & Improvement Company (hereafter It is plain that, in the view of the judge referred to as the coal company) and J. A. when the case was submitted to the jury, Randell, as administrator of the estate of he thought there was evidence upon which G. G. Randell, deceased. The coal company a jury might find the fact of the citizenship is an appellant in this court, while McBride of Ross. His subsequent statement made and Randell are the appellees. It upon the refusal to grant a new trial, which averred in the bill that on April 6, 1894, the inferentially, perhaps, admits that there was complainant (McBride) was the owner of a not sufficient evidence to show that Ross share in a certain coal or mining interwas such citizen, leaves a foundation for est situated in the town of Coalgate, Indian the belief that there was room upon the evi. territory, which coal claim was being opedence for a difference of opinion in regard to rated, under royalty contracts, by the coal that fact. However that may be, the record company; that, to secure an indebtedness is in such a state that we cannot say that due by the complainant to the National all the evidence given upon the trial is con- Bank of Denison, complainant had executed tained in the bill of exceptions, and, there and delivered a mortgage upon his aforesaid fore, we cannot say that there was no evi. share; and that, under the assumed author. dence of the residence, and of the citizenship ity of a power of sale contained in the mort. of Ross, upon which the verdict of the jury gage and pursuant to a combination between might be sustained. If there were evidence' the bank and one G. G. Randell, a purported

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sale of said share of complainant was made defendant Randell, administrator, wherein to said Randell, but that said pretended sale, it was agreed that the complainant was enfor various stated reasons, was illegal and titled to $900 of the sum admitted by the void. It was further averred that from the coal company to be unpaid, and that the said time of said pretended sale the coal compa- defendant administrator was entitled to the ny had failed to make payments of royalties remainder, or the sum of $1,717.29. Upon due upon said share of complainant, and was the pleadings in the cause and the stipulaliable to account therefor. The prayer of tion referred to, a motion for judgment the bill was, in substance, that the sale in against the coal company for $2,617.29 was question be declared a nullity, and that the liled on behalf of the complainant and said various defendants account to complainant defendant administrator. The motion was a in respect to the royalties received and re- granted, and a judgment was entered accordtained.

ingly. An*appeal was taken to the court The bank filed its answer, and therein dis- of appeals for the Indian territory, and that claimed having any interest in the unpaid court affirmed the judgment. 54 S. W. royalties claimed by complainant and J. H. 1099. The judgment of affirmance was in Randell, as administrator of G. G. Randell. favor of McBride and Randell, administra. In its answer the coal company, among other tor, against the coal company and the sure things unnecessary to be stated, admitted ties ou its supersedeas bond (Clarence W. that it had withheld payments from March Turner and Homer B. Spaulding), for the 1, 1897, of royalties on the coal mining share amount of the original judgment, with in. referred to in the complaint, and averred terest and costs. An appeal was then prosethat the amount of said unpaid royalties cuted by the coal company and Turner and aggregated $2,617.29. The coal company Spaulding to the United States circuit court also further specifically pleaded in its an- of appeals for the eighth circuit. That swer as follows:

court affirmed the judgments (43 C. C. A. Defendant coal company further states 083, 104 Fed. 1007), and the cause was then that on the 28th day of June, 1898, the appealed to this court. President of the United States approved an act entitled 'An Act for the Protection of Messrs. James Hagerman, Clifford L.

the People of the Indian Territory, and for Jackson, and Joseph M. Bryson for appelOther Purposes,' and which said act of Con- lants. gress is commonly known as the 'Curtis bill,' No counsel for appellees. and by § 16 of said act it was provided that it should be unlawful for any person, aft- Mr. Justice White, after making the er the passage of said act, except as other foregoing statement, delivered the opinion wise provided therein, to claim, demand, or of the court: receive for his own use, or the use of anyone The sole question presented for the consid. else, any royalty on coal, or any rents on eration of the courts below and necessary any lands or property belonging to any one to be passed upon by this court was, and is: of said tribes or nations in said territory, Did the act of Congress, approved June 28, or for anyone to pay to any individual any 1898, known as the Curtis act, operate to such royalty or rents or any consideration deprive the lessors of coal mines in the Choc therefor, whatsoever.

taw Nation of the royalties due and owing "And that by virtue of the provisions of to them for coal mined under valid leases said act of Congress hereinabove referred to, prior to the date named? The question nec. on and after the 28th day of June, 1898, no essarily requires a construction of § 16 of royalties accrued to any person upon this the act, which reads as follows: said interest claimed by the plaintiff in said “Sec. 16. That it shall be unlawful for mines; and that by virtue of the provisions any person, after the passage of this act, ex• of said act of Congress, hereinabove referred cept as hereinafter provided, to claim, de to, the royalty which accrued upon said in mand, or receive, for his own use or for the terest so claimed by the plaintiff in said use of anyone else, any royalty on oil, coal, mines and which said coal company had not asphalt, or other mineral, or on any timber paid over to said defendant bank in accord- or lumber, or any other kind of property ance with plaintiff's instructions, is no whatsoever, or any rents on any lands or longer due and payable to the said plaintiff property belonging to any one of said tribes or any person claiming under him, and can- or nations in said territory, or for anyone not be claimed, demanded, or received by the to pay to any individual any such royalty plaintiff, or any other person; and that by or rents or any consideration therefor what. virtue of § 18 of said act of Congress, here- soever; and all royalties and rents hereafter inabove referred to, any person claiming, payable to the tribe shall be paid, under demanding, or receiving any of the royal. such rules and regulations as *may be preties which the plaintiff claims accrued upon scribed by the Secretary of the Interior, inthe interest claimed by him in said coal to the Treasury of the United States to the mines, becomes guilty of a misdemeanor, credit of the tribe to which they belong: which is punishable by a fine of not less than Provided, That where any citizen shall be one hundred dollars ($100.00), and is lia in possession of only such amount of agricul. ble to forfeit possession of the property in tural or grazing lands as would be his just question."

and reasonable share of the lands of his naA written stipulation was thereafter en tion or tribe and that to which his wife and tered into between the complainant and the minor children are entitled, he may con

tinue to use the same or receive the rents treaty or convention entered into pursuant thereon until allotment has been made to to the Constitution." We do not decide this him: Provided, further, That nothing here contention, in view of the fact that it does in contained shall impair the rights of any not appear to have been raised or considered member of a tribe to dispose of any timber in the courts below, and it is besides entirely contained on his, her, or their allotment.” inconsistent with the answer of the coal [30 Stat. at L. 501, chap. 517.)

company, wherein it is substantially conA particular consideration of g 18 of the ceded that the lease in question was valid act, referred to in the answer of the coalin its inception, and that the unpaid royalcompany, is not required, as the section ties would have been due and owing to the merely provided for the punishment of any lessor or his assigns, but for the effect of the person convicted for violating any of the alleged nullifying provisions of § 16 of the provisions of $$ 16 and 17 of the act. Curtis act.

On the part of the appellants, it is con- Judgment affirmed. tended that the section in question is retro spective in its operation, and inhibits the collection of royalties due and owing at the

(186 U. S. 114) time of the approval of the Curtis act, even

LOUIS BEYER, Appt., though such royalties, had the statute in question not been passed, might lawfully

CAROLINE LE FEVRE. have been collected by the lessors to whom it had been agreed the same should be paid. Courts — jurisdiction waiver of objection The circuit court of appeals, however, sus. — wills undue influence-sufficiency of tained the contention that the provisions of evidence. the section in question had only a prospective operation, and in so doing we think no 1. The objection of the want of jurisdiction error was committed. We adopt the reason- of the supreme court of the District of Coing of the court below on the subject. The lumbla sitting as a court of equity, over a court said (43 C. C. A. 652, 104 Fed. 473):

sult to set aside a will of real and personal “The function of the legislature is to pre

property, will be regarded as waived where

the parties agreed to submit certain issues scribe rules to operate upon the actions and

to a jury (before whom such issues were in rights of citizens in the future. While, in

fact tried) and stipulated for returning the the absence of a constitutional inhibition, testimony there taken to the equity court for the legislature may give to some of its acts consideration by the judge thereof. a retrospective operation, the intention to 2. A will of a person of sound mind and memdo so must be clearly expressed, or necessar- ory cannot be set aside in the Federal courts ily implied from what is expressed; and, as.

on evidence tending to show only a possibile suming the legislature to possess the power,

Ity or suspicion of undue influence. its act will not be construed to impair or destroy a vested right under a valid contract

[No. 237.) unless it is so framed as to preclude any other interpretation. If Congress had intended Argued April 25, 28, 1902. Decided May to deprive lessors of the royalties due and

19, 1902. owing to them at the date of the act it would have used appropriate*language to express that intention, and would necessarily have which affirmed a decree of the Supreme

District of Columbia to review a decree made some provision for the disposition of such royalties. But it is clear from the lan. Court of the District setting aside a will for

undue influence. Reversed. guage of the act that it does not deal with royalties already paid, or already due and

See same case below, 17 App. D. C. 238. owing to lessors under leases for coal al

Statement by Mr. Justice Brewer: ready mined.

Congress, by the Cur. tis act, neither attempted nor intended to of this District on April 7, 1899, to set aside

This was a bill filed in the supreme court interfere with the rights of lessors to royal. the following will: ties due them under their leases at the date of the passage of the act."

In the name of God, Amen. It is asserted in the brief of counsel for I Mary Beyer of the city and county of the appellants that the contract under Washington and District of Columbia being which the royalties in question became due now of sound and disposing mind, do make, was made under authority of a tribal law ordain, publish and declare this to be my of the Choctaw Nation, and we are asked last will and testament: That is to say, to assume that the authority to make the first after all my lawful debts are paid and lease in question was not either directly or discharged the residue of my estate, real and indirectly conferred by Congress, and that personal, I give, devise, bequeath, and disin consequence the contract was of no valid pose of as follows: to wit all the furniture ity by reason of $ 2116 of the Revised Stat- and personal effects now in the home, numutes, wherein, among other things, it is de ber 2258 Brightwood avenue I desire to reclared that "no purchase, grant, lease, or main there during the life of my husband other conveyance of lands, or of any title or Louis Beyer or so long as it remains the claim thereto, froin any Indian nation or family home, and in the event of the house tribe of Indians, shall be of any validity in not being retained as a family home then the law or equity, unless the same be made by 'furniture and all other personal effects be

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longing to me are to go to and belong to Louis Reyer, Junior, a nephew; Helen B. my nephew and adopted son born Charles Johnson, a niece; Louis Beyer, Junior, as Lewis Smith but adopted by me at birth and executor, and Meyer Cohen and Adolph G. thereafter always called Louis Beyer, Jun. Wolf, trustees in a deed of trust executed ior.

by the husband of the testatrix on May 13, To iny sister Elizabeth Kersinski Maus of 1897. The ground of attack was the alleged Philadelphia, Pa. I leave five dollars. mental incapacity of the testatrix and un.

To my sister Caroline Kersinski Lefevre due influence on the part of Louis Beyer, of Brookland, D. C. I leave five dollars. Junior, and Helen B. Johnson. The person.

* To my niece Helen J. Fenton of Washing. al property belonging to the testatrix was ton, D. C., I leave five dollars.

of little value, but she owned certain real All the rest and residue of my estate, real, estate, subject to a trust deed, which in the personal and mixed, of which I may die bill was alleged to be of the value of $25,000 seized and possessed, whatsoever and where over and above the encumbrance. Louis soever, of what kind, nature and quality so- Beyer, Junior, and Helen B. Johnson, an. ever the same may be, and not hereinabove swering separately, denied metal unsound. given or disposed of, I hereby give, devise, ness and unuue influence; alleged that the and bequeath, unto my nephew and adopted will was duly executed, and challenged the son, Louis Beyer, Junior, and Helen B. jurisdiction of the court, sitting as a court Johnson my niece in equal shares, as tenants of equity, to entertain the bill. The trus. in common, and not as joint tenants, their tees pleaded that the bill stated nothing en. heirs and assigns, absolutely and forever. titling the complainant to relief in equity,

Having full faith and confidence in the and averred that their deed of trust was a honesty, integrity, and affection of my said valid lien. Louis Beyer demurred general. adopted son and of my said niece, I leave ly. On June 20, the court having made no them all the property stated herein knowing ruling upon the question of jurisdiction, that they will provide a home and home the parties signed this stipulation: comforts for Louis Beyer, Senior, during "It is hereby stipulated by and between his natural life, but this is not to be con- the parties to this cause this 20th day of strued to mean that said Louis Beyer, Jun June, 1899, that the court may make an or. ior and Helen B. Johnson are to be restricted der certifying certain issues, to be named from disposing of any or all of the property in said order, to be tried by a jury of the if their judginent so dictates but in the circuit court, and that the findings by said event of disposing of all the property before jury upon said issues shall be returned to the death of Louis Beyer, Senior, they are to this court; whereupon a decree shall be enalways maintain a home and home comforts tered in accordance with said findings, all for my beloved husband, Louis Beyer, Sen. rights of appeal as in cases of issues from ior.

the orphans' court being hereby reserved." Likewise I make, constitute, and appoint, And thereupon the court made this order: my adopted son born Charles Lewis Smith *"Ordered by the court this 20th day of but always known as Louis Beyer, Junior, June, 1899 (the parties to this cause conto be executor of this my last will and tes- senting herto), that the following issues to tament, hereby revoking all former wills be tried by a jury be, and they hereby are, made by me, and I request that he be not re- certified to the circuit court, to wit: quired to give bond as such executor.

“First. Was the said Mary Beyer at the In witness whereof I have hereunto set my time of the alleged execution of the paperhand, subscribed my name, and affixed my writing bearing date the 14th day of July, seal this fourteenth day of July in the year a. D. 1896, and purporting to be her last will of our Lord one thousand eight hundred and and testament, of sound and disposing mind, ninety-six in my home at Washington, D. C. nemory, and understanding, and capable of Mary Beyer. [Seal.] executing a valid deed or contract ?

“Second. Was the execution of the said The above-written instrument was sub-paper-writing bearing date the 14th day of scribed by the said Mary Beyer in our pres. July, 1896, and purporting to be the last ence and acknowledged by her to each of us, will and testament of the said Mary Beyer, and she at the same time published and de procured by fraud, circumvention, or undue clared the above instrument so subscribed influence practised or exercised upon the to be her last will and testament, and we at said Mary Beyer by Louis Beyer, Jr., Helen the testator's request and in her presence B. Johnson, or by either of them or by any and in the presence of each other have other person ! signed our names as*witnesses hereto and “Third. Were the contents of the paper. written opposite our names our respective writing bearing date July 14th, 1896, and places of residence.

purporting to be the last will and testament P. J. Brennan,

of said Mary Beyer, known to her at the 1418 F St. N. W., Washington, D. C. time of the alleged execution thereof?” Wade H. Atkinson,

This order was assented to by all the par. 707 12th St. N. W., Washington, D. C. ties. In pursuance thereof the case came on

Thomas C. Smith, for trial before Mr. Justice Cole and a jury, 1133 12th St. N. W., Washington, D. C. and the jury, after hearing the testimony

and the instructions of the court, answered The parties named as defendants were each of the questions in the affirmative. A Louis Beyer, the husband of the testatrix; 'motion for a new trial was overruled by the

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