What service necessary-Service on officer of corporation while passing through
A court cannot acquire jurisdiction over the person of a defendant except by actual service of notice upon him within the jurisdiction or upon some one authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service. Serv- ice of a summons in an action in a territorial court of New Mexico on the president of a railway corporation, while passing through New Mexico as a passenger on a railroad train, held insufficient as a per- sonal service of a corporation organized under an act of Congress, having offices in New York, Kansas and Illinois, and none in New Mexico; the mere ownership of lands, the bringing of suits to protect such lands, in New Mexico does not locate the corporation in New Mexico for the purposes of a personal action against it based on such a service of the summons. Nor was such service authorized by the Compiled Laws of New Mexico, 1897. Although the state of the statute law in respect of suits like this may operate injuriously at times the situation cannot be changed by the courts-that can only be done by legislation. Caledonian Coal Co. v. Baker, 432.
PROPERTY RIGHTS.
See MUNICIPAL CORPORATIONS, 2.
1. Appropriation; effect of subsequent grant on.
Unless an intent to the contrary is clearly manifest by its terms, a statute providing generally for the disposal of public lands is inapplicable to lands taken possession of and occupied by the Government for a special purpose. A prior appropriation is always presumed to except land from the scope of a subsequent grant although no reference may be made in the latter to the former. Scott v. Carew, 100.
2. Appropriation-Establishment of military post. The establishment of a military post under proper orders on public lands amounts to an appropriation of the land for military purposes and withdraws the property occupied from the effect of general laws sub- sequently passed for the disposal of public lands, and no right of an individual settler attaches to or hangs over the land to interfere with the action of the Government in regard thereto. Ib.
3. Delegation of powers by Congress to local legislatures. While the disposal of the public lands is made through the exercise of leg- islative power entrusted to Congress by the Constitution, yet Congress prescribing the main and substantial conditions thereof may right- fully entrust to local legislatures the determination of those minor matters as to such disposal which amount to mere regulations. Regu- lations made by the local legislatures in regard to the location of mining claims which are not in conflict with the Constitution and
laws of the United States are not invalid as an exercise of a power which cannot be delegated by Congress and such regulations must be complied with in order to perfect title and ownership under the mining laws of the United States. Even if doubts exist were the matter wholly res integra, and although consequences may not determine a decision this court will pause before declaring invalid legislation long since enacted, and the validity whereof has been upheld by state courts and recognized by this court, and on the faith of which property rights have been built up and countless titles rest which would be unsettled by an adverse decision. The regulations contained in § 3612 of the Montana Code are not invalid as being too stringent and therefore in conflict with the liberal purpose manifested by Congress in its legisla- tion respecting mining claims. Butte City Water Co. v. Baker, 119.
4. Entries for town sites in Oklahoma.
There was no permit for entry of lands in Oklahoma for town sites under the act of 1889 or until the town site act was passed May 14, 1890, and an agreement among a portion of the people who on April 22, 1889, chose lots upon a projected town site did not and could not vest an absolute title in persons selecting lots or make a plat or map of town final or conclusive; but the selectors took their lots subject to changes and conditions that might obtain-in this case as to location of streets -when the township patent was issued to, and a map finally approved by, the township trustees under the act of May 14, 1890. Oklahoma City v. McMaster, 529.
5. Homestead claim; effect of voting in another precinct-Controlling effect of findings of fact by Secretary of Interior.
A homestead claimant in a contest in the Land Department admitted he voted in a precinct in Montana other than that in which the land was situated, and that he returned there only often enough to keep up a good showing. The Secretary of the Interior, after reviewing some of the facts, "without passing upon any other question" laid down that a residence for voting purposes elsewhere precluded claiming residence at the same time on the land and decided against the claim- ant. Held that the Secretary found as a fact, by implication, that the plaintiff not only voted elsewhere, but resided elsewhere for voting, that as the case presented no exceptional circumstances, this court was not warranted in going behind these findings of fact and that the words "without passing on any other question" could not be taken abso- lutely to limit the ground of decision to the proposition of law but merely emphasized one aspect of the facts dominant in the Secretary's mind. Small v. Rakestraw, 403.
6. Northern Pacific Railroad grant, act of July 2, 1864 Reservation to Government as to survey, etc.-Right of recovery for timber removed. While the grant to the Northern Pacific Railroad Company under the act of July 2, 1864, was in præsenti, and took effect upon the sections granted when the road was definitely located, by relation as to the
date of the grant, the survey of the land and the identification of the sections-whether odd or even-is reserved to the Government, and the equitable title of the railroad company and its assigns becomes a legal title only upon the identification of the granted sections. Until the identification of the sections by a government survey the United States retains a special interest in the timber growing in the township sufficient to recover the value of timber cut and removed therefrom. In a suit brought by the United States for that purpose private surveys made by the railroad company cannot be introduced as evidence to show that the land from which the timber was cut were odd sections within the grant and included in a conveyance from the railroad com- pany to the defendants. United States v. Montana Lumber Mfg. Co.,
7. Railroad grants-Purchase from railroad-Construction of act of March 3, 1887.
In a remedial statute such as § 5, act of March 3, 1887, 24 Stat. 557, enabling bona fide purchasers from railroad companies to perfect their titles by purchase from the Government in case the land purchased was not included in the grant the term "citizens," in the absence of anything to indicate the contrary, includes state corporations. Whether a bona fide purchaser from a railroad company acts with reasonable promptness in availing of the provisions of the act of March 3, 1887, is a question primarily for the Land Department and one attempting to enter the land is charged with knowledge of the act, the railroad's title and, if the deeds have been properly recorded, of the claims of the railroad's grantee and subsequent assigns; and, under the circum- stances of this case, this court will not set aside the decision of the Land Department allowing a bona fide purchaser to avail of the privilege of the act within ten months after the lands had been stricken from the company's list as the result of a decision affecting that and other lands rendered ten years after the purchase from the railroad company, and during which period all parties had considered the full equitable title to be in the railroad company and its grantees. Ramsey v. Ta- coma Land Co., 360.
8. Rights acquired by wrongful settlement. One who wrongfully settled on public land and was dispossessed by proper authority so that the land might be used for a military post acquired by such settlement no priority of right in the matter of purchase or homestead entry when the post was abandoned and the land opened to private purchase. Scott v. Carew, 100.
See MINING CLAIMS; STATUTES, A 4.
PUBLIC OFFICERS.
See CRIMINAL LAW, 1.
1. Case removed when-Restraint of further proceedings in state court-Power of state court where record does not show case removable.
In regard to the removal of cases the following principles have been settled: If the case be a removable one, that is, if the suit, in its nature, be one of which the Circuit Court could rightfully take jurisdiction, then upon the filing of a petition for removal, in due time, with a sufficient bond, the case is, in law, removed, and the state court in which it is pending will lose jurisdiction to proceed further, and all subsequent proceed- ings in that court will be void. After the presentation of a sufficient petition and bond to the state court in a removable case, it is compe- tent for the Circuit Court, by a proceeding ancillary in its nature— without violating § 720, Rev. Stat., forbidding a court of the United States from enjoining proceedings in a state court to restrain the party against whom a cause has been legally removed from taking further steps in the state court. If upon the face of the record, in- cluding the petition for removal, a suit does not appear to be a re- movable one, then the state court is not bound to surrender its juris- diction, and may proceed as if no application for removal had been made. Under the judiciary act of 1887, 1888, a suit cannot be re- moved from a state court unless it could originally have been brought in the Circuit Court of the United States. Traction Company v. Min- ing Company, 239.
2. Power of Circuit Court to pass on all questions arising.
When a case has been removed into the Circuit Court of the United States on the ground of diversity of citizenship, that court is entitled to pass on all questions arising, including the question of jurisdiction over the subject matter in the state courts or the sufficiency of mesne process to authorize the recovery of personal judgment. Courtney v. Pradt, 89.
3. Right of removal for diversity of citizenship; not abrogable by state statute. The right to remove for diversity of citizenship, as given by a constitu- tional act of Congress, cannot be taken away or abridged by state statutes and the case being removed the Circuit Court has power to
so deal with the controversy that the party will lose nothing by his choice of tribunals. Ib.
REPEAL.
See STATUTES, A 2.
RESIDENCE.
See PUBLIC LANDS, 5.
No foundation for plea where no formal judgment entered.
Where no formal judgment has been entered the plea of res judicata has no foundation; neither the verdict of a jury nor the findings of a court even though in a prior action, upon the precise point involved in a sub- sequent action and between the same parties constitutes a bar. Okla- homa City v. McMaster, 529.
RESTRAINT OF TRADE.
See COMBINATIONS IN RESTRAINT OF TRADE; CONSTITUTIONAL LAW, 8;
RULES OF COURT.
See JURISDICTION, B 2.
SEA DUTY.
See NAVAL OFFICERS.
SENATORS OF THE UNITED STATES. See CRIMINAL LAW;
SET-OFF.
See BANKRUPTCY, 4.
See COMBINATIONS IN RESTRAINT OF TRADE.
SHIPPING.
See CONTRACTS, 2;
MARITIME LAW.
STANDARD OF CONDUCT.
See MARITIME LAW.
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