After what we have said, the seventh, eighth and ninth sections need no special remark, except that the cartage referred to in section nine is not an independent matter, such as was dealt with in Pennsylvania R. R. Co. v. Knight, 192 U. S. 21, but a part of the contemplated transit-cartage for delivery of the goods. The general words of the injunction "or by any other method or device, the purpose and effect of which is to restrain commerce as aforesaid," should be stricken out. The defendants ought to be informed as accurately as the case permits what they are forbidden to do. Specific devices are mentioned in the bill, and they stand prohibited. The words quoted are a sweeping injunction to obey the law, and are open to the objection which we stated at the beginning that it was our duty to avoid. To the same end of definiteness so far as attainable, the words "as charged in the bill," should be inserted between "dealers in such meats," and "the effect of which rules," and two lines lower, as to charges for cartage, the same words should be inserted between "dealers and consumers" and "the effect of which."

The acts charged in the tenth section, apart from the combination and the intent, may, perhaps, not necessarily be unlawful, except for the adjective which proclaims them so. At least we may assume, for purposes of decision, that they are not unlawful. The defendants, severally, lawfully may obtain less than the regular rates for transportation if the circumstances are not substantially similar to those for which the regular rates are fixed. Act of Feb. 4, 1887, c. 104, § 2, 24 Stat. 379. It may be that the regular rates are fixed for carriage in cars furnished by the railroad companies, and that the defendants furnish their own cars and other necessities of transportation. We see nothing to hinder them from combining to that end. We agree, as we already have said, that such a combination may be unlawful as part of the general scheme set forth in the bill, and that this scheme as a whole might be enjoined. Whether this particular combination can be enjoined, as it is, apart from its connection with the other VOL. CXCVI-26

elements, if entered into with the intent to monopolize, as alleged, is a more delicate question. The question is how it would stand if the tenth section were the whole bill. Not every act that may be done with intent to produce an unlawful result is unlawful, or constitutes an attempt. It is a question of proximity and degree. The distinction between mere preparation and attempt is well known in the criminal law. Commonwealth v. Peaslee, 177 Massachusetts, 267, 272. The same distinction is recognized in cases like the present. United States v. E. C. Knight Co., 156 U. S. 1, 13; Kidd v. Pearson, 128 U. S. 1, 23, 24. We are of opinion, however, that such a combination is within the meaning of the statute. It is obvious that no more powerful instrument of monopoly could be used than an advantage in the cost of transportation. And even if the advantage is one which the act of 1887 permits, which is denied, perhaps inadequately, by the adjective "unlawful," still a combination to use it for the purpose prohibited by the act of 1890 justifies the adjective and takes the permission away.

It only remains to add that the foregoing question does not apply to the earlier sections, which charge direct restraints of trade within the decisions of the court, and that the criticism of the decree, as if it ran generally against combinations in restraint of trade or to monopolize trade, ceases to have any force when the clause against "any other method or device" is stricken out. So modified it restrains such combinations only to the extent of certain specified devices, which the defendants are alleged to have used and intend to continue to

use.

Decree modified and affirmed.

196 U. S.

Argument for Plaintiff in Error.

SMALL v. RAKESTRAW.

ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA.

No. 133. Argued January 18, 1905.-Decided January 30, 1905.

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 claimant. 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 absolutely 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.

THE facts are stated in the opinion.

Mr. George A. King, with whom Mr. William B. King and Mr. William E. Harvey were on the brief, for plaintiff in error:

The action of the officers of the land office was not conclusive and a court of equity may afford relief if proper cause is shown. Lindsey v. Hawes, 2 Black, 554; Johnson v. Towsley, 13 Wall. 72; Cornelius v. Kessel, 128 U. S. 456; Cunningham v. Ashley, 14 How. 377; Barnard's Heirs v. Ashley's Heirs, 18 How. 43; Garland v. Wynn, 20 How. 6; Lytle v. Arkansas, 22 How. 193; O'Brien v. Perry, 1 Black, 132; Minnesota v. Bachelder, 1 Wall. 109; Stark v. Starrs, 6 Wall. 402, 419; Silver v. Ladd, 7 Wall. 219; Monroe Cattle Company v. Becker, 147 U. S. 47, 57; Thayer v. Spratt, 189 U. S. 346; Hodges v. Colcord, 193 U. S. 192.

The facts found by the officers of the Land Department on the testimony adduced to them did not warrant their decision.

that Rakestraw was entitled to a patent and they should have decided in favor of Small.

For requirements as to residence see §§ 2290, 2291, 2297, Rev. Stat., and for departmental decisions as to residence showing that poverty and business excused absences, see Clark v. Lawson, 2 L. D. 149; Foley v. Brasch, 2 L. D. 155; Re Dunlop, 3 L. D. 545; Kurtz v. Holt, 4 L. D. 56; Healy's Case, 4 L. D. 80; Nilson v. St. Paul &c. R. R., 6 L. D. 567; Martel's Case, 6 L. D. 566; Platt v. Gordon, 7 L. D. 249; Wood's Case, 7 L. D. 345; Farringer's Case, 7 L. D. 360; Fuchser's Case, 7 L. D. 467; Alderson's Case, 8 L. D. 517; Edward's Case, 8 L. D. 353; Lutz' Case, 9 L. D. 266; Montgomery v. Curl, 9 L. D. 57; Smith's Case, 9 L. D. 146; Main's Case, 12 L. D. 102; Williams's Case, 13 L. D. 42; Logan v. Gunn, 13 L. D. 113; Paulsen v. Ellingwood, 17 L. D. 1; Tomlinson v. Soderlund, 21 L. D. 155.

Bohall v. Dilla, 114 U. S. 47; Lee v. Johnson, 116 U. S. 48, are inapplicable to this case, and see Silver v. Ladd, 7 Wall. 219, 225.

Voting in another precinct is no bar, and the Secretary's decision in this respect is not correct in law. See Montana Election Statutes, §§ 1007, 1020; Compiled Stat. 923, 926; Laws of Montana, 1891, 67; California v. Levoy, 9 L. D. 139, 142; Pratsch v. Dobbins, 24 L. D. 426; Edward's Case, 8 L. D. 353. The voting was done prior to Rakestraw's pretended settlement and he cannot take advantage of it.

The entry of Rakestraw seems to have been of very much the character of that condemned by this court in Atherton v. Fowler, 96 U. S. 513, and see Hosmer v. Wallace, 97 U. S. 575; Quinby v. Conlan, 104 U. S. 420; Del Monte Mining Company v. Last Chance Mining Company, 171 U. S. 55, 82.

There was no appearance or brief filed for defendant in error. MR. JUSTICE HOLMES delivered the opinion of the court.

This is a complaint by the plaintiff in error to charge the

defendant with a trust in respect of land which the latter holds under a patent from the United States. It alleges a homestead entry by the plaintiff, a contest by the defendant, a decision for the defendant by the local register and receiver, a reversal of this by the Commissioner of the Land Office, and a reversal of the latter decision and a cancelation of the plaintiff's entry by the Secretary of the Interior. The last order is set forth in full and the complaint goes on the ground that this order discloses a mistake of law on its face. The complaint was demurred to, the demurrer was sustained, and the suit dismissed. An appeal was taken to the Supreme Court of the State, which affirmed the judgment. 28 Montana, 413. The case then was brought here.

The material portion of the Secretary's decision is as follows: "January 21, 1892, plaintiff1 filed his affidavit of contest against the defendant's homestead entry charging that the entryman had failed to comply with the law as to residence. The testimony of Small, himself, is that he never voted in the precinct in which his homestead entry lies, but did vote at other points a long distance from his homestead at least twice during the time he claims he was seeking to maintain residence upon the land. He runs a carpenter shop in town, and, to use his own words, 'determined to return to the ranch only often enough to keep a good showing of habitation.' His excuse for that was that the plaintiff threatened him with violence if he undertook to stay on the land.

1

"Without passing upon any other question it is enough to say that a residence for voting purposes in another precinct from the land, precludes an entryman from claiming residence at the same time, on the land for homestead purposes. George T. Barnes, 4 L. D. 62; Hart v. McHugh, 17 L. D. 176; Edwards v. Ford and O'Connor, decided June 18, 1894."

The plaintiff's case rests on the assumption that the words "without passing upon any other question," mean without

1 Defendant in error in this court.