it based on accepted conditions of a municipal ordinance granting
rights of location is not private property beyond legislative control. Ib.
See STREETS AND HIGHWAYS.
NATIONAL BANKS.
Usurious interest-Payment within meaning of section 5198, Rev. Stat.
The payment referred to in $ 5198, Rev. Stat., is an actual payment and
not a further promise to pay and the mere discharge of the maker of
a note by his giving his own note renewal thereof will not uphold
a recovery against the bank on account of uşurious interest in the
former note. First National Bank v. Lasater, 115.
NAVAL OFFICERS.
Sea duty and shore duty-Construction of sections 1556, 1571, Rev. Stat.,
and naval regulations.
The Navy Department has no power to disregard the provisions of Rev.
Stat. $$ 1556, 1571, and Pars. 1154, 1168 naval regulations, and either
deprive an officer of sea pay by assigning him to a duty mistakenly
qualified as shore duty but which is in law sea duty, or to entitle him
to receive sea pay by assigning him to duty which is essentially shore
duty and mistakenly qualifying it as sea duty. Where, however, the
assignment of an officer to duty by the Navy Department expressly
imposes upon him the continued discharge of his sea duties and qualifies
the shore duty as merely temporary and ancillary to the regular sea
duty, the presumption is that the shore duty is temporary and does
not operate to interfere with or discharge the officer from the responsi-
bilities of the sea duties to which he is regularly assigned and he is
entitled to sea pay during the time of such temporary shore duty.
United States v. Engard, 511.
NAVY PERSONNEL ACT.
Pay for services peculiar to army not within operation of-Pay to which
lieutenant, acting as aid to rear-admiral, is entitled.
The Navy Personnel Act undertook to equalize the pay of naval officers
with those officers of the Army of equal rank as to duties properly
required of a naval officer, and it has no operation to provide pay for
services peculiar to the Army. A lieutenant in the Navy serving as
aid to a rear-admiral is entitled to the additional two hundred dollars
allowed to a lieutenant serving as aid to a major-general under $ 1261,
Rev. Stat., but he is not entitled to the mounted pay allowed to the
army lieutenant serving as such aid under $ 1301, Army Regulations.
United States v. Crosley, 327.
NEGLIGENCE.
See DAMAGES;
MASTER AND SERVANT;
MARITIME LAW; STREETS AND HIGHWAYS.
NINETY-FOURTH RULE.
See JURISDICTION, B 2.
NORTIERX PACIFIC RAILROAD.
See PUBLIC LANDS.
NOTARY PUBLIC.
See WILLS, 2.
NOTICE.
See CORPORATIONS, 2;
MASTER AND SERVANT.
OKLAHOMA.
See APPEAL AND ERROR;
JURISDICTION, A 4;
Public LANDS, 4.
ORIGINAL PACKAGES.
See INTERSTATE COMMERCE, 2, 3.
PARTIES.
Substitution.
In an action for mandamus against a judge of a territorial court in New
Mexico, who, after the appeal, ceased to be judge and whose successor
has consented that the action be revived against him, this court may,
under the act of Congress of February 8, 1899, if in its judgment ne-
cessity exists for such action in order to obtain a settlement of the legal
questions involved, substitute the name of the successor in place of
the original appellee. In this case this court orders the substitution,
the party substituted not to be liable for any costs prior hereto. Cale-
donian Coal Co. v. Baker, 432.
PAYMENT.
See Local Law (P. R.);
NATIONAL BANKS.
PLEADINGS.
Construction of bill in equity.
A bill in equity, and the demurrer thereto, are neither of them to be read
and construed strictly as an indictment but are to be taken to mean
what they fairly convey to a dispassionate reader by a fairly exact use
of English speech. Swift and Company v. United States, 375.
See REMOVAL OF Causes, 1.
POLICE POWER.
See INTERSTATE COMMERCE, 5;
STATES, 1, 2, 4.
PORTO RICO.
See Local Law (P. R.).
POWERS OF CONGRESS.
See Public LANDS, 3.
PRACTICE.
1. Acceptance by this court of state court's construction of state statute.
Where the highest court of a State has held that the acts of a person con-
victed of violating a state statute defining and prohibiting trusts were
clearly within both the statute and the police power of the State, and
that the statute can be sustained as a prohibition of those acts irre-
spective of the question whether its language was broad enough to
include acts beyond legislative control, this court will accept such
construction although the state court may have ascertained the mean-
ing, scope and validity of the statute by pursuing a rule of construction
different from that recognized by this court. Smiley v. Kansas, 447.
2. Following state court's construction of statute.
Where the highest court of the State holds that a statute fixing the liability
of common carriers applies to shipments made to points without the
State, this court must accept that construction of statute. Central
of Georgia Ry. Co. v. Murphey, 194.
3. As to decision of constitutional questions.
It is not the habit of this court to decide questions of a constitutional nature
unless absolutely necessary to a decision of the case. Burton v. United
States, 283.
4. Facts taken as found by jury.
This court will not inquire whether the finding of the jury in the state
court is against the evidence; it will take the facts as found and con-
sider only whether the state statute involved is violative of the Fed-
eral Constitution. Smiley v. Kansas, 447.
See CONSTITUTIONAL LAW, 7; PARTIES;
JURISDICTION, A 1, 3, 5; REMOVAL OF CAUSES, 1;
MARITIME LAW;
STATES, 4;
STATUTES, A 1.
PREFERENCE.
See BANKRUPTCY, 4, 5.
PRESUMPTION.
See BANKRUPTCY, 7; Public LANDS, 1;
EXTRADITION, 1; TAXATION, 4;
JURISDICTION, B 2; Wills, 3.
PROCESS.
What service necessary-Service on officer of corporation while passing through
jurisdiction.
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.
PUBLIC LANDS.
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 surrey, 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
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