392
FEDERAL 1l.EPOItTER, '9'01.
61.
': "
SPOKANll & N. RY·. Co. v. ZIEGLER. (Circuit Court !of Appeals, Ninth'Oircuit. April 12, 1894.) . No.
SI.'
1.
PqBLICLAlS'Ds-RIGHT OF WAY OF RAILROADS,
Act March 3, 1875, which provides that "the right of way through the,public lands of the States is hereby granted" to any ganized ra.l1way company which shall perform the. conditions prescribed 9Y the'!lct; does not entitle such company to a right of way over lands wpicl1 the possession a qualified pre-emptor who has made final proof, tendered the purChase money, and demanded his final receipt. 1)O:VAIN-COMPENSA.TJON. . .
2.
Uncler the. laws of the territory of Washington whicb provide that where . land is 'taken for the rIght of way of a railroa,icompensatioo shall be maileto the owner "irrespective of any locI'eased value thereof by reason ofthe.propoliled improvement," any question as to the value of the land belote anci after the road was bullt Is Irrelevant.
In Error to the Circuit Court of the United States for the District of Washington; Eastern Division. This was.an action by Ziegler against the Spokane Falls & Northern Railway Company, in which plaintiff had judgment and defend-. ant brings error. Jay H. Adams and McBride & Allen, for plaintiff in error· . George Turner, for defendant in error. Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.
Circuit Judge. This case comes on writ of error frqm the court, fo... ,the district of .Washington, eastern divisioI!, ,De:t:endant in error recovered: jUdgment, after· a verdict by ju.rY,againstplaintiff in error, for damages for an appropriation of a strip of land, part of theE. ,!of S. E. 't, section 4, township 25, rallge43 E."W. ¥. 'rb,edefendant in error was, on the 1st day of iU.PQssession 'of said land as a pre-emptor, having the quaUfiel'Ltions' of SUCh, and had made final proofs, and had tendered the purcb,ase money, and demanded his final receipt. The In9.Iley was not received,' on account of a contest in the land office. t,rpeplaintiff in error,defendant in the court below, is a corporation under the laws of Washington, for the purpose of constructing and operating a railroad from the city of Spokane Falls, in a northerly direction, through the counties of Spokane and Stevens, to the Columbia river. The evidence also shows that plaintiff in error in the office. of the secretary of the interior a copy of the articles Q..tincorporation, and afterwards, 1n1889, commenced the constructiOn of its road, and surveyed and marked the line of its road, which line ran over the lands' of the defendant in error, and, within 12 IP-Qllths after .locating said line, filed a profile map thereof with the register of the land office of the district in which the land is situated, which map was approved by the secretary of the interior,and afterwards constructed its road; and the plaintiff in error therefore contends that under said acts, and under the act of congress ap-
SPOKANE FALLS & N. RY. CO. V. ZtlWLER.
393
proved March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States," it became the owner of a right of way across the land of the defendant in error, and that the circuit court erred in admitting proof of his entry of the land, and tender of payment therefor, and patent from the United States. The act of congress referred to above is as follows: "That the right of way through the public lands of the United States is hereby granted to any railway company duly organi?:ed under the laws of any state or territory, except the District of Columbia, or by the congress. of the United States, which shall have filed with the secretary of the interior a copy of Its articles of Incorporation, and due proof of its organi?:ation under the same, to the extent of one hundred feet on each side of the central line of said road. Also the right to take from the publfc lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad. Also ground adjacent to such right of way,· for station-buildings, depots, machine-shops, side-tracks, turn-outs, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road. · · · Sec. 3. That the legislature of the proper territory may provide for the manner in which private lands and possessory claims on the public lands may be condemned; and where such provision shall not have made, sucb condemnation may be made In accordance witb section 3 of the act entitled, 'An act to aid in the construction of a railroad and telegrapb line from the Missouri river to tbe. Pacific ocean, and to secure to the government the use of the same for postal, military, and otber purposes, approved July first, eigbteen bun· dred and sixty-two,' approved July second, eighteen hundred and sixty· four. Sec. 4. That any railroad company desiring to secure tbe benefits of this act, shall, within twelve months after the location of any section of twenty miles of its road, If the same be upon sm-veyed lands, and, If upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land Is located, a profile of its road; and upon approval thereof by the secretary of the Interior, the same shall be noted upon tbe plats in said office; and thereafter all such lands over which such right of way shall pass, shall be disposed of subject to such rigbt of way, Provided, That if any section of said road shall not be completed witbin five years after the location of said section, the rights herein granted shall be forfeited as to any sucb uncompleted section of said road. Sec. 5. That tbis act shall not apply to any lands within the limits of any military, park, or Indian reservation, or other lands especially reserved from sale."
The act did not operate as a present grant. Its words are: "That the right of way through the public lands is hereby granted to any railroad company." The opening words of section 4 of the Oregon donation act are: "That there shall be, and hereby is granted to every white settler, or occupant of the public land." In neither act is there a grantee, and the supreme court said, in construing the latter act, in Hall v. Russell, 101 U. S. 509: "There cannot be a grant unless there is a grantee, and consequently there cannot be a present grant unless there is a present grantee." And the court further said that, in all cases where a grant was given a present effect, a state, or some corporation having all of the qualifications specified in the act) had been designated as a grantee. In other words,when an immediate grant was intended, an immediate grantee, having all the requisite qualifications, was named. The act, therefore, did not give a right of way presently, but entitled any com· pany to obtain the right of way upon performing certaincondi-
,894
FlIlDlmAL l\EPORTER, vol.. 61.
tions, and itsrlght attaehedupon 1lUnga profile map' of its road, as provided in section4.lt will be observed that the provision of sec, tionJ is that,aftel' filhlg the profile Qfthe road, all lands over which the right of way shall: Pass shall·be disposed of subject to such right of way.' Lands,the11'efore, which· had been disposed of theretofore, were exempt., ,The pre-exemption laws are. certainly a means of disposing of the public lands, and an entry of record under them, valid on its face, is suohran appropriation of the tract entered as segregates it from the public domaiIl,'and precludes it from subseWhitnl:lY, 132 U. S. 357, 10 Sup. Ct. quent grant Railroad v.Beek, 133.U.S. 941, Ot. 350. An express res112; ervatIon 18. notnecessai!Y.Wilcoxv. Jackson, 13 Pet. 498; Leavenworth, etc., R. Co. U. S. 745. That pre-emption claims are exempMdfrom thegrarit is supported by section 3 of the act. It is as follows: ! !
"Sec. a.That the legislature of the propel'territory may, provide for the manner hi which private lands and possessory claiins on the public lands of the United ·States may be: condemned; and where such prOVision shan not have been made. such 'condemnation may be made In accordance with section 8 of the! a'Ctentitloo ,'An' act to aid hI the construction of a railroad and telegraph llUe, from tM'MillSourlrlver1:o the Pacific oeean,and to secure to the government 'the use 'ofi fthe samefot'. postal, mlUt8:ry, and other purposes, approv'ed ,Tuly first; ,eighteen hubdredand sixty-two,' approved July second, eighteen hundred .and ,sixty-four. '!
Counsel for,'plaJntlffin:ellror urges that by the words "possessory claims" congress intended tinly to pr9tect the improvements of a settler. The eiplanatip,:Qls not adequate. See"al:;l,o, Enoch v. Railway Co. (decided 1)y court of Washington; opinion filed May 24" 1893) 33 Pac. 966. The cases of Railroad Co. v. BaldWin, 103 U. S. 426; and Railroa<l Co. v. Tevis, 41 Cal. 489, do not militate with the conclusionfl we have reached. In the former case the grant ,was a present one, and necessarily, as the court said, all persons acquiring any portion of the public lands after its date took subject to the graJ;lt. In the case of Railroad Co. v. Tevis, the plaintiff was the successor of the' Central Pacific Railroad Company, who had been granted by congress a right of way over the public li:tnds Kerr claimed as a pre-emption, and though he had settled on the land;-and had improved it, he had not filed a declaratory statement .when the right of way' attached., The court held that he was n,either the owner nor a claimant of the land within the meaning of section .3 of the act· granting the right of way to the railroad, which provided a means of ascertahnng damages in ease the owner or claimant of the land and the railway company could not agree. The facts of the case, therefore, and the one at bar are different. "rrhe plaintift'ill error Clai,iP.s that the' circuit court erred in sus·, taining an objection to fpllowing question: "Q. How much less, any, of landwqrth that spring (1889) after the road had been,c0D.structed over it, tbe road upon- it as it is now constructed, than it was worth that spriD:g 1k(ore the road was con· structed, and before Itwl'ls'tnown that the road lwas 'goIng to be constructed over It?"
If
IN RE QUAN GIN,
395"
The appropriation of the land was made on the 5th day of June, 1889, while Washington was a territory, and the law of the territory then was that compensation should be made to the owner of land taken "irrespective of any increased value thereof, by reason of the proposed improvement." In support of the relevancy of the question, plaintiff in error cites Railroad Co. v. Coleman, 3 Wash. St. 234, 28 Pac. 514. This case, however, was overruled in Enoch v. Railway Co. (filed May 24, 1893) 33 Pac. 966. The circuit court, therefore, did not err in sustain'ing objection to the question. Judgment is affirmed. In re QUAN GIN. (DIstrict Court, N. D. California. No. 10,948. CHINESE MERCHANTS-FIRM NAME.
May 8, 1894.)
Act Congo Nov. 3, 1893, provides that a Chinaman seeking entrance Into the United States on the. ground that he was formerly engaged as a merchant therein must. show that his business was conducted "In his own name." Held, that such person must be excluded where It appears that the business was conducted under a firm name of which his own name wa.'l no part, though there Is evidence that he was a partner, and that Chinese merchants do not, in general, conduct business in individual or partnership names.
Exceptions to Special Referee and Examiner's Report, recommending discharge. Exceptions taken by the United States. Exceptions sustained. Thos. D. Riordan, for petitioner. Charles A. Garter, U. S. Atty. MORROW, District Judge. The petition in this case alleges that Quan Gin is unlawfully restrained of his liberty on board the steamship Belgic, on the claim made by the master of the vessel that Quan Gin is not entitled to land, under the provisions of the act of May 6, 1882, and the acts amendatory thereof and supplementary thereto. 22 Stat, 58, 23 Stat. 115, 25 Stat. 504, 27 Stat. 25. The petition alleges that these acts do not apply to him, and that he is entitled to land, and come into the United States, by reason of the fact that he is not a laborer, but a merchant, and a member of the firm of Yow Kee & 00., dealers in general merchandise at No. 17 Waverly place, and for more than one year prior to his departure was a member of the said firm. A Ohinaman claiming to be a merchant, and making application for entrance into the United States on the ground that he was formerly engaged in this country as a merchant, is required by the act of November 3, 1893 (28 Stat. 7), to establish by the testimony of two credible witnesses, other than Chinese, the following facts: (1) That the applicant wa!l engaged, in this country, in buying and selling merchandise, (2) at a fixed place of business; (3) that the business was conducted in his own name (4) for at least one year before his departure from the United States; (5) that during such
yea,f;he, e:x;cecpt ,Sl1-ch as
the,peI1ormance of any manual labor, necessary in conduct of business as such .. . .' . .. , I1;l of. the petition, Gin testifies that he came to this in tAe year 1878; t:hat he went to China, the last time, . c:m. the steaxner .Gaelic, in November, 1892;' that when he wentwChina he.was in the ,firm of"¥ow Kee (general merchandise), No. ;t.11fl;lverly place; that the total capital of the firm was $11,000; tbatthereare 10 pa.rtners in the firm, including himself, and his interest was and is $1,000; that he had been a member of the ,firm prior to his departure for China, for seven or eight years; that he was assistant bookkeeper and collector; that Lim You is the manager of the firm, and Lim Lung interpreter. Neither of these two per· sons so identified 8<1:\ being with the fi,rm Is produced as a witness, but a Chinaman named Lim See is called, who testifies that he has an interest of $1,00() in the general merchandise firm of Yow Kee, No. 17 Waverly place. This witness is not otherwise identified,as belonging to the ilIi'In' " He testifies, however, that an interest amo:untin,gto $1,000; tliatQuan Gin was and also kept the ,accounts. T. F. Scott, a dray· man, that he knows Quan Gin, who had a store on Clay street; ,and moved up to Waverly-place; that the firm name was ''YowKee.'' The witness understood that Quan Gin was a part· ner; saw him around the store, attending to the business of the firm, and ,performing such acts as a partner would perform. James W. Waldie,bookkeeper for the Ameriean Biscuit Company, testifies that he thinks he has known Quan Gin for six or seven years. He has been buying crackers from the company. He thinks the firm name was ''Yow Kee," but whether Quan Gin was a member of the firm he would not swear to, inasmuch as he could not swear to any a member of a firm. M. W. Levy, a produce and commissionlllerchant, testifies that he remembers Quan Gin. He had a store on Clay street, and afterwards at No. 17 Waverly place. He does not remember the store name, but, to the best of his knowledge and belief, Quan Gin was a member of the firm. He says he sold the firmp()tatoes for seed, beans, and strawberry plants, and other little things. No explanation is given why it is alleged in the peti· tion thatQuan Gin is a member of the firm of Yow l{ee & Co., and no testimony submitted to support that allegation. It seems to be assum:ed that the testimony that he was a member of the firm of sufficient, but no explanation is furnished as to how he could be a member of a firm designated by a single individual name. In .the argument it was said that Chinese merchants select words of lucky import for company or firm names, but tllere is upon that point in the case; and the court is not advised,:ev;enby counsel, as to "Yow Kee" is a word or a name.'l'he fact that in the petition the firm name is given as "Yow :Kee & Co." would indicate that the name is not a word, but tb,e,llusiness title of two or more individuals associated together. The .law requires that, to establish the character of a merchant for a ClJ,inese per,son seeking to enter the United States, it must appear,
l'N RE QUANGIN.
397',
among other things, that the business in which he was engaged "was conducted in his own name." 'As there is no proof in this case that Quan Gin conducted any business in "his, own name," and no explanation is given of the fact that his name does not appear in the firm name, as is usual in partnerships in this country, he must' be refused a landing, in accordance with the express direction of the statute. But the question submitted to the court for determination is as to the character of evidence required to establish the fact that a merchant is conducting business in his own name. Must his name appear, either individually or as a partner, in the conduct of the business? The attention of the court has been called to an opinion of the attorney general of the United States, dated April 6, 1894, in which he holds that: "A Chinese person does not bring himself within the statutory definition ()f 'merchant,' unless he conducts his business either In his own name, or in a firm name of which his own is a part."
It is contended, in opposition to this view of the law, that such an interpretation will exclude nearly every Ohinese merchant seeking to enter the United States, since, as before stated, it is Claimed that Ohinese merchants do not, as a rule, conduct their business affairs in individual or partnership names. This may be so, but, if it is so, it is a consideration to be addressed to the lawmaking power, and not to the court. "The power to exclude or to expel aliens, being a power affecting international relations, Is vested in the political departments of the government, and is to be regulated by treaty or by an act of congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the constitution, to intervene." Fong Yue Ting v. U. S., 149 U. S. 713, 13 Sup. Ct. 1016.
The attorney general gives a most convincing reason for his in· terpretation of the statute. He says: "This requirement that a merchant must conduct the business in his own name can have but one purpose, to wit, that he who is a merchant in fact shall also be known to be such by the parties with whom he deals, and by the public generally. That purpose could readily be defeated if it were possible to conceal his identity by trading under an assumed name, or under the disguise of a 'Co.' "
When it is considered how easy it is for a Ohinese person seeking admission into the United States to claim a small interest in the business of buying and selling merchandise, it is evident that the statute has been wisely framed to prevent the admission of Ohinese persons illto the United States upon the fictitious and fraudulent claim that they are merchants. In my opinion, therefore, when an application is made by a Ohinaman for entrance into the Dnited States on the ground that he was formerly engaged in business< in tbis country as a merchant, he must, before being admitted, estab· lish by the testimony of two credible witnesses, other than Ohinese, among other things, that he conducted the bnsiness in which he was engaged, either in his own name, or in a firm name of which his own is a part. The exceptions of the district attorney to the report of the commissioner are sustained.
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v. UNITE:Q; ElTATES. ,j:, (Circuit Ccmf.t;S.D.New 20,1894.)
Tfswe. paper having' certain coldrs,;in'stJ'lpes and plaids,. pnnted or st8:JupOO:,thereon, and"'nbt; 'of one uniform color, held to be dutiable at 8 centlsP6lU pound and 15i per 'Cent. ad. valQre'm, under p&rag'rapj:l 419 of the act' of Octyber I, 1890, paper, white or colored,".\lnd not at 2& pel' ad valorem, paragraEll1..423, as "printel! matter, not specialI,' ' , "', ly pro"Vided for.'"
TISSQE PAPER,
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r'
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bylmporters GeneraltAppraisers. I
Decision of Board of United States affil'llle'd.
The importations consisted:of'white tlssuepaper, printed on one side with colored. strip,eli lU;1d plfllds. .'tb.e collector assessed duty thereon under paragraph 41l:),otthea,Ctof pctOQef',l, 1890. ,'.' The importers duly protested, claimmatter/'under paragraph,4,23 of said act. ing same to'be dutiable The board of United States general appraisers sustained the collector's classification. The co'ntentioll' ofthei'mporters was that "colored" tissue papers confined to ,$ose dyed ina. vat, and that the articles in were suit were not ·known in ·. and commerce. as "colored;" bllt as "printed tissues," tissues," and were "printed matter."
Stephen Greeley 'HenrYG; Platt, U.
I
,
fQr the JJnited States.
Pis.trJc,t. (oraJlY)., ',rhis appeal from the the boatik..qf generalappraisers class:q:ying certain paper as "tissue paper" under the provisions of Schedule M, par. 419, of thetaiiff act of and pa,ttierns.have been printed or, stamped on in The'lihp'orter claims that it should be classified as "prjp,tedmatter," under paragraph said act. ,The of the poard of appraisers is affil'llled, because the method by which the paper was color.eff does not affect its character, as "colored tissue paper," and, furtHermore, because thea,rticle does not fal11Vlthin tl;teclass of "books/etchings, maps, .cJJ,arts, and all printed matter," embraced within the provisions of paragraph 423. ..... I
PARK .et 1Il.v. UNITED STATES. (Circuit Court, S. D. New York. May 3, 1894.) (lUSTOr.tS DUTIES-ACT OF OCTOl3ER 1, 1890-'l'RUFFJ,ES. I ·
"'!'ruffles held to be dutiable at 45 per cent. ad valorem, under paragraph . 287· of the tariff act of OCtober 1, 1890, within the clause, "Vegetables of all kinds, prepared or presel:'1Ved, includiJ;lg pickles and.sauces o-f all kinds, not, specially provided. M," and not at 40 per cent. ad valorem, under paragraph 271, as asshitHllting to "mlishrooms, prepared or preserved In .' . tins, jars, bottles or :-'-., "
Aippeal from Decision.·of,Board of United States General Apprais' ers. Board. Park & Tilford, in imported truffles in bottles.. Duty was assessed thereon by the cQl1ector of cUst'Qms at New York at 45 per cent. ad valorem, under 281'·of the act of October 1, 1890.