dies, before the date of such patent, the court and no other had jurisdiction to detitle to the land designated therein shall termine. This question was considered by inure to and become vested in the heirs, the probate court and was determined addevisees or assignees of such deceased pat-versely to plaintiff. Then was the time for entee as if the patent had issued to the deceased person during life." Such are the circumstances in the present case. Norton had made his final proof before his death, and had become entitled to the patent. Plaintiff and her grantors, therefore, could only receive the land as his heirs, and not directly under § 2291, and as its beneficiaries. Upon such proof Norton certainly became the equitable owner of the land. Indeed, it practically became his absolute property, subject to his disposition by assignment or by will, or to the disposition of the law (United States v. Detroit Timber & Lumber Co. 200 U. S. 321, 328, 50 L. ed. 499, 502, 26 Sup. Ct. Rep. 282), and subject, therefore, upon his death, to the probate jurisdiction of the state. But it is contended that even if he became such owner, the land was not subject to sale for the satisfaction of debts contracted before the patent was issued. The debt for which it was sold was so contracted. Section 2296 provides that "no lands acquired under the provisions of this chapter shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor." The prohibition is clear and direct; but does it involve the consequences plaintiff asserts? Her contention is that it took from the probate court all jurisdiction or power over the land, and that its order of sale was absolutely void and can be collaterally attacked. The supreme court of the state decided otherwise, as we have seen. It rejected all of the contentions of plaintiff against the jurisdiction of the court, based on the laws of the state, and so far its decision is binding here. It said that there was no pretense at either pleading or proof that Norton left no other property, or that such was the fact. It decided that the probate court had jurisdiction over Norton's estate. "That court," it was said, "had the unquestioned power to authorize a sale of it to pay certain classes of obligations. It might be sold to pay liabilities arising out of torts of deceased. 32 Cyc. 1084; Brun v. Mann, 12 L.R.A. (N.S.) 154, 80 C. C. A. 513, 151 Fed. 145. Had the patent issued when it should have issued, it might have been sold to pay debts incurred thereafter and before the death of deceased. Whether there were facts to warrant a sale in any given case was a question which the probate court was obliged to determine, and which that the plaintiff to present her contention in court. No fraud or artifice was practised to prevent her doing so. In fact, in her brief she claims that she did in fact appear. If the determination of the probate court was wrong, her remedy was to appeal from that determination. The heirs were entitled to one day in court, but not to two. When a probate court with jurisdiction over property for purposes of administration, and for purposes of sale in certain cases, orders and confirms a sale of the same, it is the right and duty of an heir to litigate the propriety of such orders in that proceeding. The heir cannot sit by, permit the sale to be made, and then bring another and a collateral action in another court to litigate again the propriety of the sale, and to procure a decree declaring it to be void. Such a practice would place no end to litigation." [122 Minn. 7, 141 N. W. 851.] The court further decided that certain sections of the Revised Laws of the state accorded to the orders of the probate court in the matter of administrators' sales the same presumption as to the judgments of courts of superior common-law jurisdiction. J. It would be difficult to add anything to the reasoning of the court, and it is in accord with the rulings in other states. B. Watkins Land Mortg. Co. v. Mullen, 62 Kan. 1, 84 Am. St. Rep. 372, 61 Pac. 385; Gjerstadengen v. Van Duzen, 7 N. D. 612, 66 Am. St. Rep. 679, 76 N. W. 233. See also Sigmond v. Bebber, 104 Iowa, 431, 73 N. W. 1027, and § 319b, Freeman on Judgments, 4th ed. and cases cited. Judgment affirmed. (237 U. S. 391) HARRY C. BOOTH, Pl. in Err., V. STATE OF INDIANA. CONSTITUTIONAL LAW (§§ 238, 275*)-MAS- equal protection of the laws is denied by *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes † Laws 1907, c. 121. police power in the interest of the public health. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. }} 688-690, 695, 706-708, 830, 835, 839, 843-846; Dec. Dig. $ 238, 275: Master and Servant, Dec. Dig. § 12.] [No. 231.] Argued April 19, 1915. 1915. shall be provided with all necessary facilities for persons to wash, and also provided with suitable lockers for the safe-keeping of clothing. Provided, however, that the owner, operator, lessee, superintendent of or other person in charge of such mine or place as aforesaid, shall not be required to furDecided May 3, nish soap or towels." It is provided in § 2 that a violation of the act shall be a misdemeanor and punished by a fine, to which may be added imprisonment. The prosecution was started by an affi N ERROR to the Supreme Court of the State of Indiana to review a judgment which affirmed a conviction in the Sullivan Circuit Court, in that state, for a violation | davit charging Booth, he being the superinof a statute requiring washhouses or wash rooms for mine employees. Aflirmed. See same case below, 179 Ind. 405, L.R.A. 1915B, 420, 100 N. E. 563. The facts are stated in the opinion. Messrs. Henry W. Moore, T. J. Moll, and Ulric Z. Wiley for plaintiff in error. Messrs. Richard M. Milburn, Leslie R. Naftzger, Thomas H. Branaman, and Mr. Thomas M. Honan, Attorney General of In diana, for defendant in error. tendent of a mine belonging to the Indiana Coal Company in one of the counties of the state, with a violation of the act for failure to provide a washhouse or wash room as required by the statute after request in writing from twenty of the employees of the mine. A motion to quash the affidavit and dismiss the charge was made on the grounds, stated with elaborate specifications, that the affidavit did not state an offense against the state of Indiana or the United States, and Mr. Justice McKenna delivered the opin- that the statute violated both the Constituion of the court: tion of the state and the Constitution of the United States. Error to review a judgment of conviction for the violation of a statute of Indiana en- The motion having been overruled, upon titled, "An Act Requiring the Owners and trial Booth was found guilty and fined $1 Operators of Coal Mines and Other Employ- and costs. He made a motion in arrest of ers of Labor to Erect and Maintain Wash-judgment, repeating without details the houses at Certain Places where Laborers grounds that he had charged in his motion Are Employed, for the Protection of the to dismiss. The conviction was affirmed by Health of the Employees, and Providing a the supreme court of the state. Penalty for Its Violation." Section 1 reads as follows: "Coal Mining -Washhouses for Laborers, "Section 1. Be it enacted by the general assembly of the state of Indiana, That for the protection of the health of the employees hereinafter mentioned, it shall be the duty of the owner, operator, lessee, superintend-, ent of, or other person in charge of every coal mine or colliery, or other place where laborers employed are surrounded by or affected by similar conditions as employees in coal mines, at the request in writing of twenty (20) or or more employees of such mine or place, or in event there are less than twenty (20) men employed, then upon the written request of one third (4) of the number of employees employed, to provide a suitable wash room or washhouse for the use of persons employed, so that they may change their clothing before beginning work, and wash themselves, and change their clothing after working. That said building or room shall be a separate building or room from the engine or boiler room, and shall be maintained in good order, be properly lighted and heated, and be sup plied with clean cold and warm water, and The record contains seventeen assignments of error. Plaintiff in error, however, waives five of them, and is content to present his contentions in the other twelve. These contentions contentions are, stated in broad generality, that the statute under review is in violation of the 5th and 14th Amendn. nts to the Constitution of the United States and certain articles of the Constitution of the state of Indiana. We are concerned only with the contention based on the 14th Amendment, as the 5th Amendment is not applicable to the states, and the conformity of the statute to the Constitution of the state of Indiana has been adjudged by the supreme court of the state. The specifications under the 14th Amendment are: (1) That the statute deprives plaintiff in error of his property without due process of law; and (2) denies him the equal protection of the law. The supreme court rejected both contentions, deciding that the statute was a legal exercise of the police power of the state, and the specific objection that the statute was invalid because it only applies to coal mines, and not to other classes of business, •For other cases see same topic & § NUMBER in Dec. & Al... Figs. 1997 to date, & Rep'r Indexes the court said was disposed of by Barbier v. | passes or returns from are very different Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. from those which an employee in work above Ct. Rep. 357, and Soon Hing v. Crowley, ground passes to or returns from, and the 113 U. S. 703, 709, 28 L. ed. 1145, 1147, 5 conditions of actual service in the cases are Sup. Ct. Rep. 730. The court quoted from very different, and it cannot be judicially the latter case as follows: "The specific said that a judgment which makes such difregulation of one kind of business, which ferences a basis of classification is arbimay be necessary for the protection of the trarily exercised; certainly not in view of public, can never be the just ground of com- the wide discretion this court has recogplaint because like restrictions are not im- nized, and necessarily has recognized, in posed upon other business of a different legislation to classify its objects. kind." Plaintiff in error, to sustain his contentions and to combat the conclusions of the supreme court, enters into a wide consideration of the police power. It has been so often discussed that we may assume that both its extent and limitations are known. Their application in the present case can best be determined by considering the objections to it. The first objection in the case at bar seems to be that the statute "applies solely and specifically to a particular class, engaged in a particular business, and is not in the interest of the public generally, as distinct from a particular class." And it is further said that "it is a matter of common knowledge, of which courts take judicial notice, that the 'class' to which the act applies constitutes a very small percentage of population, and this being true, the act could not possibly be in the interest of the public health of the commonwealth." The objection is answered by the cases already cited, by Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, and McLean v. Arkansas, 211 U. S. 539, 53 L. ed. 315, 29 Sup. Ct. Rep. 206, and further comment is unnecessary. It is further said that the act "is inoperative in itself for the reason that it can only be put into operation by the will and election of a specific number of the 'class' to which it applies, and consequently it fastens a burden upon the owners and operators of coal mines, which is 'a manifest injustice by positive law." The purpose of the comment, other than to give accent to the con tention that the act has special operation, is part of the view elsewhere urged that the provision is a delegation of legislative power. But with this objection we are not concerned. The supreme court of the state decided that the law could be called into operation by petition, and in the decision no Federal question is involved. It is, however, further objected that the law discriminates because it may be applied to one mine, and not to another, all other conditions being the same but the desire of the miners, indeed, discriminates upon a distinction more arbitrary than that, upon the desire of twenty in one mine as against a lesser number, nineteen, it may be, in another. The objection is a familiar one and has an instance and answer in McLean v. Arkansas, supra. It is the usual ground of attack upon a distinction based on degree, and seems to have a special force when the distinction depends upon a differ But a distinction is sought to be made between what a legislature may require for the safety and protection of a miner while actu-ence in numbers. ally in service below ground, and that which may be required when he has ceased or has not commenced his labors. Cases are cited which, upon that distinction, have decided that when a miner has ceased his work and has reached the surface of the earth his situation is not different from that of many other workmen, and that, therefore, his rights are not greater than theirs, and will not justify a separate classification. But there are many practical analogies. The jurisdiction of a court is often made to depend upon amounts apparently arbitrarily fixed. For instance, the jurisdiction of the district court of the United States (formerly the circuit court) is limited to civil suits in law and equity in certain instances in which the amount in controversy is $3,000. It could be objected, as it is here objected, that the amount is arbitrary, and that there cannot be any difference in principle between suits for $3,000 and suits for $2,999, We are unable to concur in this reasoning, or to limit the power of the legislature by the distinctions expressed. Having the-a distinction dependent upon $1. Indeed, power, in the interest of the public health, to regulate the conditions upon which coal mining may be conducted, it cannot be limited by moments of time and differences of situation. The legislative judgment may be determined by all of the conditions and their influence. The conditions to which a miner in more acute illustration, the distinction. may be made of 1 cent only. And so might there be objection to any amount which might be selected, as it might be also to any number of petitioning miners which the legislature of Indiana might have selected. Indeed, would not an objection have the same legal strength if the law had been made to depend upon anything less than unanimity of desire? To require that, it might well have been thought by the legislature, would render the legislation nugatory, and that a lesser number would call it into exercise and attain its object. The conception, no doubt, was that a lesser number indeed, the number selectedwould be fairly representative of the desire and necessity of the miners, and that use would breed a habit, example induce imitation, and a healthful practice starting with a limited number might become that of all. And such consummation justified the effort, the manner adopted attaining the end sought as well as, if not better than, a direct and peremptory requirement of the miners and mine owners. The choice of manner was, under the circumstances, for the legislature, and its choice was legal if it had the power to enact the law at all. Plaintiff in error disputes such power, and thereby presents in its most general form his contention against the validity of the statute. APPEAL AND ERROR (§ 1056)-HARMLESS [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. § 1036.*] [No. 232.] The contention seems to be independent of the objections that we have considered, and yet in counsel's discussion those objec tions and others are so mingled that it is impossible to discern which they consider Argued April 19 and 20, 1915. Decided especially vitiate the law and take it out of the power of government to enact. May 3, 1916. N ERROR to the Supreme Court of the State of Wisconsin te review a judgment to which airm a judgment of the Municipal Court of Outagamie County, in that state, in favor of a railway employee in a per The charge of its special application to coal mines and its other features of discrimination we have passed upon. The charge that it has no relation to health, we are not disposed to dwell upon. Counsel, sonal-injury action. Affirmed. seem to think if the washing places were required to be put underground in connection ¦ N. W. 505. with or in proximity to the working places, the law would be relieved from some criticism. See same case below, 153 Wis. 637, 142 The facts are stated in the opinion. error. Mr. Stephen J. McMahon for defendant in error. Mr. Justice Holmes delivered the opinion of the court: There remains to be considered only the contention that the law "is, within itself, a dead letter." And it is said that "it would forever lie dormant if not called into exercise and activity by the request of private persons." Or, as plaintiff in error other- This is an action for personal injuries. wise expresses what he thinks to be the evil The plaintiff, Gray, was a hostler at Antigo, of the law, "it is not enforceable by any Wisconsin, having various duties as to repower which the state government possesses, | ceiving and preparing engines for departure, under its Constitution, or its laws enact- including the emptying of their ashes into ed thereunder, but it is enforceable only upon the demand, the whim, or the election of a limited number of employees in the coal mining business." And it is declared that "this is the exercise of an arbitrary power, for an arbitrary private right, and against a private business,” We have quoted counsel's language in or der to give them the strength of their own expressions of what they consider the vice of the law; but manifestly it is but a gen the cinder pit, and seeing that the coals in the pit were wet down. Just before the accident he had visited the cinder pit, to see whether the cinder-pit man was doing his work, and had walked northward a short distance along a path between the track and a coal shed to a point opposite a rest house where he would await his next call to duty. He started to cross the track to the rest house, and was struck by an engine coming from the south. The defend *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ant offered evidence showing that it was an interstate road, and that the roundhouse and cinder pit served indifferently engines that passed the state line and those moving within the limits of the state, but did not attempt to show how the engine that struck the plaintiff was engaged. The evidence was rejected, and the supreme court of the state sustained the rejection on the ground that it did not appear that the plaintiff's entire work consisted in the despatching of engines engaged in interstate commerce, or that he was employed in such commerce at the moment. It may be assumed that the railway company sufficiently saved its rights. The plaintiff got a large verdict, the jury finding specially that the engine that hit the plaintiff went north of the cinder pit, in violation of the order of the defendant, that the engineer's negligence was the proximate cause of the injury, and that the plaintiff was guilty of no negligence that proximately contributed to the harm. Of course, the argument for the railway company is that Gray's employment on the cinder pit was employment upon an instrument of interstate commerce, and so an em ployment in interstate commerce as fully as that of the track repairer in Pedersen v. Delaware, L. & W. R. Co. 229 U. S. 146, 57 L. ed. 1125, 33 Sup. Ct. Rep. 648, Ann. Cas. 1914C, 153, 3 N. C. C. A. 779. See also St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156, 57 L. ed. 1129, 33 Sup. Ct. Rep. 651, Ann. Cas. 1914C, 156; and that he was on duty at the time when he was struck as much as the fireman in North Carolina R. Co. v. Zachary, 232 U. S. 248, 58 L. ed. 591, 34 Sup. Ct. Rep. 305, Ann. Cas. 1914C, 159. But we find it unnecessary to express an opinion upon this argument, since, if there was an error, it seems to have done the railway company no harm. There are differences and similarities between the Wisconsin and Federal statutes, but we do not perceive that there is any difference that made the railway company's position worse if tried on the hypothesis that the state law governed. It is sug gested that under the law of the United States the defendant could have argued that the plaintiff assumed the risk of this kind of negligence because he knew that it was a common occurrence for engines to run north of the cinder pit, not giving the proper signals. Without considering whether the testimony at all warranted a finding that Gray assumed the risk of a fellow servant's negligence, we deem it enough to say that by the Wisconsin law assumption of risk is merely a case of contributory negligence, and that the finding of the jury that the plaintiff was not guilty of con tributory negligence excludes the possibility that he assumed the risk. It also makes it unnecessary to consider differences between state and United States law that would have assumed importance had the finding upon contributory negligence been the other way. It is enough to add that the finding of the jury was warranted by the evidence. The plaintiff in error suggests that the special verdict required under the state law was improper under the United States law, but we see no ground for complaint in that. We need go no farther as to the rest of the case than to say that no plain error appears. Yazoo & M. Valley R. Co. v. Wright, 235 U. S. 376, 378, 59 L. ed., 35 Sup. Ct. Rep. 130. Judgment affirmed. (237 U. S. 402) UNITED STATES, Plff. in Err., V. ERIE RAILROAD COMPANY. RAILROADS ($ 229*)-SAFETY APPLIANCES -AIR BRAKES-SWITCHING OPERATIONS. 1. The yards of an interstate railway carrier at Jersey City, Weehawken, and so that the movements of trains between Bergen cannot be regarded as a single yard, them may be regarded as switching operations not governed by the air-brake provisions of the safety appliance act of March 2, 1893 (27 Stat. at L. 531, chap. 196, Comp. Stat. 1913, § 8605), and its amendments, where they lie from 2 to 3 miles apart, and are not so linked together that cars may freedom which is usual and essential in inbe moved from one to another with the trayard movements, and where in actual practice they are treated as separate yards. [Ed. Note. For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*] RAILROADS (§ 229*)-SAFETY APPLIANCES -AIR BRAKES "TRAIN." TRANSFER TRAINS 2. Transfer trains of freight cars which move over main tracks and over switches leading to other tracks, and through a dark tunnel, and across passenger tracks in their operation by an interstate railway company between its yards in Jersey City and Weefrom 2 to 3 miles apart, and are not so hawken and its yard in Bergen, which lie from 2 to 3 miles apart, and are not so linked together that cars may be moved from one to another with the freedom which is usual and essential in intrayard movements, and which are in actual practice treated as separate yards, are "trains" within the meaning of the provisions of the safety appliance act of March 2, 1893 (27 Stat. at L. 531, chap. 196, Comp. Stat. 1913, § 8605), and its amendments, forbidding the operation of trains in which less than the requisite number of cars are controlled by air brakes. [Ed. Note.-For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.* For other definitions, see Words and Phrases, First and Second Series, Train.] *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |