172, organizing Washington Territory, the Territory was not authorized or permitted to acquire title to the land in suit. It is added that the statute of limitations did not run, because the plaintiffs could not sue the Territory or State until authorized to do so by the act of 1895, c. 95, p. 188, for the first time.

There was a trial and judgment for the State, which judgment was affirmed by the state Supreme Court. 46 Washington, 585. The facts found were substantially those set forth in the pleadings, except that it was held to be proved that Sylvester filed his notification of settlement with the SurveyorGeneral of Oregon in February, 1854, before the date of his deed to the Territory, although, as has been shown, his final proof and his receipt of a patent were after that date. The plaintiffs specially set up the invalidity of his deed under the Oregon Donation Act, and the incapacity of the Territory to accept it under the act by which it was organized and claimed title on these grounds. We may assume that the present writ of error is within the jurisdiction of this court. Anderson v. Carkins, 135 U. S. 483; Nutt v. Knut, 200 U. S. 12. But on the merits we are of opinion that the plaintiffs have no case.

We see no ground whatever for the doubt suggested as to the power of the Territory to accept the deed. If that power was not incident to the organization, it was implied by § 13 of the Organic Act, as Congress granted five thousand dollars 'for the erection of suitable buildings at the seat of government.' For that purpose it was necessary that the Territory should control the land, and especially in a region where land was so cheap as it was in those days the implied authority cannot be confined to the taking of a lease.

On the other point it was said that the settler acquired no rights until he not only had cultivated the land for four years, but had otherwise conformed to the provisions of the Oregon. Donation Act. Section 4. Whereas, at least, he had not made final proof. Oregon & California R. R. v. United States, No. 3, 190 U.S. 186, 195. But the question in this case is not whether Sylvester had acquired rights that the Government could not

impair, or in fact preserved as against another claimant, as in East Central Eureka Mining Co. v. Central Eureka Mining Co., 204 U. S. 266, 270, 271, but it is between his representatives and his grantee. That Sylvester had some rights cannot be disputed, and is recognized by § 8 of the act ("all the rights of the deceased"). He was in possession and had taken lawful steps toward getting the title. Those rights he could convey unless prohibited by law. But by the amending act of July 17, 1854, c. 84, § 2, 10 Stat. 305, the proviso in § 4 of the Donation Act making contracts for the sale of the lands before patent void was repealed, "Provided, That no sale shall be deemed valid, unless the vendor shall have resided four years upon the land." As this proviso attached no condition except residence for four years it would be more than a harsh construction to hold that the validity of the deed still depended upon the fulfillment of the other requirements for a perfect right. We are of opinion that the deed was valid, and thus the question is narrowed to the effect of the conveyance upon the title subsequently given to Sylvester by the patent of the United States. See Brazee v. Schofield, 124 U. S. 495.

But the questions that come before this court are confined to the rights of the parties under the statutes of the United States, and when it is decided that Sylvester's deed was valid under these statutes, its effect upon his later acts and acquisitions would seem to be a matter of local law. If the state court assumed, as it seems to have assumed, that Sylvester's subsequent making of final proof was to be taken to have been done on behalf of his grantee, and thus to have perfected its equitable right to the land, it is enough to say that we see no ground for disturbing the assumption. See Nixon v. Carco, 28 Mississippi, 414. If the state Supreme Court concurred with the trial court in holding an equitable title a sufficient answer to the plaintiff's claim, that is a matter with which we have nothing to do. Whether the decision went on this ground or assumed that the legal title also enured to the benefit of the State does not appear. If the latter ground were adopted we

presume that it could not be because of the form of the deed in the absence of words expressing or implying warranty, but would be peculiar to this class of cases. We suppose that, in the absence of a statute specially dealing with the matter, either the title would be taken to relate back, or it would be held that a permitted conveyance, before the Government has given a legal title to any one, made by a person in process of acquiring a title in the statutory method, would be taken to have contemplated that the grantor should have the benefit of what was done afterwards to perfect it. Those propositions we are not called upon to discuss. See Landes v. Brant, 10 How. 348; United States v. Clark, 200 U. S. 601, 607; Rev. Stat., § 2448.

Other matters were argued, as, for instance, whether parol evidence should have been received to show that the first deed was intended to be conditional, although absolute in form; the effect of the second deed and the condition that it expressed, the statute of limitations and so forth. But the only questions open, on the most liberal interpretation, are those that we have answered, and it follows without more that the judgment must be affirmed.

Affirmed.

EL PASO & NORTHEASTERN RAILWAY COMPANY v. GUTIERREZ, ADMINISTRATRIX.

ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS.

No. 505. Submitted October 11, 1909.-Decided November 15, 1909.

Where the effect of the judgment of the state court is to deny the defense that a statute of a Territory is a bar to the action, a claim of Federal right is denied and this court has jurisdiction under § 709, Rev. Stats., to review the judgment. Atchison, Topeka & Santa Fe Ry. v. Sowers, 213 U. S. 55.

The power of Congress to regulate commerce in the District of Columbia and Territories is plenary and does not depend on the commerce

Argument for Plaintiff in Error.

215 U.S.

clause, and a statute regulating such commerce necessarily supersedes a territorial statute on the same subject.

An act of Congress may be unconstitutional as measured by the commerce clause, and constitutional as measured by the power to govern the District of Columbia and the Territories, and the test of separability is whether Congress would have enacted the legislation exclusively for the District and the Territories.

The rule that the court must sustain an act of Congress as constitutional unless there is no doubt as to its unconstitutionality also requires the court to sustain the act in so far as it is possible to sustain it. This court did not in its decision of the Employers' Liability Cases, 207 U. S. 463, hold the act of June 11, 1906, c. 3073, 34 Stat. 232, unconstitutional so far as it related to the District of Columbia and the Territories, and expressly refused to interpret the act as applying only to such employés of carriers in the District and Territories as were engaged in interstate commerce.

The evident intent of Congress in enacting the Employers' Liability Act of June 11, 1906, was to enact the curative provisions of the law as applicable to the District of Columbia and the Territories under its plenary power irrespective of the interstate commerce feature of the act, and although unconstitutional as to the latter as held in 207 U. S. 463, it is constitutional and paramount as to commerce wholly in the District and Territories.

The Employers' Liability Act of June 11, 1906, being a constitutional regulation of commerce in the District of Columbia and the Territories necessarily supersedes prior territorial legislation on the same subject and non-compliance by the plaintiff employé with a provision of a territorial statute (in this case of New Mexico) cannot be pleaded by the defendant employer as a bar to an action for personal injuries.

117 S. W. 426, affirmed, and Hyde v. Southern Ry. Co., 31 App. D. C. approved.

THE facts, which involve the constitutionality of the Employers' Liability Law of June 11, 1906, c. 3073, 34 Stat. 232, as applied to the Territories of the United States, are stated in the opinion.

Mr. W. C. Keegin, Mr. W. A. Hawkins and Mr. John Franklin for plaintiff in error:

This court has jurisdiction to review the judgment of the

215 U.S.

Argument for Defendant in Error.

state court of Texas; the plaintiff in error as defendant below asserted the unconstitutionality of the Employers' Liability Act and that this case was controlled by the statute of New Mexico. The denial of this claim was the denial of a Federal right. St. Louis &c. Ry. Co. v. Taylor, 210 U. S. 281, 293; Ill. Cent. R. R. Co. v. McKendree, 203 U. S. 514. The statute of New Mexico has been upheld in this court. A., T. & Santa Fe Ry. v. Sowers, 213 U. S. 55. The Employers' Liability Act is void in toto. The decision of this court in 207 U. S. 463, forecloses that question. The statute is not separable as nothing shows that Congress would have enacted it exclusively as to the Territories. Sprague v. Thompson, 118 U. S. 90.

Mr. F. G. Morris for defendant in error:

This court does not have jurisdiction of the appeal. The New Mexico statute did not create a right of action but only improved conditions. Klinger v. Missouri, 13 Wall. 257; Eustis v. Bolles, 150 U. S. 361; Beaupré v. Noyes, 138 U. S. 397.

The decision that the act of Congress and not the territorial statute controlled the case does not deny full faith and credit to the territorial statute. United States v. Lynch, 137 U. S. 280; Balto. & Pot. R. R. Co. v. Hopkins, 130 U. S. 210; Johnson v. New York Life Ins. Co., 187 U. S. 491; Smithsonian Institution v. St. John, 214 U. S. 19.

No Federal right exists under a territorial statute in a state court which will support a writ of error from this court other than that provided for by the statute requiring it to be given full faith and credit. A., T. & Santa Fe Ry. v. Sowers, 213 U. S. 55.

The Employers' Liability Act is within the power of Congress to enact so far as applicable to the District of Columbia and the Territories, and that question is not affected by the decision of this court in 207 U. S. 463, which related only to the act as applicable to the States. The provisions as to the