that title did not pass until there was a full compliance with all the conditions upon which the right to a patent depended (Wisconsin Central R. R. Co. v. Price Co., 133 U. S. 496, 505), it is apparent that the validity of the tax title depends upon the question whether the location of the warrant in 1857, without more, gave a right to a patent.

Among the conditions, upon compliance with which such a right depends, none has been deemed more essential than the payment of the purchase price, which in this instance could have been made in money or by a warrant like the one actually used. The warrant was assignable and was usable at a rate which made it the equivalent of the price of the land. And had Shaffer been the lawful owner and holder of the warrant, there could be no doubt that its location by him would, without more, have entitled him to a patent. But as the General Land Office found, in effect, that he was not the lawful owner or holder of the warrant, and as that finding is conclusive in the circumstances in which it is brought into this case, it is perfectly plain that the location of the warrant did not, without more, give a right to a patent. In other words, that location did not operate as a payment of the purchase price and so did not operate to pass the equitable title from the United States. Besides, until the payment in 1904, it was wholly uncertain that the location ever would be perfected, there being no obligation upon any one to perfect it. It follows that during the intervening years the United States had such an interest in the land as to make its taxation by the State void.

The case of Hussman v. Durham, 165 U. S. 144, is like this in all material respects, the most noticeable difference being that there the assignment to the locator was forged while here it was ineffectual because of a prior assignment. In that case this court, after holding, in substance, that the doctrine of relation cannot be invoked to give effect

to a title resting upon the wrongful taxation of land while both the legal and the equitable title were in the United States, said:

"Confessedly, though a formal certificate of location was issued in 1858, there was then in fact no payment for the land and the government received nothing until 1888. During these intervening years whatever might have appeared upon the face of the record the legal and the equitable title both remained in the government. The land was, therefore, not subject to state taxation. Tax sales and tax deeds issued during that time were void. The defendant took nothing by such deeds. No estoppel can be invoked against the plaintiff. His title dates from the time of payment in 1888. The defendant does not hold under him and has no tax title arising subsequently thereto."

For these reasons we hold that the Supreme Court of the State erred in sustaining the tax title.

Reversed.

TEXAS & NEW ORLEANS RAILROAD COMPANY v.

MILLER.

ERROR TO THE COURT OF CIVIL APPEALS FOR THE FOURTH SUPREME JUDICIAL DISTRICT OF THE STATE OF TEXAS.

No. 831. Submitted April 17, 1911.-Decided May 15, 1911.

The protection of charter rights by the contract clause of the Federal Constitution is subject to the rule that a legislature cannot bargain away the police power, or withdraw from its successors the power to guard the public safety, health and morals.

A provision in its charter exempting a railroad company from liability for death of employés, even if caused by its own negligence, does not

amount to an irrevocable contract within the protection of the Federal Constitution, but is as much subject to future legislative action as though embodied in a separate statute.

Provisions in a corporate charter which are beyond the power of the legislature to grant are not within the protection of the contract clause of the Federal Constitution.

Where there is no allegation or proof that the highest court of a State has construed a statute of that State, it becomes the duty of the courts of another State, which do not take judicial knowledge of decisions of other States, to construe the statute and its effect upon prior statutes according to their independent judgment. Louisville & Nashville R. R. Co. v. Melton, 218 U. S. 36.

The decision of a state court construing a statute of another State under such circumstances is not subject to review by this court if no Federal right is involved. Eastern Building & Loan Assn. v. Ebaugh, 185 U. S. 114.

This court will not disturb the decision of the courts of Texas that the act of Louisiana of 1884, giving a right of action to relatives of persons killed by negligence of another, repealed the provisions in the charter of a railroad company granted in 1878 exempting it from liability for a person killed by its negligence; and the act of 1884 is not unconstitutional as impairing any contract obligation in such charter.

An omission in the complaint can be cured by an allegation in the answer. United States v. Morris, 10 Wheat. 246.

Where an action is commenced in the courts of one State, based on a right given by the statute of another State provided it be commenced within a specified period, which has not expired, the omission of the plaintiff to plead the statute may be cured by the defendant pleading the statute, although the answer may not be filed until after the period of limitation has expired; and the decision of the state court to that effect does not violate the full faith and credit clause of the Federal Constitution, and involves no Federal question. 128 S. W. Rep. 1165, affirmed.

THE facts, which involve the construction of certain acts of Louisiana, and their constitutionality under the contract clause of the Constitution and whether the courts of Texas, in construing them, had failed to give them full faith and credit as required by the Constitution, are stated in the opinion.

Argument for Plaintiffs in Error.

221 U.S.

Mr. Maxwell Evarts, with whom Mr. H. M. Garwood and Mr. A. L. Jackson were on the brief, for plaintiffs in

error:

The immunity provision in § 17 of the incorporating act of the Louisiana Western Railroad Company was specially set up by plaintiffs in error as a valid public act of the State of Louisiana, and the decisions of the state courts of Texas were adverse to this contention and necessarily failed to give full faith and credit to that portion of a public act, within the meaning of the Constitution of the United States.

The refusal to consider a controlling Federal question is equivalent to a decision against the Federal right involved. Des Moines Nav. Co. v. Iowa Homestead Co.,

123 U. S. 552.

The state court by its decision necessarily adjudicated the defense which was claimed under the state act. El Paso & N. E. Ry. Co. v. Gutierrez, 215 U. S. 90; Wabash Railroad v. Adelbert College, 208 U. S. 38, 44; A., T. & S. F. Ry. Co. v. Sowers, 213 U. S. 55; Land & Water Co. v. San Jose Ranch Co., 189 U. S. 179; Philadelphia Fire Assn. v. New York, 119 U. S. 110, 139; Murdock v. Memphis, 20 Wall. 590; Mallett v. North Carolina, 181 U. S. 588.

The immunity provision contained in § 17 was a contract within the meaning of the impairment clause of the Constitution. Pennsylvania Railroad Co. v. Miller, 132 U. S. 75; Southwestern Railroad Co. v. Paulk, 24 Georgia, 356; Duncan v. Pennsylvania Railroad Co., 94 Pa. St. 443.

The fact that the Texas court took cognizance of this case and undertook to apply the Louisiana statute conferring this right of action for injuries resulting in death implies the conception of that court that the Louisiana act was not in the nature of a police regulation, for the statutory right of action in Texas for injuries resulting in death awards damages only to certain designated relatives and strictly as compensation, and not upon principles

221 U. S.

Argument for Plaintiffs in Error.

of public policy. I. & G. N. Ry. Co. v. McDonald, 75 Texas, 46; Hays v. Railway Co., 46 Texas, 272; Railway Co. v. Moore, 69 Texas, 157; Railway Co. v. Garcia, 62 Texas, 292; Railway Co. v. Cowser, 57 Texas, 293; Railway Co. v. Kindred, 57 Texas, 491. Assuming that the Louisiana act did not award damages on the same principles and theory of the Texas act there would have been an insurmountable obstacle to the recognition and enforcement of the Louisiana act by the courts of Texas on principles of comity. Railway Co. v. Jackson, 89 Texas, 107; DeHarn v. Railway Co., 86 Texas, 71; Railway Co. v. McCormick, 71 Texas, 660. If the Louisiana act of 1884 was penal, it would not be transitory and therefore not enforcible in the courts of other States. Boston & Maine R. R. Co. v. Hurd, 108 Fed. Rep. 116; Higgins v. Central N. E. & W. Ry. Co., 155 Massachusetts, 176; Nelson v. Chesapeake & Ohio Ry. Co., 88 Virginia, 971.

Article 2315 of the Civil Code of Louisiana, as amended by the act of 1884, created a right of action for injuries resulting in death and by its own language made it enforcible only for the period of one year from the death.

The transition from the case in plaintiffs' petition as fixed by its allegations alone, to the case made by a declaration upon the Louisiana statutory right of action in favor of the survivors mentioned for injuries resulting in death, as claimed to be the effect of the filing of the answers of defendants more than two years after the death, involved such a departure from law to law as to amount to the institution of a new and different cause of action. Railway Co. v. Wyler, 158 U. S. 285, 298; Lumber Co. v. Water Works Co., 94 Texas, 456; Whalen v. Gordon, 95 Fed. Rep. 314; Anderson v. Wetter, 15 L. R. A. (N. S.) 1003; Boston & Maine R. R. Co. v. Hurd, 108 Fed. Rep. 116;1 Ency. of Pl. & Pr., pp. 569, 570.

In this case the right of action in favor of the survivors under the Louisiana statute obtained for a period of one