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of the several states.

[No. 153.] Argued February 24, 1904.

IN

7, 1904.

Amendment to the Federal Constitution, since | tered an order certifying as "part of the this amendment operates solely as a restric- record in this case and of the judgment and tion upon Federal powers, and not upon those entry of affirmance heretofore rendered and made herein, that in the prosecution of error to this court from the circuit court of Ottawa county, and in the arguments made Decided March in this court, in behalf of plaintiff in error, it was insisted and relied upon by said plaintiff that the waters in dispute had been surveyed and meandered by the United States as those of Sandusky river and Muddy creek, and the lands mentioned and described in said case had been surveyed, sold, and patented by the United States to plaintiff's predecessors in title as lands bordering upon said river and creek, all of which acts had been done under authority of acts of Congress; that plaintiff had and possessed the sole and exclusive right of fishing in said waters; that the judgment and decree of the said circuit court, that said waters are not those of Sandusky river and Muddy creek, but those of an open and public bay,

N ERROR to the Supreme Court of the State of Ohio to review a judgment which affirmed a judgment of the Circuit Court of Ottawa County in that state, which, on a trial de novo of a suit begun in the Court of Common Pleas of that County, dismissed the petition in a suit to enjoin fishing in waters which defendants claimed formed part of a public bay. Dismissed for want of jurisdiction.

The facts are stated in the opinion. Messrs. S. H. Holding, Harvey D. Goulder, and Frank 8. Masten for plaintiff in er

ror.

Mr. George A. True for defendants in in which the public had the rights of fish

error.

Mr. Chief Justice Fuller delivered the opinion of the court:

This was a suit brought by the Winous Point Shooting Club against Caspersen and others in the court of common pleas, Ottawa county, Ohio, to enjoin defendants from fishing on certain premises alleged to be parts of Sandusky river and Mud creek, and to belong to plaintiff.

The court found that the waters in dispute formed part of a public bay, which defendants had the right to navigate and to fish in; and dismissed the petition.

novo.

ing, was in contravention of the Constitution of the United States, in that plaintiff was deprived of its private property, and the, same was taken for a public use, without just compensation to it; and it became material to the determination of said case in this court to determine said question so made by plaintiff in error, which was determined adversely to plaintiff in error, as appears in the entry and judgment of affirmance heretofore made herein."

The certificate in itself would not confer jurisdiction, but may properly be referred to, and it appears therefrom, as well as from the terms of the assignment of error The case was then carried to the circuit in the supreme court, that plaintiff's concourt of Ottawa county and there tried de tention was that the judgment of the cir That court filed findings of fact and cuit court was in violation of the 5th conclusions of law; held that the waters in Amendment. But that amendment is a requestion were not parts of Sandusky river striction on Federal power, and not on the and Mud creek, and formed part of public power of the states. The supreme court of bay, in whose waters defendants, as mem-Ohio gave no affirmative expression of its bers of the public, had the right of naviga- views in that regard, or, indeed, in respect tion and fishing; and the petition was of § 19 of article 1 of the Constitution of again dismissed. Plaintiff then took the Ohio, treating of taking private property case on error to the supreme court of Ohio, for public use on compensation made. and, with other alleged errors not material The judgment was affirmed on the authorhere, assigned as error that "the judgment ity of Bodi v. Winous Point Shooting Club, of the court is in contravention of § 19, 57 Ohio St. 226, 48 N. E. 944. In that case article 1, of the Constitution of Ohio, and the same waters were in dispute as in this article 5 of the Constitution of the United case, and it was held that they formed "part States, in that by said judgment the private of a public bay, and not parts of the Sanproperty of the plaintiff in error is taken dusky river and Mud creek," and the ruling for public use without just compensation." in Sloan v. Biemiller, 34 Ohio St. 492, susThere was no suggestion that any right un-taining the public rights of navigation and der the Constitution, or any statute of, or fishing, in such circumstances, was followed authority exercised under, the United States, and approved. had been specially set up or claimed, and decided against. The supreme court affirmed the judgment of the circuit court and en

Federal questions cannot be raised here which did not arise below, and as the 5th Amendment had no application, the aver

ment of its violation created no real Federal | it with intent to acquire title under the question. Chapin v. Fye, 179 U. S. 127, 45 homestead laws of the United States, and L. ed. 119, 21 Sup. Ct. Rep. 71. Writ of error dismissed.

Public lands uncanceled prima facie valid entry rights of successful contestant -effect of intermediate settlement.

The right of entry given by the act of Congress of May 14, 1880 (21 Stat. at L. 141, chap. 89, U. S. Comp. Stat. 1901, p. 1392), § 2, to a contestant who procures the cancelation of a homestead entry, inures to the benefit of one who, by his contest, induced the relinquishment in the local land office of a homestead entry of land in Oklahoma territory prima facie valid, but made by one in fact disqualified to make the entry, although a settlement was made intermediate the homestead entry and the initiation of the contest; since such entry, though ineffectual to vest any rights in the entryman, was sufficient to prevent the acquisition of homestead rights by another until it had been set aside.

[No. 155.]

immediately made permanent and lasting improvements, as required by law. He further alleged "that at the time he entered upon said land, and made settlement thereon, one John Gayman had entered upon and occupied said land; that on the 25th day of April, 1889, the said John Gayman obtained a pretended homestead entry on said * land; that said Gayman was disqualified from ever entering or obtaining any right or title to said land, by reason of his entering upon and occupying a portion of the Oklahoma country declared open to settlement by the President's preclamation of March 23, 1889 [26 Stat. at L. 1544], prior to 12 o'clock noon, April 22, 1889, as shown by a copy of the decision of the Land Department, recorded in vol. 24, page 221 of the United States Land Decisions, hereto attached, marked 'Exhibit A,' and made a part of this petition.

"In the decision above referred to the honorable Secretary of the Interior finds as facts that James L. Hodges has resided on said land since July 22, 1889; that Runyan has resided on said land since May 13, 1890, and William R. Colcord since 1893.

"Said William R. Colcord filed his contest against the said John Gayman on the 23d day of July, 1889, on the ground of disqualification, and the plaintiff James L.

Submitted February 23, 1904. Decided Hodges filed his contest against said John

March 7, 1904.

Gayman August 23, 1889, on the ground of
prior settlement, as shown by the decision
of the Hon. Secretary of the Interior, dated
December 1, 1894, hereto attached, marked
'Exhibit B,' and made a part hereof."
A demurrer to the petition was sustained

A PPEAL from the Supreme Court of the Territory of Oklahoma to review a judgment which affirmed a judgment of the District Court of Oklahoma County sustaining a demurrer to the petition and dismiss-by the district court, and the suit dismissed. ing a suit to have the holders of the legal title to a tract of land in that county decreed to hold that title in trust. Affirmed. See same case below (Okla.) 70 Pac. 383. The facts are stated in the opinion. Mr. J. S. Jenkins for appellants. Messrs. John W. Shartel, James R. Keaton, and Frank Wells for appellees.

The decision was affirmed by the supreme court of the territory (70 Pac. 383), whereupon an appeal was taken to this court. Pending the proceedings in the territorial courts Hodges died, and the suit was revived in the names of his heirs.

The appellants' contention is that Gayman was legally disqualified to make a homestead entry of the land; that his entry

Mr. Justice Brewer delivered the opinion was absolutely void; that Hodges was the of the court:

On June 1, 1901, James L. Hodges filed his petition in the district court of Oklahoma county, Oklahoma territory, praying that the defendants, the heirs of William R. Colcord, deceased, the holders of the legal title by patent from the United States to a tract of land in the county, be decreed to hold that title in trust for him. In it he alleged that on July 22, 1889, he was legal ly qualified to make a homestead entry of the land; that on that day he settled upon 24 S. C.-28.

first person legally qualified to make an entry who actually settled upon the land, and that therefore, upon Gayman's relinquishment, he became entitled to entry and pat ent. On the other hand, the defendants contention rests on § 2. chap. 89 (21 Stat. at L. 141, U. S. Comp. Stat. 1901, p. 1302), which provides:

"Sec. 2. In all cases where any person has contested, paid the land office fees, and procured the cancelation of any pre-emption, homestead, or timber culture entry, he shall

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be notified by the register of the land office of the district in which such land is situated of such cancelation, and shall be allowed thirty days from date of such notice to enter said lands."

"Under the present ruling of this department, entries of record prima facie valid appropriate the lands covered thereby, and, while they remain uncanceled, the land is not subject to further entry. Graham v. Hastings & D. R. Co. 1 Land Dec. 362;

Avinney v. McNamara, 10 C. L. O. 274;
Davis v. Crans, 11 C. L. O. 20."

The same proposition was affirmed in Re Laird, 13 Land Dec. 502, 503. In McMichael v. Murphy, 20 Land Dec. 147, 150, the question arose as to an entry in Oklahoma, and Secretary Smith discussed it in these words:

The exhibits attached to the petition show that the Land Department found that Gay-Whitney v. Maxwell, 2 Land Dec. 98; Mcman was within the territory at the time of the opening of the lands for settlement; that after the decision in Smith v. Town send, 148 U. S. 490, 37 L. ed. 533, 13 Sup. Ct. Rep. 634, he filed a relinquishment in the local land office, and that such relinquishment was induced by the contest of Colcord. This finding, being one of fact, is conclusive upon the courts. Colcord was the "Although White had entered the Okla contestant who procured the cancelation of homa country during the prohibitory period,' Gayman's homestead entry. He comes with- yet his homestead entry was prima facie in the terms of the statute. Was this stat- valid. Its invalidity had to be established utory right of entry destroyed by Hodges' by extraneous evidence, and a judgment as settlement, a settlement made intermediate to its illegality pronounced by a competent Gayman's homestead entry and the initia-tribunal. Had that never been done, the tion of this contest? We are of the opin-tract covered by said entry would have re ion that it was not. Gayman's homestead mained forever segregated from the public entry was prima facie valid. There was domain; so far, at least, as the unquestioned nothing on the face of the record to show that he had entered the territory prior to the time fixed for the opening thereof for settlement, or that he had in any manner violated the statute or the proclamation of the President. This prima facie valid entry removed the land, temporarily, at least, out of the public domain, and beyond the reach of other homestead entries. The first to contest was Colcord, and as a result of that contest Gayman relinquished his en-Williams, 4 Land Dec. 455; St. Paul, M. & try. To take from Colcord the benefit of the relinquishment which his contest had secured would be an injustice to him as well as a disregard of the act of 1880.

legality of the entry itself could accomplish that fact. Hence it cannot be regarded as void, but voidable only. True, White lacked one of the essential qualifications of an entryman for Oklahoma lands. But it has been held that the entry of an alien (who also lacks the very essential qualifications of citizenship) is not void, but voidable. Leary v. Manuel, 12 Land Dec. 345; Hollants v. Sullivan, 5 Land Dec. 115; Pfaff v.

M. R. Co. v. Forseth, 3 Land Dec. 446. Being voidable only, White's entry segregated the land so long as it remained of record."

Some reliance is placed by the appellants *In Jones v. Arthur, 28 Land Dec. 235, it on the language of this court in Calhoun was decided that “land in the actual posv. Violet, 173 U. S. 60, 64, 43 L. ed. 614, session and occupancy of one holding the 615, 19 Sup. Ct. Rep. 324, 325, in which we same under claim and color of title is not said in respect to an entry similar to Gay subject to homestead entry." See also Butman's "that an entry of land made under ler v. California, 29 Land Dec. 610. In such circumstances was void, and that the Witherspoon v. Duncan, 4 Wall. 210, 18 L ruling by the Land Department so holding ed. 339, it was held that "lands originally was correct;" but that language was used public cease to be public after they have been with reference to the claim of the entry- entered at the land office, and a certificate of man, and what was meant was that such en-entry has been obtained;" and in Hastings & try was void as to him,—that is, gave him | D. R. Co. v. Whitney, 132 U. S. 357, 33 L. ed. no rights. So here the entry by Gayman 363, 10 Sup. Ct. Rep. 112, it was said by Mr. was, as to him, void,-gave him no rights. Justice Lamar (p. 361, L. ed. p. 365, Sup. Ct. But that decision did not determine what ef- Rep. p. 114): fect an entry prima facie valid, yet made by one in fact disqualified to make the entry, had upon the status of the land or the rights of other parties. Generally, a homestead entry while it remains uncanceled withdraws the land from subsequent entry. Such has been the ruling of the Land Department. In Re Cliff, 3 Land Dec. 216, 218, it was said by Secretary Teller:

"In the light of these decisions the almost uniform practice of the Department has been to regard land upon which an entry of record valid upon its face has been made, as appropriated and withdrawn from subsequent homestead entry, pre-emption settlement, sale, or grant until the original entry be canceled or declared forfeited; in which case the land reverts to the govern

DOT.

1. A combination by stockholders in two competing interstate railway companies to form a stock-holding corporation which should acquire, in exchange for its own capital Argued December 14, 15, 1903. Decided stock, a controlling interest in the capital stock of each of such railway companies, violates the anti-trust act of July 2, 1890 (26 Stat. at L 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200), which declares illegal every combination or conspiracy in restraint of interstate commerce, and forbids attempts to monopolize such commerce or any part of it. Congress did not exceed its power under the commerce clause of the Federal Constitution in enacting the anti-trust act of July 2, 1890 (26 Stat. at L 209, chap. 647, U. 8. Comp. Stat. 1901, p. 8200), declaring ilegal every combination or conspiracy in restraint of interstate commerce, and forbid