(273 F.)

in question, which was clearly not set apart as the book to be used exclusively for the record of releases and deeds of release. Nor does this statute necessarily mean that the purpose and plan of the law would be defeated if the clerk kept more than one well-bound book for such records. We think, if the clerk recorded the instruments mentioned in one of two or three such books, preserved and indexed as required by the statute, so that the books and contents were readily accessible to all persons concerned with land titles and liens, this would be a substantial compliance with the law. From these considerations we cannot resist the conclusion that this instrument signed by Chaney was so recorded as to give constructive notice of its existence.

[10] 6. But, even if the instrument was recorded in the wrong book, the grantees and their successors in title were protected when they lodged the deed with the clerk for record. The clerk certified to them on the instrument that it had been properly recorded. The unsigned memorandum on back of the deed, "Release Docket A," could not be stretched to charge the grantee with notice that this paper had been recorded in a book used exclusively for releases, because there was no such book, and because it was the duty of the clerk, and not the grantee, to see that the record was in the proper book.

On the question whether, under a statute which requires a deed to be recorded before it can operate as constructive notice, a delivery of the deed to the recording officer for record operates as constructive notice to subsequent creditors and purchasers, although it may not be recorded at all, or recorded in the wrong book, the courts of last resort are in conflict, as, will be seen by reference to the cases collated in 96 Am. St. Rep. 398, 4 Ann. Cas. 561, Ann. Cas. 1913B, 68, and 23 R. C. L. 215. In West Virginia the rule is established that the grantee is protected from the time he delivers the deed to the proper officer for record. Troy Wagon Co. v. Hutton, 53 W. Va. 157, 44 S. E. 135; Virginia Building & Loan Ass'n v. Glenn, 99 Va. 460, 39 S. E. 136.

[11] 7. To show common source of title to the 142 acres claimed by Jane Miller, and to defeat the claim of adverse possession, plaintiffs relied on the testimony of Mr. Williams to the effect that his abstract, made before the records were burned, showed a deed dated September 13, 1888, from Samuel Eddy to John L. Miller, under whom Jane Miller claimed, conveying the surface and reserving the minerals. Samuel Eddy had a deed from Hager, clerk, made under a tax sale of lands of William G. Sands for delinquent taxes.

The defendant Jane Miller contends that this deed could not operate as a severance of the surface and minerals, because this tax title to Samuel Eddy was adjudged to be in fraud of the state, and the purchase price paid by him was adjudged to be nothing more than a redemption. To support this contention she offered the record of the suit of the State of West Virginia against Samuel Eddy and others, which contained a decree adjudging that this sale was made for the taxes of 1883 and 1884 to defraud the state of its taxes for the years 1879, 1880, 1881, and 1882, and that the purchase by Eddy was really for the benefit of the owner, and operated only as a redemption of the land from the taxes of 1883 and 1884. The District Judge prop

erly excluded this record for these reasons: Miller, who had purchased from Eddy before the date of the decree above recited, was not a party to the suit and not bound by it; the subsequent proceedings, if any, were not offered, and from anything that appeared the taxes from 1879 to 1882, inclusive, were afterwards paid; there was never any decree divesting the title of Sands, the owner, and the tax deed to Eddy in any possible view was good against him.

[12] 8. Jane Miller also claims under a deed to Joseph Miller from Robert Hager, clerk, dated July 31, 1900, for delinquent taxes of Joseph Miller. At that time the surface and minerals had been severed by the conveyance from Eddy to John L. Miller. The tax deed only conveyed whatever title Joseph Miller had. Sult v. Hochstetter Oil Co., 63 W. Va. 317, 61 Š. E. 307. It is true that a sale of land for taxes will carry both surface and minerals, unless they are separately assessed. Wellman v. Hoge, 66 W. Va. 234, 66 S. E. 357. But the statute of West Virginia requires a separate assessment when there has been a severance; and we have recently held that, where there has been such a severance, the presumption is that the law was complied with and a separate assessment made. Dirgess et al. v. Huntington Development & Gas Co., 271 Fed. 864, decided February 15, 1921.

It follows that this tax sale was ineffectual to convey the title to the minerals. We can find no error.

Affirmed.

WOODALL v. ESTABROOK et al. (two cases).

(Circuit Court of Appeals, Fourth Circuit. April 2, 1921.)

Nos. 1847, 1848.

Appeals from the District Court of the United States for the Southern District of West Virginia, at Huntingon; Benjamin F. Keller, Judge.

Suits by Alonzo Woodall and by T. J. Woodall against George L. Estabrook and another, trustees of the Lincoln County Land Association. From decrees for respondents in each case, complainants appeal. Affirmed.

E. L. Hogsett, of Huntington, W. Va. (D. E. Wilkinson, of Hamlin, W. Va., on the brief), for appellants.

Cary N. Davis, of Huntington. W. Va. (W. C. W. Renshaw, of Huntington, W. Va., J. S. Clark and H. A. McCarthy, both of Philadelphia, Pa., and Vinson. Thompson, Meek & Renshaw and Fitzpatrick, Campbell, Brown & Davis, all of Huntington, W. Va., on the brief), for appellees.

Before KNAPP and WOODS, Circuit Judges, and BOYD, District Judge.

WOODS, Circuit Judge. These are suits in equity to have removed as a cloud on complainant's title a paper described as a disclaimer. The instrument is the same in character as that we have considered and held to be in effect a quitclaim deed in the opinion just filed in the ejectment suit of Joseph D. Miller v. George L. Estabrook and others, 273 Fed. 144. All the questions here made were involved in that case, and the decision in that case is conclusive of these.

The result is that the decrees of the District Court must be affirmed.

(273 F.)

INTERNATIONAL RY. CO. v. DAVIDSON, Collector of Customs, et al. (Circuit Court of Appeals, Second Circuit. April 20, 1921.)

No. 216.

1. United States 31-Regulations by executive department heads have force of law, regardless of form.

Regulations by heads of executive departments, under Rev. St. § 161 (Comp. St. § 235), for the performance of the business of the department, have force of law, and need not be promulgated in any set form or in writing.

2. Customs duties 53-Regulations by Secretary of the Treasury detaining baggage of arrivals from Canada on Sundays and holidays held lawful. Even if Act Feb. 13, 1911, § 5, as amended by Act Feb. 7, 1920, relating to customs inspections at night and on Sundays and holidays, is limited to vessels and conveyances conveying cargo, the Secretary of the Treasury had authority, under Rev. St. § 161 (Comp. St. § 235), for the purpose of enforcing the statute regulating the importation of merchandise on the northern frontier adjacent to Canada, and Comp. St. § 5807 et seq., to adopt regulations providing that all baggage of passengers arriving across the international bridge by trolley or by other vehicles, and all such vehicles, except trolley cars, arriving on Sundays or holidays, should be detained for inspection until the next day, unless the owners of the bridge should agree to pay the compensation fixed by the Secretary for customs inspectors to be kept on duty at the bridge at night and on Sundays and holidays.

3. Customs duties 63-Government inspection is prerequisite to entry of nondutiable merchandise.

Government inspection is an essential prerequisite to entry of imported goods, whether they are dutiable or not, since inspection is necessary to determine whether they are in fact nondutiable.

4. Customs duties 60-Bridge owner cannot question regulations as to inspection of baggage or vehicles coming across bridge.

The owner of a bridge between United States and Canada has no standing in court to question the validity of regulations of the Secretary of the Treasury for the inspection of private conveyances or of personal baggage brought over the bridge.

Appeal from the District Court of the United States for the Western District District of New York.

Suit for injunction by the International Railway Company against George G. Davidson, individually and as Collector of Customs of the Port of Buffalo, and others. From a decree dismissing the bill for lack of equity (271 Fed. 313), plaintiff appeals. Affirmed.

Cohn, Chormann & Franchot, of Niagara Falls, N. Y. (Basil Robillard, of Niagara Falls, N. Y., of counsel), for appellant.

Stephen T. Lockwood, U. S. Atty., of Buffalo, N. Y. (J. T. Walsh, of Buffalo, N. Y., of counsel), for appellees.

Before WARD, HOUGH, and MANTON, Circuit Judges.

WARD, Circuit Judge. This is an appeal from a decree of the District Court of the United States for the Western District of New York, dismissing the plaintiff's bill for lack of equity. The international Railway Company owns and operates two public toll bridges across

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

the Niagara river between the United States and Canada, upon each of which it also operates a line of passenger trolley cars. The government had always maintained customs inspectors at the American end of the bridges, both day and night and on Sundays and holidays. Congress, by the Act of February 7, 1920, c. 61, 41 Stat. 402, amended section 5 of the Act of February 13, 1911, c. 46, 36 Stat. 901, so as to read:

"The Secretary of the Treasury shall fix a reasonable rate of extra compensation for overtime services of inspectors, storekeepers, weighers, and other customs officers and employees who may be required to remain on duty between the hours of five o'clock post meridian and eight o'clock ante meridian, or on Sundays or holidays, to perform services in connection with the lading or unlading of cargo, or the lading of cargo or merchandise for transportation in bond or for exportation in bond or for exportation with benefit of drawback, or in connection with the receiving or delivery of cargo on or from the wharf, or in connection with the unlading, receiving, or examination of passengers' baggage, such rates to be fixed on the basis of one-half day's additional pay for each two hours or fraction thereof of at least one hour that the overtime extends beyond five o'clock post meridian (but not to exceed two and one-half days' pay for the full period from five o'clock post meridian to eight o'clock ante meridian), and two additional days' pay for Sunday or holiday duty. The said extra compensation shall be paid by the master, owner, agent, or consignee of such vessel or other conveyance whenever such special license or permit for immediate lading or unlading or for lading or unlading at night or on Sundays or holidays shall be granted to the collector of customs, who shall pay the same to the several customs officers and employees entitled thereto according to the rates fixed therefor by the Secretary of the Treasury: Provided, that such extra compensation shall be paid if such officers or employees have been ordered to report for duty and have so reported, whether the actual lading, unlading, receiving, delivery, or examination takes place or not. Customs officers acting as boarding officers and any customs officer who may be designated for that purpose by the Collector of Customs are hereby authorized to administer the oath or affirmation herein provided for, and such boarding officers shall be allowed extra compensation for services in boarding vessels at night or on Sundays or holidays at the rates prescribed by the Secretary of the Treasury as herein provided, the said extra compensation to be paid by the master, owner, agent, or consignee of such vessel: Provided, further, that in those ports where customary working hours are other than those hereinabove mentioned, the collector of customs is vested with authority to regulate the hours of customs employees so as to agree with prevailing working hours in said ports, but nothing contained in this proviso shall be construed in any manner to affect or alter the length of a working day for customs employees or the overtime pay herein fixed."

[1] Section 161, U. S. Revised Statutes (Comp. St. § 235), provides: "The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it."

Regulations under this section have the force of law and need not be promulgated in any set form or in writing. Haas v. Henkel, 216 U. S. 462, 480, 30 Sup. Ct. 249, 54 L. Ed. 569. 17 Ann. Cas. 1112; Boske v. Comingore, 177 U. S. 459, 467, 20 Sup. Ct. 701, 44 L. Ed. 846. After the passage of this act the defendant Davidson, Collector of Customs for the Ninth Customs District, by direction of the Secretary of the Treasury, notified the plaintiff:

(273 F.)

“That unless the complainant would pay two days' pay for each Sunday or holiday for each customs officer performing service in connection with the said company, importation of all merchandise on Sundays and holidays would be stopped, and sent the following instructions to the deputy collector at Niagara Falls:

"1. Trolleys may come in after full examination.

"2. Trolley passengers may come in after surrendering all baggage and effects, to be examined after 8:00 a. m. on the day succeeding each Sunday or holiday.

"3. Foot passengers may come in after surrendering all baggage and effects, to be examined after 8:00 a. m. on the day succeeding each Sunday or holiday.

"4. All vehicular passengers except trolley passengers may come in after surrendering all baggage and effects, to be examined after 8:00 a. m. on the day succeeding such Sunday or holiday. All such vehicles will not be allowed to enter the United States until after their examination on the day succeeding each Sunday or holiday.

"5. All outgoing traffic may proceed as usual.

"6. There must be no examination of incoming passengers' baggage, freight or merchandise, no matter how small, including autos, teams and other vehicles except trolleys.

"7. Any baggage left for examination by customs officers will be held at owner's risk.

"8. You will use all reasonable means to advise all persons leaving the United States by way of bridges that there will be no examination of passengers' baggage and vehicles other than trolley cars until the day succeeding each Sunday or holiday.

"9. You will understand that you are not to interfere with passenger traffic but must postpone all examinations until the day succeeding each Sunday or holiday.

"10. These instructions are not confidential and may be shown to any interested party, and that such instructions were issued under orders of the United States Treasury Department, and as collector of customs."

Thereupon the International Railway Company filed this bill, praying that the defendant be restrained from enforcing the regulations. Judge Hazel entered a decree dismissing the bill for want of equity.

[2] The plaintiff contends that the act of 1911 as amended by the act of 1920 contemplates only vessels and conveyances carrying cargo and that the Secretary of the Treasury has no authority under it to make the regulations in question applying to trolley cars, automobiles and other vehicles and passenger baggage. Assuming this to be so, we still think that the Secretary may make the regulations in question under section 161 of the Revised Statutes for the purpose of enforcing the statutes regulating the importation of merchandise on the northern frontier of the United States adjacent to Canada (sections 5807-5812, U. S. Comp. Stat.), which apply not only to cargo laden vessels and conveyances, but to all conveyances and passenger baggage.

It would, of course, be impossible to maintain custom inspectors day and night, Sundays, and holidays at every road crossing the northern frontier or at contiguous points along the shore of every lake. It is reasonable to maintain such inspection only where, in the discretion of the Secretary of the Treasury, the extent and character of the travel justify doing so. This may be wisely and effectively done at the American end of bridges like those involved in this case. But there is no obligation upon the part of the government to maintain such inspection at night or on Sundays and holidays. Regulations as to the