to the Pioneer through its patent, because | entered and paid for the mining claim or the end lines of the latter were rot parallel premises known as the Silva quartz lode to each other. mining claim.

The defendant in error contended that its title was not acquired under the act of 1872, but under the act of July 26, 1866, which did not require parallelism of end lines.

It thus appears that a common end line was established by the patent surveys, which described this line as crossing the lode, and that the Kennedy Mining & Milling Company purchased with the knowledge that this was a common boundary estab lished as such by the patents many years prior to its purchase. The common boundary A B, crossing the lode, was fixed as the result of an adverse proceeding in the land office, and the agreement entered into with respect thereof was as set forth in the agreed statement of facts.

We think, then, that the Kennedy Mining & Milling Company is estopped from asserting any right to the ore body in dispute, which it was also agreed was extracted by the Kennedy Mining & Milling Company from the vein south of the vertical plane drawn through the line A B produced in the direction B', and which was the same vein which had its top or apex in the Kennedy quartz mine, and in the Pioneer quartz mine, and was continuous from the apex of both properties downward to the lowest depths. The boundary line agreed on fixed the rights of the parties in length on the lode, and so involved the extralateral right as between them.

In these circumstances it is held by a majority of the court that a Federal question was so presented that we have jurisdiction. It was stated in the agreed statement of facts that the Kennedy Mining Company on October 13, 1870, filed its application for patent in the United States land office at Sacramento, California, and that a diagram of the preinises for which patent was applied for was posted in that land office October 15, 1870; that on January 13, 1871, the Pioneer Gold & Silver Mining Company, the immediate predecessor in title of the Argonaut company, filed its application for patent in the same land office, and a diagram of the ground it claimed, and for which patent was sought, was posted in the office of the register of the land office, and upon the claim; that there was a surface conflict as to area claimed by the respective applicants for patent, as shown by the proceedings in the land office, the conflict occurring on the northern end of the Pioneer mine as applied for, and the southern end of the Kennedy mine as applied for; that The Argonaut Mining Company and the on said January 13, the register and receiv- Kennedy Mining & Milling Company sucer of the land office made and entered an ceeded to the interests of the Pioneer comorder in respect of the adverse claim of the pany and the original Kennedy company, Pioneer, directing proceedings in the case with a knowledge of the boundary line 80 of the Kennedy mining company to be sus- determined, and both parties were concludpended so far as affecting the piece or pared by it and the results following there cel of land described in the order; that on from. Richmond Min. Co. v. Eureka Min. February 20, 1871, the Pioneer Gold & Sil- Co. 103 U. S. 839, 846, 26 L. ed. 557, 560. ver Mining Company and the Kennedy Mining Company entered into a compromise agreement, in which each of the parties withdrew from their applications their claim to a certain portion of the surface ground in dispute; and which provided that "the dividing line between the claims of the respective companies shall be one drawn at right angles with the general course of the lode or lead, and surface ground thereto appurtenant, and at the point hereinbefore designated." The line thus agreed upon was the line from A to B in the foregoing diagram. Thereafter surveys for the patent for the Kennedy mine and for the Pioneer mine were duly made, and patent was ERIE & WESTERN TRANSPORTATION issued to the Kennedy Mining Company, July 29, 1872, and to the Pioneer Gold & Silver Mining Company, August 12, 1872. The Argonaut company became the owner of the Pioneer mine, July 3, 1893, by a deed from the Pioneer Gold & Silver Mining Company, and the Kennedy Mining & Milling Company became the owner of the Kennedy mine by conveyance from the Kennedy Mining Company, dated December 25, 1886; and the Kennedy Mining & Milling Company became the owner of the Silva quartz mine, February 6, 1893, by a patent issued to it on that day, which recited that that company on February 13, 1892, duly

Apart from the questions discussed by the supreme court of California, we are of opinion that the judgment must be affirmed on the foregoing ground. Judgment affirmed.

Mr. Justice White and Mr. Justice MoKenna dissented.

(189 U. S. 363)

UNION STEAMBOAT COMPANY, Claimant of the Propeller New York, Petitioner.

v.

COMPANY et al.

Appeal-construction of mandate

decree

in conformity with opinion-statutes-repeal by implication.

1. A mandate from the Supreme Court of the United States, which directs the entry of a decree in conformity with its opinion dividing the damages caused in a collision between vessels held in fault, but leaving undisturbed a judgment obtained by the owners of the cargo against one of such vessels for the full amount of their damages, does not require that such decree provide for the recoupment by the latter vessel of one half of the dam

*364

ages to such cargo from the moiety of dam-[the same is hereby reversed; the claimant ages awarded to the other vessel. of the Conemaugh and the claimant of the New York each to pay one half of all costs in this cause.

2. The rate of interest on judgments and decrees, fixed in Michigan at 7 per cent by a statute originally enacted in 1838 and carried forward in the various compilations of the statutes of that state, was not changed by a

statute enacted in 1891, which, according to

its title, was one to regulate the interest of money on account and interest on money judgments, but which actually provided only for the reduction of the rate of "interest of money" to 6 per cent, and which was amended by the act of September 22, 1899, by a further reduction of such rate to 5 per

"And that the said Erie & Western Transportation Company recover against the Union Steamboat Company $276.75 for one half of the costs herein expended, and have execution therefor.

"And it is further ordered that this cause be and the same is hereby remanded to the district court of the United States for the eastern district of Michigan, with direction g to enter a decree in conformity with the opinion of this court, with interest from July 3, 1896, until paid, at the same rate per annum that decrees bear in the courts Decided of the state of Michigan."

"The court, however, declined to enter❤ "On consideration whereof, it is now or this decree; refused to permit the petitiondered, adjudged, and decreed by this court er to recoup any sum that it might pay to that the decree of the said United States | the owners or underwriters of the cargo of circuit court of appeals in the cause be and the Conemaugh, from any sum that was due

*367

from the steamboat company for damages sustained by the Conemaugh, so that such company was compelled to pay of the total damages about 76 per cent instead of 50 per cent." 178 U. S. 317, 318, 44 L. ed. 1084, 20 Sup. Ct. Rep. 904.

The action of the district court was affirmed by the circuit court of appeals (47 C. C. A. 232, 108 Fed. 102), and the case was then brought here.

Messrs. C. E. Kremer, F. C. Harvey, and W. O. Johnson for petitioner.

Messrs. Harvey D. Goulder, S. H. Holding, and F. S. Masten for respondents. Mr. Wilhelmus Mynderse for inter

veners.

Mr. F. H. Canfield for underwriters.

Mr. Justice McKenna delivered the opinion of the court:

But the controversy as presented by the pleadings was not only between the Conemaugh and the New York, but between the latter and cargo, and this court did not disturb the judgment obtained by the cargo owners against the New York. Explaining our decision we said:

"The only questions decided were as to the respective faults of the two vessels, and the claim of the underwriters upon the Conemaugh's cargo, that they were entitled to a recovery to the full amount of their damages against the New York, notwithstanding the Conemaugh was also in fault for the collision. This claim was sustained, and directions given to enter a decree in conformity to the opinion of this court."

The decree against it, the New York now seeks to shift in part to the owners of the Conemaugh; indeed, not to shift it, but virtually to vacate it and put the claims of There is one main and several subsidiary the cargo owners into controversy with the propositions asserted by petitioner. The Conemaugh. This, we think, should not be main proposition is that in all cases of col- done. The cargo owners' judgments were lision, if both vessels are in fault, the dam-affirmed by this court, as we have seen, and ages resulting are to be equally divided be- they are none the less entitled to them untween the owners of the vessels. der the circumstances of this record, although as to some of them they were represented by the Conemaugh. The New York, having been in fault, was responsible to the cargo, and if, as between her and the Conemaugh, she have a claim for re coupment, the way is open to recover it. We think that the district court rightly construed our mandate.

The subsidiary propositions are that if one of the offending vessels pay more than half the damages to a third or innocent party she may recoup or set off such excess against any claim for damages which the other vessel may have without bringing in the other vessel as a codefendant under admiralty rule 59, or filing other pleadings than an answer to the libel. In such case it is insisted that all the parties are before the court. And further, that it is not necessary upon an appeal to the circuit court of appeals, or to this court, that the plead ings show a demand for recoupment,-the hearing in both courts being a trial de novo. The main proposition asserted may be conceded. It was the basis of our decision when the case was here on the first certiorari and determined the judgment rendered. 175 U. S. 187, 44 L. ed. 126, 20 Sup. Ct. Rep. 67. And if under some circumstances the other propositions could be applied (which is not necessary to decide), they cannot be under the circumstances of this

case.

2. Our mandate directed that a decree be entered "with interest from July 3, 1896, until paid at the same rate per annum that decrees bear in the courts of the state of Michigan." The district court and the cir cuit court of appeals found the rate to be 7 per cent. This is assigned as error.

The statute which provided for interest on judgments and decrees in Michigan at 7 per cent was enacted in 1838, and has been carried forward with amendments into the various compilations of the statutes, and appears as § 4865, Compiled Laws of Michigan of 1897. It is as follows:

Pro

"Interest may be allowed and received upon all judgments at law, for the recovery The petitioner made no claim for a of any sums of money, and upon all decrees division of damages upon the original trial in chancery for the payment of any sums of of the case. It asserted its own innocence money, whatever may be the form or cause and the entire guilt of the Conemaugh, and of action or suit in which such judgment or submitted that issue for judgment. It decree shall be rendered or made; and such sought to escape all liability, not to divide interest may be collected on execution, at liability, and on the issues hence arising the rate of 7 per centum per annum: judgments were entered against it, not only vided, That on a judgment rendered or any for the Conemaugh, but for the cargo own-written instrument, having a different rate, ers, some having intervened, others still be the interest shall be computed at the rate ing represented by the Conemaugh. Peti-specified in such instrument not exceeding tioners maintained the same attitude in the 10 per centum." circuit court of appeals and in this court. This section, it is insisted by appellants, After the decision in this court it changed was repealed by a statute passed in 1891, its attitude, and for justification says it which statute was entitled "An Act to Reghad no earlier opportunity to do so. It ulate the Interest of Money on Account, Inurges that the decision of the district court terest on Money Judgments, Verdicts," etc., was completely against it; the decision of and provided as follows: the circuit court completely for it; and that the judgment from which its right of recoupment arose was rendered by this court.

"Sec. 1. The people of the state of Michigan enact: That the interest of money shall be at the rate of $6 upon $100 for &

⚫368

*369

of a provision with which for the same length of time they were regarded as consistent.

Decree affirmed.

year and at the same rate for a greater or
less sum, and for a longer or shorter time,
except that in all cases it shall be lawful
for the parties to stipulate in writing for
the payment of any rate of interest not ex-
ceeding 8 per cent per annum: Provided,
That this act shall not apply to existing
contracts, whether the same be either due, MISSOURI
not due, or part due."

"Sec. 4. All acts or parts of acts contravening the provisions of this act are hereby repealed."

Subsequently, the rate was reduced to 5 per cent by a statute passed September 22, 1899, which reads as follows:

Commerce

(189 U. S. 274) PACIFIC RAILWAY COMPANY, Appt.,

v.

UNITED STATES.

discrimination by carriers right of Federal law officers to maintain suit to restrain.

1. A sult to enjoin a common carrier from discriminating between localities in violation of the Act to Regulate Commerce could not be brought on behalf of the United States by its law officers at the request of the Interstate Commerce Commission prior to the passage of the act of Congress of February 19, 1903, the 3d section of which expressly authorizes the prosecution of such suits.

"Sec. 1. That § 1 of act numbered 156 of Public Acts of 1891, entitled, 'An Act to Regulate the Interest of Money, on Account, Interest on Money Judgments, Verdicts,' etc., the same being compiler's § 1594 of volume 3 of Howell's Annotated Statutes, and § 4897 be, and the same is hereby, amended to read as follows: "Sec. 1. The people of the state of Michigan enact: That the interest of money 2. shall be at the rate of $5 upon $100 for a year, and at the same rate for a greater or less sum, and for a longer or shorter time, except that in all cases it shall be lawful for the parties to stipulate in writing for the payment of any rate of interest not exceeding 7 per cent per annum: Provided, That this act shall not apply to existing contracts, whether the same be either due, not due, or part due."

The new remedies to compel compliance with the Act to Regulate Commerce, given by the act of Congress of February 19, 1903, § 3, are so far made applicable to prior pending proceedings to enforce the former act by the provision of § 4, that pending causes shall not be affected by the repeal of conflicting laws provided for therein, but shall be prosecuted to a conclusion in the manner theretofore provided "and as modified by the provisions of this act," that a decree granting the relief prayed for in a suit brought on behalf of the United States by Its law officers to enJoin discrimination between localities, which sult was unauthorized because brought before the passage of the later act, must be reversed and the cause remanded for further proceedings consistent with the Act to Regulate Commerce as originally enacted and subsequently amended.

[No. 108.]

March 9, 1903.

According to its title the act is one to regulate the interest of money on account and interest on money judgments. Section 1, however, provides only "that the interest of money shall be at the rate of $5 upon $100 for a year." It is urged, however, that § 1 must take meaning from the title of the act, and that by "interest of money." is meant "interest of money on account" and "interest on money judgments," and having that meaning it repeals § 4865, su- Argued January 23, 26, 1903. Decided pra. But money on account and money judgments are distinguished in the title, and it is hard to suppose that the former was intended to include the latter in the body of the act. They are distinguished also in the prior statutes. "Interest of money" was provided for in § 3 of the act of 1838 in substantially the same language as in the acts of 1891 and 1899, and it is certain that it was not intended thereby to include interest on judgments and decrees. The latter were provided for in § 8 of the act of 1838, which became § 4865, and as such has been given a place in the compiled laws of the state ever since.

APPEAL from the United States Circuit

Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the Circuit Court for the Second Division of the District of Kansas enjoining a common carrier from discriminating between localities in violation of the Act to Regulate Commerce. Reversed and remanded to the Circuit Court for further proceedings.

cause

Statement by Mr. Justice White: The original bill of complaint in this was filed on behalf of the United If it is anomalous, as urged by counsel States against the present appellant in the and as observed by the circuit court of ap-circuit court of the United States for the peals, for legal interest in the state to be second division of the district of Kansas on fixed at 5 per cent, and judgments left to bear 7 per cent we cannot correct the anomaly. Nor can we regard the words "interest of money" to have been suddenly given a meaning in 1891 or 1899 different from that which they had borne for over fifty years in the statutes of the state with the intention to work by implication the repeal

July 26, 1893. To the bill a demurrer was filed and overruled. 5 Inters. Com. Rep. 106, 65 Fed. 903. Subsequently, exceptions were sustained to an answer, and thereafter an amended answer and a replication were filed. The questions now presented for de cision, however, were raised by an amended bill filed on July 19, 1897. In such amend

2

ed bill it was alleged that the suit was brought on behalf of the United States by the United States attorney for the district of Kansas, by the authority of and under the direction of the Attorney General of the United States, and that such authority and direction had been given in pursuance of a request of the Interstate Commerce Commission of the United States "that the United States attorney for the district of Kansas be authorized and directed to institute and prosecute all necessary proceed ings, legal or equitable, for the enforcement of the provisions of the Interstate Commerce Law against the defendant in relation to the matters herein complained of." It was further averred, in substance, that the respondent was subject to the terms and provisions of the Act to Regulate Commerce, and operated lines of railway be tween the city of St. Louis, in the state of Missouri, and the city of Omaha, in the state of Nebraska, a distance of 501 miles, and between the city of St. Louis and the city of Wichita, in the state of Kansas, a distance of 458 miles. It was charged that in the transportation of freight between St. Louis and said cities of Omaha and Wichita the service was substantially of a like, contemporaneous character, and was made under substantially similar circumstances and conditions, but that, notwithstanding such fact, the rates exacted upon shipments of freight between St. Louis and Wichita very much exceeded the rates charged on freight shipped between St. Louis and Omaha. It was averred that the collection of such al

Messrs. John F. Dillon, J. H. Richards, C. E. Benton, B. P. Waggener, and Alexander G. Cochran for appellant.

Messrs. W. C. Perry and Assistant Attorney General Beck for appellee.

Mr. Justice White, after making the foregoing statement, delivered the opinion of the court:

The violation of the Act to Regulate Commerce, complained of in the amended bill, was an asserted discrimination between localities by a common carrier subject to the act, averred to operate an unjust preference or advantage to one locality over another. The right to bring the suit was expressly rested upon a request made by the Interstate Commerce Commission to do so, in order to compel compliance with the provisions of the Act to Regulate Commerce relating to the matters complained of in the bill.

Bearing in mind that, prior to the request of the Commission upon which the suit was brought, no hearing was had before the Commission concerning the matters of fact complained of, and therefore no finding of fact whatever was made by the Commission, and it had issued no order to the carrier to desist from any violation of the law found to exist, after opportunity afforded to it to defend, the question for decision is whether, under such circumstances, the law officers of the United States at the request of the Commission were authorized to institute this suit.

Testing this question by the law which was in force at the time when the suit was begun and when it was decided below,*we* are of the opinion that the authority to bring the suit did not exist.

gress adopted since this cause was argued at bar, that is, the act "to Further Regulate Commerce with Foreign Nations and among the States," approved February 19, 1903. By § 3 of that act it is provided:

leged excessive freight rates or any rate of freight on shipments between St. Louis and Wichita in excess of the rate charged for shipments of freight of a similar character and classification between St. Louis and But this is not the case under the law as Omaha, operated an unjust and unreason- it now exists, since power to prosecute a able prejudice and disadvantage against the suit like the one now under consideration city of Wichita and the localities tributary is expressly conferred by an act of Conthereto, and against the shippers of freight between St. Louis and the city of Wichita. Averring that the wrongs complained of "are remediless in the premises under the ordinary forms and proceedings at law, and are relievable only in a court of equity and in this form of procedure," the ultimate relief asked was the grant of a perpetual injunction restraining the respondent from continuing to exact a greater rate for transportation of freight of like classification between the city of Wichita and the city of St. Louis than was asked between the city of St. Louis and the city of Omaha. A demurrer was filed to the amended bill upon various grounds, one of which denied the right of the United States to institute the

"That whenever the Interstate Commerce Commission shall have reasonable ground for belief that any common carrier is engaged in the carriage of passengers or freight traffic between given points at less than the published rates on file, or is committing any discrimination forbidden by such facts to the circuit court of the Unitlaw, a petition may be presented alleging tion; and when the act complained of is ed States sitting in equity having jurisdicalleged to have been committed or is being committed in part in more than one judicial district or state, it may be dealt with, On hearing, the demurrer was overruled inquired of, tried, and determined in either exception was reserved, and, the defendant such judicial district or state, whereupon electing to stand on its demurrer, a final it shall be the duty of the court summarily decree was entered granting a perpetual in- to inquire into the circumstances upon such junction as prayed, and, on appeal, the cir- notice and in such manner as the court cuit court of appeals affirmed the decree, shall direct, and without the formal pleadbut filed no opinion. An appeal was thereings and proceedings applicable to ordinary upon allowed. suits in equity.

suit.

⚫282