the necessity of resort to this method of showing damages and to fix double the value of the package ordered to be returned, as a definite sum to be paid for the nonfulfillment of the statutory duty. In such cases the recovery is for the stipulated sum, and is not limited to the damages actually proven. Clark v. Barnard, 108 U. S. 436, 457.

It is strongly urged that this in many cases may work serious hardship, and that in all the years in which this statute or its equivalent has been in force no action is shown to have been brought upon this theory. But the contract is definite in its terms, and it was the privilege of the importer to leave the goods in the custody of the Government or take them out upon giving the obligation which is the subject matter of this suit. It may be that in some cases such a rule would permit the Government to recover a large percentage of the value of the goods imported, and it is suggested the package not returned may represent the larger part of the value of the entire invoice, but we do not think these considerations should overcome the purposes of the statute and the terms of the obligation incurred in the giving of this bond.

The purpose of the statute was to enforce the collection of the revenues, and to require that goods shall be as represented, and if removed from governmental control before the facts about them are ascertained, to require them to be returned unopened, except as provided by statute, or a specific penalty be paid for failure so to do.

It is further contended that section 961, Rev. Stat., protects against enforcement of a penalty of this kind. This section provides: "In all suits brought to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or non-performance appears by the default or confession of the defendant, or upon demurrer, the court shall render judgment for the plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, it shall, if either of the parties request it, be assessed by a jury."

But if we are correct in holding that it was the intention of Congress to provide a specific penalty for failing to return the merchandise as required, it is not within the province of courts of equity to mitigate the harshness of penalties or forfeitures in such cases, for such relief would run directly counter to the statutory requirements. Story, Eq. Jur. § 1326. We think the Circuit Court was right in rendering judgment for double the value of the unreturned package.

The judgment of the Circuit Court of Appeals will be reversed and the judgment of the Circuit Court affirmed and the case remanded to the Circuit Court.

MR. JUSTICE BREWER took no part in the decision of this case.

DEVINE v. LOS ANGELES.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF CALIFORNIA.

No. 207. Argued March 13, 1906.-Decided May 14, 1906.

Where diversity of citizenship does not exist a suit can only be maintained in the Circuit Court of the United States on the ground that it arises under the Constitution or laws of the United States, and it does not so arise unless it really and substantially involves a controversy as to the effect or construction of the Constitution or some law or treaty of the United States on the determination whereof the result depends. This must appear from plaintiff's statement of his own claim and cannot be aided by allegations as to defenses which may be interposed.

In this case held that as a bill to quiet title the jurisdiction of the Circuit Court could not be sustained by reason of allegations that defendant's adverse claims to the surface and subterranean waters of the Los Angeles river were based on an erroneous construction of the treaty of Guadalupe Hidalgo, the act of March 3, 1851, and certain state acts and city ordinances.

Nor can such jurisdiction be maintained of the suit as one to remove cloud on title, as a bill in equity will not lie to dispel mere verbal assertions of ownership or to adjudge state statutes and charters unconstitutional and void. If the statutes and charters are unconstitutional they are void and cannot constitute a cloud on title.

Where complainant claims title to land in California under Mexican grants confirmed by the Board of Land Commissioners as the State of California

Statement of the Case.

202 U. S.

is not in the line of such titles a statute of that State conferring water rights on a city does not deprive complainants of their property or impair the obligation of any contract as the State can only confer whatever rights in such waters had vested in it.

COMPLAINANTS below, appellants here, are 244 in number and own in severalty various tracts of land aggregating several thousand acres, located in the county of Los Angeles, California, in Ranchos San Rafael, Los Felis, and Providencia. The Rancho San Rafael was granted by the King of Spain and the other two ranchos by the Republic of Mexico to the predecessors of complainants. The titles were confirmed, pursuant to the treaty of Guadalupe Hidalgo, to the successors of the original grantees by the Board of Land Commissioners created by and acting under an act of Congress approved March 3, 1851, entitled an act to ascertain and settle private land claims in the State of California. Patents were thereupon issued by the United States to the confirmees and it was alleged that these grants conveyed the title to the waters within them.

It was further alleged that the city of Los Angeles claimed to be the successor in right and title to all the grants made by the Spanish and Mexican governments to the Pueblo de Los Angeles, and the city filed a claim before the Land Commissioners in virtue of the general laws of Spain to sixteen square leagues of land, alleging that the said lands had been granted to the pueblo, which board confirmed the title of the city to four square leagues of land but rejected its claim to the remaining twelve square leagues, and that a patent was issued to the city by the United States for the land so confirmed, which patent did not refer to the river or its tributary waters, and did not purport to convey any of the waters of said river. That the city claimed the paramount right to the waters of the Los Angeles river and the river itself in virtue of the grants, laws, usages and customs of the Republic of Mexico and of the Kingdom of Spain, made and in vogue prior to the cession of the territory embraced within the State of California to the United States under the treaty of Guadalupe Hidalgo, and by virtue

of certain acts of the legislature of the State of California referred to in the bill, and especially by virtue of an act of the legislature of California passed April 4, 1850, incorporating the city of Los Angeles and declaring that it "shall succeed to all the rights, claims, and powers of the Pueblo de Los Angeles in regard to property, and shall be subject to all the liabilities incurred, and obligations created, by the Ayuntamiento of said Pueblo."

It was further alleged that the city never procured the confirmation of any rights in the waters of the Los Angeles river other than those that passed under the grant of land conferred by the patent, and that the act of the legislature, passed April 4, 1850, and certain other acts of the legislature and proceedings, acts and charters of the city set forth in the bill, are a cloud upon complainants' title to their lands. That the Los Angeles river runs through the three ranchos and thence through the city; that complainants' lands are riparian to the stream; that underlying complainants' lands are percolating waters which do not constitute a part of the river, but which by reason of the patents referred to, and mesne conveyances, belong to the several complainants as owners of said lands. The bill then went on to aver that the city claims that it is the owner of the river and its tributaries and their waters, passing through the ranchos named, and of the percolating waters in complainants' lands; that it claims the right to appropriate said waters for the use of the city and its inhabitants, and that complainants have no right to take any of the surface waters of the river or the percolating waters except in subordination to the city's paramount right to take and use the same, and that the city threatens and intends to institute suit in the state courts of California to enjoin complainants from using any of the waters possessed by them from wells on their lands.

That the city rests its right and claim to the river and its waters upon a certain construction of the treaty of Guadalupe Hidalgo and of the act of Congress of March 3, 1851, and upon certain acts of the California legislature and certain charters

of the city of Los Angeles adopted and approved in pursuance of an erroneous construction of the treaty and the act of Congress; the acts and charters being enumerated.

It was further alleged that under said acts and said charters the city has asserted and assumed the right to take physical control of the Los Angeles river and its tributaries, and has exercised the right of obstructing ditches and other conduits maintained by owners of land in the valley of the river above the city and of preventing the use of the waters of the river for irrigation of the lands of complainants, and that said laws and charters and the exercise of said rights have resulted in the destruction of the values of the lands. And it was charged that the acts of the legislature and the charters of the city of Los Angeles were in violation of the Fourteenth Amendment to the Constitution of the United States, in that they deprived or attempted to deprive complainants of their property without due process of law and to grant the same to the city of Los Angeles; that the acts and charters impaired the obligation of the contracts expressed in the patents of the United States to complainants' lands; and that the assertion and exercise by the city of the right to control the river and its waters were in violation of section 1979, Title XXIV, of the Revised Statutes of the United States.

And the bill further averred that the construction of the act of Congress of March 3, 1851, upon which the defendant city rested its right and claim to said river and to said waters, is erroneous, and that, according to the proper construction thereof, the city was required to present to the Board of Land Commissioners its claim to the waters of the river for confirmation.

It was also alleged that the claims and threats of the city to institute actions against complainants and the control which it has exercised over the river and the waters thereof, and the several acts of the legislature of California and the charter of the city purporting to confer title to the river and its waters upon the city as the successor to the Mexican pueblo, cast a