portation were, after such presentation, from time to time, and regu- larly, adjusted and paid on that basis. This action was then brought in the Court of Claims to recover for the transportation of the in- spectors. Until it was commenced no claim for such transportation had ever been made on the United States. Held, that, without decid- ing whether the claim of the department that its inspectors were enti- tled to free transportation was or was not well founded, the silence of the company, and its acquiescence in the demand of the government for such free transportation operated as a waiver of any such right of action. Central Pacific Railroad Co. v. United States, 93.
2. The terms and conditions imposed on the grant under which the plain- tiff in error holds embraced the condition that the mail should be carried at such rates as Congress might fix; and § 13 of the act of July 12, 1876, was applicable. Wisconsin Central Railroad Co. v. United States, 190.
3. The Postmaster General, in directing payment of compensation for mail transportation, does not act judicially. Ib.
The general power of this court to issue a writ of mandamus to an inferior court is well settled; but, as a general rule, it only lies where there is no other adequate remedy, and cannot be availed of as a writ of error. In re Atlantic City Railroad, 633.
MARSHAL.
See FEES, 5, 6, 7, 8.
On the 16th of August, 1889, a statute was in force in the Territory of Utah providing for the creation of mechanic's liens for work done or materials furnished under contracts in making improvements upon land; but, in order to enforce his lien a contractor was required, within 60 days after completion of the contract, to file for record a claim stating his demand, and describing the property to be subjected to it; and no such lien was to be binding longer than 90 days after so filing, unless proper proceedings were commenced within that time to enforce it. On that day G. contracted with an irrigation company to construct a canal for it in Utah. He began work upon it at once, He which was continued until completion, December 10, 1890. claimed, (and it was so established,) that, after crediting the com- pany with sundry payments, there was still due him over $80,000, for which amount he filed his statutory claim on the 23d day of the same December. On the 1st day of October, 1889, the company mortgaged its property then acquired, or to be subsequently acquired, to a trustee
to secure an issue of bonds to the amount of $2,000,000, the proceeds of which were used in the construction of the company's works, in- cluding the canal. On the 12th of March, 1890, the legislature of Utah repealed said statute, and substituted other statutory provisions in its place, and enacted that the repeal should not affect existing rights or remedies, and that no lien claimed under the new act should hold the property longer than a year after filing the statement, unless an action should be cominenced within that time to enforce it. On the 1st day of May, 1890, C. contracted with the company to do work on its canal, and did the work so contracted for. The balance due G. not having been paid, he brought an action to recover it, making the company, the mortgage trustees, and C. defendants, which action was commenced more than 90 days after the filing of his claim. To this suit C. replied, setting up his mechanic's lien. The court below made many findings of fact, among which were, (29th,) that the right of way upon which the canal was constructed was obtained by the com- pany under Rev. Stat. § 2339; and, (33d,) that the work done by G. and C. respectively had been done with the consent of the company after its entry into possession of the land. Exception was taken to the 29th finding as not supported by the proof. The court below gave judgment in favor of both G. and C., establishing their respec- tive liens upon an equality prior and superior to the lien of the mort- gage trustees. Held, (1) That this court will not go behind the findings of fact in the trial court, to inquire whether they are sup- ported by the evidence; (2) That G.'s action was commenced within the time required by the statutes existing when it was brought; (3) That the judgment of the court below thus establishing the respective liens of G. and C. was correct. Bear Lake & River Water Works &c. Co. v. Garland, 1.
MOOT QUESTION.
See JURISDICTION, A, 3.
1. A clause in a mortgage which subjects subsequently acquired property to its lien is valid, and extends to equitable as well as to legal titles to such property. Bear Lake Irrigation Co. v. Garland, 1.
2. Under Rev. Stat. §§ 2339, 2340, no right or title to land, or to a right of way over or through it, or to the use of water from a well thereafter to be dug, vests, as against the government, in the party entering upon possession, from the mere fact of such possession, unaccompanied by the performance of labor thereon; and, as the title in this case did not pass until the ditch was completed, the mortgage was not a valid in- cumbrance until after the liens of G. and of C. had attached, and will not be held to relate back for the purpose of effecting an injustice. Ib.
3. The act of March 12, 1890, is to be construed as a continuation of the act in force when the Garland contract was made, extending the time in which an action to foreclose its lien should be commenced; and, as this was done before the time came for taking proceedings to effect a sale under the lien, it was not an alteration of the right or the remedy, as those terms are used in the statute. Ib.
1. A court of equity cannot properly interfere with, or in advance restrain the discretion of a municipal body while it is in the exercise of powers that are legislative in their character. New Orleans Water Works Co. v. New Orleans, 471.
2. Legislatures may delegate to municipal assemblies the power of enacting ordinances relating to local matters, and such ordinances, when legally enacted, have the force of legislative acts. lb.
1. The provisions of §§ 96 and 98 of c. 157 of the Public Statutes of Massa- chusetts, invalidating preferences made by insolvent debtors and as- signments or transfers made in contemplation of insolvency, do not conflict with the provisions contained in Rev. Stat. §§ 5136 and 5137, relating to national banks and to mortgages of real estate made to them in good faith by way of security for debts previously contracted, and are valid when applied to claims of such banks against insolvent debtors. McClellan v. Chipman, 347.
2. National Bank v. Commonwealth, 9 Wall. 353, affirmed to the point that it is only when a state law incapacitates a national bank from discharg- ing its duties to the government that it becomes unconstitutional: and Davis v. Elmira Savings Bank, 161 U. S. 275, affirmed to the point that national banks are instrumentalities of the Federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States: and the two distinct propo- sitions held to be harmonious. Ib.
3. The Comptroller of the Currency may appoint a receiver of a defaulting or insolvent national bank, or call for a ratable assessment upon the stockholders of such bank without a previous judicial ascertainment of the necessity for either. Bushnell v. Leland, 684.
Letters patent No. 331,920, issued to George W. Taft, December 8, 1885, for a machine for making, repairing and cleaning roads, are void, if not for anticipation, for want of invention in the patented machine. American Road Machine Co. v. Pennock & Sharp Co., 26.
1. The fact that a marriage license has been issued carries with it a pre- sumption that all statutory prerequisites thereto have been complied with, and one who claims to the contrary must affirmatively show the fact. Nofire v. United States, 657.
2. Persons coming to a public office to transact business who find a person in charge of it and transacting its business in a regular way, are not bound to ascertain his authority to so act; but to them he is an officer de facto, to whose acts the same validity and the same presumptions attach as to those of an officer de jure. Ib.
A surety on a bond, conditioned for the faithful performance by the prin- cipal obligor of his agreement to convey land to the obligee on a day named on receiving the agreed price, is released from his liability if the vendee fails to perform the precedent act of payment at the time provided in the contract, and if the vendor, having then a right to rescind and declare a forfeiture in consequence, waives that right. Coughran v. Bigelow, 301.
1. The action of local land officers on charges of fraud in the final proof of a preemption claim does not conclude the government, as the Gen- eral Land Office has jurisdiction to supervise such action, or correct any wrongs done in the entry. Orchard v. Alexander, 157 U. S. 372, affirmed and followed to this point. Parsons v. Venzke, 89. 2. The jurisdiction of the General Land Office in this respect is not arbi- trary or unlimited, or to be exercised without notice to the parties. interested; nor is it one beyond judicial review, under the same con- ditions as other orders and rulings of the land department. Ib.
3. The seventh section of the act of March 3, 1891, c. 561, 26 Stat. 1098, providing that "all entries made under the preëmption, homestead, desert-land or timber culture laws, in which final proof and payment
may have been made and certificates issued, and to which there are no adverse claims originating prior to final entry and which have been sold or incumbered prior to the first day of March, eighteen hundred and eighty-eight, and after final entry, to bona fide purchasers, or in- cumbrancers for a valuable consideration, shall, unless upon an investi- gation by a government agent, fraud on the part of the purchaser has been found, be confirmed and patented upon presentation of satisfac- tory proof to the land department of such sale or incumbrance," refers only to existing entries, and does not reach a case like the present, where the action of the land department in cancelling the entry and restoring the land to the public domain took place before the passage of the act. Ib. 4. The changes made in the grants to Wisconsin in the act of May 5, 1864, to aid in the construction of railroads from those made to that State by the act of June 3, 1856, rendered necessary some modifications of provisos 1 and 3 of § 1, and of §§ 2, 3 and 4 of the latter act, and they were accordingly reenacted in homologous provisos and sections of the act of 1864; but as the second proviso of § 1 and § 5 of the act of 1856 required no modification, they were not reënacted, but the terms and conditions contained therein were carried forward by reference, as explained in detail in the opinion of the court. Wisconsin Central Railroad Co. v. United States, 190.
5. Doing that which it is necessary to do, in order that a newly created land office may be in a proper and fit condition at the time appointed for opening it for public business, is a part of the official duties of the person who is appointed its register and receiver. United States v. Delaney, 282.
6. The claimant having entered on the performance of such duties at a new office in Oklahoma on the 18th of July, 1890, and having been engaged in performing them, in the manner described by the court in its opinion, from thence to the 1st of September following, when the office was opened for the transaction of public business, is entitled to compensation as register and receiver during that period. Ib. 7. As the claim of the plaintiff in error, claiming under an alleged preëmp- tion, was passed upon by the proper officers of the land department, originally and on appeal, and as the result of the contest was the granting of a patent to the contestant, in order to maintain her title she must show, either that the land department erred in the con- struction of the law applicable to the case, or that fraud was prac- tised upon its officers, or that they themselves were chargeable with fraudulent practices, which she has failed to do. Gonzales v. French, 338.
8. The claim of the plaintiff in error to a right of preemption is fatally defective because her vendors and predecessors in title had failed to make or file an actual entry in the proper land office. Ib.
9. The Supreme Court of the State of Montana having decided adversely
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