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 On the 12th of March, 1890, the legislature of Utah repealed said statute, and substituted other statutory provisions in its place, and enacted that the repeal should not affect existing rights or remedies, and that no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 commenced 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. Ib.
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 preemption, 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, 1861, 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 reenacted, 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
to the plaintiff in error a claim of title to land under an act of Con- gress, a Federal question was thereby raised. Northern Pacific Rail- road Co. v. Colburn, 383.
10. No preemption or homestead claim attaches to a tract of public land until an entry in the local land office; and the ruling by the state court that occupation and cultivation by the claimant created a claim exempting the occupied land from passing to the railroad company under its land grant, is a decision on a matter of law open to review in this court.
11. The facts found below were not of themselves sufficient to disturb the title of the railroad company under the grant from Congress. Ib. 12. The grant of public land made to the Oregon Central Railroad Com- pany by the act of May 4, 1870, c. 69, 16 Stat. 94, "for the purpose of aiding in the construction of a railroad and telegraph line from Port- land to Astoria and from a suitable point of junction near Forest Grove to the Yamhill River near McMinnville in the State of Ore- gon," contemplated a main line from Portland to Astoria opening up to settlement unoccupied and inaccessible territory and establish- ing railroad communication between the two termini, and also the construction of a branch road from Forrestville to McMinnville, twenty-one miles in length, running through the heart of the Wil- lamette Valley, and it devoted the lands north of the junction, not absorbed by the road from Portland to that point, to the building of the road to the north. United States v. Oregon & California Rail-
13. The construction of the branch road, though included in the act, was subordinate and subsidiary, and this court cannot assume that if the promoters had sought aid merely for the subordinate road, their appli- cation would have been granted. Ib.
14. The facts that the act of 1870 grants land for the purpose of aiding in the construction of a railroad in the singular number — and that the act of January 31, 1885, c. 46, 23 Stat. 296, does the same, do not affect these conclusions.
15. In a suit by the American Emigrant Company to obtain a decree quieting its title to certain lands in Calhoun County, Iowa, of which the defendants have possession, the plaintiff asserted title under the act of Congress known as the Swamp Land act of 1850, 9 Stat. 519, c. 84; the defendants under the act of Congress of May 15, 1856, 11 Stat. 9, c. 28, granting land to Iowa to aid in the construction of rail- roads in that State, including one from Dubuque to Sioux City. The principal contention of the plaintiff was that the lands passed to the State under the act of 1850, and were not embraced by the railroad act of 1856. By an act passed January 13, 1853, the State of Iowa granted to the counties respectively in which the same were situated the swamp and overflowed lands granted to the State by the Swamp Land act of 1850. Congress, by an act approved May 15, 1856,
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