20]the *United States brought an action in upon which Ard entered in 1866 the legal the United States circuit court for Kansas effect which the plaintiffs in error insist against the Missouri-Kansas Company and must be given to it. It is conceded that the other railroad companies to cancel certain lands were not within the place or granted patents that had been issued for lands in limits of either railroad, but were within Allen county, Kansas, including the one is indemnity limits. According to the decisued to the Missouri-Kansas Company for sions of this court, they were therefore open the tract in section 11. United States v. to settlement under the homestead laws up Missouri, K. & T. R. Co. 141 U. S. 358, 35 to the time of their being selected to supL. ed. 766, 12 Sup. Ct. Rep. 13. Brandon ply deficiencies in place limits, with the was made a defendant in that action be-approval of the Secretary of the Interior, cause he asserted rights in lands covered by after the filing of a map of definite location. some of the patents sought to be canceled. The withdrawal of them from sale or settleBut Ard was not made a party, although ment, simply at the request of Senators and some of the evidence in the case had refer- Representatives from Kansas, prior to the ence to the tract in section 11, as well as definite location of the road, and before they to the circumstances under which he occu- were regularly selected to supply deficienpied it. That action was brought by the cies in place or granted limits, was withAttorney General of the United States at out authority of law. Such unauthorized the request of the Secretary of the Inte- withdrawal did not stand in the way of Ard, rior, who proceeded under the act of Con- in virtue of his settlement on them in 1866, gress of March 3d, 1887 (24 Stat. at L. under the then-existing homestead laws, 556, chap. 376, U. S. Comp. Stat. 1901, p. from acquiring such an interest in the lands 1595). That act directed the Secretary "to as would be protected against their subseimmediately adjust, in accordance with the quent selection by the railroad company. The decisions of the Supreme Court, each of the acts of Congress cannot be construed as acrailroad land grants made by Congress to tually granting lands to which had attached, aid in the construction of railroads, and before the definite location of the road, any heretofore unadjusted." In that action the claim or right under the homestead laws. government was unsuccessful in both the A claim or right did attach to these lands circuit court and in this court, but not, as in favor of Ard before any map of definite we shall presently see, on any question location was made or filed, and before they determinative of the issue now presented were selected for the railroad company to as between Brandon's heirs and Ard. supply alleged deficiencies in place limits. What we have said is in conformity with numerous decisions of this court cited in the margin.t Later on, the present case, so far as it involved the title to section 11, as between Brandon and Ard, was again heard upon its merits in the state court, and judgment went in favor of Ard. That judgment was affirmed by the supreme court of Kansas, which had before it the judgments in Ard v. Brandon, 156 U. S. 537, 39 L. ed. 524, 15 Sup. Ct. Rep. 406, and in United States v. Missouri, K. & T. R. Co. supra. +Hewitt v. Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309; Nelson v. Northern P. R. Co. 188 U. S. 109, 47 L. ed. 406, 23 Sup. Ct. Rep. 302; United States v. Northern P. R. Co. 152 U. S. 284, 296, 38 Subsequently, after the decision in Ard L. ed. 443, 448, 14 Sup. Ct. Rep. 598; Northern P. R. Co. v. Sanders, 166 U. S. 620, 634, v. Brandon, 156 U. S. 537, 39 L. ed. 524, 15 635, 41 L. ed. 1139, 1144, 17 Sup. Ct. Rep. Sup. Ct. Rep. 406, Ard renewed his applica- 671; Menotti v. Dillon, 167 U. S. 703, 42 tion, under the homestead laws, for both L. ed. 333, 17 Sup. Ct. Rep. 945; United tracts. Having made the proper proofs, States v. Oregon & C. R. Co. 176 U. S. 28, and paid the required fees, his application 42, 44 L. ed. 358, 364, 20 Sup. Ct. Rep. was approved and a patent issued to him 261; St. Paul & P. R. Co. v. Northern P. by the United States on October 17th, 1900, R. Co. 139 U. S. 1, 5, 35 L. ed. 77, 79, 11 under the homestead law of 1862 and the Sup. Ct. Rep. 389: St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 21]acts supplementary *thereto. That pat-723, 28 L. ed. 872, 873, 5 Sup. Ct. Rep. 334; ent was put in evidence at the last hearing Missouri, K. & T. R. Co. v. Kansas P. R. of this cause in the inferior state court and Co. 97 U. S. 491, 501, 24 L. ed. 1095, 1098; was part of the record in this case when it Cedar Rapids & M. River R. Co. v. Herring; was before the supreme court of Kansas, 110 U. S. 27, 28, 28 L. ed. 56, 57, 3 Sup. whose judgment is now here for review. Ct. Rep. 485; Grinnell v. Chicago, R. I. & P. R. Co. 103 U. S. 739, 26 L. ed. 456; Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. In our opinion the determination of the present case depends upon the conclusions that may be reached on two questions. 1. We cannot give to the withdrawal from sale, pre-emption, or settlement of the lands 112 U. S. 414, 28 L. ed. 794, 5 Sup. Ct. between the United States and those whom it sued. His membership in the Settlers' Protective Association-which association, it is said, induced the United States to bring the action referred to did not so connect him, in law, with the litigation, as that the judgment therein would bind him or be conclusive evidence against him. It must be assumed that the Attorney General of the United States sued the MissouriKansas Company only in the discharge of his official duty, and for the purpose of asserting the rights of the government as against that company. He could not have represented merely private parties in that suit; he represented only the United States. Ard was not, in any legal sense, a privy to the issue of record between the United 22] *The cases cited were referred to in a was not sought to be, made a party to that recent case in this court,-Sjoli v. Dreschel, action. He had no control of it, and was 199 U. S. 565, 50 L. ed. 312, 26 Sup. Ct. not entitled of right to be heard or to adRep. 154. It was there held that those duce evidence in it. He was not, in any cases established, among other propositions, legal sense, represented in the case, nor the following: "That the railroad company can he be regarded as privy to the issue will not acquire a vested interest in particular lands, within or without place limits, merely by filing a map of general route and having the same approved by the Secretary of the Interior, although, upon the definite location of its line of road and the filing and acceptance of a map thereof in the office of the Commissioner of the General Land Office, the lands within primary or place limits, not theretofore reserved, sold, granted, or otherwise disposed of, and free from pre-emption or other claims or rights, become segregated from the public domain, and no rights in such place lands will attach in favor of a settler or occupant who becomes such after definite location; that no rights to lands within indemnity limits will attach in favor of the railroad company until after selections made by it with the approval of the Secretary of the Interior; that up to the time such approval is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States or to be settled upon and occupied under the pre-emption and home-ber of the Settlers' Protective Association. stead laws of the United States; and that the Secretary of the Interior has no authority to withdraw from sale or settle ment lands that are within indemnity limits, which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company's road." 23] *It is true that the cases above referred to arose under acts of Congress that did not relate in terms to grants of lands to the state of Kansas to aid in the construction of railroads. But they are none the less in point here; for the provisions in them as to homestead rights attaching prior to definite location are, in substance, the same as are found in the above acts of Congress relating to lands granted to Kansas. 2. When we recall what this court (as above quoted) said in Ard v. Brandon, 156 U. S. 537, 39 L. ed. 524, 15 Sup. Ct. Rep. 406, about Ard's rights in respect of these identical lands, there is no room to doubt the correctness of the judgment of the supreme court of Kansas in his favor, unless we hold, as plaintiffs contend we should. that Ard is concluded by the decision of the circuit court of the United States in the action brought by the United States to cancel certain patents issued to the Missouri-Kansas Company. But we cannot so hold. As already stated, Ard was not, and States and its opponents, although the validity of the patent received by the Missouri-Kansas Company for the land here in question-under which company the present plaintiffs in error claim-*was di-[24 rectly disputed by the government in that case. It is said that Ard was an active mem But But that is not a controlling fact. It may be, missing, for want of the requisite diversity allegations, said: "If the facts are as thus alleged, it is clear that the MissouriKansas Company holds patents to land both within the place and indemnity limits of the Leavenworth road which equitably belong to bona fide settlers who acquired rights under the homestead and pre-emption laws, which were not lost by reason of the Land Department having, by mistake or an erroneous interpretation of the statutes in question, caused patents to be issued to the company. The case made by the above-admitted averments of the bill is one of sheer spoliation upon the part of the company of the rights of settlers; at least, of those whose rights attached prior 25] to the withdrawal of 1867; whether of others, it is not necessary, at this time, to Submitted June 1, 1908. Decided October. determine." And in Ard v. Brandon, 156 U. S. 537, 541, 39 L. ed. 524, 525, 15 Sup. Ct. Rep. 406, the court, referring to the language just quoted, and to the transfer of the legal title by the patent of the United States to the Missouri-Kansas Company, said: "But it is equally clear, under the authority of the last-cited case [United States v. Missouri, K. & T. R. Co.], as well as of many others, that no adjudication against the government in a suit by it to set aside a patent estops an individual not a party thereto from thereafter setting up his equitable rights in the land for which the patent was issued." It results that, in the present case, involving only the title to the tract of 80 acres in section 11, that, by his rightful occupancy of that tract, under and in conformity with the homestead laws, before any interest therein was legally acquired by the railroad company, Ard's equitable rights, thus accruing and supported at the final hearing by a patent from the United States, must prevail. For the reasons stated, the judgment of the Supreme Court of Kansas is affirmed. 26, 1908. United States for the Western District PPEAL from the Circuit Court of the of Michigan to review a decree dismissing, Messrs. Edward Maher, W. J. Barnard, and Ernest Dale Owen submitted the cause for appellants. Messrs. Thomas J. Cavanaugh and L. A. Tabor submitted the cause for appellees. Mr. Justice Holmes delivered the opinion of the court: 9. This is a bill in equity to prohibit the collection of a judgment rendered by a Michigan state court against a railroad company, and also of a judgment against the plaintiff corporation upon a bond given by it as surety when the railroad took the case to the supreme court of the state. See Culver V. South *Haven & E. R. Co. 144 Mich.[29 254, 107 N. W. 908, 109 N. W. 256; Culver v. Fidelity & D. Co. 149 Mich. 630, 113 N. W. The ground is that the original judgment was got by fraud. The plaintiff Steele had contracted with the surety company and also with purchasers of the railroad to pay the judgment against the latter if recovered, and joins as plaintiff on the footing that he is the real party in interest. The railroad company is made a defendant, the other defendants are citizens and resibut it is a Michigan corporation, and, as dents of Michigan, if it should be aligned with the plaintiffs the necessary diversity of citizenship would not exist. The circuit court dismissed the bill on demurrer for NOTE. On direct review of decisions of circuit or district courts, see note to Gwin v. United States, 46 L. ed. U. S. 741. want of jurisdiction, and allowed an appeal with a certificate that the want of the requisite diversity of citizenship and consequently of jurisdiction was the sole ground of the decree. The case is before us upon a motion to dismiss or affirm. the case proceed to oral argument, some reason may occur for attributing more importance to these facts than is disclosed at present. But that is an illusion. The bill, as we have said, is founded solely on allegations of fraud in getting the first judgment, and must be maintained upon them, if upon any. The railroad company is an indispensable party if that issue is to be tried. It is unnecessary to consider other objections to the suit. This court has jurisdiction to declare the circuit court's denial of its own jurisdiction correct. But we regard the decision of the circuit court as so plainly right that the appeal should be dismissed as frivolous. Appeal dismissed. *PEOPLE OF THE STATE OF NEW [31 YORK EX REL. AUGUST SILZ, Plff. in Err., The appellants candidly admit that for a decision upon jurisdiction the parties may be arranged according to their real interests, and that, if the railroad company is an indispensable party, the decision below was right. But they urge that it is alleged that the railroad is insolvent, that no relief is asked against it, but it is left free to pay the judgment if it desires to and can, and that the real parties in interest are the plaintiffs, and especially Steele, upon whom, it is said, the burden ultimately must fall. These arguments do not seem to us to need an extended answer. With regard to the alleged insolvency, it is a strange proposition that a defendant is not an indispensable party to an attempt to stop the collection of a judgment against him because, at the moment, his property HENRY HESTERBERG, Sheriff of the is not sufficient to pay his debts. The railroad was sole master of the litigation against itself, and we must assume is cooperating with the plaintiff in the present case. It seems to us equally strange to suggest that a contract of a stranger with a stranger can affect the interest of the party immediately concerned. The omission of any prayer for relief against the railroad simply shows that properly it is to be treated as a plaintiff in this case. Dawson v. Columbia Ave. Sav. Fund, S. D. Title & T. Co. 197 U. S. 178, 180, 181, 49 L. ed. 713, 715, 716, 25 Sup. Ct. Rep. 420. 30] V. County of Kings. (See S. C. Reporter's ed. 31-44.) Constitutional law - due process of law police power game law. state regulation game 1. The prohibition against the possession of game out of season, which is made by N. Y. Laws 1900, chap. 20, is a proper exercise of the police power, and does not deny the due process of law guaranteed by U. S. Const., 14th Amend., although such game may have been taken in foreign countries [For other cases, see Game Laws, in Digest during the open season there. Sup. Ct. 1908.] Commerce law. 2. Foreign commerce is not unconstitutionally regulated by the provisions of N. Y. session of game within the state during the Laws 1900, chap. 20, under which the posclosed season-except upon giving the bond provided by the statute against its saleis forbidden, although the game may have been lawfully taken in foreign countries during the open season there. [For other *It is suggested that the controversy as to the judgment against the security company is separable, and that relief may be given against that, at least, without the presence of the railroad. But the only ground on which that judgment is complained of is that that against the railroad, upon which it is based, was obtained by perjury and fraud. So long as the judgment against the railroad stands, that against its surety cannot be impeached. By its bond the surety undertook to pay the judgment, if rendered, against its principal, whether right Argued October 19, 1908. Decided Novemor wrong. If the principal remains liable under that judgment, the surety is bound to pay. Krall v. Libbey, 53 Wis. 292, 10 N. W. 386; Piercy v. Piercy, 36 N. C. (1 Ired. Eq.) 214, 218. But the principal cannot be relieved by a proceeding behind its back. There is a further allegation in the bill that, pending the proceeding, Culver, the plaintiff in the original suits, was adjudged a spendthrift, and that a guardian was appointed, but was not substituted for Culver in these suits. A hope is expressed that, if cases, see Commerce, 189, 190, in Digest Sup. Ct. 1908.] [No. 206.] ber 2, 1908. NOTE.-Game laws as affecting imported game. NEW YORK EX REL. SILZ V. HESTERBERG negatives the suggested invalidity, under the Federal Constitution, of state statutes prescribing a close season for game, and prohibiting its possession during the close the so-called Lacey act of Congress of May season. And this, too, without reference to 25, 1900 (31 Stat. at L. 187, chap. 553, U. S. Comp. Stat. 1901, p. 290), which would seem to put at rest all question as to the N ERROR to the Supreme Court of the act of Congress of February 9, 1893, pro-State of Kansas to review a judgment viding for the establishment of this court. That section only applies to cases where final judgments by this court have been entered, and not to decisions to be made and certified to the Patent Office, under the special directions of the statute." 11] *We consider these observations as applicable to the present case, and the result is appealed and writ of error dismissed, and certiorari denied. which affirmed a judgment of the District Court of Allen County, in that state, in favor of defendant in an action of ejectment. Affirmed. See same case below, 74 Kan. 424, 118 Am. St. Rep. 321, 87 Pac. 366. The facts are stated in the opinion. Mr. T. A. Pollock submitted the cause for plaintiffs in error. Mr. L. W. Kep Mr. Justice White and Mr. Justice Mc- linger was on the brief: Kenna dissent. parties. [For other cases, see Public Lands, 234-242, The relations between the government and Ard with respect to this land, and Ard's relation to and connection with the suit, were such as to render the decree in the case of United States v. Missouri, K. & T. R. Co. 141 U. S. 358, 35 L. ed. 766, 12 Sup. Ct. Rep. 13, conclusive against Ard as to the equities now claimed by him. Graham v. Great Falls Water Power & Sup. Ct. Rep. 647; Freeman, Judgm. 3d ed. 3 Dan. Ch. Pl. & Pr. 6th ed. p. 1461; Sage v. Central R. Co. 93 U. S. 412, 23 L. ed. 933. The withdrawal of March 19, 1863, withdrew the land in question from the category of public lands. Northern Lumber Co. v. O'Brien, 134 Fed. 303, 71 C. C. A. 598, 139 Fed. 614, 204 U. S. 190, 51 L. ed. 438, 27 Sup. Ct. Rep. 250; Wood v. Beach, 156 U. S. 548, 39 L. ed. 528, 15 Sup. Ct. Rep. 410; Spencer v. McDougal, 159 U. S. 62, 40 L. ed. 76, 15 Sup. Ct. Rep. 1026; Merrill v. Chicago, St. P. M. & O. R. Co. 17 C. C. A. 199, 34 U. S. App. 140, 70 Fed. 464; Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 2 McCrary, 550, 13 Fed. 106; Wolcott v. DesMoines Nav. & R. Co. 5 Wall. [For other cases, see Judgment, 688-851, in 681, 18 L. ed. 689; Wilcox v. Jackson, 13 Pet. Digest Sup. Ct. 1908.] suit. [No. 24.] 498, 10 L. ed. 264; Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 745, 23 L. ed. Submitted April 29, 1908. Decided October 639; Burlington & M. R. Co. v. Fremont 19, 1908. NOTE. As to land grants to railroadssee note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28 L. ed. U. S. 794. County, 9 Wall. 94, 19 L. ed. 564; Nelson v. sical Fund Soc. 7 L.R.A. 577; Morrill v. Morrill, 11 L.R.A. 155; Shores v. Hooper, 11 L.R.A. 308; Bank of United States v. As to conclusiveness of judgments gen- Beverly, 11 L. ed. U. S. 76; Johnson Steel erally-see notes to Sharon v. Terry, 1 Street Rail Co. v. Wharton, 38 L. ed. U. L.R.A. 572; Bollong v. Schuyler Nat. Bank, S. 429; and Southern P. R. Co. v. United 3 L.R.A. 142; Wiese v. San Francisco Mu-States, 42 L. ed. U. S. 355. |