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23 F.(2d) 61 SOUTHERN PAC. CO. v. UNITED STATES.

Circuit Court of Appeals, Eighth Circuit.
December 5, 1927.

No. 7893.

1. Railroads 229(5)-Interstate Commerce Commission inspectors held not required to

notify train crew of defective coupler (Safety Appliance Act 1893, as amended [45 USCA § 1 et seq.]).

Interstate Commerce Commission inspectors, who found that coupler was defective within Safety Appliance Act of March 2, 1893, as amended by Act April 1, 1896, Act March 2, 1903, and Act April 14, 1910 (45 USCA § 1 et seq., Comp. St. § 8605 et seq.), held to have no duty to notify train crew. 2. Railroads

229(5)—Carrier held properly penalized for defective coupler, not found as soon as defect occurred, but immediately re

paired when found (Safety Appliance Act 1910, § 4 [45 USCA § 13]).

Under Safety Appliance Act April 14, 1910, 4 (45 USCA § 13; Comp. St. § 8621), and in view of the construction of Act March 2, 1893,

§2 (45 USCA § 2; Comp. St. § 8606), Act April 1, 1896, amending section 6 of Act of 1893 (45 USCA § 6; Comp. St. § 8610), and Act March 2, 1903 (45 USCA §§ 8-10; Comp. St. §§ 86138615), carrier must discover defective coupler as soon as it occurs at its peril, and was properly assessed penalty, 'even though defect was repaired immediately after being discovered, notwithstanding that 1910 amendment relieved carrier of penalty during necessary movement of car to place for repair after discovery of defective appliance.

In Error to the District Court of the United States for the District of New Mexico; Colin Neblett, Judge.

Action by the United States against the Southern Pacific Company. Judgment for plaintiff, and defendant brings error. Affirmed.

E. R. Wright, of Santa Fé, N. M. (Guy V. Shoup, of San Francisco, Cal., and Del W. Harrington, of El Paso, Tex., on the brief), for plaintiff in error.

H. S. Bowman, Asst. U. S. Atty., of Santa Fé, N. M. (John W. Wilson, U. S. Atty., of Albuquerque, N. M., and M. C. List, Sp. Asst. U. S. Atty., of Washington, D. C., on the brief), for the United States.

and April 14, 1910 (45 USCA § 1 et seq.; Comp. St. § 8605 et seq.), to recover the penalty therein provided. Briefly stated, the violation complained of is that the defendant is a common carrier engaged in interstate commerce by railroad in the state of New Mexico, and that it hauled its car B. I. G. X. tank No. 109, over a part of a highway of interstate commerce, viz. over its line of railroad from Duran, N. M., toward Tucumcari, in said state, when the coupling and uncoupling apparatus on the B end of said car was out of repair and inoperative; the uncoupling lever being disconnected from lock lift of coupler, thus necessitating a man going between the ends of the cars to couple or uncouple them. The defendant answered, pleading substantially the facts later agreed to and found. A jury was waived as provided by law, and the case tried to the court. The facts were stipulated, and the stipulated facts found by the court, and the court as a conclusion of law found that the defendant had violated the Safety Appliance Act and assessed penalty in the sum of $100. The defendant brings the case here on error. [1] From the record thus made up it appears: That the defendant is a common carrier engaged in interstate commerce in the state of New Mexico, and operates a line of railway from El Paso, Tex., to and through Carrizozo, N. M., to Tucumcari, N. M. That Carrizozo is a division point and freight terminus, where freight cars and tank cars are inspected and repaired. That Tuminus 187 miles from Carrizozo, where cumcari is a division point and freight terfreight cars and tank cars are inspected and repaired. That Duran, intermediate Carrizozo and Tucumcari, is a division point, but where inspectors and repair facilities are not maintained. That Pastura is intermediate Duran and Tucumcari. That the train and crew in question left Carrizozo early in the morning of October 13, 1926, reached Duran, a distance of 70 miles, where it stopped 11 minutes and changed engines and train crews, and proceeded onward toward Tucumcari. That while the train was stopped at Duran

Before LEWIS, Circuit Judge, and POL- it was inspected by two Interstate Commerce LOCK and SCOTT, District Judges.

SCOTT, District Judge. This action was brought by the United States against the Southern Pacific Company in the District Court of the United States for the District of New Mexico, under the act of Congress known as the Safety Appliance Act, approved March 2, 1893, as amended by the acts approved April 1, 1896, March 2, 1903,

Commission inspectors and the defect described found to exist. That the inspectors did not notify the train crew. It was not their duty to do so. Chicago, B. & Q. Ry. Co. v. United States (C. C. A.) 211 F. 12. When the train reached Pastura it was delayed, and inspected by the train crew, and a member of the train crew discovered the defect described. Acting under his instructions, "he immediately repaired the defect in

question, taking only a minute or two for such work, and thereafter the car continued its journey in said train to Tucumcari in good condition."

[2] The Safety Appliance Act as originally approved March 2, 1893, in section 2 (45 USCA § 2; Comp. St. § 8606), reads as follows: "That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars."

By the Act of March 2, 1903 (45 USCA §§ 8-10; Comp. St. § 8613-8615), the provisions of the original act were made to apply to all cars used on any railroad engaged in interstate commerce. On April 14, 1910, the act was again amended, and in section 4 (45 USCA § 13; Comp. St. § 8621) appears the following proviso: "Provided, that where any car shall have been properly equipped, as provided in this act and the other acts mentioned herein, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed, if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point; and such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employee caused to such employee by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this act and the other acts herein referred to.

The act as approved and amended prior to the amendment of 1910 had been repeatedly construed and applied by the courts, including this court and the Supreme Court of the United States. It is conceded by counsel for plaintiff in error that, under the holding in St. Louis Iron Mountain & S. Ry. Co. v. Taylor, 210 U. S. 281, 28 S. Ct. 616, 52 · L. Ed. 1061, and C., B. & Q. Ry. v. United States, 220 U. S. 559, 31 S. Ct. 612, 55 L.

Ed. 582, the duty imposed by the act as amended prior to the act of 1910, to maintain safety appliances was absolute. It is pointed out in plaintiff in error's brief that, following the amendment of 1910, the federal courts have construed the proviso in that amendment in the following cases: C., B. & Q. Ry. Co. v. United States (C. C. A.) 211 F. 12; United States v. T. & B. V. Ry. Co. (C. C. A.) 211 F. 448; C. & O. Ry. Co. v. United States (C. C. A.) 226 F. 683; United States v. Chesapeake & Ohio Ry. Co. (D. C.) 242 F. 161; C. & O. Ry. Co. v. United States (C. C. A.) 249 F. 805.

Counsel for plaintiff in error in the brief say: "It is our contention that the cases in 211 F. at page 448 (C. C. A.) 226 F. 683, 242 F. 161 and 249 F. 805, cited supra, were all presented to the court upon an erroneous theory, and that the decision of the Circuit Court of Appeals in each instance was based upon an erroneous defense." Again counsel say: "We do not contend, in the case at bar, that the facts bring the plaintiff in error within the terms of the proviso to section 4." "It is our contention that the Congress of the United States, at the time of the passage of the 1910 act, had in mind the state of the law as it then existed, including the extremely harsh provisions of the original act, which even penalized the railroad company which was required to haul a defective car to a repair point in order to make repairs, and that it was the clear intention of Congress to relax this harsh rule in the original act by the amendment of 1910, so that the carrier would not be subject to penalties in cases where cars, being properly equipped out of the terminal, became defective while handled over the line, and where diligence is used to discover and repair such defects as soon as they occur."

The contention of counsel is ingenious, but we are not prepared to hold it sound. In our opinion, the language of the proviso in the amendment of 1910 falls clearly short of counsel's contention. It is without doubt that the act as it stood prior to the amendment of 1910, and as construed up to that time, made the duty to maintain safety appliances absolute. It is without doubt that Congress had the power, by its act of 1910, to relax the rigor of the original act and to relax it in any degree. It was entirely the province of Congress to draw the line to which relaxation should extend. We are not inclined to hold that such relaxation extended beyond the clear language of the amendment. The proviso of the amendment referred to relaxed the previous rule to the

23 F.(2d) 63

extent that "such car may be hauled from
the place where such equipment was first dis-
covered to be defective or insecure to the
nearest available point where such car can
be repaired, without liability for the penal-
• if such movement is
ties imposed, ⚫
necessary to make such repairs and such re-
pairs cannot be made except at such repair
point."

Now, of course, plaintiff in error has not brought itself within the language of the proviso, and its counsel admits this, for it was not necessary for any movement to take place in order to repair the car in question. The fact found and stipulated is that, when the defect was discovered, the member of the train crew "immediately repaired the defect in question, taking only a minute or two for

such work." But counsel contend that the effect of the proviso, when properly construed, was to modify the rigor of the act, so as to relieve from the penalty, not only in the case specified in the language of the amendment, but reaching back and relieving from the time the defect occurred until it was discovered. Such an interpretation in our opinion would be unreasonable and seriously impair the efficiency of the act. It would place the burden upon the government to show, not only the fact of defective equipment, but that knowledge of the defect had been brought to the carrier, and there would be a few cases where this task would be easy. We think Congress intended the proviso to mean that, in a case where an appliance became defective and was immediately discovered by the carrier, and it was necessary to move the car as in the proviso specified, the carrier would be relieved of the penalty, but that Congress also intended to leave the act in a state so that the carrier must discover the defect as soon as it occurs at its peril.

We think the trial court made no error in its finding, ruling, and judgment and that the judgment should be and is affirmed.

DRISCOLL et al. v. STATE BOARD OF
LAND COMMISSIONERS OF COLO-
RADO et al.

Circuit Court of Appeals, Eighth Circuit.
December 2, 1927.

No. 7817.

!. Courts 299 (3)-Allegation of invalidity of state statute and of impairment of contract, not part of cause of action, held not to give

federal court jurisdiction (C. L. Colo. § 1171;

Const. U. S. art. 1, § 10, cl. 1).

Allegation in bill of invalidity of state statute (C. L. Colo. § 1171), as impairing obligation of

contracts, held not a part of the cause of action,
and not to give a federal court jurisdiction of
of the United States (article 1, § 10, cl. 1).
the cause, as one arising under the Constitution

2. Public lands 54(9)-Bill held not to state
cause of action to require issuance of patent
to school land without mineral reservation.

A bill alleging that complainant purchased state school land at a public sale, received a certificate which reserved the mineral rights, and completed payment in 13 annual installquire issuance of patent without the reservaments, held not to state a cause of action to re

tion, on the ground that it was unauthorized by law; it not appearing that he did not know of the reservation when he made the purchase, and did not receive all he bid and paid for.

Appeal from the District Court of the United States for the District of Colorado; John Foster Symes, Judge.

Suit in equity by William Driscoll and Thomas Driscoll against the State Board of Land Commissioners of Colorado and another.

Decree for defendants, and complainants appeal. Affirmed.

Edwin H. Park, of Denver, Colo. (Richard Peete, of Denver, Colo., and Gooding & Monson, of Steamboat Springs, Colo., on the brief), for appellants.

Otto Friedrichs, Asst. Atty. Gen. (William L. Boatright, Atty. Gen., and Charles Roach, Deputy Atty. Gen., on the brief), for appellee State Board of Land Commissioners of Colorado.

Paul P. Prosser, of Denver, Colo. (Edward M. Freeman, of Denver, Colo., on the brief), for appellee Texas Production Co.

LOCK and SCOTT, District Judges.
Before LEWIS, Circuit Judge, and POL-

LEWIS, Circuit Judge. Appellants hold a certificate of purchase of 228.9 acres of Indemnity School Lands, which were ceded to the State of Colorado by Act of Congress. It appears from the bill that these lands were sold by the State at public auction to William Driscoll as the highest bidder therefor, in February, 1912, in consideration of his bid of $1503.60, to be made in annual payments. Pursuant to his bid the certificate of purchase was issued to him, signed by the Governor and register of the State Board of Land Commissioners. The certificate of purchase and a schedule showing times of payments attached thereto were filed with the complaint as exhibits, which show that the ber, 1925. Driscoll then demanded of the last payment on the bid was made in Decemboard a patent conveying said lands to him and his co-plaintiff, to whom it is alleged an

interest in said certificate and lands had been assigned by the purchaser. It is charged in the bill that the board refused and still refuses to issue the patent, except upon the condition precedent that plaintiffs quit-claim and convey to the State of Colorado all minerals, ores and metals of every kind and character in or under said lands, with the right of ingress and egress for the purpose of mining, together with enough of the surface that may be necessary for the proper and convenient mining of such minerals. It is further alleged that after said certificate of purchase was issued the State board executed and delivered to appellee Texas Production Company an oil and gas lease on said lands, and that it has installed an oil-drilling rig thereon and is drilling said lands for oil and gas. The certificate of purchase contains a reservation to the State of Colorado of all rights to any and all minerals, ores and metals of every kind and character, and all coal, asphaltum, oil and other mineral substances in or under said land, and the right of ingress and egress for the purpose of mining thereon and for the convenient removal of such minerals.

[1] The purpose of the suit, as expressed in the bill, is to have the reservation in the certificate of purchase, and the oil lease granted after its issuance, adjudged void, to compel the issuance of a patent to the plaintiffs without conveyance by them to the State of the mineral rights so reserved, to enjoin operation under the lease, and for such other relief as in equity plaintiffs may be entitled to.

The State Board of Land Commissioners is provided for in the State Constitution, and its duties and powers are prescribed by the State Legislature. It has been the uniform holding of the Colorado supreme court that the board must keep strictly within its statutory powers and that it can do no more and no less than it is expressly authorized to do. At the time Driscoll made his purchase and received his certificate the board was without power to sell or convey any interest in State lands other or less than the fee simple title, the statute so providing. Walpole v. State Board, 62 Colo. 554, 163 P. 848. It is, therefore, the claim of appellants that the reservation in the certificate of purchase is void.

The refusal of the board to issue the patent except on condition that Driscoll convey to the State all minerals, ores and metals under the lands was based, as the bill alleges, on a legislative Act passed after Driscoll's

purchase and shortly after the decision in the Walpole Case, upra. Session Laws 1917, p. 485, § 18. This statute was re-enacted in 1919 (Laws 1919, p. 647, § 18) and is found as section 1171, Comp. Laws Colo. 1921.

There is no diverse citizenship. Jurisdiction is claimed on the ground that the Act of 1917, and its re-enactment in 1919, impairs the obligation of the contract of purchase. That statute, so far as material, reads thus:

"All patents and certificates of purchase on State or school lands heretofore issued and in which a reservation of rights to minerals, ores and metals of any kind or character whatsoever, or coal, asphaltum, oil, gas and other like substances has been made, are hereby validated: Provided, that the holders of such certificates of purchase or the owners of said lands so patented shall by contract, deed or other agreement acknowledge or reconvey to the State the minerals and substances so reserved, and the State Board of Land Commissioners is hereby authorized to accept on behalf of the State such deeds and conveyances and to make such agreements as may be necessary to carry out the provisions of this Act."

This is the law on which the board is alleged to have relied in refusing to issue a patent except on the conditions named. We think it was not necessary for appellants, in stating their case, to challenge this statute as a law impairing the obligation of appellants' contract in violation of the Constitution of the United States. Under the law of the State as it stood at the time of purchase and issuance of the certificate the reservation clause inserted in the certificate was void. Walpole's Case, supra. The allegations in the bill relative to subsequent legislation were in anticipation or avoidance of the defense which it was thought the defendants would interpose. The State Board had no right or authority to sell the land on the condition named in the reservation at the time of Driscoll's purchase and the issuance of the certificate to him. The subsequent enactments were purely defensive, and it not being necessary for plaintiffs in their bill to challenge their validity, its allegations in relation thereto were no part of the cause of action. Louisville & Nashville R. R. Co. v. Motley, 211 U. S. 149, 29 S. Ct. 42, 53 L. Ed. 126; Taylor v. Anderson, 234 U. S. 74, 34 S. Ct. 724, 58 L. Ed. 1218. Moreover, on authority of the cases hereinafter cited, the legislative Act did not impair the obligation of Driscoll's contract of purchase, it validated his void contract. Plaintiffs' case, therefore, is not

In Error to the District Court of the United States for the District of Wyoming; T. Blake Kennedy, Judge.

23 F.(2d) 65 one arising under the Constitution or a law of the United States, in the sense of the jurisdictional statute. This was one of the grounds of the demurrer filed by each defendant, which was by the court sustained. The court did not err in that ruling.

[2] If this view of the case be sound we have no occasion to consider the merits of the complaint, which was also challenged by the demurrer, and what we might say concerning

the merits would be dictum; but we observe that the supreme court of the State in the later cases of Gunter v. Walpole, 65 Colo. 234, 176 P. 290, and Cronk v. Shoup, 70 Colo. 71, 197 P. 756, held that the whole contract, as evidenced by the certificate of purchase containing the reservation clause, was a void agreement, the board being without authority at the time the certificate was issued to make a contract with such a reservation. The purchaser was charged with knowledge that the board had no such authority. There is no allegation in the bill that the purchaser objected and protested the insertion of the reservation clause in his certificate of purchase, nor that he did not know that it had been inserted, nor is it alleged that the advertisement of sale exposed for sale the whole title. So far as appears from the bill, Driscoll bid for only the surface rights, he held the certificate with the reservation clause in it and continued to make payments on it over a period of thirteen years, and a court of equity will not decree that he is entitled to more than he purchased and more than he contracted for. Assuming we are in error on the subject of jurisdiction there is no merit in the suit on the facts disclosed by the bill. Affirmed.

LOUIS ILFELD CO. v. UNION PAC. R. CO.
Circuit Court of Appeals, Eighth Circuit.
December 2, 1927.

No. 7769.

Corporations 661 (2)-Contracts by foreign corporations not complying with state laws, unless made void by statute, may be enforced in federal courts (Const. Wyo. art. 10, § 5; Comp. St. Wyo. 1920, § 5074).

Where the Constitution and statutes of a

state such as Wyoming (Const. art. 10, 85;

Comp. St. 1920, § 5074) prohibit foreign corporations from doing business in the state with out first complying with their requirements, but do not undertake to make void contracts made in the state without such compliance though the state courts may refuse to enforce such contracts, that fact will not prevent their enforcement in the federal courts.

23 F. (2d)-5

Action at law by the Louis Ilfeld Company against the Union Pacific Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

A. Kline, of Cheyenne, Wyo., on the brief), Albert L. Vogl, of Denver, Colo. (Marion for plaintiff in error.

Herbert V. Lacey, of Cheyenne, Wyo. (John W. Lacey, of Cheyenne, Wyo., on the brief), for defendant in error.

Before LEWIS, Circuit Judge, and POL LOCK and SCOTT, District Judges.

LEWIS, Circuit Judge. In this case plaintiff in error, a New Mexico corporation, brought its action against defendant in error, a Utah corporation, to recover damages resulting, as claimed, from a shipment of dry pelts over the defendant's railway from Rock Springs, Wyoming, to Rawlins, Wyoming. It is alleged that the Rock Springs Hide & Fur Company sold to plaintiff 23,423 pounds of dry pelts f. o. b. cars at Rock Springs, that said Hide & Fur Company caused said pelts to be loaded loose in bulk in a car furnished by the defendant for that purpose, and that the car containing said 23,423 pounds was delivered to defendant as a common carrier at Rock Springs to be transported by defendant and delivered by it to plaintiff at plaintiff's warehouse at Rawlins, that defendant issued its bill of lading reciting that it had received for shipment, consigned to plaintiff as stated, a carload of dry pelts and that the net weight of the dry pelts was 23,423 pounds. It is further alleged that the bill of lading and the original invoice which recited the sale by the Hide & Fur Company to plaintiff of the 23,423 pounds of dry pelts at 29 cents a pound was forwarded to plaintiff and plaintiff paid $6,792.67, the amount of the sight draft drawn on it in payment for and deliver the 23,423 pounds of pelts to said pelts, that defendant failed to transport plaintiff and delivered only 9,059 pounds thereof, but required the plaintiff to pay transportation charges on the 23,423 pounds, that plaintiff is the holder of the bill of lading for said shipment and that it suffered damages by reason of the facts stated, in the sum of $4,686.60, for which amount it asked judgment.

The defendant in its answer admitted the receipt of 9,059 pounds of pelts at Rock Springs, alleged that it transported and de

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