right to enforce payment. But the company was not liable to repay to Steinbeck the money he expended, and the only right the company had was not the right to redeem from the tax sale, but the right to exercise its election to avoid it by paying its cost, or to affirm it and abandon the property. Nor could it avoid that election either by silence or by inaction after it had received the knowledge that Steinbeck held the tax deeds and the title under them, because delay, vacillation, an attempt to speculate upon the option, to await the event and thereafter to avoid, if the property has advanced in value, and to affirm, if it has depreciated, is fatal to the option, and affirms the sale. The Bon Homme Company knew the facts which conditioned its right to elect to avoid this tax title in January, 1897. Steinbeck then offered to convey it for a part of its cost. The company failed to accept and thereby rejected that offer. Steinbeck leased the property, operated it, sold it, caused the expenditure of tens of thousands of dollars upon it and the development of a body. of ore which transformed land of such a character that its owner would not pay taxes upon it nor redeem it from tax sales into a productive and valuable mine, and then more than six years after it had learned every fact material to its right this company by the institution of this suit sought to exercise its option to avoid this tax title. It was too late. The law had exercised its option. Its speculation upon it, its inaction, its failure to share the heavy burden of the property, its care and operation during the tedious 90's affirmed the title of Steinbeck and estopped it from sharing the benefits his care and toil and money had earned.

Finally, section 2912 of Mills' Annotated Statutes of Colorado provides that:

"Bills of relief in case of the existence of a trust not cognizable by the courts of the common law * * shall be filed within five years after the cause thereof shall accrue and not after."

If this tax title was chargeable with any trust, it was with a constructive trust not cognizable by the courts of the common law. The cause of action to enforce it accrued in January, 1897, and such an action was barred in the courts of Colorado before this suit was instituted. Courts of equity are not bound by, but they usually act or refuse to act in analogy to the statute of limitations relating to actions at law of like character. Radical changes in the condition and value of the property and its speculative character often induce them to apply the doctrine of laches in a shorter time than that fixed by the statute of limitations for similar actions at law. Kelley v. Boettcher, 29 C. C. A. 14, 21, 85 Fed. 55, 62; Lemoine v. Dunklin Co., 2 C. C. A. 343, 348, 51 Fed. 487, 492. Lord Camden said:

"A court of equity which is never active in relief against conscience or public convenience has always refused its aid to stale demands, when the party has slept upon his right, and acquiesced for a great length of time." Smith v. Clay, 2 Amb. 645.

"If the property is of a speculative or precarious nature, it is the duty of a man complaining of fraud to put forward his complaint at the earliest possible time. He cannot be allowed to remain passive,

prepared to affirm the transaction if the concern should prosper, or to repudiate it if that should prove to his advantage." Kerr, Fraud & Mistake, p. 306.

"The reason upon which the rule is based is not alone the lapse of time during which the neglect to enforce the right has existed, but the changes of condition which may have arisen during the period in which there has been neglect. In other words, where a court of equity finds that the position of the parties has so changed that equitable relief cannot be afforded without doing injustice, or that the intervening rights of third parties may be destroyed or seriously impaired, it will not exert its equitable powers in order to save one from the consequences of his own neglect." Penn. Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 698, 18 Sup. Ct. 223, 42 L. Ed. 626. In Patterson v. Hewitt, 195 U. S. 309, 321, 25 Sup. Ct. 35, 49 L. Ed. 214, the complainants had transferred their interests in certain. mining claims to a trustee who had made a written agreement of trust to convey their interests in the property, which amounted to onefourth, to them upon the performance of certain conditions, and those conditions had been performed in 1884. One of the complainants demanded his deed in 1885 and another just before the commencement of suit in 1903. The analogous statute of limitations was 10 years. During the eight years just preceding the suit the trustee and his associates had performed a large amount of work in developing the mine to which the complainants did not contribute, and a large body of rich ore was discovered in 1890. The Supreme Court said:

"If appellants had expected a share in this property, they should either have brought a bill promptly to enforce their rights, or at least contributed their proportionate share to the subsequent work and labor, and the expenses then incurred. To award them now a deed to their original interest in the property would be grossly unjust to the defendants, through whose exertions the value of the property was discovered and the mine put upon a payin. basis. While it is true the court might impose upon the appellants the pay ment of their proportionate share of labor and expenses as a condition of re lief, it could not compensate the defendants for the risk assumed by then that their exertions would come to naught. There is no class of property more subject to sudden and violent fluctuations of value than mining lands. A location which to-day may have no salable value may in a month become worth its millions. Years may be spent in working such property apparently to no purpose, when suddenly a mass of rich ore may be discovered, from which an immense fortune is realized. Under such circumstances persons having claims to such property are bound to the utmost diligence in enforcing them, and there is no class of cases in which the doctrine of laches has been more relentlessly enforced."

Stout v.

And the decree which dismissed the bill was affirmed. Rigney, 107 Fed. 545, 549, 46 C. C. A. 459, 463; Hayward v. National Bank, 96 U. S. 611, 24 L. Ed. 855; Speidel v. Henrici, 120 U. S. 377, 387, 7 Sup. Ct. 610, 30 L. Ed. 718; Kinne v. Webb (C. C.) 49 Fed. 512; Societe Fonciere v. Milliken, 135 U. S. 304, 10 Sup. Ct. 823, 34 L. Ed. 208; Galliher v. Cadwell, 145 U. S. 368, 375, 12 Sup. Ct. 873, 36 L. Ed. 738; Alsop v. Riker, 155 U. S. 448, 460, 15 Sup. Ct. 162, 39 L. Ed. 218.

The land in controversy here was a prospective mine, property of the most speculative nature. While it was unproductive, while

its value was doubtful, and the burden of protecting it against taxes and tax titles and the labor of developing it were heavy and the benefits to be derived problematical, the complainant refused to share either. For more than eight long years when times were hard, and the burden of caring for and protecting this property exceeded the benefit, Steinbeck bore it alone. Now, after he has prospected and operated the property, after he has bought the tax titles upon it and paid subsequent taxes, after grantees and lessees whom he secured have developed the rich ore and the benefit exceeds the burden, the complainant, which has refused to bear or to share the burden or the risk, prays a court of equity to confer upon it the reward which the money, the toil and the energy of Steinbeck have earned. There is no equity in such a suit. The complainant speculated upon its option. If the expense, toil, and effort of Steinbeck had come to naught, it would never have reimbursed him or have brought this suit. Its neglect, inaction, and silence during the six years after it knew he had a tax title to its property and the marvelous change in its value meanwhile estop it from maintaining this suit and compel a dismissal of its bill.

As Steinbeck's title under the tax deeds is impregnable to attack in this suit, it is not material whether or not his title under the sheriff's deeds and his decree quieting the title in himself were wrongfully obtained. They did not in any event impair his tax title, and they cannot affect the result of this suit. They will not therefore be further considered.

The decree below is reversed, and the case is remanded to the Circuit Court with instructions to dismiss the bill.

RODGERS, U. S. Immigration Com'r et al., v. UNITED STATES
ex rel. BUCHSBAUM.

(Circuit Court of Appeals, Third Circuit. February 13, 1907.)

No. 39.

1. ALIENS-IMMIGRATION LAWS-FINALITY OF DECISION OF BOARD OF SPECIAL

INQUIRY.

Under the Immigration Act of March 3, 1903, c. 1012, 32 Stat. 1213 [U. S. Comp. St. Supp. 1905, p. 274], and rule 7 of the regulations established thereunder by the Secretary of Commerce and Labor, an immigrant who on examination by a board of special inquiry has been denied the right to enter the United States has the right to be informed that he has a right of appeal therefrom, and the fact that he has been so informed must be entered of record in the minutes of the board's proceedings, and the withholding of that right precludes finality in the decision of the board which may in such case be reviewed by the courts on a writ of habeas corpus.

2. SAME-ALIENS DOMICILED IN THE UNITED STATES-RIGHT TO RE-ENTER.

An alien, who has acquired a domicile in the United States, cannot thereafter, and while still retaining such domicile, legally be treated as an immigrant on his return to this country after a temporary absence for a specific purpose not involving change of domicile.

[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Aliens, § 105.]

3. SAME-CONSTRUCTION OF STATUTE.

The provision of section 2, Act March 3, 1903, c. 1012, 32 Stat. 1214 [U. S. Comp. St. Supp. 1905, p. 276], which excludes from admission into the United States "aliens" who are afflicted with a loathsome, or with a dangerous contagious, disease, cannot be construed to apply to aliens who are domiciled in this country, especially in view of the title of the act, which is "An act to regulate the immigration of aliens into the United States," and of its other provisions and prior statutes in pari materia.

Appeal from the District Court of the Unit. 1 States for the Eastern District of Pennsylvania.

J. C. Swartley and J. Whitaker Thompson, for appellants.
David Phillips, for appellee.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

BRADFORD, District Judge. This is an appeal from an order of the district court of the United States for the eastern district of Pennsylvania discharging Isidore Buchsbaum on a writ of habeas corpus from alleged illegal restraint by John J. S. Rodgers, United States commissioner of immigration, and others. In his petition for the writ Buchsbaum alleges in substance that he is a native of Austria and emigrated to the United States, arriving in the city of New York with his wife and family March 10, 1901; that thereupon "he took up a permanent residence with his wife and family in said city and established himself in the window cleaning business, in which he still retains his interests"; that from the time of his arrival in New York until April, 1905, he continuously resided in that city with his family, "pursuing his aforesaid business and acquiring extensive contractual property and rights"; that he declared his intention March 8, 1905, before the circuit court of the United States for the southern district of New York to become a citizen of the United States; that in April, 1905, he "took passage on the Steamer Finland for Antwerp, and thither went to Galicia, Austria, for the purpose of settling an estate”; that in leaving this country for that purpose he "never intended to give up his rights which he had acquired in the United States, but went with the intention of returning as soon as his business was transacted"; that his family "consisting of wife and two children remained in New York and are still residing there"; that he returned to the United States arriving in Boston as a passenger on the steamer Marquette November 7, 1905; that the United States commissioner of immigration at Boston "refused him a landing and on November 9, 1905, ordered his deportation on the ground that he was afflicted with trachoma"; that the petitioner "was not given a lawful opportunity to appeal" by the commissioner and was conveyed on the Marquette to Philadelphia where he arrived November 19, 1905, and "is now illegally restrained of his liberty and illegally held in custody" in a house of detention in that city; that he is a resident of New York and never gave up his residence there; and that he "was not afflicted with any disease when he left New York City, nor when he left Europe on his return trip to the United States, and if he has any disease such as alleged, he must have contracted the same on board the Steamer Marquette on his return to

the United States." In the return of the International Mercantile Marine Company, Young and Johnston, to the writ it is alleged in substance that the master of the Marquette was notified November 17, 1905, by the commissioner of immigration at Boston that Buchsbaum "had been found to be of the class of aliens prohibited by law from entering the United States and had therefore been excluded," and was required by the commissioner "to receive the said alien on board his vessel and return him according to law"; and, further, that the master received Buchsbaum and took him on the Marquette to Philadelphia whence she was about to sail for Antwerp when the writ was served. It appears from the transcript of record that on the arrival of Buchsbaum at Boston in November, 1905, he was subjected to a physical examination by medical officers of the United States marine-hospital service who certified to the commissioner of immigration that Buchsbaum "has trachoma and the existence of such disease might have been detected by means of a competent medical examination at the port of foreign embarkation." A board of special inquiry, provided for in the act of Congress of March 3, 1903, entitled "An act to regulate the immigration of aliens into the United States" (Act March 3, 1903, c. 1012, 32 Stat. pt. 1, 1213 [U. S. Comp. St. Supp. 1905, p. 274]), having heard the case, decided that Buchsbaum was, under the provisions of the act, debarred from admission into the country by reason of trachoma and having reheard the case adhered to its former decision. Section 25 of the act provides relative to boards of special inquiry:

"Such boards shall have authority to determine whether an alien who has been duly held shall be allowed to land or be deported."

And further:

"The decision of any two members of a board shall prevail and be final, but either the alien or any dissenting member of said board may appeal, through the commissioner of immigration at the port of arrival and the CommissionerGeneral of Immigration, to the Secretary of the Treasury, whose decision shall then be final; and the taking of such appeal shall operate to stay any action in regard to the final disposal of the alien whose case is so appealed until the receipt by the commissioner of immigration at the port of arrival of such decision."

Section 22 provides:

"That the Commissioner-General of Immigration such rules and regulations

**

*

shall establish

not inconsistent with law, as he shall deem best calculated for carrying out the provisions of this Act and for protecting the United States and aliens migrating thereto from fraud and loss. all under the direction or with the approval of the Secretary of the

Treasury."

By virtue of the act of February 14, 1903, entitled "An act to establish the Department of Commerce and Labor" (Act Feb. 14, 1903, c. 552, 32 Stat. pt. 1, 825 [U. S. Comp. St. Supp. 1905, p. 63]), the Secretary of Commerce and Labor has succeeded to the powers, duties and functions of the Secretary of the Treasury, relating to the "immigration service at large." Pursuant to the foregoing authority the Commissioner-General of Immigration with the approval of the Secretary of