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citizens of a State other than Oregon, yet they have no interest whatever in the controversy, and if a decree be rendered against them in favor of the State it will not affect their interests but bind and determine the rights of the United States, the real, substantial defendant. It is further said that if there is any other interest adverse to the plaintiff it belongs to the Klamath Indians, who are not made parties, and that the rule in equity is not to determine a suit without the presence of the parties really to be affected by the decree. California v. Southern Pacific Company, supra.

The question of jurisdiction in a case very similar to this was fully considered in Minnesota v. Hitchcock, supra. There, as here, a State was plaintiff, and the suit was brought against the Secretary of the Interior and the Commissioner of the General Land Office to restrain them from selling school sections 16 and 36 in what was known as the “Red Lake Indian Reservation.” This suit is brought by a State against the same officers, to restrain them from allotting and patenting in severalty swamp lands within the Klamath Indian Reservation. In that case we said (p. 387):

Now, the legal title to these lands is in the United States. The officers named as defendants have no interest in the lands or the proceeds thereof. The United States is proposing to sell them. This suit seeks to restrain the United States from such sale, to divest the Government of its title and vest it in the State. The United States is, therefore, the real party affected by the judgment and against which in fact it will operate, and the officers have no pecuniary interest in the matter. If whether a suit is one against a State is to be determined, not by the fact of the party named as defendant on the record, but by the result of the judgment or decree which may be entered, the same rule must apply to the United States. The question whether the United States is a party to a controversy is not determined by the merely nominal party on the record but by the question of the effect of the judgment or decree which can be entered."

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It is true in that case we sustained the jurisdiction of this court, but we did so by virtue of the act of March 2, 1901, 31 Stat. 950, which was held to be a consent on the part of the United States to be sued in respect to school lands within an Indian reservation and an acceptance by the Government of full responsibility for the result of the decision, so far as the Indians, its wards, were concerned. But neither of the two facts deemed essential to the maintenance of that suit appear in this. There is no act of Congress waiving immunity of the United States or consenting that it be sued in respect to swamp lands, either within or without an Indian reservation, and there is no act of Congress assuming full responsibility in behalf of its wards, the Indians, for the result of any suit affecting their rights in these lands. It is unnecessary to repeat all that was said in that opinion in reference to these matters. It is sufficient to refer to it for a full discussion of the question.

Again, it must be noticed that the legal title to all these tracts of land is still in the Government. No patents or conveyances of any kind have been executed. There has been no finding or adjudication by the Land Department that the lands referred to were swamp or overflowed on March 12, 1860. Under those circumstances it is not a province of the courts to interfere with the Land Department in its administration. So far as a grant of swamp lands is claimed, it must be held that the grant is in process of administration, and, until the legal title passes from the Government, inquiry as to equitable rights comes within the cognizance of the Land Department. Courts may not anticipate its action or take upon themselves the administration of the land grants of the United States. New Orleans v. Paine, 147 U.S. 261, 266; Michigan Land & Lumber Company v. Rust, 168 U. S. 589, 591; United States v. Thomas, 151 U. S. 577; Brown v. Hitchcock, 173 U. S. 473; Humbird v. Avery, 195 U.S. 480, 502, 503. For these reasons the demurrer is sustained and the bill is


202 U. S.

Argument for Appellant.




No. 225. Argued April 12, 1906.—Decided April 23, 1906.

Every part of the consideration for a contract goes equally to the whole

promise, and if any part of it is contrary to public policy the whole promise

falls. A contract to deliver property at an agreed price within the duration of a

specified session of Congress, it being understood that a part of the consideration is that the person to whom the property is to be conveyed is to endeavor to sell it to the United States and to procure legislation to that end—he not being under obligation to take and pay for the property—is void as against public policy and specific performance will not be enforced.

The facts are stated in the opinion.

Mr. Heber J. May for appellant:

The appellant is entitled to a decree of specific performance in equity. It is not enough that there is a remedy at law; it must be plain and adequate, or in other words, as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity. Tyler v. Savage, 143 U.S. 79, 95; Lewis v. Cocks, 23 Wall. 466, 470; Buzard v. Houston, 119 U. S. 347, 352; Insurance Co. v. Bailey, 13 Wall. 616, 621; Drexel v. Berney, 142 U. S. 241, 252; Cathcart v. Robinson, 5 Pet. 264; Bayse's Executors v. Grundy, 3 Pet. 210.

The controversy here is solely between the appellant and appellee, and no third person can be affected by its settlement in equity, and equity will look through the form of the transaction and adjust the equities of the parties. Drexel v. Berney, , 122 U. S. 241, 254; Smith v. Felton, 43 N. Y. 419; Willard v. Tayloe, 8 Wall. 557; Hodges v. Kowing, 58 Connecticut, 12.

1 Originally docketed as Hazelton v. Miller.

Argument for Appellant.

202 U. S.

The attempt of the appellee to arbitrarily avoid the performance of his agreement comes clearly within the doctrine of this court laid down in Union Pacific Ry. Co. v. Chicago &c. Ry. Co., 163 U. S. 564, 600. The exercise of jurisdiction by courts of equity prevents the intolerable travesty of justice involved in permitting parties to refuse performance of their contracts at pleasure by electing to pay damages for the breach.

The rule laid down in the text-books upon the subject is in consonance with the decisions, and both justify a court of equity in exercising jurisdiction. Story's Equity Jur. § 746.

Compensation for damages would not be adequate relief. Snell's Equity, p. 461; Willard's Eq. p. 279.

The contract was not against public policy. The case presented is different from that in Tool Co. v. Norris, 2 Wall. 45, and that in Marshall v. B. &0. R. R. Co., 16 How. 314. There was nothing in the nature of contingent compensation or for the performance of any services before Congress, and the case falls within the class of those held valid in Taylor v. Bemiss, 110 U. S. 42; Stanton v. Embrey, 93 U. S. 546, and Nutt v. Knut, 200 U. S. 12.

The allegations of the bill, which are admitted by the demurrer, show that neither the committees of Congress nor Congress itself, was misled by anything the appellant did in the transaction with them, nor was there any attempt on the part of appellant to mislead them. His labors, performed partially at their request, undoubtedly served to furnish reliable information in fixing the location and purchase of the site for a hall of records, and aided in the passage of statutes upon the subject which are well guarded in their provisions, and the very provisions of which repel the suggestion of fraud or misguidance in their enactment. 32 Stat. 1039, 1212, § 16. The statutes, as the result of the transaction, are beneficial to the interest of the United States and not injurious to it. There was no design to prejudice the public interest, and such design must clearly appear to warrant a court in denouncing a contract void. Richardson v. Mellish, 2 Bing. 229, 243; Nichols v. Cabe,

202 U.S.

Argument for Appellant.

3 Head (Tenn.), 92, 96; Hertz v. Wilder, 10 La. Ann. 199; Greenhood on Pub. Pol., rule 129, p. 116. See also Richardson v. Dubuque and Sioux City R. Co., 26 Iowa, 191, 202; Kellogg v. Larkin, 2 Pinney (Wis.), 123; Swann v. Swann, 21 Fed. Rep. 299.

The objection that a contract is void by reason of public policy is not entertained out of regard for the party making it, but to promote the public interest. Greenh. Pub. Pol. 126; Kelton v. Mulliken, 2 Cold. (Tenn.) 410, 415; Stillman v. Looney, 3 Cold. 20, 22; Kimbrough v. Lane, 11 Bush (Ky.), 556, 564; Summerlin v. Livingston, 15 L. & Am. 519.

It must be found that the agreement here, or the allegations of the bill, make out such a case as will avoid the transaction for the sake of public policy; or to avoid injury to the public, without reference to the conduct of individuals. Shrewsbury & Birmingham R. Co. v. London &c. R. Co., 4 Delg. M. & G. 115, 135; Simpson v. Lord Howden, 1 R. Cases, 326, App. 335.

But, even if this contract can be construed to be one for the performance of service before a legislative body or its committees for a contingent compensation, it is not against public policy and it is valid and binding upon the appellee.

In Lyons v. Mitchell, 36 N. Y. 235, it is said that it is allowable to employ counsel to appear before the legislature itself, to advocate or oppose a measure in which the individual has an interest, for an honest purpose, avowed to the body before which the appearance is made, and by the use of just argument and sound reasoning. See also Trist v. Child, 21 Wall. 441, 450; Howland v. Coffin, 47 Barb. 653, where it is said that where an agent is employed to negotiate with the Government, it would be presumed that it was the contemplation of the parties that he should use only proper methods in transacting the business.

Interested claimants, whose interests are to be affected by legislation, may, both morally and legally, for the protection and advancement of their own interests, use all means of persuasion which do not come too near bribery or corruption; but the promise of any personal advantage to a legislator would be

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