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Opinion of the Court.

244 U. S.

sistent with and destructive of the public use to which the land had been applied by the Traction Company. The court did not come to a jury trial on the question of compensation because, after hearing evidence on the preliminary issues, on motion of the defendants it entered an order dismissing the petition, no reason for such decision having been expressed.

The case was taken to the Court of Appeals, it being assigned as error that the trial court had erred in its rulings on the four preliminary questions, and it was further alleged that the refusal of the court to order the condemnation of the land upon the theory that it was not subject to be condemned because after the suit had been brought it had been acquired by the Traction Company and by it dedicated to a public use, constituted an impairment of the contract rights of the plaintiff and a taking of its property without due process of law in violation of the Constitution of the United States. Following a judgment of affirmance without a written opinion, the Power Company applied to the Supreme Court of the State to direct the Court of Appeals to certify the record for review, which was denied, and a writ of error which was prosecuted to the Court of Appeals from the Supreme Court was dismissed for want of jurisdiction for the stated ground that the case did not "involve any question arising under the Constitution of the United States or the State of Ohio." Because of the asserted denial of the alleged federal rights referred to the case is here, the writ of error being directed to the Court of Appeals.

Our jurisdiction to review is challenged by a motion to dismiss based upon two grounds which we consider separately.

1. It is contended that as under § 237 of the Judicial Code we have jurisdiction to review only final judgments of the highest court of the State in which a decision could be had, the writ of error should have been prosecuted to

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the Supreme Court of Ohio. In view, however, of the denial by that court of the application to direct the Court of Appeals to certify the record for review, and its order dismissing the writ of error for want of jurisdiction, the contention is without merit. Stratton v. Stratton, 239 U. S. 55; Valley Steamship Company v. Wattawa, 241 U. S. 642; Second National Bank v. First National Bank, 242 U. S. 600.

2. It is contended that, conceding the existence of federal questions in the case, nevertheless as there were independent state grounds broad enough to sustain the judgment, there is no jurisdiction. We think the contention is sound. Despite some suggestion to the contrary it is certain that the four preliminary propositions concerned purely local law and, if decided adversely to the plaintiff, were broad enough to sustain the judgment irrespective of the merits of the federal question which it is insisted was involved in the particular defence made by the Traction Company concerning the public character of the use to which it had applied the property and the consequent want of authority to take it for the benefit of the Power Company, which was submitted to the court along with the preliminary questions. Leaving aside any inference sustaining the view that the Supreme Court treated the preliminary questions as having been adversely decided and the constitutional questions as having been eliminated when it refused to order up the record for review, that conclusion is sustained by its express declaration made in refusing the writ of error that there was no question under the state or Federal Constitution involved,--a conclusion which if it had not been in so many words declared would by necessary implication have resulted from the dismissal of the writ of error for want of jurisdiction since under the constitution and laws of Ohio if a question under the Constitution of the United States or the state constitution had existed, the duty to take jurisdiction would have been obvious.

Opinion of the Court.

244 U.S.

But assuming that we are not controlled by the statement of the Supreme Court of Ohio on this subject and must determine it upon our own conception as to what was done by the court whose judgment is under review, the result would be the same. We so conclude because looked at from the point of view of the action of the trial court and of the Court of Appeals, the case presents the single question of what principle is to be applied where from an absence of an opinion expressed by the court below it is impossible to say whether its judgment was rested upon state questions adequate to sustain it independent of the federal questions or upon such federal questions, both being in the case. But the rule which controls such a situation has long prevailed and was clearly expressed in Allen v. Arguimbau, 198 U. S. 149, 154-155, where a writ of error to the Supreme Court of Florida was dismissed, as follows: "The Supreme Court of Florida gave no opinion, and, therefore, we are left to conjecture as to the grounds on which the pleas were held to be bad, but if the judgment rested on two grounds, one involving a Federal question and the other not, or if it does not appear on which of two grounds the judgment was based, and the ground independent of a Federal question is sufficient in itself to sustain it, this court will not take jurisdiction. Dibble v. Bellingham Bay Land Company, 163 U. S. 63; Klinger v. Missouri, 13 Wall. 257; Johnson v. Risk, 137 U. S. 300." Bachtel v. Wilson, 204 U. S. 36; Adams v. Russell, 229 U. S. 353.

Dismissed for want of jurisdiction.

MR. JUSTICE DAY and MR. JUSTICE CLARKE took no part in the consideration and decision of this case.

244 U. S.

Statement of the Case.

DOEPEL ET AL., HEIRS AT LAW OF FEARNOW, v. JONES ET AL.

ERROR TO THE SUPREME COURT OF THE STATE OF OKLAHOMA.

No. 571. Argued May 8, 1917.-Decided June 4, 1917.

A preliminary homestead entry, made in the Territory of Oklahoma under agreement between the applicant and his mother that he would make the entry, pay rent for the land while the entry was being completed and deed the land to her upon the issuance of patent, is absolutely void under § 24 of the act providing a temporary government for that Territory, etc. (Act of May 2, 1890, c. 182, 26 Stat. 81), and confers no rights upon the applicant or his heirs. When such an entry, because of the illegal agreement, has been provisionally cancelled by the Land Department during the entryman's lifetime, and, after his death, one claiming to be his widow has relinquished her rights therein and made a new entry independently, in her own right, the original entry can afford no basis for the entryman's heirs to contest the widow's entry before the Department upon the ground that her marriage was void, if they do not deny the illegal agreement or seek to have the original entry re-instated on its merits.

The first entry, being a nullity, could beget no equity entitling the heirs to affix a trust to the land when patented to the widow. 156 Pac. Rep. 309, affirmed.

It is sought upon this writ of error to reverse a judgment which sustained the validity of a patent issued by the United States to the defendant in error, Luttie B. Jones, under the homestead laws. The controversy originated in a suit brought by the plaintiffs in error charging that the Land Department had without warrant of law overruled contests which they had filed against the right of the defendant in error to take the land under the homestead law and that therefore she held the patent for the same in trust for their benefit.

The facts stipulated or shown by documentary evidence as to which there is no dispute, are these: Hollen

Statement of the Case.

H. Fearnow being qualified to make a homestead entry, applied in 1899 to make such entry in his own name. Before making the application he had agreed with his mother, for a promised consideration, that he would make the entry, comply with the homestead laws and pay rent for the use of the land in the meanwhile, and that when the patent was issued it would be for her and not for his account and he would deed the land to her. About two years after the entry was made a marriage ceremony was performed between the applicant and Luttie B. Fearnow and they lived together as husband and wife and resided on the land. Some years later after the marriage ceremony and before final proof or patent, Lena Barnes instituted in the local land office a contest against the right of Fearnow to make the homestead entry. This contest was based upon the fact that the agreement which we have stated had been made and upon the charge that under the law of the United States it absolutely disqualified him from making the entry. In December, 1903, after a hearing in the local land office the contest was sustained, the application by Fearnow was cancelled and an entry by Barnes under the homestead law was allowed. This order was taken for review to the Commissioner of the General Land Office and in January, 1905, on the ground of an irregularity or deficiency of notice in the contest proceeding the order was reversed and the local land office was directed "to appoint a day for the hearing of this contest, of which both parties shall have at least thirty days' notice. Upon the final determination of the case, should plaintiff be held to have established the truth of the averments of her affidavit of contest, said H. E. No. 13690 [the Barnes entry] which is hereby suspended, will remain intact; otherwise it will be cancelled and said H. E. 10171 [the Fearnow entry] reinstated."

Ten months after this order the entryman, Fearnow, died, it not appearing that in the intervening time any

244 U.S.

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