241 U. S.

eminently fair.”

Opinion of the Court.

In our opinion, the charge is not extortionate and its exaction is not otherwise inconsistent with due process of law.

Upon examining the statute and the decisions of the Supreme Court of the State construing and applying it we are persuaded that it is not intended that the board shall accept and act upon anything as evidence that is devoid of evidential value or in respect of which the claimants concerned are not given a fair opportunity to show its true value, or the want of it, in an appropriate way. On the contrary, the statute discloses a fixed purpose to secure timely notice to all claimants of every material step in the proceeding and full opportunity to be heard in respect of all that bears upon the validity, extent and priority of their claims. And while it is true, according to the concessions at the bar, that the sworn statements of claim are taken ex parte in the first instance, it also is true that they are then opened to public inspection, that opportunity is given for contesting them and that upon the hearing of the contests full opportunity is had for the examination of witnesses, including those making the statements, and for the production of any evidence appropriate to be considered. Thus the fact that the original statements are taken ex parte becomes of no moment. And while it is true that the state engineer's report is accepted as evidence, although not sworn to by him, it also is true that the measurements and examinations shown therein are made and reported in the discharge of his official duties and under the sanction of his oath of office, and that timely notice of the date when they are to begin is given to all claimants. The report becomes a public document accessible to all and is accepted as prima facie evidence, but not as conclusive. In re Willow Creek, 74 Oregon, 592, 628. Of the occasion for such a report, the Supreme Court of the State says in that case, p. 613: "In a proceeding

before the board, provision is made for an impartial examination and measurement of the water in a stream, of the ditches and canals, and of the land susceptible of irrigation, and for the gathering of other essential data by the state engineer, including the preparation of maps, all to be made a matter of record in the office of the state engineer, as a foundation for such hearing and to facilitate a proper understanding of the rights of the parties interested. Under the old procedure such information was often omitted. When measurements were made by the various parties to a suit they were nearly always made by different methods and were conflicting. The other evidence in regard thereto, being mere estimates, rendered a determination extremely difficult for the court and of questionable accuracy and value when made." Considering the nature of the report and that claimants may oppose it with other evidence, it is plain that its use as evidence is not violative of due process. Meeker v. Lehigh Valley R. R., 236 U. S. 412, 430.

The provision that the water shall be distributed in conformity with the board's order pending the adjudication by the court has the sanction of many precedents in the legislation of Congress and of the several States, notably in the provision in the Interstate Commerce Act directing that the orders of the commission shall be effective from a date shortly after they are made, unless their operation be restrained by injunction. These legislative precedents, while not controlling, are entitled to much weight, especially as they have been widely accepted as valid. Although containing no provision for an injunction, the statute under consideration permits the same result to be reached in another way, for it declares that the operation of the board's order "may be stayed in whole or in part" by giving a bond in such amount as the judge of the court in which the proceeding is pending may prescribe, conditioned for the payment of such dam

ages as may accrue by reason of the stay. It is not, therefore, as if the requirement were absolute. As has been seen, the order is made only after adequate notice and full opportunity to be heard, and when made is, with reason, deemed prima facie correct. It relates to flowing water, to the use of which there are conflicting claims. Unless diverted and used the water will pass on and be lost. No claimant is in possession and all assert a right to take from the common source. In this situation we think it is within the power of the State to require that, pending the final adjudication, the water shall be distributed, according to the board's order, unless a suitable bond be given to stay its operation. Such a requirement is not arbitrary, does not take from one and give to another and is not otherwise offensive to a right conception of due process. Detroit and Mackinac Ry. v. Michigan Railroad Commission, 240 U. S. 564; Wadley Southern Ry. v. Georgia, 235 U. S. 651, 660; Montezuma Canal v. Smithville Canal, 218 U. S. 371, 385.

Decree affirmed.

MONTELIBANO Y RAMOS v. LA COMPANIA GENERAL DE TABACOS DE FILIPINAS.

APPEAL FROM AND ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 217. Submitted March 8, 1916.-Decided June 5, 1916.

In an action of an equitable nature the proper method of review by this court of the judgment of the Supreme Court of the Philippine Islands under the act of July 1, 1902, § 10, is by appeal and not by writ of error.

Where both courts below concurred in findings of fact and conclusions of law, it is the duty of this court to affirm their judgment unless it appears that they clearly erred; and so held in a case involving the

construction of, and transactions under, an agreement special in form, whose true construction was in controversy.

THE facts, which involve the jurisdiction of this court to review judgments of the Supreme Court of the Philippine Islands and the validity of a judgment of that court in an action on contract between private parties, are stated in the opinion.

Mr. Harry W. Van Dyke for appellants and plaintiffs in

error.

Mr. C. L. Bouvé for appellees and defendants in error. MR. JUSTICE PITNEY delivered the opinion of the court.

This action was commenced by appellants on the fourth day of March, 1911, in the Court of First Instance of the City of Manila. It was in its nature a suit in equity. The whole controversy turns upon the construction of certain instruments in writing, the provisions of which will be outlined in stating the case. The complaint averred that on October 25, 1905, the parties entered into a written contract whereby the Tobacco Company, through a representative, "delivers to Don Alejandro Montelibano for the purpose of collection, under the conditions hereinafter expressed, the following credits." There followed a detailed statement of the credits, mentioning the names of the debtors and the amount due from each, the aggregate being P.179,177.86. The company guaranteed the existence and legitimacy of the credits, but not the solvency of the debtors. Montelibano obligated himself to pay to the company as the value of the credits the sum P.130,000 in instalments of P.20,000 in the month of December in each of the years 1906, 1907, 1908, and 1909, and the balance of P.50,000 in December, 1910. It was agreed that if he should pay the P.130,000 at the times provided "all the credits and documents of the debtors

which are now delivered to him as specifically stated in paragraph one, will be transferred to him, and consequently Don Alejandro Montelibano agreed to pay in cash to the Compania General de Tabacos de Filipinas in the instalments set out the sum of one hundred and thirty thousand pesos, in order to acquire the ownership of the rest of the credits." All cancellations of credits were to be made by the company upon the proposal of Don Alejandro, "the latter, however, being authorized to issue partial receipts for whatever sums he may collect." The company was not to advance to him any sum for use in the collection of the credits, nor to accept responsibility for actions instituted by him for their collection, "said party accepting whatever responsibilities may arise by reason of his negotiations." The company conferred upon him authority to conduct upon his own responsibility all negotiations by him deemed requisite for the collection of the credits; "and in the event of any judicial action being instituted, the company shall sell to Mr. Montelibano the credit which is the object of such litigation." The contract was publicly ratified by Montelibano and his wife, who is the other appellant, on the tenth day of November following its date, and in the ratification the instrument, besides being copied at large, was described as the document "in which the said company ceded to the said Mr. Montelibano all the credits set forth in the same to the end that the cessionary might carry into effect the collection from all the debtors of the company of the debts set forth in the inserted document, the total amount of which aggregates the sum of one hundred and seventy-nine thousand one hundred and seventy-seven pesos and eighty-six centavos, by means of the authority conferred by said company upon said Mr. Montelibano to enable him to carry out upon his own responsibility all the negotiations he might deem necessary for the collection of the credits mentioned, and that in the event