PRESUMPTIONS-Continued.

PAGE

273

same in marketable form. Denver v. Home Savings Bank.. 101
Presumption that state laws construed so as to avoid doubt-
ful constitutional questions. Fox v. Washington....
Long acquiescence in practice of executive withdrawals of
public lands opened by Congress raises presumption of au-
thority. United States v. Midwest Oil Co.....
There is a rebuttable presumption that rates fixed by State
are reasonable and just. Northern Pacific Ry. v. North
Dakota...

....

Presumption that state court will not so construe and en-
force order of railroad commission as to interfere with or
obstruct interstate commerce. Michigan Cent. R. R. v.
Michigan Railroad Comm...

Not to be presumed that state legislature in granting charter
containing exemptions would practice deceit or make futile
grant. Wright v. Central of Georgia Ry....

PRINCIPAL AND SURETY:

Where Government relets contract with substantial differ-
ences, surety is not released from all obligation, but his lia-
bility is measured by actual loss sustained. United States v.
United States Fidelity Co.......

Liability of surety of building contractor becomes fixed on
occurrence of default and is not released by failure of Gov-
ernment to have same kind of building erected. Id.
Surety, if answerable at all for interest beyond penalty of
bond can only be held for such as accrues from unjustly
withholding payment after notice of default. Id.
Surety of bankrupt has opportunity to share in estate and is
barred by discharge, and this though contract for breach of
which surety became liable was broken before bankruptcy
and surety did not pay consequent damage until thereafter.
Williams v. United States Fidelity Co. . .

PRIVILEGED COMMUNICATIONS:

Protection of confidential communications between attor-
ney and client matter of public policy. United States v.
Louisville & Nashville R. R. Co......

PRIVILEGE TAX. See Taxes and Taxation.

PROCESS:

Service of process essential to status as party. Simon v.
Southern Ry. Co.. . . .

459

585

615

674

512

549

318

115

PROCESS-Continued.

Judgment without process absolutely void under Constitu-
tion and principles of natural justice. Id.

Judgment by default against foreign corporation in suit
based on cause of action arising in another State, where in
absence of resident agent service of process was made on
Secretary of State under state law, is absolutely void and
Federal court may enjoin. Id.

State may require foreign corporation to designate agents
upon whom service of process may be made or, in default,
designate one for the purpose, when cause of action arises in
State. Id.

Quare, whether statutory provision as to service on foreign
corporation by service on Secretary of State is satisfied by
service on Assistant Secretary in absence of Secretary. Id.
Where secret transfer of wrongfully held land is made
through medium of corporation for purpose of busying
United States with wrong person until statute has run, serv-
ice on such person held to avoid statute. Linn & Lane Tim-
ber Co. v. United States

PROFESSIONAL SERVICES:

PAGE

574

Not property within meaning of Bankruptcy Law. Gleason
v. Thaw...

558

PROHIBITION:

Where inferior state court attempts to proceed under at-
tachment based on vendor's statutory lien filed within four
months of petition in bankruptcy and state supreme court
holds that there is no vendor's lien but only ordinary at-
tachment, peremptory writ of prohibition against state
court and relegating parties to bankruptcy court is the
proper practice. Lehman v. Gumbel ...

PROPERTY RIGHTS:

Liberty and property are co-existent rights recognized by
Fourteenth Amendment and are without state interference.
Coppage v. Kansas..

448

1

Right of private property recognizes legitimacy of inequal-
ities of fortune. Id.

Professional services of attorney not property. Gleason v.
Thaw.....

Protection by State. See Grant Timber Co. v. Gray.

See Constitutional Law.

558

133

PUBLIC INTEREST:

Public interest cannot be invoked as justification for de-
mands passing limits of constitutional protection. Northern
Pacific Ry. v. North Dakota...

PUBLIC LANDS:

See Constitutional Law.

Interest of citizens: Prior to initiation of some right given by
law, citizen has no enforceable interest in public statutes nor
private right in land the property of the people. United
States v. Midwest Oil Co.
Homesteader to be entitled to patent must have actually
resided upon and cultivated the land for a term of five years.
Great Northern Ry. v. Hower... ....

Right of homesteader is statutory and it is essential to show
compliance with the statute as prerequisite to obtaining
patent. Id.

Although acting in good faith, settlement upon land other
than that included in entry is not sufficient. Id.

PAGE

585

459

702

Affidavits: Departmental rule requiring homesteader under
§ 2289, Rev. Stat., to make affidavit as to former entry is
addressed to enforcement of laws administered by Land De-
partment, is not inconsistent with any specific statutory pro-
vision, and oath required is administered by authority of law
as provided in § 125, Criminal Code. United States v. Smull 405
As respects affidavits required by Land Department, § 125,
Criminal Code, must be read in light of § 2246, Rev. Stat. Id.
When by valid regulation Land Department requires affi-
davit to be made before an otherwise competent officer, that
officer is authorized to administer the oath under § 125,
Criminal Code, and the false swearing is made a crime and
the penalty is fixed therefor by Congress and not by Depart-
ment. Id.

Power of Congress: Congress may by implication grant power
to executive to administer public domain. United States v.
Midwest Oil Co.. . . . .

459

Withdrawals of: Long acquiescence in practice of executive
withdrawals of public lands opened by Congress raises pre-
sumption of authority. United States v. Midwest Oil Co... 459
Long continued executive practice to withdraw public
lands, known to and acquiesced in by Congress, raises pre-
sumption of legality. Id.

Land Department has constantly asserted power of Execu-
tive to withdraw unappropriated public lands. Id.

PUBLIC LANDS-Continued.

Power exercised by President to withdraw public lands from
private acquisition has never been repudiated by Congress
although subject to disaffirmance thereby. Id.

No distinction in principle between power of Executive to
make reservations of portions of public domain and that of
withdrawing them from occupation. Id.

Executive withdrawal of public lands in aid of future legis-
lation valid. Id.

Action of Congress in particular case not to be construed as
denial of executive power to withdraw public lands in public
interest, of which there is proof of congressional recognition.
Id.

Act of 1910, authorizing President to withdraw lands, not
to be construed as repudiating withdrawals already made.
Id.

Act of June 25, 1910, without effect on rights of locators ac-
quired prior to withdrawal order of 1909 and ineffective to
validate location made thereafter. Id.

Quare as to power of President, in absence of established
practice, to withdraw. Id.

Cancellation of patents: Decision of Secretary of Interior
that patents should be issued, obtained by fraud, not con-
clusive, but matter open for consideration by courts. Linn
& Lane Timber Co. v. United States.....
Where bills to set aside patents for fraud filed and sub-
pœnas delivered for service before statute has run,
and rea-
sonable diligence shown in getting service, running of statute
is interrupted and rights of United States saved. Id.
Trusts in: Bona fide purchase an affirmative defense to
claim of one seeking to have trust declared in lands patented.
Great Northern Ry. v. Hower

PUBLIC POLICY. See Anti-trust Act; Confidential Com-
munications.

PUBLIC WELFARE:

Restriction by State of liberty or property rights as public
welfare inhibited by Fourteenth Amendment. Coppage v.
Kansas.

...

RAILROADS:

Lessee of railroads built under special charters containing
irrepealable contracts against taxation at higher than

PAGE

574

702

1

RAILROADS-Continued.

PAGE

specified per cent. on income, not subject to ad valorem tax
as owner of the property. Wright v. Central of Georgia Ry... 674
Wright v. Louisville & Nashville

R. R......

Statutes of Georgia relative to taxation of certain railroads
held to make fee exempt from taxation other than that pro-
vided for in favor of lessee as well as lessor. Id.
That owners of railroad, exempt by statute from other than
specified tax on income, lease entire road, does not open right
of State to tax lessee on fee of property. Wright v. Louisville
& Nashville R. R.....

Exemption of lessor railroad from taxation on its leased road
held applicable to betterments made by lessee and to sub-
stituted rolling stock. Id.

Railroad property jointly used with, but not part of, that
exempted from taxation, may be subject to assessment, but
not in one covering both classes of property. Id.

See Anti-trust Act; Common Carriers; Constitutional
Law; Rates; Safety Appliance Act; States.

RATES:

687

687

State has broad discretion in prescribing reasonable rates
for common carriers within its jurisdiction. Northern Pacific
Ry. v. North Dakota....

585

Norfolk & West. Ry. v. West Virginia.

605

There is room for reasonable classification in prescribing
rates. Northern Pacific Ry. v. North Dakota....
State has no arbitrary power over rates, and may not select
commodity or class of traffic and require its transportation
for less than cost or merely nominal compensation. North-
ern Pacific Ry. v. North Dakota...

585

585

605

Norfolk & West. Ry. v. West Virginia.
There is a rebuttable presumption that rates fixed by State
are reasonable and just. Northern Pacific Ry. v. North

Dakota...

This court will review particular items of a schedule of rates
where a commodity has been segregated and carrier required
to transport it at loss or without substantial compensation.
Id.

Maximum intrastate rates on coal in carload lots fixed by
c. 51, Laws of North Dakota, held unreasonable and
amounting to attempt to take property of carrier without
due process of law. Id.

585