that the will of Congress as expressed in the act of 1883 might be
carried out, he informed claimants that they were under no legal
obligation to respect any transfer, assignment or power of attorney,
which section 3477 of the Revised Statutes declared to be null and
void. If the plaintiff had not taken any such transfers, assignments,
or powers of attorney from his clients, he could not have been injured
by the reference made by the Postmaster General to that section. If
he had taken such instruments, he cannot complain that the Post-
master General called the attention of claimants to the statute on the
subject, and correctly interpreted it. Ib.

POST OFFICE.

See CRIMINAL LAW, 1, 2, 6, 9, 11.

PRACTICE.

1. When the bond, in a case brought here by writ of error, is defective,
this court will generally allow a proper bond to be filed, if necessary,
Union Pacific Co. v. Callaghan, 91.

2. An exception to the refusal of the trial court to find for the defendant
is waived, if made by defendant without resting his case. Ib.

3. Where propositions submitted to a jury are excepted to in mass, the
exception will be overruled provided any of the propositions be
correct.

Ib.

4. Where a general exception is taken to the refusal of a series of instruc-
tions, it will not be considered if any one of the propositions is un-
sound.

Ib.

5. The decree dismissing the appeal in this case, (160 U. S. 170,) is vacated,
and the decree below reversed without costs to either party, and the
cause remanded with directions to dismiss the bill. New Orleans
Flour Inspectors v. Glover, 101.

6. Where there is color for a motion to dismiss on the ground of want of
jurisdiction, and the claim is not so clearly frivolous as to authorize
the dismissal, the court may consider and pass upon the question
raised. Douglas v. Wallace, 346.

7. As the rest of the judgment below is valid the court decides that if the
defendants in error will within a reasonable time during the present
term of this court file in the Circuit Court of the United States for
the District of Minnesota a remittitur of the invalid excess, and pro-
duce and file a certified copy thereof in this court, the judgment, less
the amount so remitted, will be affirmed; but, if this is not done, the
judgment will be reversed; and in either event the costs must be paid
by defendant in error. Hansen v. Boyd, 397.

8. The order of the District Court requiring the petitioners to enter into
recognizances for their appearance to answer its judgment was rightly
made. Ornelas v. Ruiz, 502.

See JURISDICTION, A, 8;

LOCAL LAW, 2, 3.

PUBLIC LAND.

1. If, after the Secretary of the Interior has decided a contest as to the
right of preemption to public land in favor of one contestant, and
has granted a rehearing, but before the rehearing is had, Congress
passes an act confirming the entry of that contestant, and directing
that a patent issue to him, and a patent is issued accordingly, a writ
of mandamus will not lie to compel the Secretary to proceed to adju-
dication of the contest In re Emblen, petitioner, 52.

2. In order to the confirmation of a Mexican grant by the Court of Private
Land Claims, it must appear not only that the title was lawfully and
regularly derived, but that, if the grant were not complete and perfect,
the claimant could, by right and not by grace, have demanded that it
should be made perfect by the former government, had the territory
not been acquired by the United States; and by the treaty no grant
could be considered obligatory which had not been theretofore located.
Ainsa v. United States, 208.

3. The grant under which the plaintiff in error claims was a grant of a
specific quantity of land, to wit: seven and a half sitios and two scant
caballerios within exterior boundaries, and not a grant of the entire
eighteen leagues contained within those exterior boundaries; and as
location was a prerequisite to any action by the Court of Private Land
Claims, and as the grant had not been located at the date of the Gads-
den treaty, it cannot be confirmed. Ib.

RAILROAD.

1. A railroad company is bound to provide suitable and safe materials
and structures in the construction of its road and appurtenances, and
if from a defective construction thereof an injury happen to one of its
servants the company is liable for the injury sustained. Union Pacific
Railway Co. v. O'Brien, 451.

2. The servant, on his part, undertakes the risks of the employment as far
as they spring from defects incident to the service, but he does not
take the risks of the negligence of the master itself. Ib.

3. The master is not to be held as guaranteeing or warranting absolute
safety under all circumstances, but is bound to exercise the care which
the exigency reasonably demands in furnishing proper roadbed, track,
and other structures, including sufficient culverts for the escape of
water collected and accumulated by embankments and excavations. Ib.
4. There are cases in which, if the employé knows of the risk and the
danger attendant upon it, he may be held to have taken the hazard
by accepting or continuing in the employment; but this case, as left
to the jury under the particular facts, is not one of them. Ib.
5. In 1856, the Minneapolis and St. Cloud Railroad Company was incor-
porated by the legislature of the Territory of Minnesota, with author-
ity to construct a railroad on an indicated route, and to connect its

ކ

road by branches with any other road in the Territory, or to become
part owner or lessee of any railroad in said Territory; and also "to
connect with any railroad running in the same direction with this
road, and where there may be any portion of another road which may
be used by this company." By a subsequent act it was, in 1865, au-
thorized "to connect with or adopt as its own, any other railroad run-
ning in the same general direction with either of its main lines or any
branch roads, and which said corporation is authorized to construct; '
"to consolidate the whole or any portion of its capital stock with the
capital stock or any portion thereof of any other road having the same
general direction or location, or to become merged therein by way of
substitution;" to consolidate any portion of its road and property
with the franchise of any other railroad company or any portion
thereof; and to consolidate the whole or any portion of its main line
or branches with the rights, powers, franchises, grants and effects of
any other railroad. These several rights, privileges and franchises
were duly accepted by the railway company, and its road was con-
structed and put in operation. In 1874 the State of Minnesota enacted
that "no railroad corporation or the lessees, purchasers or managers
of any railroad corporation shall consolidate the stock, property or
franchises of such corporation with, or lease or purchase the works or
franchises of, or in any way control any other railroad corporation
owning or having under its control a parallel or competing line; nor
shall any officer of such railroad corporation act as the officer of any
other railroad corporation owning or having the control of a parallel
or competing line; and the question whether railroads are parallel or
competing lines shall, when demanded by the party complainant, be
decided by a jury as in other civil issues;" and in 1881 its legislature
enacted that "no railroad corporation shall consolidate with, lease or
purchase, or in any way become owner of, or control any other rail-
road corporation, or any stock, franchise, rights of property thereof,
which owns or controls a parallel or competing line." In 1889 the
company changed its name to Great Northern Railway Company and
extended its road towards the Pacific. The Northern Pacific Rail-
road being about to be reorganized, it was proposed that the Great
Northern company should guarantee, for the benefit of the holders of
the bonds to be issued by the reorganized company, the payment of
the principal of, and interest upon such bonds, and as a consideration
for such guaranty, and as a compensation for the risk to the stock-
holders, the reorganized company should transfer to the shareholders
of the Northern company, or to a trustee for their use, one half the
capital stock of the reorganized company; and that the Northern
Pacific should join with the Great Northern in providing facilities for
an interchange of cars and traffic between their respective lines, and
should interchange traffic with the Northern company, and operate its
trains to that end upon reasonable, fair and lawful terms under joint

tariffs or otherwise, the Northern company having the right to bill its
traffic, passengers and freight from points on its own line to points on
the Northern Pacific not reached by the Great Northern, with the
further right to make use of the terminal facilities of the Northern
Pacific at points where such facilities would be found to be convenient
and economical, jointly with that company. A stockholder of the
Great Northern company filed this bill against it, to restrain it from
carrying out such agreement. Held, that the Great Northern com-
pany was subject to the provisions of the acts of 1874 and 1881, and
that the proposed arrangement was in violation of the provisions in
those acts prohibiting railroad corporations from consolidating with,
leasing or purchasing, or in any other way becoming the owner of, or
controlling any other railroad corporation, or the stock, franchises or
rights of property thereof, having a parallel or competing line, and
was therefore beyond the corporate power of the company to make.
Pearsall v. Great Northern Railway Co., 646.

6. Where, by a railway charter, a general power is given to consoli-
date with, purchase, lease or acquire the stock of other roads, which
has remained unexecuted, it is within the competency of the legis
lature to declare, by subsequent acts, that this power shall not ex-
tend to the purchase, lease or consolidation with parallel or competing
lines.

Ib.

7. A power given in a charter of a railroad to connect or unite with other
roads refers merely to a physical connection of the tracks, and does
not authorize the purchase, or even the lease of such roads or road, or
any union of franchises. Louisville & Nashville Railroad Co. v. Ken-
tucky, 677.

8. The several statutes of Kentucky and of Tennessee relating to the
Louisville and Nashville Railroad Company, which are quoted from or
referred to in the opinion of the court, confer upon that company no
general right to purchase other roads, or to consolidate with them.
Ib.

9. The union referred to in those statutes is limited to a union with a
road already connected with the Louisville and Nashville by running
into the same town, and has and could have no possible relation to
the acquirement of a parallel or competing line. Ib.

10. The third section of the Kentucky act of 1856 reënacting the Tennes-
see act of 1855, and providing that the Louisville and Nashville com-
pany may from time to time extend any branch road and may purchase
and hold any road constructed by another company did not confer a
general power to purchase roads constructed by other companies re-
gardless of their relations or connections with the Louisville and
Nashville road. Ib.

11. A contemporaneous construction of its charter which ratified the pur-
chase of a few short local lines does not justify the company in con-
solidating with a parallel and competing line between its two termini

with a view of destroying the competition which had previously
existed between the two lines. Ib.

12. The Chesapeake, Ohio and Southwestern Railroad Company was never
vested with the power to consolidate its capital stock, franchises or
property with that of any other company owning a parallel or com-
peting line.

Ib.

13. If from reasons of public policy, a legislature declares that a railway
company shall not become the purchaser of a parallel or competing
line, the purchase is not the less unlawful, because the parties choose
to let it take the form of a judicial sale. Ib.

14. Whatever is contrary to public policy or inimical to the public inter-
ests is subject to the police power of the State, and within legislative
control; and, in the exertion of such power, the legislature is vested
with a large discretion, which, if exercised bona fide for the protection
of the public, is beyond the reach of judicial inquiry. Ib.

15. Section 201 of the constitution of the State of Kentucky of 1891, pro-
viding that "no railroad, telegraph, telephone, bridge or common car-
rier company shall consolidate its capital stock, franchises or property,
or pool its earnings, in whole or in part, with any other railroad,
telegraph, telephone, bridge or common carrier company, owning a
parallel or competing line or structure; or acquire, by purchase, lease
or otherwise, any parallel or competing line or structure, or operate
the same; nor shall any railroad company or other common carrier
combine to make any contract with the owners of any vessel that
leaves or makes port in this State, or with any common carrier, by
which combination or contract the earnings of the one doing the car-
rying are to be shared by the other not doing the carrying," is a legiti-
mate exercise of the police power of the State, and forbids the
consolidation between the Louisville and Nashville Company and the
Chesapeake, Ohio and Southwestern Company, which is the subject of
controversy in this suit, at least so far as the power to make it
remained unexecuted. Ib.

See CENTRAL PACIFIC RAILROAD;
CONSTITUTIONAL LAW, 7 to 11.