ington, D. C., for temporary duty in con- | in his sea assignment, to perform merely nection with the inspection of steel tubes for the boilers of torpedo boat No. 11, at Findlay, Ohio, and at Shelby, Ohio. You are authorized to perform such travel between League Island, Pa., and Findlay, Ohio, and between League Island, Pa., and Shelby, Ohio, as may be necessary in the performance of this duty. Keep a memorandum of the travel so performed by you, certifying to its necessity, and submit the same to the Department, from time to time, for its approval. This duty is in addition to your present duties. Very respectfully, W. McAdoo, Acting Secretary. Chief Engineer Albert C. Engard, U. S. Navy, U. S. R. S. Richmond, Navy Yard, League Island, Pa. Complying with this order, Chief Engineer Engard made two round trips between League Island and Ohio, in order to discharge the additional duty referred to in the order. The total number of days in which he was engaged in this work between Feb ruary 24, 1897, and August 14, 1897, was 122. On the application to be allowed mile age for the trips amounting to $172.80, the auditor of the Navy Department deducted from the claim $133.70, and allowed only $39.10. The sum disallowed was deducted on the theory that the chief engineer was only entitled to be paid for shore duty instead of for sea service during the time re ferred to. This suit was brought to recover the amount of the deduction, and the right to so recover was sustained by the court of claims. 38 Ct. Cl. 712. Messrs. John Q. Thompson and Assistant Attorney General Pradt for appellant. Messrs. William B. King, George A. King, and Joseph C. Stebbins for appellee. Mr. Justice White, after making the foregoing statement, delivered the opinion of the court: A higher rate of pay is allowed to a chief engineer as well as to other naval officers when performing sea duty than when engaged on shore duty. Rev. Stat. 1556, U. S. Comp. Stat. 1901, p. 1067. And Rev. Stat. 1571, U. S. Comp. Stat. 1901, p. 1079, provides as follows: "No service shall be regarded as sea service except such as shall be performed at sea, under the orders of a department, and in vessels employed by authority of law." The government did not dispute at bar, however, that where an officer assigned to sea duty within the purview of the foregoing provision is called upon, without a change temporary service ashore, he is entitled to sea pay. And this is in accord with the naval regulations, wherein it is provided: Paragraph 1154: "(1) Officers shall be entitled to sea pay while attached to, and serving on board of, any ship in commission under control of the Navy Department, the Coast Survey, or the Fish Commission. "(3) Any officer temporarily absent from a ship in commission to which he is attached shall continue to receive sea pay. Paragraph 1168: 99 "A temporary leave of absence does not detach an officer from duty nor affect his rate of pay." It is settled that the Navy Department has no power to disregard the statute, and to deprive an officer of sea pay by assigning him to a duty mistakenly qualified as shore duty, but which is, in law, sea duty. United States v. Symonds, 120 U. S. 46, 30 L. ed. 557, 7 Sup. Ct. Rep. 411; United States v. Barnette, 165 U. S. 174, 41 L. ed. 675, 17 Sup. Ct. Rep. 286. And, of course, the converse is also true, that the Navy Department has no power to entitle an officer to receive sea pay by assigning him to duty which is essentially shore duty, and mistakenly qualifying it as sea duty. But there is no conflict between these rulings, and the conceded principle that, where an officer is assigned to a duty which is essentially a sea service, that he does not lose his right to sea pay whenever he is called upon to perform a mere temporary service ashore. In the present case it cannot be denied that the officer was assigned to sea duty, and that the order of the Department, instead of detaching him therefrom, simply ordered him to discharge a temporary service ashore in addition to his sea service. The whole contention of the government is that this temporary shore service was necessarily incompatible with the continued performance of the officer's duty on the ship to which he continued to be attached, and therefore that the shore duty was paramount to the sea service, and necessarily, by operation of law, affected the detachment of the officer so as to permanently relieve him from the sea duty to which he continued to be regularly assigned. There is no finding in the record, however, which justifies this argument, and as urged at bar it rests upon the mere assumption of the incompatibility between the sea duty to which the officer was regularly assigned and the temporary shore duty which he was called upon by the Department to discharge. In effect, the proposition is that it must be assumed as a matter of law, in the absence of a finding to that effect, that the tempo trict Court of the Third Judicial District of that Territory, in favor of plaintiff, in an action of ejectment to recover land situated in a public street in Oklahoma City. Reversed and remanded for a new trial. See same case below, 12 Okla. 570, 73 Pac. 1012. rary shore duty was of such a permanent | ment which affirmed a judgment of the Discharacter as to render it impossible for the officer to continue to perform duty under his permanent sea assignment, and, therefore, as a matter of law, caused such assignment to terminate. We think the converse is true; and that where the assignment of an officer to duty by the Navy Department expressly imposed upon him the continued discharge of his sea duties, and qualified his shore duty as merely temporary and ancillary to the regular sea duty, that the presumption is that the shore duty was temporary, and did not operate to interfere with or discharge the officer from the responsibilities of his sea duty, to which he was regularly assigned. Affirmed. (196 U. S. 529) The facts are stated in the opinion. Messrs. Frank Dale, S. A. McGinnis, C. Porter Johnson, and A. G. C. Bierer for plaintiff in error. Messrs. Chester Howe and Francis J. Kearful for defendant in error. Mr. Justice Peckham delivered the opinion of the court: On the 22d day of September, 1899, this action of ejectment was commenced by defendant in error in the district court of the CITY OF OKLAHOMA CITY, Plff. in Err., third judicial district of Oklahoma terri v. FRANK MCMASTER. Appeal distinction between appeal and writs of error-res judicata-evidence of former judgment—public lands-rights of occupant of projected town site. 1. The fact that an action of ejectment was tried by the court, upon waiver of a jury does not make appeal the proper method of obtaining a review in the Federal Supreme Court of ing a review in the Federal Supreme Court of the final judgment of the Oklahoma supreme court, under the act of May 2, 1890 (26 Stat. at L. 81, 85, chap. 182), § 9, authorizing such review in the same manner and under the same regulations as though the judgment were that of a Federal circuit court. 2. Findings of fact by the judge trying the cause, and an order directing a conveyance "as decreed by this court," filed in different county clerks' offices, do not amount to a judgment, and are not admissible in evidence in 3. support of a plea of res judicata. The selection of a lot in a projected town site in Oklahoma, in accordance with a plat agreed upon by a portion of the occupants at or near the date of the opening to settlement, did not vest such an unconditional title in the selector as will prevail against the rights of Oklahoma City to the use and occupation of the lot as a public street under a subsequent survey, made or approved pursuant to the act of May 14, 1890 (26 Stat. at L. 109, chap. 207, U. S. Comp. Stat. 1901, p. 1463), by trustees appointed under that act to make town-site entries for the several use and benefit of the occupants, the selector not being an occupant thereof when the trustees made entry of the land, nor when the conveyance to them was made by the government. [No. 137.] tory, in Oklahoma county. It was brought Argued January 18, 19, 1905. Decided Feb- of error. The assumption that because this IN ruary 20, 1905. N ERROR to the Supreme Court of the case was tried before the court, a jury having been waived by consent, that therefore it ought to go up by appeal, is a mistaken one. In Deland v. Platte County, 155 U S. 221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82, the | tute a bar. In other words, the thing adcase was an action at law where a jury had judged must be by a judgment. A verdict been waived and trial had before the court. or finding of the court alone is not suffiNevertheless, it was held that, as it was ancient. The reason stated is that the judg action at law, and the case came from a circuit court of the United States, it could only be reviewed by this court on writ of error. This case must, therefore, be reviewed by writ of error because it is an action at law, although tried by the court upon a waiver of a jury. The record shows a sufficient bill of exceptions, however, and the case is to be reviewed upon the record as thus presented. ment is the bar, and not the preliminary determination of the court or jury. It may be that the verdict was set aside, or the finding of facts amended, reconsidered, or themselves set aside, or a new trial granted. The judgment alone is the foundation for the bar. Springer v. Bien, 128 N. Y. 99, 27 N. E. 1076. Without resort to this (asserted) judg ment in the action against the town-site trustees, it is not urged that the defendant in error made out his case upon the trial. There was no judgment, and the "finding of facts" should not have been held to be such. For the error in the admission of the socalled judgment the case must be reversed. We do not decide, even if there had been a technical and formal judgment entered, that such a judgment would be conclusive in favor of the plaintiff upon the trial of this action against the city of Oklahoma City. Whether the plaintiff in error would be regarded as a privy to such judgment, and therefore bound by it, it is not now necessary to decide. The court is, however, indisposed to let the case rest upon the error pointed out. The question will arise upon another trial, as to the right of the plaintiff to recover upon the facts stated in the finding of facts in the action against the town-site trustees. We think it proper to now look into those findings simply for the purpose of determining whether, assuming them to be facts, the plaintiff below made out a case which would entitle him to recover the land in suit. The supreme court of the territory is of opinion that he did. Among the facts found on the trial of the case against the trustees are the following: Upon the trial, for the purpose of proving the issue upon his part, by means of evidence of a former adjudication, the plaintiff introduced in evidence what he contended was a judgment in his favor for the recovery of the same land in an action in which he was plaintiff and Edgar N. Sweet et al., town-site trustees, defendants, and which was entered in the district court of the second judicial district, county of Canadian, territory of Oklahoma, on or before May 11, 1892, and recorded on the 14th day of May, 1892, in the county of Oklahoma. The plaintiff argued that the defendant (plaintiff in error) in the case at bar was bound as a privy by the adjudication in the former action. The paper was received in evidence by the court, and it is set forth at length in the record. It is evidently nothing but a finding of facts by the judge trying the cause. There was also a paper of fered and received in evidence, signed by the trial judge in the same case, and dated the 13th day of October, 1893. This was an order made in the case by him at Kingfisher, in Kingfisher county, and was entered in that county on the 13th day of October, 1893, the day of its date. The order directs the defendant to make, execute, and deliver to Frank McMaster, the plaintiff, a trustee's deed, "as decreed by this court on the 14th day of November, 1892, of the following described premises and real estate." It is attempted to piece these two documents together, the finding of facts filed in Canadian county and thereafter recorded in the county of Oklahoma, and the order made in Kingfisher county, and filed therein October 13, 1893, and to regard the whole as a judgment. It is plain that there has been no formal judgment entered in the case, and that these two separate documents, filed in different clerks' offices, cannot be pieced together and made a formal and complete judgment. Without a judgment the plea of res judicata has no foundation; and neither Prior to this time, and on the 22d day of the verdict of a jury nor the findings of a April, 1889, the land had been opened for court, even though in a prior action, upon settlement under the proclamation of the the precise point involved in a subsequent President, pursuant to the act of Congress action and between the same parties, consti- ' approved March 2, 1889. 25 Stat. at L. The trustees, appointed under the act of 1890, May 14 (26 Stat. at L. 109, chap. 207, U. S. Comp. Stat. 1901, p. 1463), entered the land in the local land office at Oklahoma City, September 3, 1890, covering, among other lots, the premises in question, "in trust, for the use and benefit of the occupants thereof." A patent from the United States was, on the 1st of October, 1890, issued to the trustees for the land (covering over 160 acres), which patent was, by its terms, in trust for the occupants of the town site, according to their respective interests. At neither date was the plaintiff below an occupant of the land in suit. 980, chap. 412, page 1005, § 13. The land | 1889. That date was April 22, 1889. in question, together with other lots, was settled upon and occupied as a town site shortly after noon of April 22, 1889, and has continued to be and is still so held and occupied. A portion of the occupants of the tract, on the 22d day of April, 1889, tacitly agreed to a plat of the land into lots, blocks, streets, and alleys, and the plaintiff on that day legally entered upon and occupied the piece or parcel of land particularly described in the plat as his lots, and being the land recovered by him in this action. Subsequently to such occupancy, and prior to the entry of the land by the trustees, and to the conveyance by the government to the trustees, a different plat, making a different arrangement of streets, etc., was adopted and enforced by the parties occupying the town site. By the latter plat the parcel of land claimed by the plaintiff was thrown into the street called Grand avenue. The plaintiff did not consent, but objected to the second plat, and has never consented thereto or acquiesced therein. He was, by the city authorities, forcibly removed from the parcel of ground selected by him, and has since that time been forcibly kept from the occupancy thereof. On the 21st day of April, 1891, he applied to the trustees of the city for a deed to the lot, but they declined to award it. The city of Oklahoma City has appropriated the land as a street, and did so appropriate the same long prior to the conveyance of the land by the United States to the trustees. The plaintiff was not an occupant of the tract at the time the United States conveyed the same to the trustees, but it was at the time used and occupied as a street by the city. 26 Stat. at L. 1544. It was provided by the act that after the proclamation, and not before, the Secretary of the Interior might permit the entry of land for town sites under Rev. Stat. §§ 2387, 2388 (U. S. Comp. Stat. 1901, pp. 1457, 1458). The Secretary of the Interior gave no permit for entry of lands for town sites under the act of 1889. Again, the sections of the Revised Statutes plainly refer to an organized state or territory, and Oklahoma was neither on the 22d day of April, 1889. It was organized as a territory May 2, 1890 (26 Stat. at L. 81, chap. 182), and the special act to provide for town-site entries in Oklahoma was not passed until May 14, 1890. 26 Stat. at L. 109, chap. 207, U. S. Comp. Stat. 1901, p. 1463. Regulations for carrying out that act were promulgated by the Secretary of the Interior June 18 and July 10, 1890. 10 Land Dec. 666; 11 Land Dec. 24. It may be assumed that on April 22, 1889, it was supposed that the land now embraced in the city of Oklahoma City would be a town site, as it was stated on the argument at bar, and not disputed, that there was at that date a railroad station here, and there was every probability that a town would exist at that site. But there was no law for a present selection of land or lots for town sites on the 22d day of April, 1889. There was but a supposition that land actually selected on that day for a town site would eventually be approved. On May 14, 1890, more than a year after the lands were open to entry, and just twelve days after the act was passed providing for the temporary government of the territory, an act providing for town-sites entries was passed. 26 Stat. at L. 109, chap. 207, U. S. Comp. Stat. 1901, p. 1463. That act provided for trustees, to be appointed by the Secretary of the Interior, who were authorized to make entry for town sites on so much of the public lands situate in the territory of Oklahoma, and then open to settlement, as might be necessary to embrace all the legal subdivisions covered by actual occu On these facts the plaintiff below did not make out his case. There was no unconditional vesting of title to the particular lot chosen by him on the 22d of April, by tacit agreement of some of the settlers, even though a map were made of the land showing the plaintiff in possession of a lot not in any public street of the city. Subse-pancy, for the purpose of trade and business, quently to the agreement upon a plat by some of the settlers, and prior to the conveyance to the trustees by the patent from the United States (October 1, 1890), the plat was altered and another plat adopted, by which the lot selected by the defendant in error became a part of a public street in the city. The defendant in error, in common with all others, chose lots upon a site which was intended as a town site, and took his lot subject to the conditions which might thereafter obtain. There was no portion of the territory of Oklahoma open to settlement prior to the date fixed by the proclamation of the President under the act of March 2, not exceeding 1280 acres in each case, for the several use and benefit of the occupants thereof, and the entry was to be made under the provisions of § 2387 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 1457), as near as might be, and when such entry was made the Secretary of the Interior was to provide regulations for the proper execution of the trust by such trustees, including the survey of the land into streets, alleys, squares, blocks, and lots when necessary, or the approval of such survey as may already have been made by the inhabitants thereof, the assessment upon the lots of such sum as may be necessary to pay for the land em made by the trustees "for the several use and benefit of the occupants thereof." braced in such town site, the costs of the | rected the entry for the town sites to be survey, the conveyances of lots, and other necessary expenses, including the compensation of the trustees. The maps and plats of streets, etc., to be surveyed were to be approved by the trustees, or they might approve the survey already made by the inhabitants thereof. It seems, therefore, plain that a mere agreement among a portion of the people selecting lots for or in a projected town site, on April 22, 1889, did not and could not vest an absolute and unconditional title in the persons who thus selected such lots. The persons going on the land on that date, and under the circumstances then existing, did not have any law for the vesting of title to a lot as within a town site, by the mere selection of land at that time. There was general confusion, and there were thousands of people entering the territory embraced within the proclamation, on that date. In Guthrie v. Territory, 1 Okla. 188-194, 21 L. R. A. 841, 31 Pac. 190, the supreme court of the territory, in speaking of these crowds, said: "They were aggregations of people, associated together for purposes of mutual benefit and protection. Without any statute law, they became a law unto themselves, and adopted the forms of law and government common among civilized people, and enforced their authority by the power of public sentiment. They had no legal existence; they were nonenities; they could not bind themselves by contracts, or bind any one else." The whole thing was experimental and conditional. | The supreme court in Guthrie v. Beamer, 3 Okla. 652, 41 Pac. 647, has held substantially the same views which we now state in the case at bar. We are unable to see any. real difference in the principle governing the two cases, and we think the Beamer Case was rightly decided. The judgment of the Supreme Court of Oklahoma must be reversed, and the case remanded with directions for a new trial. Reversed. (196 U. S. 539) CITY OF WORCESTER, Plff. in Err., บ. WORCESTER CONSOLIDATED STREET CITY OF WORCESTER and the Board of Aldermen of the City of Worcester, Plffs. in Err., v. WORCESTER CONSOLIDATED STREET CITY OF WORCESTER, Plff. in Err., v. WORCESTER CONSOLIDATED STREET Contracts--impairment of obligation-legislative power over municipal contracts. A municipal corporation cannot invoke the protection of the contract clause of the Federal Constitution against the abrogation by Mass. Laws 1898, chap. 578, with the consent of the street railway company, of the provisions of a contract between that company and the municipality with reference to paving the streets through which the company was thereby granted the right to extend its tracks, and the substitution which that statute makes of another and different method for paving and repairing such streets. The selection of the lots in a proposed town site, made on the 22d day of April, 1889, not being final, neither was the plat or map of the proposed town site, as then, or soon after, agreed upon by some of the people, final or conclusive. The agreement upon the plat or map was liable to alteration; there was no absolute right to any particular lot, as it was subject to future survey. It was all in the air. When, thereafter, the trustees, under the statute, made a survey of the land into the streets, etc., or approved Argued January 23, 24, 1905. Decided Feba survey already made, by which the plaintiff's lot was placed in the public street of the city, it was his misfortune, where all had taken their chances, that he should draw a blank. The approval of a survey by the trustees, which placed this lot in a public street of the city, gives to the city the right to the possession of it, and to keep it open as such public street. The plaintiff, not being an occupant of the lot at the time that the trustees made entry of the land, nor when the conveyance was made to the trustees by the government, was not one of the parties included in the statute, which di [Nos. 144, 145, 146, 147, 148.] ruary 20, 1905. |