JUSTICES BROWN, WHITE and PECKHAM, dissenting.

pleading, issuing and returning process, and making and directing interlocutory motions, orders, etc., preparatory to the hearing upon their merits of all cases pending therein. No claim under these sections, however, is made in the petition, wherein the petitioner relies alone upon section 828 for attendance when the court is "actually in session."

There are, however, so many other answers to his claim under sections 574 and 638 that no elaborate discussion of them is necessary. (1) These three sections, 574, 638 and 828, are all taken from the Revised Statutes, and must be construed together as if they constituted parts of one act, as they really do. Nothing is said about attendance in the first two of these sections, and all the orders are such as are usually made at chambers. Both sections provide upon their face that the proceedings therein authorized may be made at chambers, or in the clerk's office, and in vacation as well as in term; but in a separate and distinct section, 828, providing for clerk's fees, his fees for attendance are limited to such as are earned while the court "is actually in session." Of course, if there be any conflict between these sections the later rules, but in addition to that it is inconceivable that Congress, while providing specially for attendance while the court is in actual session, should throw the door wide open in sections 574 and 638 to a charge for attendance upon every day when the judge may happen to make an order, whether the court be actually in session or not. All that is meant by sections 574 and 638 is a recognition of the old custom that courts of admiralty and equity are presumed to be always open for incidental purposes, a custom as old as the very existence of these courts. (2) The list of the orders actually made by the judge, for the entry of which the clerk claims attendance in this case, shows that none of them were in admiralty cases, and comparatively few in equity cases. The great bulk were in common law cases. The claim under these sections was evidently an afterthought. (3) If these sections be construed as opening the door for an attendance fee each time an order was made, then they were clearly repealed by the act of 1887, under which the clerk has a right to compensation only when the court is opened by the judge for business, or

Opinion of the Court.

business is actually transacted in court, and when they attend under certain sections, in which sections 574 and 638 are not included.

For these reasons I am compelled to dissent from the opinion of the court in this case.

I am instructed to say that MR. JUSTICE WHITE and MR. JUSTICE PECKHAM concur in this dissent.

MR. JUSTICE GRAY took no part in the decision of this case.

WASHINGTON STATE v. NORTHERN SECURITIES COMPANY.

ORIGINAL.

Argued April 14, 1902.-Decided April 21, 1902.

In the exercise of original jurisdiction by this court the usual practice in equity cases is to hear applications for leave to file bills, ex parte, and, ordinarily, leave is granted as of course.

But this is not an invariable rule, and where it is apparent on the face of the proposed bill that there is a defect of parties, which cannot be supplied without ousting the jurisdiction, leave will be denied.

Where the objection is one of jurisdiction over the subject-matter, and the case is of grave importance, leave to file will be granted that the fullest argument may be had.

THE case is stated in the opinion of the court.

Mr. W. B. Stratton for the motion. Mr. Wallace B. Douglas was on his brief.

Mr. C. W. Bunn and Mr. John W. Griggs opposing. Mr. George B. Young and Mr. M. D. Grover were on Mr. Bunn's brief.

THE CHIEF JUSTICE:

This is an application by the State of Washington for leave

Opinion of the Court.

to file an original bill in this court against the Northern Securities Company, a corporation of New Jersey; the Great Northern Railway Company, a corporation of Minnesota; and the Northern Pacific Railway Company, a corporation of Wisconsin. Notice was given to the proposed defendants and argument had in support of and against the motion.

The usual practice in equity cases has been to hear such applications ex parte, Georgia v. Grant, 6 Wall. 241; although under special circumstances a different course has been pursued. Mississippi v. Johnson, 4 Wall. 475. Ordinarily, as stated by the Chief Justice in the latter case, the motion for leave to file is granted as matter of course. 4 Wall. 478.

In Georgia v. Stanton, 6 Wall. 50, a bill in equity was filed by the State of Georgia to enjoin the Secretary of War and other officers representing the Executive authority from carrying into execution certain acts of Congress, on the ground that such execution would overthrow the existing state government of the State and establish another and different one in its place; and a motion was made to dismiss for want of jurisdiction over the parties and over the subject-matter, on which full argument was had. It was held that the bill called for the judgment of the court on political grounds and on rights of a political character, and that, therefore, the court had no jurisdiction over the subject-matter.

In Louisiana v. Texas, 176 U. S. 1, the case stated shows that "argument was had on objections to granting leave, but it appearing to the court the better course in this instance, leave was granted, and the bill filed, whereupon defendants demurred, and the cause was submitted on the oral argument already had and printed briefs."

In Minnesota v. Northern Securities Company, decided at this term, 184 U. S. 199, application to file a similar bill to that before us, and seeking similar relief, was made, and after examining the bill we directed notice to be given and heard argument on both sides. The result was that leave to file was denied because of the want of certain indispensable parties, who could not be brought in without defeating our constitutional jurisdiction. That insuperable difficulty does not meet us on

Syllabus.

the threshold here, but, among other objections to granting leave, it is urged that the court would have no jurisdiction over the subject-matter because, as contended, the bill does not present the case of a controversy of a civil nature, which is justiciable under the Constitution and laws of the United States, in that the suit is purely a suit for the enforcement of "the local law and policy of a sovereign and independent State, whose right to make laws and to enforce them exists only within itself and by means of its own agencies, and is limited to its own territory."

In the exercise of original jurisdiction the court has always necessarily proceeded with the utmost care and deliberation, and, in respect of all contested questions, on the fullest argument; and in the matter of practice we are obliged to bear in mind, in an especial degree, the effect of every step taken in the instant case on those which may succeed it. In view of this it seems to us advisable to take the same course on the pending application as was pursued in Louisiana v. Texas, that is, without intimating any opinion whatever on the questions suggested, to grant leave to file in accordance with the usual practice. Our rules require service sixty days before the return day of process, but as the final adjournment of the term will have taken place within that time, process will be made returnable on the first day of next term.

Leave is granted and process will issue accordingly.

The terms of the act of March 3, 1891, 26 Stat. 854, (establishing the Court of Private Land Claims), with reference to a proceeding like this, leave no room for doubt that it was the intent of Congress to require that, be

Statement of the Case.

fore a decision of the court in the premises, all those asserting claims in the land, adverse to the United States, should be made parties, and should be heard in support of their validity.

By the law in force at the time of the sale under consideration, a grant initiated in the manner in which the one in question is claimed to have been, could not exceed in the aggregatè four sitios.

In its essential features this case is like Ely's Administrator v. United States, 171 U. S. 220.

It may be presumed that the Mexican officials duly performed the duty imposed upon them of registering the fact of the making of a grant of public lands.

In Cameron v. United States, 148 U. S. 301, the matter passed upon was not the same as that which is present in the case at bar.

THESE appeals concern the title to a tract of land situated in the county of Pima, Territory of Arizona. The litigation was begun by the filing in the Court of Private Land Claims, on February 27, 1893, on behalf of Alfred A. Green, of a petition by which the court was asked to declare the validity of the title of Green to the tract. It was alleged that Green had become invested with the title by mesne conveyances from one Ramon Romero and others, to whom the land had been granted on May 15, 1825, by the State of the West in the Republic of Mexico.

While the original documents constituting the grant were averred to be in the official custody of the surveyor general of the United States for the Territory of Arizona, it was alleged that the claim had not theretofore been considered or acted upon by Congress, or any other authority of the United States. A map was annexed to the petition, which it was asserted showed the boundaries of the land, and established that the quantity thereof was sixteen square leagues. Not only the United States, but also Colin Cameron, and others whom it was averred claimed some interest in the land, were made parties defendant to the

cause.

The United States filed a general denial. Thereafter, on March 20, 1895, upon the application of the United States, Harvey L. Christie was made a party defendant, on the ground that he asserted title to the land under the grant to Romero.

On March 25, 1895, Colin Cameron filed an answer, in which he denied that petitioner had any interest in whole or in part VOL. CLXXXV-17