MR. JUSTICE McREYNOLDS took no part in the con-

OCTOBER TERM, 1915.

Syllabus. 241 U. S.

We confifie ourselves to the single point presented.There is no controversy whatever as to the authority ofthe Secretary of the Interior, where there 'are undividedinterests belonging to Indians, adequately to protectthose interests according to the statutory provisions tothis end. Our conclusion simply is that the act of 1906placed no restrictions upon the alienation of land, or un-divided interests in land, of which white men who werenot members of the tribe became owners.

The-judgment is reversed and the case is remanded forfurther proceedings not inconsistent with this opinion.

It is so ordered.

MR. JUSTICE McREYNOLDS took no part in the con-sideration and decision of this case.

PACIFIC LIVE STOCK COMPANY v. LEWIS, ETAL., CONSTITUTING THE STATE WATERBOARD OF THE STATE OF OREGON.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF OREGON.

No. 300. Argued March 16, 1916.-Decided June 5, 1916.

Nothing is accomplished by an unsuccessful attempt to remove anadministrative proceeding into the Federal court where the DistrictCourt has by its remanding order adjudged that the removal is notauthorized.

Under § 28, Judicial Code, the order of the District Court remanding aproceeding to the state court is final and conclusive; it is not sub-ject to review either directly or indirectly.

The rule of retention of a cause by the first of two courts of concurrentjurisdiction to the exclusion of other courts and the protection of its

PACIFIC LIVE STOCK CO. v. OREGON WATER BD. 441

241 U. S. Counsel for Appellant.

jurisdictioniiby injunction, applies only where there is substantialidentity in the rights asserted and purposes sought in the severalsuits; the rule does not apply where the earlier suit is a mere privateeffort to restrain encroachments on plaintiff's individual rights andthe later suit is a quasi-public proceeding set in motion by a publicagency to determine the rights of all parties in interest.

Where the decision by the state court, that a statutory proceeding

before a state board is preliminary and administrative and not ju-dicial, is the necessary result of that court's construction of the stat-ute, this court accepts it as correct.

A State may, without violating due process of law, require all claimantsto the same water to submit their claims to an administrative boardand to pay a reasonable fee for the expenses of such board in de-termining the relative rights of the various claimants; and an op-

portunity to be heard is not denied by accepting ex parte swornstatements if all testimony is to be subsequently reviewed by thecourt in a proceeding wherein testimony may be taken; nor is it adenial of due process of law to make the preliminary order of such aboard effective pending final determination by the court, whereprovision is made for a stay on giving suitable bond for damages thatmay accrue; such requirements are not arbitrary and are a properexercise of governmental protection of the water which in its absencemight. pass on and be lost.

The statutes of Oregon, 3 Lord's Laws, chap. 6 and chaps. 82, 86 and97 of Laws of 1913, establishing proceedings before the State WaterBoard for ascertainment and adjudication of the relative rights of

various claimants to the same water, do not deny due process of lawbecause they require a claimant to assert his right and to pay fees

for its consideration, or because they allow the board to accept andconsider sworn statements taken ex pare without opportunity for

cross-examination, or because they allow administrative orders to befollowed and given effect before final action of the courts thereon.

THE facts, which involve the constitutionality, under theFourteenth Amendment, of the statute of Oregon relatingto appropriation and distribution of water, and the valid-ity of proceedings thereunder, are stated in the opinion.

Mr. Edward F. Treadwell, with whom Mr. Alexander

Britton, Mr. Evans Browne. and Mr. F. W. Clements were

on the brief, for appellant.

OCTOBER TERM, 1915.

Opinion of the Court. 241 U. S.

Mr. George M. Brown, Attorney General of the State ofOregon, Mr. George T. Cochran and Mr. Will R. King,with whom Mr. J. 0. Bailey, Mr. James T. Chinnock andMr. Percy A. Cupper were on the brief, for appellees.1

MR. JUSTICE VAN DEVANTER delivered the opinion ofthe court.

This is a bill in equity to enjoin a proceeding before theState Water Board of Oregon looking to the ascertain-ment and adjudication of the relative rights of the variousclaimants to the waters of Silvies River in that State, thegrounds itipon which such relief is sought being (a) that itis essential to protect a jurisdiction previously acquired

'by the District Court, and (b) that the local statute, 3Lord's Oregon Laws, Title XLIII, chap. 6; Laws 1913,chaps. 82, 86 and 97, authorizing and controlling the pro-ceeding, is repugnant to the due process of law clause ofthe Fourteenth Amendment. -An interlocutory injunctionwas denied by the District Court, three judges sitting,217 Fed. Rep. 95, and motions to dismiss the bill as dis-closing no right to relief were afterwards sustained.

The plaintiff, a California corporation, owns large tractsof land along the river and claims a vested right to useupon thesti lapds a portion of the waters of the stream forirrigation and other beneficial purposes. The defendantsare the members of the State Water Board and a few outof many persons and corporations claiming similar rightsin the waters of the river. The statute under which theproceeding assailed is being conducted was enacted in1909 and amended in 1913, and most of the rights affectedby the proceeding are claimed to have arisen prior to the

1 The briefs in this case are elaborate and exhaustive and too lengthyto permit abstracts to be included in the Reports; they cite severalhundred authorities, state and Federal, on the questions involved anddiscussed.


241 U. S. Opinion of the Court.

statute-the plaintiff's as much as thirty years before.All claimants to the waters of the river, including the plain-tiff, were brought into the proceeding by due notice andin conformity with the statute.

A general outline of the statute, as it has-been construedby the Supreme Court of the State,' will serve to simplifythe questions to be considered. It recognizes that inOregon rights to use the waters of streams for irrigationand other beneficial purposes may be acquired by appro-priation, adopts a comprehensive scheme for securingan economical, orderly and equitable distribution of thewaters among those entitled to their use, incidentallyprescribes a mode of determining the relative rights of thevarious claimants to the waters of each stream, and inlarge measure commits the administration of the schemeto the State Water Board and officers acting under thesupervision of its members. When one or more users ofwater from any stream request it the board, if finding thatthe conditions justify it, is required to set in motion aproceeding looking to an ascertainment and adjudicationof all rights to the waters of that stream. Every materialstep in the proceeding is to be attended with notice and anopportunity to be heard, the adequacy of which is mani-fest. In the beginning each claimant is required to presentto the division superintendent a sworn statement of hisclaim showing its nature, inception and extent and all theparticulars upon which it is based. These statements areto be exposed to public inspection, so that every claimantmay determine whether there is occasion for him to op-pose or contest the claims of others. The State Engineer,or a qualified assistant, is to measure the flow of the stream,the carrying capacity of the several ditches taking water

'See WaUles v. Baker County, 59 Oregon, 255; Pringle Falls PowerCo. v. Patterson, 65 Oregon, 474, 484; Claypool v. O'Neill, ibid. 511;Pacific Live Stock Co. v. Cochran, 73 Oregon, 417; In re Willow Creek,74 Oregon, 592; In re North Powder River, 75 Oregon, 83.

OCTOBER TERM, 1915.


therefrom, and the land irrigated or susceptible of irri-gation from each ditch, and also to take such other ob-servations as may be essential to a proper understandingof the claims involved, a report of all of which is to bemade in writing. Any claimant desiring to contest theclaim of another may present to the division superintend-ent a sworn statement showing the grounds of contestand obtain a hearing before that officer at which the partiesmay present whatever evidence they have and may securethe attendance of witnesses by compulsory process. Afterthe evidence in the contests is taken, it and the swornstatements of the several claimants, with the report ofthe engineer's measurements and observations, are to belaid before the board,-the statements and the report'both being regarded as evidence appropriate to be con-sidered. The board is then to examine all the evidence,make findings of fact therefrom, enter an order embodyingthe findings and provisionally determining the relativerights of the several claimants, and transmit the evidenceand a copy of the order to the circuit court of the countywherein the stream or some part of it lies. Exceptions tothe board's findings and order may be presented to thecourt and in disposing of them the court is to follow asnear as may be the practice prevailing in suits in equity.All parties in interest, including the board as representingthe State, are to be fully heard. Further evidence maybe taken by the court, or the matter may be remandedwith directions that additional evidence be taken and thatthe matter be again considered by the board, in whichevent the evidence and a copy of the further order of theboard are to be transmitted to the court as in the firstinstance. In short, upon exceptions the court may re-examine the whole matter and enter such decree as thelaw and the evidence may require, whether it be an affirm-ance or a modification of the board's order. And evenwhere no exceptions are presented a decree giving effect



to the order is to be entered, that is to say, the matteris not to be left as if the order in itself constituted aneffective adjudication. An appeal from the court's de-cree may be taken to the Supreme Court of the State"as in other cases in equity," except that the time there-for is substantially shortened. When the rights involvedare adjudicated the decree is to be "conclusive as to allprior rights and the rights of all existing claimants,"and the right of each claimant as so settled is to be ap-propriately entered and shown upon the records of theboard and upon those of the proper county. Each claim-ant also is to receive from the board a certificate settingforth the priority, extent and purpose of his right, and,if it be for irrigation purposes, a description of the landto which it is appurtenant. That the statute is not in-tended to take away or impair any vested right to anywater or to its u~e is expressly declared in its first andseventieth sections, 3 Lord's Oregon Laws, Tit. XLIII,c. 6, §§ 6594, 6595.

At the time the statute was adopted, and continuouslyuntil this suit was begun, there were pending undeterminedin the District Court I two suits in equity brought by thepresent plaintiff, one against two Oregon corporationsand the other against another corporation of that State,in each of which suits the relative rights of the partiesthereto in the waters of Silvies River were in controversy.These rights are reasserted and again brought in contro-versy in the proceeding before the board.

When that proceeding was first set in motion, the PacificLive Stock Company, the plaintiff in this suit, presentedto the board a petition and bond for the removal of theproceeding, or a part of it alleged to involve a separablecontroversy, to the District Court of the United States

The suits were begun in the Circuit Court and when it was abolishedwere transferred to the District Court.

OCTOBER TERM, 1915.


upon the ground that it was A suit between citizens ofdifferent States. But the attempted removal was notsustained, for the District Court remanded the proceedingand in that connection held that while it was pendingbefore the board it was essentially preliminary and ad-ministrative, and not a suit at law or in equity within themeaning of the removal statute. In re Silvies River,199 Fed. Rep. 495.

Thereafter the plaintiff presented to the division super-intendent a sworn statement of its claim, accompaniedby the fee prescribed,-at the same time protesting thatthe fee was extortionate, that the matter should be ad-judicated in the Federal court and that the local statutewas repugnant to the Fourteenth Amendment. Morethan two hundred other claimants also appeared and sub-mitted statements of their claims, all being described ashigher up the stream than that of the plaintiff. When thestatements were opened to public inspection many con-tests were initiated. Several of these were against theplaintiff's claim; a large number were by the plaintiffagainst other claims, and there were others in which, itis said, the plaintiff was not directly concerned. It wasat this stage of the proceeding, and before any evidencewas taken in any of the contests, that this suit was brought.

Upon the assumption (1) that the removal proceedingswere effective, (2) that the proceeding before the. boardis substantially identical with the pending suits, and (3)that that proceeding is essentially judicial in its nature,the plaintiff insists that the continued prosecution -of theproceeding before the board constitutes an inadmissibleinterference with the District Court's jurisdiction andthat this jurisdiction should be maintained and protectedby an appropriate injunction.1 The insistence must

I See Rev. Stat., § 720; Taylor v. Taintor, 16 Wall. 366, 370; French y.Hay, 22 Wall. 250, 253; Rickey Land Co. v. Miller & Lux, 218 U. S.258, 262; Ches. & Ohio Ry. v. Cockrell, 232 U. S. 146, 154.



be overruled, because the assumption upon which it restscannot be indulged.

Nothing was accomplished by the removal proceedings.The District Court did not take jurisdiction under them,but, on the contrary, by its remanding order adjudged thatthey were unauthorized. That order is not subject toreview, either directly or indirectly, but is final and con-clusive. Jud. Code, § 28; Missouri Pacific Ry. v. Fitz-gerald, 160 U. S. 556, 580-583; McLaughlin Bros. v.Hallowell, 228 U. S. 278, 286. In so holding it is not in-timated that the result would be different if the orderwere now open to review. See Upshur County v. Rich, 135U. S. 467, 474, et seq. and cases cited.

The rule that where the same matter is brought beforecourts of concurrent jurisdiction, the one first obtainingjurisdiction will retain it until the controversy is deter-mined, to the entire exclusion of the other, and will main-tain and protect its jurisdiction by an appropriate in-junction, is confined in its operation to instances whereboth suits are substantially the same, that is to say, wherethere is substantial identity in the interests represented,in the rights asserted and in the purposes sought. Buckv. Colbath, 3 Wall. 334, 345; Watson v. Jones, 13 Wall.679, 715; Rickey Land Co. v. Miller & Lux, 218 U. S. 258,262. This is not such an instance. The proceeding soughtto be enjoined, although in some respects resembling theprior suits, is essentially different from them. They aremerely private suits brought to restrain alleged encroach-ments upon the plaintiff's water right, and, while requiringan ascertainment of the rights of the parties in the watersof the river, as between themselves, it is certain that theydo not require any other or further determination re-specting those waters. Unlike them, the proceeding inquestion is a quasi public proceeding, set in motion by apublic agency of the State. All claimants are required toappear and prove their claims; no one can refuse without

OCTOBER TERM, 1915.


forfeiting his claim, and all have the same relation to theproceeding. It is. intended to be universal and to resultin a complete ascertainment of all existing rights, to theend; First, that the waters may be distributed, underpublic supervision, among the lawful claimants accordingto their respective rights without needless waste or con-troversy; Second, that the rights of all may be evidencedby appropriate certificates and public records, alwaysreadily accessible, and may not be dependent upon thetestimony of witnesses with its recognized infirmitiesand uncertainties, and, Third, that the amount of surplusor unclaimed water, if any, may be ascertained andrendered available to intending appropriators.

Referring to a situation resembling that to which thisproceeding is addressed, the Supreme Court of Mainesaid in Warren v. Westbrook Manufacturing Co., 88 Maine,58, 66: "To make the water power of economic value,the rights to its use, and the division of its use, accordingto those rights, should be determined in advance. Thisprior determination is evidently essential to the peacefuland profitable use by the different parties having rightsin a common power. To leave them in their uncertainty,-to leave one to encroach upon the other,-to leave eachto use as much as he can, and leave the other to sue atlaw after the injury,-is to leave the whole subject matterto possible waste and destruction." In considering thepurpose of the State in authorizing the proceeding theSupreme Court of Oregon said in In re Willow Creek, 74Oregon, 592, 613, 617: "To accelerate the development ofthe state, to promote peace and good order, to minimizethe danger of vexatious controversies wherein the shovelwas often used as an instrument of warfare, and to providea convenient way for the adjustment and recording ofthe rights of the various claimants to the use of thewater of a stream or other source of supply at a reason-able expense, the state enacted the law of 1909, thereby



to a limited extent calling into reqdisition its policepower. . . . Water rights, like all other rights, aresubject to such reasonable regulations as are essentialto the general welfare, peace and good order of the citi-zens of the state, to the end that the use of water by one,however absolute and unqualified his right thereto, shallnot be injurious to the equal enjoyment of others entitledto the equal privilege of using water from the same source,nor injurious to the rights of the public." The DistrictCourt, when making the remanding order, said (199 Fed.Rep. 502): "The water is the res or subject matter of thecontroversy. It is to be divided among the several claim-ants according to their respective rights. Each claimantis therefore directly and vitally interested, not only inestablishing the validity and extent of his own claim,but in having determined all of the other claims." Andthal court further said that what was intended was tosecure in an economical and practical way a determinationof the rights of the various claimants to the use of thewaters of the stream "and thus [to] avoid the uncertaintyas to water titles and the long and vexatious controversiesconcerning the same which have heretofore greatly re-tarded the material development of the state." In sucha proceeding the rights of the several claimants are soclosely related that the presence of all is essential to theaccomplishment of its purposes, and it hardly needsstatement that these cannot be attained by mere privatesuits in which only a few of, the claimants are present,for only their rights as between themselves could be de-termined. As against other claimants and the publicthe determination would amount to nothing. And so,upon applying the test before indicated, it is apparentthat the assumed substantial identity between the pro-ceeding and the pending suits does not exist.

The Supreme Court of the State holds that while theproceeding is pending before the board it is merely pre-

OCTOBER TERM, 1915.


liminary and administrative, not judicial, and as thisholding is a necessary result of that court's constructionof the statute we accept it as correct. The question wasfirst suggested in Pacific Livestock Co. v. Cochran, 73Oregon, 417, and the court then said, p. 429: "It is notnecessary-here to decide whether the proceeding by theboard to determine water rights is judicial or adminis-trative. To a large extent it is administrative, but likemany proceedings of that character, the board must alsoact in a quasi judicial capacity. A determination of thewater rights to a stream finally ends as a report to theCircuit Court, and a decree of final determination by thatcourt." Afterwards the question was both raised anddetermined in In re Willow Creek, 74 Oregon, 592. Thecourt there reviewed the several provisions bearing uponthe duties and powers of the board and said, pp. 610, 612,614: "Their duties are executive or administrative intheir nature. In proceedings under the statute theboard is not authorized to make determinations whichare final in their character. Their findings and orders areprima facie final and binding until changed in some properproceeding. The findings of the board are advisoryrather than authoritative. It is only when the courts ofthe State have obtained jurisdiction of the subject-matter and of the persons interested and rendered adecree in the matter determining such rights that, strictlyspeaking, an adjudication gr final determination is made.It might be said that the duties of the water boardare quasi judicial in their character. Such duties maybe devolved by law on boards whose principal dutiesare administrative. . . . The duties of the board ofcontrol are similar to those of a referee appointed by thecourt. . . .. By proceeding in accordance with thestatute, when the matter is presented to the court forjudicial action, it is in an intelligible form. The waterboard and state may then be represented by counsel."



As an alternative to its first contention, which we holduntenable, the plaintiff insists that the statute is re-pugnant to the due process of law clause of the Four-teenth Amendment.; First, because it requires a claimant,at his own expense, to assert and prove his claim beforethe board, and to pay an extortionate fee for having itconsidered,-all under penalty of forfeiting his claim ifhe refuses,-notwithstanding the board acts only admin-istratively and its findings and order are not conclusive;Second, because it permits the board to accept and actupon the sworn statements of claimants taken ex parteand upon the data set forth in the-unsworn report of theengineer, without, as is asserte d, affording any oppor-tunity for showing their true value, or the want of it, bycross examination or otherwise; and, Third, because itrequires that the board's findings and order, althoughonly administrative in character, be followed and giveneffect in the distribution of the water pending the actionof the Circuit Court upon them.

A serious fault in this contention is that it does notrecognize the true relation of the proceeding before theboard to that before the court. They are not independentor unrelated, but parts of a single statutory proceeding,the earlier stages of which are before the board and thelater stages before the court. In notifying claimants,taking statements of claim, receiving evidence and mak-ing an advisory report the board merely paves the way

* for an adjudication by the court of all the rights involved.As the Supreme Court of the State has said, the board'sduties are much like those of a referee. (And see OregonR. R. & N. Co. v. Fairchild, 224 U. S. 510, 526-527.)All the evidence laid before it goes before the court, whereit is to be accorded its proper weight and value. Thatthe State, consistently with due process of law, may thuscommit the prelhninary proceedings to the board and thefinal hearing and adjudication to the court is not de-

OCTOBER TERM, 1915.


batable. And so, the fact that the board acts adminis-tratively and that its report is not conclusive does notprevent a claimant from receiving the full benefit ofsubmitting his claim and supporting proof to the board.That he is to do this at his own expense affords no groundfor objection; on the contrary, it is in accord with thepractice in all administrative and judicial proceedings.The fee alleged to be extortionate is a charge graduatedaccording to the amount of land irrigated under theclaim submitted, and is fifteen cents per acre for thefirst one hundred acres, five cents per acre for the nextnine hundred acres, and one cent per acre for any excessover one thousand acres. The purpose with which it isexacted is explained in the following excerpt from theopinion of the Supreme Court of the State in PacificLivestock Co. v. Cochran, 73 Oregon, 417, 429, 430: "Theboard is required to take testimony which consumes thetime of a stenographer paid by the State; to make,through the state engineer, an examination of the streamand the works diverting water therefrom, including themeasurement of the discharge of the stream and of thecapacity of the various ditches and canals; to examineand measure the irrigated lands and to gather such otherdata as may be necessary; to reduce the same to writingand make it a matter of record in the office of the stateengineer; to make maps and plats of the various ditchesand of the stream-all at the expense of the State. Thatthese services are beneficial to the claimant and necessaryto the preservation of his rights in the stream and theprotection and assurance of his title goes without say-ing. . . . it is reasonable to assume that the ex-pense to the State of the investigation, mapping, takingtestimony and other acts involved in the determination ofthe claimant's rights will equal and in many cases exceedthe amount of the fee charged; and that the method in-dicated by the act by which the amount is determined is

PACIFIC LIVE STOCK CO. v. OREGON WATER BD. 4M


eminently fair." In our opinion, the charge is notextortionate and its exaction is not otherwise incon-sistent with due process of law.

Upon examining the statute and the decisions* of theSupreme Court of the State construing and applying itwe are persuaded that it is not intended that the boardshall accept and act upon anything as evidence that isdevoid of evidential value, or in- respect of which theclaimants concerned are not given a fair opportunity toshow its true value, or the want of it, in an appropriateway. On the contrary, the statute discloses a fixed pur-pose to secure timely notice to all claimants of everymaterial step in the proceeding and full opportunity to beheard in respect of all that bears upon the validity, extentand priority of their claims. And while it is true, accord-ing to the concessions at the bar, that the sworn state-ments of claim are taken ex parte in the first instance, italso is true that they are then opened to public inspec-tion, that opportunity is given for contesting them andthat upon the hearing of the contests full opportunity ishad for the examination of witnesses, including thosemaking the statements, and for the production of anyevidence appropriate to be considered. Thus the factthat the original statements are taken ex parte becomesof no moment. And while it is true that the stateengineer's report is accepted as evidence, although notsworn to by him, it also is true that the measurementsand examinations shown therein are made and reportedin the discharge of his official duties and under the sanc-tion of his oath of office, and that timely notice of thedate when they. are to begin is given to all claimants.The report becomes a public document accessible to alland is accepted as prima facie evidence, but not asconclusive. In re Willow Creek, 74 Oregon, 592, 628.Of the occasion for such a report, the Supreme Courtof the State says in that case, p. 613: "In a proceeding

OCTOBER TERM, 1915.


before the board, provision is made for an impartialexamination and measurement of the water in a stream,of the ditches and canals, and of the land susceptible ofirrigation, and for the gathering of other essential databy the state engineer, including the preparation of maps,all to be made a matter of record in the office of the stateengineer, as a foundation for such hearing and to facilitatea proper understanding of the rights of the partiesinterested. Under the old procedure such informationwas often omitted. When measurements were made bythe various parties to a suit they were nearly alwaysmade by different methods and were conflicting. Theother evidence in regard thereto, being mere estimates,rendered a determination extremely difficult for thecourt and of questionable accuracy and value whenmade." Considering the nature of the report and thatclaimants may oppose it with other evidence, it is plainthat 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 inconformity with th6 board's order pending the adjudica-tion by the court has the sanction of many precedents inthe legislation of Congress and of the several States,notably in the provision in the Interstate CommerceAct directing that the orders of the commission shall beeffective from a date shortly after they are made, unlesstheir operation be restrained by injunction. These legis-lative precedents, while not controlling, are entitled tomuch Weight, especially as they have been widely acceptedas valid. Although containing no provision for an in-junction, the statute under consideration permits thesame result to be reached in another way, for it declaresthat the operation of the board's order "may be stayedin whole or in part" by giving a bond in such amount asthe judge of the court in which the proceeding is pendingmay prescribe, conditioned for the payment of such dam-

MONTELIBANO v. LA COMPANIA TABACOS. 455

241 U. S. Syllabus.

ages as may accrue by reason of the stay. It is not,therefore, as if the requirement were absolute. As hasbeen seen, the order is made only after adequate noticeand full opportunity to be heard, and when made is, withreason, deemed prima facie correct. It relates to flowingwater, to the use of which there are conflicting claims.Unless diverted and used the water will pass on and belost. No claimant is in possession and all assert a rightto take from the common source. In this situation wethink it is within the power of the State to require that,pending the final adjudication, the water shall be dis-tributed, according to the board's order, unless a suit-able bond be given to stay its operation. Such a require-ment is not arbitrary, does not take from one and give toanother and is not otherwise offensive to a right concep-tion of due process. Detroit and Mackinac Ry. v. MichiganRailroad Commission, 240 U. S. 564; Wadley SouthernRy. v. Georgia, 235 U. S. 651, 660; Montezuma Canalv. Smithville Canal, 218 U. S. 371, 385.

Decree affirmed.

MONTELIBANO Y RAMOS v. LA COMPANIA GEN-ERAL DE TABACOS DE FILIPINAS.

I

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 bythis court of the judgment of the Supreme Court of the PhilippineIslands under the act of July 1, 1902, § 10, is by appeal and not bywrit of error.

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

Documents

MR. JUSTICE McREYNOLDS took no part in the con-