interference is prohibited by the constitution of the United States. The purpose and business of express companies is to transport gold, silver, and articles of great value, and those requiring the most speedy and safe transit from one state to another, and for which the express companies receive extra compensation, and are strictly liable. I suppose there is scarcely an exception to this rule to be found, so that the tax imposed on the complainant, with all other express companies doing business in the state, is in part, if not mainly, for the privilege of doing the express business in relation to this interstate transportation, and, so far as it relates to that portion of the business of the complainant, is by all these decisions unconstitutional and void. It is held that when the tax is for the privilege of carrying on the transportation exclusively within the state, it is not repugnant to the constitution, and that, when the portion not embraced in the transportation from one state into another can be separated, then only the interstate transportation will be held void, the other valid. Under the decisions referred to in which it was decided that when a separation could be made between the interstate and the purely local business, that which was interstate was enjoined, and all must be enjoined in this case until the separation can be made, if such a separation is possible. The decision relied upon by the attorney general for the state is the case of Osborne v. Mobile, 16 Wall. 479. I am satisfied that this case is virtually overruled by the case of Leloup v. Port of Mobile, 127 U. S.. 640, 8 Sup. Ct. Rep. 1380. The result is that upon the complainant's entering into bond with one or more sureties in the sum of $4,000, payable to the defendants, and conditioned for the payment of such sum as the court may decree to be paid in case the injunction shall be dissolved, to be approved by the clerk of this court, the writ of injunction will be issued as prayed for in the bill. The same order will be made in the case of the Pacific Express Company against the same defendants, submitted with this case, and being dependent on the same facts. STOCKSDALE, Supervisor of Election, v. UNITED STATES. (District Court, D. Maryland. June 17, 1889.) 1. ELECTION-SUPERVISOR-COMPENSATION-UNITED STATES MARSHAL. The attorney general, by authority from the president, prior to the appointment of the plaintiffs, the one as supervisor and the other as special deputymarshal, notified them that they would be paid for only four days' attendance upon the registration and one day at the polls on the day of election for representatives in congress. The registration offices were required by the state law to be open for two days in May, June, July, September, and October, making 10 days in all; and under the act of congress it was the duty of both the supervisor and the special deputy marshal to be present on duty at the offices of registration, and at the election polls, and they did so attend. Held, that the act of congress prescribed the duties of and the compensation of both the supervisor and the special deputy-marshal, and that, having in the performance of that duty been required to actually serve more than 10 days, they were entitled to the full compensation prescribed by the act of congress. 8. SAME. Held, that there could be no implied contract by which the appointee undertook to perform less than the whole duty, and to receive less than the full pay enacted by congress. (Syllabus by the Court.) At Law. Actions for fees as officers of election. H. Arthur Stump, for petitioners. Thomas G. Hayes, U. S. Dist. Atty. MORRIS, J. The case of Supervisor Stocksdale is identical with the case of Scholfield v. U. S., reported 32 Fed Rep. 576, except that Stocksdale had notice from the attorney general prior to his appointment as supervisor of election that the department of justice was authorized, under executive order of 5th November, 1886, to pay each employé only for the days served, not exceeding five in number, at five dollars per day. With full knowledge that this notice had been issued with reference to his compensation the petitioner, Stocksdale, accepted his appointment as supervisor under section 2012, was sworn in, and performed 11 days of necessary and proper service; consisting of 10 days' attendance at the sittings of the state registers of voters directed by the laws of Maryland to be held in the city of Baltimore in the months of May, June, July, September, and October in the year 1888, and attending at the polls on November 6, 1888, the day of election. He has been paid $25 for five days' service, and it is urged that his acceptance of the appointment with the above-mentioned notice precludes him from demanding any greater compensation. The petitioner Stocksdale was appointed by the court, and his duties are prescribed by the act of congress. By section 2016 he was authorized and required to attend at all times and places fixed for the registration of voters, and at all times and places for holding elections. By section 5521, a supervisor of election or a special deputy-marshal, who, having taken the oath of office, "neglects or refuses to perform and discharge fully the duties, obligations, and requirements of such office until the expiration of the term for which he was appointed," is declared punishable by fine and imprisonment. The Maryland law required the register of voters to sit with open doors from 10 o'clock a. M. to 10 o'clock P. M. on the 10 days during the months preceding the election for representatives in congress for which the petitioner claims compensation, and the act of congress explicitly obliged him to be present on those days and on the day of election, and the act of congress with equal explicitness fixes his compensation, and by section 2031 enacts that he shall be paid five dollars per day for each day he is actually on duty, not exceeding 10 days. Congress having thus in explicit terms fixed. the duties and the compensation of the petitioner, I cannot see how any order of the president or of the attorney general, whether issued before or after his appointment, could compel the petitioner to do less than his whole duty, or to accept less than his whole compensation. The case of Frank Beckman v. U. S. is similar in all respects, except that he was a special deputy-marshal instead of a supervisor. The special deputy-marshals are not, like the supervisors, appointed by the court, but are appointed by the marshal of the district, and by section 362 it is enacted that the attorney general shall exercise general superintendence over the attorneys and marshals of all the districts in the United States as to the manner of discharging their respectve duties. It is contended that this power and duty of superintendence over the marshals gave the attorney general authority to declare that the special deputies should be paid only for four days' attendance upon the registration. But it was impossible for the special deputy-marshals in Baltimore city to perform the duties which congress had required of them in less than 10 days. Section 2021 makes it the duty of the special deputy-marshals to attend each election district or voting precinct, at the times and places where and when the registration may by law be scrutinized, and the names of registered voters marked for challenge, and also to attend at all times for holding elections; and he, like the supervisor, is punishable by fine and imprisonment, if he neglects to fully perform his duties. Special Deputy-Marshal Beckman, the petitioner, could not possibly have performed the duties imposed on him by congress except by actually serving 11 days. Congress has enacted that his compensation shall be five dollars a day for each day actually on duty, not exceeding 10. I am at a loss to see how the authority to exercise general superintendence and direction over the manner of discharging his duties could confer authority to compel the petitioner to do in four days what could not by any diligence on his part be done in less than ten days, or to deprive him of the compensation which congress explicitly says shall be paid to him. It is urged that the acceptance of the appointment from the marshal, with notice from him that the compensation would be only $25, created a contract between the special deputy-marshal and the United States, by which the petitioner agreed to accept $25 for the service to be rendered. It is not true, however, either in fact or in law, that the petitioner made a contract, or that any one had authority on behalf of the United States to contract with him. He did not make a contract; he accepted an office, and took an oath to perform the duties appertaining to it. Congress had prescribed those duties, and had fixed his compensation for performing them. Having performed the duties, he is under the law entitled to the compensation. EASTON et al. v. HOUSTON & T. C. RY. Co. et al., (LUNDIEN, Intervenor.) (Circuit Court, E. D. Texas. June 18, 1889.) MASTER AND SERVANT DANGEROUS EMPLOYMENT ASSUMPTION OF RISK. Where an employé knows of the hazardous character of the work which he undertakes, and is injured by an accident which could not be foreseen by his employer, the latter is not liable in damages. In Equity. Exceptions to master's report. Intervention of John Lundien. Petition for damages for personal injuries to employé. John Dowell, for intervenor. Before LAMAR, Justice, and PARDEE, J. PER CURIAM. In this case we have carefully examined and considered the evidence, and have also duly considered the arguments made in support of the exceptions to the master's report. Our conclusion is that none of the exceptions are well taken. The nature of the intervenor's employment, as one of the bridge gang, to make repairs of railroad bridges, and the character of the work assigned this gang at the time of the accident, to-wit, the pulling down of an elevated water-tank, was a sufficient notice to the intervenor that the kind and quality of work which he had undertaken to do as an employé of the receiver was of a hazardous, if not positively dangerous, character. The intervenor seems to have met his injury by an accident which could not have been foreseen by the receivers, and, if it could have been foreseen at all, it was only by himself and the other members of his gang, fellow-servants of his. The evidence does not show that the pile of old scrap-iron, lying near the foundation of the tank and the railroad track cut any figure in the matter. Conceding for this case, and this case only, that the relation between the receivers and the surgeons who conduct and carry on the railway hospital was that of master and servant, the weight of evidence is very strongly against the claim of intervenor's of malpractice in the surgical treatment he received. The nature of the fracture was such that it seems to have been impossible to have otherwise properly treated it than by amputation. Amputation, finally resorted to, was long postponed by the surgeons, at the earnest entreaties of intervenor himself. We notice in the evidence that the intervenor was offered half pay, at the rate of his regular wages when employed, on condition that he would waive all claims against the receiver for damages. If, under the rules of the company, a person injured as intervenor was, was entitled to receive wages for the time lost during his treatment and residence in the hospital, we think it should have been given him without exacting a release of any right he may have had to apply to the court. The following decree will be entered in the case: v.39F.no.2-5 DECREE. This cause came on to be further heard on the exceptions to the master's report, and was argued, whereupon, and for the foregoing reasons, it is ordered, adjudged, and decreed that the exceptions to the master's report be overruled, and that the said master's report be, and the same is hereby, confirmed. It is further ordered, adjudged, and decreed that on demand of John Lundien, intervenor herein, the receiver in this case do pay to him, from the earnings of the railway property in his possession, the sum of $347.20, being the amount of regular wages of the said John Lundien during and from the time he received his injury until the day he was discharged from the hospital. KIRBY et al. v. LEWIS et al. (Circuit Court, E. D. Arkansas. June 4, 1889.) 1. PUBLIC LANDS-TITLE FROM STATE-RECITAL IN PATENT. Recitals in the patents of the state are deemed to be made upon suggestion of the grantee. 2. SAME-DEEDS-RECITALS-PAROL EVIDENCE. The recitals in a deed constitute a part of the title. The acceptance of a deed by a grantee makes its recitals evidence against him, and parol evidence is inadmissible to contradict or vary them. 8. SAME-SWAMP LANDS-GRANT TO STATE STATES. SUBSEQUENT SALE BY UNITED The grant of the swamp lands to the state by the act of congress of September 28, 1850, passed the title from its date, and after that time the United States could not make a sale of such lands that would divest the rights of the state under that act. But where the United States sold such lands subsequent to the grant, it was competent for the state to confirm the title of the purchaser from the United States; and that was done by the acts approved January 11. 1851, and December 14, 1875. By these acts the state's title to all swamp lands sold by the United States after the 28th of September, 1850, is vested in the purchasers of such lands from the United States, except in cases where such lands had been sold by the state, or persons had acquired a pre-emption or other vested right to them under the laws of the state prior to their sale by the United States. 4. SAME. It has been the constant and uniform policy of the state of Arkansas and the United States to avoid confusion and conflict in the title to swamp lands growing out of the delay in their selection and confirmation, and their sale in the mean time by the United States. This policy has been carried out by the state confirming the titles of the purchasers of such lands from the United States, and accepting in lieu thereof the purchase money received therefor by the United States, which the latter, by the acts of congress approved March 2, 1855, and March 3, 1857, agrees to pay over to the state. 5. SAME-APPLICATION TO PURCHASE. By law, one applying to the commissioner of state lands to purchase swamp lands, under the act of March 18, 1879, is required to prove by affidavit, before the commissioner, and to be filed in his office, the existence of certain facts. Held, following Rice v. Harrell, 24 Ark. 402, that the proof of these facts in the mode prescribed by law is a condition precedent to the right of the applicant to purchase, and to the authority of the commissioner to sell, lands, under that act. |