Burke v. Southern Pac. R. Co.

Ninth Circuit

Burke v. Southern Pac. R. Co.

225 F. 370, 140 C.C.A. 394, 1915 U.S. App. LEXIS 2109

CourtCourt of Appeals for the Ninth Circuit

DecidedJuly 12, 1915

StatusPublished

This text of 225 F. 370 (Burke v. Southern Pac. R. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burke v. Southern Pac. R. Co., 225 F. 370, 140 C.C.A. 394, 1915 U.S. App. LEXIS 2109 (9th Cir. 1915).

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Opinion

PER CURIAM.

The appeals from the decree of the court below dismissing the bill and the cross-bill in this case presented to this court questions of law which were thereupon certified to the Supreme Court. The answers of that court to all the questions were adverse to the contentions of the appellants. Burke v. Southern Pacific Railroad Co., 234 U. S. 669, 34 Sup. Ct. 907, 58 L. Ed. 1527. Thereafter the appellant Lamprecht filed a petition in this court, praying that the further question be certified to the Supreme Court, namely: Does the provision, “Provided further that all mineral lands be, and the same are hereby, excluded from the operations of this act,” as the same is contained in the special act of Congress approved July 27, 1866 (14 Stat. 295, c. 278, § 3), expressly withhold from the officers of the Interior Department who administer it and the joint resolution approved June 28, 1870 (16 Stat. 382, No. 87), and the grant made thereby, all power and authority to determine conclusively and adjudicate in any proceeding under said act and joint resolution, what lands are and what lands are not mineral lands?

It is alleged in the petition that this question was not included in the questions which were certified to the Supreme Court, and was not answered [371]*371by that court, and a brief and argument is filed in support of the petition. We are of the opinion that the question so formulated is necessarily involved in the questions which were certified, and is fully met by the answers, thereto. The second question which was certified directed attention to the grant as one which excluded mineral lands, and a portion of the opinion of the Supreme Court is devoted to the discussion of the appellant's contention that mineral lands are excluded from the operation of the grant. Referring to the language of the statute, “that mineral lands be, and the same are hereby, excluded from the operation of this act,” the court said: “Words hardly could make it plainer that mineral lands were not included, but expressly excluded.” To ceriify the question which is now proposed would be a request upon the part of this court that the Supreme Court revise its decision and answer differently the questions which have already been answered.

The petition must be denied, and, as there are no other questions to be disposed of, the decree of the court below is affirmed.

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PER CURIAM.

The appeals from the decree of the court below dismissing the bill and the cross-bill in this case presented to this court questions of law which were thereupon certified to the Supreme Court. The answers of that court to all the questions were adverse to the contentions of the appellants. Burke v. Southern Pacific Railroad Co., 234 U. S. 669, 34 Sup. Ct. 907, 58 L. Ed. 1527. Thereafter the appellant Lamprecht filed a petition in this court, praying that the further question be certified to the Supreme Court, namely: Does the provision, “Provided further that all mineral lands be, and the same are hereby, excluded from the operations of this act,” as the same is contained in the special act of Congress approved July 27, 1866 (14 Stat. 295, c. 278, § 3), expressly withhold from the officers of the Interior Department who administer it and the joint resolution approved June 28, 1870 (16 Stat. 382, No. 87), and the grant made thereby, all power and authority to determine conclusively and adjudicate in any proceeding under said act and joint resolution, what lands are and what lands are not mineral lands?

It is alleged in the petition that this question was not included in the questions which were certified to the Supreme Court, and was not answered [371]*371by that court, and a brief and argument is filed in support of the petition. We are of the opinion that the question so formulated is necessarily involved in the questions which were certified, and is fully met by the answers, thereto. The second question which was certified directed attention to the grant as one which excluded mineral lands, and a portion of the opinion of the Supreme Court is devoted to the discussion of the appellant's contention that mineral lands are excluded from the operation of the grant. Referring to the language of the statute, “that mineral lands be, and the same are hereby, excluded from the operation of this act,” the court said: “Words hardly could make it plainer that mineral lands were not included, but expressly excluded.” To ceriify the question which is now proposed would be a request upon the part of this court that the Supreme Court revise its decision and answer differently the questions which have already been answered.

The petition must be denied, and, as there are no other questions to be disposed of, the decree of the court below is affirmed.

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225 F. 370, 140 C.C.A. 394, 1915 U.S. App. LEXIS 2109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-southern-pac-r-co-ca9-1915.

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