PENALTIES AND FORFEITURES.

1. Judiciary limited to infliction of what.

Penalties which are not authorized by the law cannot be inflicted by
judicial authority. Standard Oil Co. v. United States, 1.

2. Reason for distinction in penalties prescribed; duty of court as to.
Where a distinction is plainly made in an act of Congress prescribing
penalties as to different classes of the offense, the court need not
search for the reason for making the distinction but must give it
effect. American Lithographic Co. v. Werckmeister, 603.

See CONTEMPt of Court,

2, 3;
COPYRIGHTS;

CRIMINAL LAW, 4, 5;

NATIONAL BANKS;

TRADE-MARKS, 3.

PHILIPPINE ISLANDS.

1. Criminal law; necessity for indictment.

The Bill of Rights of the Philippine Islands does not require convic-
tions to be based on indictment; nor does due process of law require
presentment of an indictment. (Hurtado v. California, 110 U. S.
516.) Dowdell v. United States, 325.

2. Trial by jury; right to.

In the absence of legislation by Congress, there is no right in the
Philippine Islands to require trial by jury in criminal cases. (Dorr
v. United States, 195 U. S. 138.) Ib.

3. Record on appeal; additional; effect of "face to face" provision of Bill
of Rights.

The "face to face" provision of the Philippine Bill of Rights does not
prevent the judge and clerk of the trial court from certifying as
additional record to the appellate court what transpired on the
trial of one convicted of a crime without the accused being present
when the order was made. Ib.

4. Practice as to form of record on appeal not objectionable under Con-
stitution.

There is no valid objection based on the Constitution of the United

States to the practice of the Supreme Court of the Philippine Is-
lands adopted in this case for determining in what form it will
accept the record of the court below. Ib.

5. Witnesses in criminal prosecution; provision in § 6 of act of July 1,
1902, construed.

The provision in § 5 of the Philippine act of July 1, 1902, c. 1369, 32
Stat. 691, that in all criminal prosecutions the accused shall meet

VOL. CCXXI-45

the witnesses face to face is substantially the provision of the
Sixth Amendment; is intended thereby that the charge shall be
proved only by such witnesses as meet the accused at the trial
face to face and give him an opportunity for cross-examination.
It prevents conviction by ex parte affidavits. Ib.

6. Land grants; status of Governor General under Spanish rule.
The Governor General of the Philippine Islands under Spanish rule
possessed all the powers of the King except where otherwise pro-
vided, and a grant of lands made by him was valid unless in vio-
lation of law specially prohibiting him from making it. Jover v.
Insular Government, 623.

7. Land grants; exaction of taxes as evidence of validity.
Where the local authorities in the Philippine Islands, with full knowl-
edge of the circumstances under which a grant was made, imposed
taxes on the property for many, in this case thirty-nine, years, it
is persuasive proof that the grant was valid and that the Gov-
ernor General did not exceed his authority in making it. Ib.

8. Land grants; tide lands; effect to defeat, of failure to reclaim.
A grant of tide lands, although made upon condition of reclamation,
is not defeated by failure to reclaim if the granting words import
a present and immediate transfer of ownership; and so held as to
a grant of such lands in the Philippine Islands where the grantee
was "granted possession and ownership," and there was no ex-
press condition either precedent or subsequent that the land be
reclaimed within any definite period. Ib.

See APPEAL AND ERROR, 2;

CUSTOMS LAW, 2, 3, 4;

FEDERAL QUESTION, 1;
SPAIN, 2.

PLEADING.

1. Amendment by striking out untenable prayer.

Where a suit is for damages caused by erection of a dyke and for re-
moval of the dyke the prayer for removal can be stricken out
without depriving the court of jurisdiction to hear and determine
the prayer for damages. Hopkins v. Clemson College, 636.

2. Cure of omission in complaint.

An omission in the complaint can be cured by an allegation in the
answer. (United States v. Morris, 10 Wheat. 246.) Texas & New
Orleans R. R. Co. v. Miller, 408; Texas & New Orleans R. R. Co.
v. Gross, 417.

See CONSTITUTIONAL LAW, 18;

CRIMINAL LAW, 2;
EXTRADITION, 10.

PLEADING AND PROOF.

See EXTRADITION, 8, 9.

POLICE POWER.

See CONSTITUTIONAL LAW, 5;

STATES, 4.

PRACTICE AND PROCEDURE.

1. Noticing plain error not assigned.

This court, under Rule 21, can and in this case, as the appeal was taken
before the decision in Realty Co. v. Rudolph, will, notice a plain
error of fact even if unassigned. Briscoe v. District of Columbia,
547.

2. Question of actual fraud precluded by findings of lower courts.
Both courts below having found that no actual fraud was intended in
this case, this court considered only the question of constructive
fraud. Merillat v. Hensey, 333.

3. Review of decision of state court construing foreign statute.

This court will not disturb the decision of the courts of Texas that the
act of Louisiana of 1884, giving a right of action to relatives of
persons killed by negligence of another, repealed the provisions
in the charter of a railroad company granted in 1878 exempting
it from liability for a person killed by its negligence; and the act
of 1884 is not unconstitutional as impairing any contract obliga-
tion in such charter. Texas & New Orleans R. R. Co. v. Miller,
408; Texas & New Orleans R. R. Co. v. Gross, 417.

4. Who may raise question as to constitutionality of state statute.
The question of whether a statute allows a depositor or his heirs a
lower rate of interest on a deposit turned over to the State as
abandoned than allowed by the bank amounts to a deprivation
of property without due process of law within the Fourteenth
Amendment cannot be raised by the bank as against the State.
Provident Savings Institution v. Malone, 660.

5. Who may attack constitutionality of act of Congress; quære as to.
Quare whether the constitutionality of an act of Congress limiting a

right of conveyance by a class of Indians can be questioned by
the grantee of an Indian of that class on the ground that it deprives
the Indian of his property without due process of law. Tiger v.
Western Investment Co., 286.

6. Mandate on modification of decree below; when reversal proper course.
Where a case is remanded, as this one is, to the lower court with direc-

tions to grant the relief in a different manner from that decreed
by it, the proper course is not to modify and affirm, but to reverse
and remand with directions to enter a decree in conformity with
the opinion and to carry out the directions of this court with costs
to defendants. United States v. American Tobacco Co., 106.

Individual rights not enlarged by others refraining from exercise to harm
of public.

The rights of one to do that which if done by all would work public

harm and injury are not greater because others refrain from exer-
cising such rights. Fifth Avenue Coach Co. v. New York, 467.

1. Desert lands; assignability of entries.

Under the Desert Land Act of March 3, 1877, c. 107, 19 Stat. 377, as
added to by the act of March 3, 1891, c. 561, 26 Stat. 1096, a desert
land entry is assignable. United States v. Hammers, 220.

2. Desert land entries; assignability; practice of Land Department con-
sidered in determining.

There is confusion between the original desert land act of 1877 and the
act as amended in 1891 as to whether entries can be assigned, and
the court turns for help to the practice of the Land Department in
construing the act, and that has uniformly been since 1891 that
entries were assignable. Ib.

3. Grants to States; grant to Utah construed as to saline lands included.
The words "110,000 acres of land
and including all the
saline lands in the State" as used in § 8 of the Utah Enabling
Act are not to be construed as a grant of such salines in addition
to the 110,000 acres, but simply as conferring on the State the
right, which it would not otherwise have, of including saline
lands within its selections for the 110,000 acres.

Co. v. Utah, 452.

4. Grants of saline lands to States.

Montello Salt

This construction is in harmony with the uniform policy of Congress
in connection with grants to the States of saline lands. Ib.