presume that it could not be because of the form of the deed in the absence of words expressing or implying warranty, but would be peculiar to this class of cases. We suppose that, in the absence of a statute specially dealing with the matter, either the title would be taken to relate back, or it would be held that a permitted conveyance, before the Government has given a legal title to any one, made by a person in process of acquiring a title in the statutory method, would be taken to have contemplated that the grantor should have the benefit of what was done afterwards to perfect it. Those propositions we are not called upon to discuss. See Landes v. Brant, 10 How. 348; United States v. Clark, 200 U. S. 601, 607; Rev. Stat., § 2448.

Other matters were argued, as, for instance, whether parol evidence should have been received to show that the first deed was intended to be conditional, although absolute in form; the effect of the second deed and the condition that it expressed, the statute of limitations and so forth. But the only questions open, on the most liberal interpretation, are those that we have answered, and it follows without more that the judgment must be affirmed.

Affirmed.

EL PASO & NORTHEASTERN RAILWAY COMPANY v. GUTIERREZ, ADMINISTRATRIX.

ERROR TO THE SUPREME COURT OF THE STATE OF TEXAS.

No. 505. Submitted October 11, 1909.-Decided November 15, 1909. Where the effect of the judgment of the state court is to deny the defense that a statute of a Territory is a bar to the action, a claim of Federal right is denied and this court has jurisdiction under § 709, Rev. Stats., to review the judgment. Atchison, Topeka & Santa Fe Ry. v. Sowers, 213 U. S. 55.

The power of Congress to regulate commerce in the District of Columbia and Territories is plenary and does not depend on the commerce

Argument for Plaintiff in Error.

215 U.S.

clause, and a statute regulating such commerce necessarily supersedes a territorial statute on the same subject.

An act of Congress may be unconstitutional as measured by the commerce clause, and constitutional as measured by the power to govern the District of Columbia and the Territories, and the test of separability is whether Congress would have enacted the legislation exclusively for the District and the Territories.

The rule that the court must sustain an act of Congress as constitutional unless there is no doubt as to its unconstitutionality also requires the court to sustain the act in so far as it is possible to sustain it. This court did not in its decision of the Employers' Liability Cases, 207 U. S. 463, hold the act of June 11, 1906, c. 3073, 34 Stat. 232, unconstitutional so far as it related to the District of Columbia and the Territories, and expressly refused to interpret the act as applying only to such employés of carriers in the District and Territories as were engaged in interstate commerce.

The evident intent of Congress in enacting the Employers' Liability Act of June 11, 1906, was to enact the curative provisions of the law as applicable to the District of Columbia and the Territories under its plenary power irrespective of the interstate commerce feature of the act, and although unconstitutional as to the latter as held in 207 U. S. 463, it is constitutional and paramount as to commerce wholly in the District and Territories.

The Employers' Liability Act of June 11, 1906, being a constitutional regulation of commerce in the District of Columbia and the Territories necessarily supersedes prior territorial legislation on the same subject and non-compliance by the plaintiff employé with a provision of a territorial statute (in this case of New Mexico) cannot be pleaded by the defendant employer as a bar to an action for personal injuries.

117 S. W. 426, affirmed, and Hyde v. Southern Ry. Co., 31 App. D. C. approved.

THE facts, which involve the constitutionality of the Employers' Liability Law of June 11, 1906, c. 3073, 34 Stat. 232, as applied to the Territories of the United States, are stated in the opinion.

Mr. W. C. Keegin, Mr. W. A. Hawkins and Mr. John Franklin for plaintiff in error:

This court has jurisdiction to review the judgment of the

215 U.S.

Argument for Defendant in Error.

state court of Texas; the plaintiff in error as defendant below asserted the unconstitutionality of the Employers' Liability Act and that this case was controlled by the statute of New Mexico. The denial of this claim was the denial of a Federal right. St. Louis &c. Ry. Co. v. Taylor, 210 U. S. 281, 293; Ill. Cent. R. R. Co. v. McKendree, 203 U. S. 514. The statute of New Mexico has been upheld in this court. A., T. & Santa Fe Ry. v. Sowers, 213 U. S. 55. The Employers' Liability Act is void in toto. The decision of this court in 207 U. S. 463, forecloses that question. The statute is not separable as nothing shows that Congress would have enacted it exclusively as to the Territories. Sprague v. Thompson, 118 U. S. 90.

Mr. F. G. Morris for defendant in error:

This court does not have jurisdiction of the appeal. The New Mexico statute did not create a right of action but only improved conditions. Klinger v. Missouri, 13 Wall. 257; Eustis v. Bolles, 150 U. S. 361; Beaupré v. Noyes, 138 U. S. 397.

The decision that the act of Congress and not the territorial statute controlled the case does not deny full faith and credit to the territorial statute. United States v. Lynch, 137 U. S. 280; Balto. & Pot. R. R. Co. v. Hopkins, 130 U. S. 210; Johnson v. New York Life Ins. Co., 187 U. S. 491; Smithsonian Institution v. St. John, 214 U. S. 19.

No Federal right exists under a territorial statute in a state court which will support a writ of error from this court other than that provided for by the statute requiring it to be given full faith and credit. A., T. & Santa Fe Ry. v. Sowers, 213 U. S. 55.

The Employers' Liability Act is within the power of Congress to enact so far as applicable to the District of Columbia and the Territories, and that question is not affected by the decision of this court in 207 U. S. 463, which related only to the act as applicable to the States. The provisions as to the

District of Columbia and the Territories are separable from those as to the States and would have been independently enacted by Congress. Hyde v. Southern Ry. Co., 31 App. D. C. 466; Vial v. Penniman, 103 U. S. 714; Diamond Glue Co. v. United States Glue Co., 187 U. S. 611; Florida Cent. R. R. Co. v. Schutte, 103 U. S. 118.

MR. JUSTICE DAY delivered the opinion of the court.

In this case an action was commenced by Enedina Gutierrez, as administratrix of the estate of Antonio Gutierrez, in the District Court of El Paso County, Texas, against the El Paso and Northeastern Railway Company, to recover damages because of the death of the plaintiff's intestate by wrongful act while engaged in the service of the railway company, a common carrier in the Territory of New Mexico, on June 22, 1906. By way of special plea and answer the railway company set up a statute of the Territory of New Mexico, wherein it is provided that no actions for injuries inflicting death caused by any person or corporation in the Territory shall be maintained, unless the person claiming damages shall, within ninety days after the infliction of the injury complained of and thirty days before commencing suit, serve upon the defendant an affidavit covering certain particulars as to the injuries complained of, and containing the names and addresses of all witnesses of the happening of the alleged acts of negligence. Suit must be brought within one year, and in the District Court of the Territory in and for the county in which the injuries were received, or where the injured person resides; or, in a claim against a corporation, in the county of the Territory where the corporation has its principal place of business. This act is set out in full in the marginal note to the case of Atchison, Topeka & Santa Fe Ry. Co. v. Sowers, 213 U. S. 55.

The special answer sets forth that the accident happened in the Territory of New Mexico, while the statute was in full force, and that its terms and provisions were not complied with.

To the special answer the plaintiff below interposed a demurrer, and further, by way of supplemental petition, set forth that the injuries complained of happened after the passage of the so-called Employers' Liability Act, June 11, 1906, c. 3073, 34 Stat. 232. This act, the plaintiff alleged, controlled the liability of the defendant in the case. The District Court sustained the demurrer of the plaintiff to that part of the defendant's answer which set up the territorial act of New Mexico, to which ruling the railway company duly excepted. The case then went to trial to a jury upon issues made concerning the liability of the railway company under the Federal Employers' Liability Act of June 11, 1906. 34 Stat. 232. The result was a verdict and judgment in favor of the plaintiff against the railway company. The case was then taken to the Court of Civil Appeals of Texas, and that court held that it would not be governed by the territorial statutes, and that the Employers' Liability Act of June 11, 1906, was unconstitutional, upon the authority of Employers' Liability Cases, 207 U. S. 463, and certain cases in the Texas Court of Appeals. Upon rehearing a majority of the court held that the provisions of the New Mexico act as to the presentation of notice of claim for damages was a condition precedent to a cause of action, and that the trial court therefore erred in sustaining plaintiff's exception to that part of the defendant's answer which pleaded the territorial act and plaintiff's failure to present her claim in accordance with it. 111 S. W. Rep. 159. Thereupon the defendant took the case to the Supreme Court of Texas by writ of error, and that court held that the case was controlled by the act of Congress known as the Employers' Liability Act, 34 Stat. 232, and that the same was constitutional, and therefore held that the judgment of the Court of Civil Appeals should be reversed, and the original judgment of the District Court affirmed. 117 S. W. Rep. 426. From the judgment of the Supreme Court of the State a writ of error was prosecuted to this court.

Among other errors assigned is the failure of the Supreme