511 The finding of facts made in the su 14, 1878 (20 Stat. at L. 113, chap. 190), *Mr. Justice Day, after making the forecannot be deemed to have been violated by going statement, delivered the opinion of an agreement by one who had made an entry the court: thereunder to convey his claim to a proposed partnership as soon as he should acquire tltle from the government, in view of the fail-preme court of Oregon is binding upon this ure of that act to require, as in the case of court and will be the basis of decision here. homestead entries, that the entryman shall Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 make affidavit before final certificate that no Sup. Ct. Rep. 300; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452. interest in the land has been alienated. [No. 169.] It appears that Adams made the entry under the timber culture act before the part Argued March 3, 1904. Decided March 21, nership agreement was entered into, and 1904. there is nothing in the record to show that, in taking the preliminary oath required by IN ERROR to the Circuit Court of Mal- the statute, he acted otherwise than in good heur County, State of Oregon, to re- faith, and stated the truth as to the situa review a decree entered by direction of the tion and his purpose in making the entry. Supreme Court of that State, sustaining the As recited in the title, the purpose of the claim that the assets of a partnership in-act is to encourage the growth of timber on cluded an interest in a tract of land ac quired by one of the partners under the timber culture act, before the formation of the partnership. Affirmed. Statement by Mr. Justice Day: This is an appeal from a decree of the circuit court of Malheur county, state of Oregon, entered by direction of the supreme court of Oregon. the Western prairies, and it is intended to induce settlers to plant and cultivate trees with a view to receiving a patent of the lands thus improved. Section 2 of the act (20 Stat. at L. 113, chap. 190) requires the person applying for the benefit of the law to make affidavit that he is the head of a family (or over twenty-one years of age) and a citizen of the United States, or has declared his intention to become such; that the land specified is devoid of timber; that The action originated in a suit by Steel the entry is made for the cultivation of against Adams to settle the affairs of a co- timber for the exclusive use and benefit of partnership theretofore carried on by the the applicant; that the application is made parties, and, so far as a Federal question in good faith, and not for the purpose of is concerned, involves the right of the plain- speculation, or directly or indirectly for the tiff below to have conveyed to him an in- use or benefit of any other person or perterest in a certain tract of land, acquired sons whomsoever; that affiant intends to by Adams under the timber culture act, be- hold and cultivate the land and to comply fore the formation of the partnership. 20 with the provisions of the act, and has not Stat. at L. 113, chap. 190. The defendant de- made other entry under the law. Before a nies that this tract of land was included in final certificate can be given or patent issue, the partnership property. Upon appeal to eight years must elapse from the date of the supreme court of Oregon, upon whose di- entry, and if, at the expiration of that time, rection the decree was entered, it was found or within five years thereafter, the person that at the time of the formation of the making the entry, or, in event of death, his partnership Adams was the owner of a tim-heir or legal representative, shall prove by ber culture claim covering the land in controversy, and the contention of the plaintiff that it was agreed and understood at the time of forming the partnership that such claim should be conveyed to and become a part of the assets of the firm as soon as Adams should acquire title from the gov ernment was sustained. The Federal question made is that such agreement is void as against the statutes and policy of the United States. Messrs. R. J. Slater and Will R. King for plaintiff in error. Messrs. Alonzo H. Stewart and Joseph Simon for defendant in error. 24 S. C.-33. two credible witnesses that he, she, or they have planted, and for not less than eight years have cultivated and protected, the required quantity and character of trees; that not less than twenty-seven hundred trees were planted on each acre, and that at the time of making such proof there shall be then growing six hundred and seventy-five living and thrifty trees on each acre, a patent shall issue for the land. It is the contention of the plaintiff in error that these provisions demonstrate the policy of the law to grant the lands in question to the person filing the entry, his heirs and legal representatives, and none other; and that to make the sale of an interest in the lands to another as a partner. *514 *515 as is found to have been done in this case, I of the government." But this case is very is void as against public policy. It is point- far from supporting the contention of the ed out that the final affidavit, required by plaintiff in error as to the construction of the rules and regulations of the General the timber culture act. There is no requireLand Office, made under authority of § 5 of ment in the latter act that the entryman the act, is to be in the same terms as the shall make oath that he has not alienated preliminary one, and requires the claimant any interest in the land. The policy of the to make oath that his entry was made in government to require such affidavit when good faith, and not for the purpose of spec-it intends to make it a condition precedent ulation or indirectly for the benefit of any other person whomsoever. This requirement and the general purpose indicated in the terms of the act, it is argued, bring the case within the reasoning and spirit of Anderson v. Carking, 135 U. S. 483, 34 L. ed. 272, 10 Sup. Ct. Rep. 905. In that case it was held that a court of equity would not grant a decree for specific performance of an agreement to sell the interest of the homesteader, made after settlement and before the oath is filed for final certificate. But the homestead act specifically requires that the applicant shall make affidavit before entry is made that it is for the purpose of actual settlement and cultivation, and not directly or indirectly for the use or benefit of any other person. Rev. Stat. § 2290 (U. S. Comp. Stat. 1901, p. 1389). Further, the final proof requires affidavit by the applicant "that no part of such land has been alienated except as provided in § 2288 (U. S. Comp. Stat. 1901, p. 1385)." Rev. Stat. § 2291 (U. S. Comp. Stat. 1901, p. 1390), which section limits the right of alienation to “church, cemetery, or school purposes, or for the right of way for railroads." In this state of the law, this court, in the Anderson Case, in an opinion by Mr. Justice Brewer, sustained the contention in behalf of Anderson "that the homestead is a gift from the government to the homesteader, conditioned upon his occupation for five years, and upon his making no disposition or alienation during such term; that the affidavit of nonalienation is as clear an expression of the legislative intent as a direct prohibition; that the whole policy of government in this respect would be thwarted if the homesteader were permitted to alienate prior to the expiration of the five years; that a successful alienation could be accomplished only by perjury, and an attempted alienation would only offer a constant inducement to the homesteader to abandon his occupation, and thus deprive the purchaser of any possibility of acquiring title to the land; that a contract whose consummation necessarily rests on perjury is illegal." And that courts of equity would not enforce the performance of such contracts "founded upon perjury and entered into in defiance of a clearly expressed will to granting a title was indicated in the homestead act, and could readily have been pursued by a similar provision in the timber culture act if it was intended to ex tend the principle to that statute. The final proof under the latter act has in view sworn testimony that the number of trees required has been planted, and the prairies theretofore barren of timber have been supplied with trees to the extent required by the law before the title shall pass from the government. The policy of the homestead act, no less than in the specific statement in the final oath, looks to a holding for a term of years by an actual settler with a view to acquiring a home for himself. In encouragement of such settlers, and none others, homesteads have been freely granted by the government. This conclusion is in conformity with the decisions of the Land Department in Sims v. Busse, 4 Land Dec. 309, and United States v. Read, 5 Land Dec. 313. In these cases the right of the timber culture entryman to dispose of his holding, acquired by him in good faith, before the final certificate, is fully recognized. It is argued that, conceding these decisions to hold that such entryman can sell his claim after entry and before final proof, it does not follow that he can sell it and agree to prove up the entry claim and obtain a patent with a promise to convey it to another, without violating the policy of the law. But as the law does not require affidavit before final certificate that no interest in the land has been sold, we perceive no reason why such contract as was found to exist by the supreme court of Oregon would vitiate the agreement to convey after the certificate is granted and the patent issued. If the entryman has complied with the statute and made the entry in good faith, in accordance with the terms of the law and the oath required of him upon making such entry, and has done nothing inconsistent with the terms of the law, we find nothing in the fact that, during his term of occupancy, he has agreed to convey an interest, to be conveyed after patent issued, which will defeat his claim and forfeit the right acquired by planting the trees and complying with the terms of the law. Had Congress intended such result to follow from the alienation of an interest after entry in good faith, it would have so declared *517 *448 The contention of the plaintiffs is that the company was liable in any event for injuries caused by its negligence to one*riding on its trains; and further, that if it were not liable for such negligence to one accepting a free pass containing the stipulation quoted, it was liable to Mrs. Boering, CHESAPEAKE BEACH RAILWAY COM- because it did not appear that she knew or PANY. Carriers assumption of risk by free passenger-knowledge of condition in rail way pass. ▲ stipulation in a free railway pass, requiring the user to assume the risk of injury due to the carrier's negligence, is binding on a person accepting the privilege, although notice of such stipulation may not have been brought home to her. [No. 174.] assented to the stipulation. The trial court submitted to the jury the question whether she was, in fact, a free passenger, and as the verdict was in favor of the defendant, that question of fact was settled in favor of the company. Under those circumstances the recent decision of this court in Northern P. R. Co. v. Adams, 192 U. S. 440, ante, p. 408, 24 Sup. Ct. Rep. 408, disposes of the first contention. With reference to the second contention, the testimony of the two plaintiffs showed that the husband had attended to securing Argued March 4, 1904. Decided March 21, transportation; that he obtained passes for IN 1904. himself and wife, and that they had traveled on these passes before; that she knew the N ERROR to the Court of Appeals of difference between passes (she called them the District of Columbia to review a "cards") and tickets, for on that day her judgment affirming a judgment of the Su-husband had purchased a ticket for a friend preme Court of the District in favor of defendant in an action to recover damages for personal injuries sustained by a passenger on a railway, riding upon a free pass. Affirmed. See same case below, 20 App. D. C. 500. The facts are stated in the opinion. Messrs. Charles F. Carusi, Charles H. Merillat, and Eugene Carusi & Sons for plaintiff in error. Messrs. Frederic D. McKenney and John Spalding Flannery for defendant in error. who was traveling with them, and she had seen him use both ticket and passes. They further testified that she had not had either pass in her possession, and that her attention had not been called to the stipulation. Now, it is insisted that the exemption from liability for negligence results only from a contract therefor; that there can be no contract without knowledge of the terms thereof and assent thereto, and that she had neither knowledge of the stipulation nor assented to its terms; that therefore there was no contract between her and the company exempting it from liability for negligence. *Mr. Justice Brewer delivered the opin- Counsel refer to several cases in which it ion of the court: has been held that stipulations in contracts This was an action brought in the su- for carriage of persons or things are not preme court of the District of Columbia to binding unless notice of those stipulations is recover damages for personal injuries sus-brought home to such passenger or shipper. tained by Mrs. Boering while riding in one We do not propose in any manner to qualify of the coaches of the defendant, and caused, or limit the decisions of this court in respect as alleged, by the negligence of the com- to those matters. They are not pertinent pany. Her husband was joined with her as to this case. They apply when a contract plaintiff, but no personal injury to him was for carriage and shipment is shown. When alleged. The defense was that she was rid- that appears it is fitting that any claim of ing upon a free pass, which contained the limitation of the ordinary liabilities arisfollowing stipulation: "The person accepting from such a contract should not be recing and using this pass thereby assumes all ognized unless both parties to the contract risk of accident and damage to person and assent, and that assent is not to be pre1. See Carriers, vol. 9, Cent. Dig. §§ 1253, 1255. ⚫450 802. sumed, but must be proved. Here there was no contract of carriage, and that fact was known to Mrs. Boering. She was simply given permission to ride in the coaches of the defendant. Accepting this privilege, she was bound to know the conditions thereof. She may not, through the intermediary of an agent, obtain a privilege-a mere license --and then plead that she did not know upon what conditions it was granted. A carrier is not bound, any more than any other owner of property, who grants a privilege, to hunt the party to whom the privilege is given, and see that all the conditions attached to it are made known. The duty rests rather upon the one receiving the privilege to ascertain those conditions. In Quimby v. Boston & M. R. Co. 150 Mass. 365, 5 L. R. A. 846, 23 N. E. 205, a case of one traveling on a free pass, and in which the question of the assent of the holder of the pass was presented, the court said (p. 367, L. R. A. p. 847, N. E. p. 205): "Having accepted the pass, he must have done so on the conditions fully expressed therein, whether he actually read them or not. Squire v. New York C. R. Co. 98 Mass. 239, 93 Am. Dec. 162; Hill v. Boston, H. T. & W. R. Co. 144 Mass. 284, 10 N. E. 836; Boston & M. R. Co. v. Chipman, 146 Mass. 107, 14 N. E. 940." So in Muldoon v. Seattle City R. Co. 10 Wash. 311, 313, 38 Pac. 995, 996: "We think it may be fairly held that a person receiving a ticket for free transportation is bound to see and know all of the conditions printed thereon which the carrier sees fit to lawfully impose. This is an entirely different case from that where a carrier attempts to impose conditions upon a passenger for hire, which must, if unusual, be brought to his notice. In these cases of free passage, the carrier has a right to impose any conditions it sees fit as to time, trains, baggage, connections, and, as we have held, damages for negligence; and the recipient of such favors ought, at least, to take the trouble to look on both sides of the paper before he attempts to use them." See also Griswold v. New York & N. E. R. Co. 53 Conn. 371, 55 Am. Rep. 115, 4 Atl. 261; Illinois C. R. Co. v. Read, 37 Ill. 484, 510, 87 Am. Dec. 260. As was well observed by Circuit Judge Putnam in Duncan v. Maine C. R. Co. 113 Fed. 508, 514, in words quoted with approval by the court of appeals in this case: "The result we have reached conforms the law applicable to the present issue to that moral sense which justly holds those who accept gratuities and acts of hospitality to perform the conditions on which they are granted." We see no error in the record, and the judgment of the Court of Appeals is af firmed. (193 U. S. 504) GRANVILLE RIPPEY, Piff. in Err, D. STATE OF TEXAS. Constitutional law-validity of local option law-discrimination in favor of prohibit ory vote. The 14th Amendment to the Federal Constitution is not violated by the provisions of Tex. Rev. Stat. art. 3395, which make a majority vote in favor of the prohibition of the liquor traffic in a county or precinct a bar to the resubmission of the question to the voters of any political subdivision thereof until after prohibition has been defeated at a subsequent election in the entire county or precinct, while the failure to carry prohibition in a county is no bar to the immediate resubmission of the question to the voters of Its political subdivisions, and the corresponding failure in town or city is no bar to the immediate resubmission of the question to the voters of the larger territory. [No. 273.] Argued March 11, 1904. Decided March 21, 1904. N ERROR to the Court of Criminal Ap IN peals of the State of Texas to review a judgment which affirmed a conviction in the county court of Grayson County in that State for selling intoxicating liquors in a precinct which had, by a majority vote of its electors, prohibited such sales. Affirmed. See same case below, 73 S. W. 15. The facts are stated in the opinion. Messrs. George Clark, D. C. Bollinger, Francis M. Etheridge, and Rhodes S. Baker for plaintiff in error. Messrs. C. K. Bell and T. S. Reese for defendant in error. Mr. Justice Holmes delivered the opinion of the court: The plaintiff in error was convicted of selling intoxicating liquors contrary to vote of his precinct prohibiting such sale. This vote was in pursuance of a statute which the plaintiff in error alleges to be contrary to the 14th Amendment of the Constitution of the United States. The question was raised at the outset by a motion to quash, which was overruled, subject to exception; the exception was overruled on appeal, and the case was brought here by writ of error. The Constitution of Texas, art. 16, § 20, required the legislature to enact a law by 60* United States. It is a question of the power of the state as a whole. Missouri v. Dookery, 191 U. S. 165, 171, ante, p. 53, 24 Sup. Ct. Rep. 53. But the state has power to prohibit the sale of intoxicating liquors altogether, if it sees fit (Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. which the majority of qualified voters of law, it encounters the Constitution of the any county, justice's precinct, town, or city, from time to time might determine whether the sale of intoxicating liquors should be prohibited. The legislature thereupon enacted what now are articles 3384-3399 of the Revised Statutes, and articles 402-407 of the Penal Code. These all are assailed,| but the particular object of attack is art. 273), and that being so it has power to pro3395. Article 3395 is as follows: hibit it conditionally. It does not infringe the Constitution by giving those in favor of Art. 3395. [3238] The failure to carry the sale a chance which it might have prohibition in a county shall not prevent denied. It is true that the greater does not an election for the same being immediately always include the less. A man may give thereafter held in a justice's precinct or his*property away, yet he may not contract subdivision of such county as designated by with a carrier to take the risk of the latter's the commissioners' court, or of any town or negligently injuring it, or part with it on city in such county; nor shall the failure to the valuable consideration of a wager. But, carry prohibition in a town or city pre in general, the rule holds good. It does vent an election from being immediately here. The state has absolute power over the thereafter held for the entire justice's pre- subject. It does not abridge that power by cinct or county in which said town or city adopting the form of reference to a local is situated; nor shall the holding of an vote. It may favor prohibition to just such election in a justice's precinct in any way degree as it chooses, and to that end may prevent the holding of an election imme- let in a local vote upon the subject as much diately thereafter for the entire county in or as little as it may please. There is no which the justice's precinct is situated; but such overmastering consideration of exwhen prohibition has been carried at an pediency attaching everywhere and always election ordered for the entire county, no to the form of voting, still less is there any election on the question of prohibition shall such principle to be drawn from the 14th be thereafter ordered in any justice's pre- Amendment, as requires the two sides of a cinct, town, or city of said county until vote on prohibition to be treated with equal after prohibition has been defeated at a sub-favor by the state, the subject-matter of the sequent election for the same purpose, or vote being wholly within the state's control. dered and held for the entire county, in ac- The only chance for the plaintiff in error to cordance with the provisions of this title; prevail was under the state Constitution. nor in any case where prohibition has car- He has no case under the Constitution of the ried in any justice's precinct shall an elec- United States. tion on the question of prohibition be ordered thereafter in any town or city of such precinct until after prohibition has been defeated at a subsequent election, ordered and held for such entire precinct. It will be seen that this section discriminates in favor of those who vote for prohibition; and the argument is that since the legislature was not authorized to pass a prohibitory law (Dawson v. State, 25 Tex. App. 670. 674, 675, 8 S. W. 820), but was required to leave the question to a local vote, it necessarily created a pure democracy to that extent, and therefore could not interfere with the equality of the voters in their right to propose or carry a law. Many questions would have to be answered before so speculative a piece of ratiocination could be followed. But we think it may be dealt with in short space, so far as is necessary to decide this case. We follow the state court, of course, as to the state Constitution, and assume that the law is not invalid under that. The question for us is whether, if the state Constitution undertakes to authorize such a Judgment affirmed. (193 U. S. 517) TOM HONG, alias Hom Poe, Appt., v. 510 |