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In the cases of Villabolos v. United States, and United States v. Curry, decided at the December Term, 1847, and especially in the latter case, it was held, on full consideration, that whether a case was attempted to be brought to this court by writ of error, or appeal, the record must be filed before the end of the term next succeeding the issue of the writ or the allowance of the appeal, or the court had no jurisdiction of the case. This was repeated in the Steamer Virginia v. West,4 Mesa v. United States,5 and United States v. Gomez.6 In Castro v. United States,7 the same question was raised. The importance of the case, together with other considerations, induced the court to consider the matter again at some length. Accordingly, the present Chief Justice delivered an opinion, in the course of which the former cases are considered and the ground of the rule distinctly stated. Other cases followed that, and in Mussina v. Cavazos, decided at the last term, the whole doctrine is again reviewed, and the rule placed distinctly on the ground that this court has no jurisdiction of the case unless the transcript be filed during the term next succeeding the allowance of the appeal. The intelligible ground of this decision is, that the writ of error and the appeal are the foundations of our jurisdiction, without which we have no right to revise the action of the inferior court; that the writ of error, like all other common law writs, becomes functus officio unless some return is made to it during the term of court to which it is return able; that the act of 1803, which first allowed appeals to this court, declared that they should be subject to the same rules, regulations, and restrictions, as are prescribed in law, in writs of error. These principles have received the unanimous approval of this court, and have been acted upon in a large number of cases not reported, besides several reported cases not here mentioned. And the court has never hesitated to act on this rule whenever it has appeared from the record that the case came within it, although no motion to dismiss was made by either party. In fact, treating it as a matter involving the jurisdiction of the court, we cannot do otherwise. In the case of United States v. Curry, Chief Justice Taney, answering the objection that the rule was extremely technical, replied, that nothing could be treated by this court as merely technical, and for that reason be disregarded, which was prescribed by Congress as the mode of exercising the court's appellate jurisdiction. We make the same observavation now, and add, that it is better, if the rule is deemed unwise or inconvenient, to resort to the legislature for its correction, than that the court should depart from its settled course of action for a quarter of a century. We are of opinion that the present case falls within the principle of these decisions. The only appeal that this record shows to have been either asked for or allowed, was that of May 26, 1860. The transcript was not filed during the term next succeeding the allowance of this appeal, nor until January, 1866. Two grounds are assigned as taking the case out of the rule we have stated. 1. It is said that the appeal of 1860 was not perfected until the bond was given under the order of November 14, 1865, and that until this was done there was in fact no appeal which required the transcript to be filed. The answer to this is, that the prayer for the appeal, and the order allowing it, constituted a valid appeal. The bond was not essential to it. It could have been given here, and cases have been brought here where no bond was approved by the court below, and the court has permitted the appellant to give bond in this court.8 In the case of Seymour v. Freer,9 the Chief Justice says, that if, through mistake or accident, no bond or a defective bond had been filed, this court would not dismiss the appeal, but would permit a bond to be given here. And in all cases where the government is appellant, no bond is required. It is not, therefore, an indispensable part of an appeal that a bond should be filed; and the appeal in this case must be held as taken on the 26th day of May, 1860. It is insisted that this view is in conflict with the case of The Dos Hermanos.10 We do not think so. While the argument of counsel on the merits in that case is fully reported, we have nothing from them on the motion to dismiss. The opinion of the court states that the question made was whether the appeal was in due time, and this is answered by saying, it was prayed and allowed within five years from the date of the decree. The appeal was, therefore, taken in due time. It is further said, that the fact that the bond was given after the expiration of the five years, did not vitiate the appeal. This is in full accord with what we have just stated. The bond may be given with effect at any time while the appeal is alive. There is no question made in the present case about the appeal being taken within time. It was taken in time. But the record was not filed in the court in time to save the appeal; and that question was not made or thought of in the Dos Hermanos case. It is perfectly consistent with all that we know of that case, and, indeed, probable, that, though the taking of the appeal was delayed until near the expiration of the five years, and filing the bond until after that period, the transcript was filed at the next term after the appeal was taken. 2. It is next insisted that a new appeal was taken by the proceedings of the 14th November, 1865. This, however, is in direct contradiction of the record. The petition of appellants, after reciting the former decree and the order allowing the appeal of May 26, 1860, and the death of some of the plaintiffs in the suit, and that no appeal-bond had been given, concludes as follows: 'Your petitioners now appear, and pray your honors to allow them to become parties to said appeal, and to perfect the same by now entering into a bond for the appeal.' And the order made is, 'that said petitioners have leave to perfect said appeal, so allowed at the June Term, 1859, of this court, by giving bond, &c.' The only appeal referred to in the petition, or the order of the court, is the appeal allowed May, 1860, and no language is used in either which refers to a new appeal, or which is consistent with such an idea. It is true that the citation speaks of the allowance of the appeal as obtained at the October Term, 1865, but this recital does not prove that an appeal was then allowed, when it stands unsupported by the record. Still less can it be permitted to contradict what the record states to have been done on that subject, at that time. In the case of United States v. Curry, the same facts almost precisely were relied on as constituting a second appeal, that exist in this case, including the misrecital in the citation. But the court says, 'that after very carefully considering the order, no just construction of its language will authorize us to regard it as a second appeal. The citation, which afterwards issued in August, 1847, calls this order an appeal, and speaks of it as an appeal granted on the day it bears date. But this description in the citation cannot change the meaning of the language used in the order.' That is precisely the case before us, and we think the ruling a sound one. The appeal must, for these reasons, be DISMISSED. But, we may add, that for anything we have been able to discover in this record, the appellants have the same right now, whatever that may be, to take a new appeal, that they had in November, 1865, when the unsuccessful effort was made to revive the first one.	1. If if ii apparent from the record that this court has not acquired jurisdiction of a case for want of proper appeal or writ of error, it will be dismissed, although neither party ask it. 2. An appeal or writ of error which does not bring to this court a transcript of the record before the expiration of the term to which it is returnable, is no longer a valid appeal or writ. 3. Although a prayer for an appeal, and its allowance by the court below, constitute a valid appeal though no bond begiven (the bond being to bgiven with effect at any time while the appeal is in force), yet if ho transcript is filed in this court at the term next succeeding the allowance of the appeal, it has lost its vitality as an appeal. . Such vitality cannot be restored by an order of the Circuit Court made afterwards, accepting a bond made to perfect that appeal. Nor does a recital in the citation, issued after such order, that the appeal was taken as of that date, revive the defunct appeal or constitute a new one.
The findings of fact made by the circuit court in its final decree are, in our opinion, amply sustained by the evidence. These findings, and other facts not disputed, establish prima facie the justice and equity of the decree. Upon the facts of the case, the decree of the court is simply to this effect, that where three persons form a partnership, and agree to bear the losses and share the profits of the partnership venture in proportion to their contributions to its capital, and two of the partners furnish all the money and do all the work, they are entitled to be repaid their advances out of its assets before payment of the individual creditors of the partner who paid nothing and did nothing to promote the partnership business. The decree may stand on even stronger grounds. There is no evidence in the record to show that there were any unpaid debts outstanding against the partnership of which Peck and the plaintiffs were the members. The decree of the court is based on the assumption that there were no such debts. The money, therefore, collected on the judgment recovered by Peck's administratrix was assets of the partnership, to which the partners were entitled in proportion to the amount paid in by them, and the record clearly shows that the money so collected was the only assets of the partnership. As McLean and Harmon had paid in all the money, they were entitled to all the money collected on the judgment, not by reason of any right to priority of payment, nor by reason of any lien, but because it was their property, and no other person had any claim to it. The plaintiffs' right to the fund was not at all impaired by the bankruptcy or death of Peck. Their claim was just as strong as if Peck were still living, and had received and collected the judgment in his own name, and the money had been taken from his hands and impounded in the registry of the court. The decree might, therefore, stand on the ground, which it in fact asserts, that the money in controversy was the absolute property of the plaintiffs. The defendant, however, assails the decree on several grounds, which we shall proceed to notice. It was shown by the evidence that on July 20, 1877, Peck executed and delivered to Harmon a paper, of which the following is a copy: 'FORT ABRAHAM LINCOLN, July 20, 1877. 'For value received, I promise to pay to William Harmon, or order, twenty-three thousand dollars, out of moneys I may hereafter receive on account of my claim against the United States government, for contract for wood, at Tongue River cantonment, on the Yellowstone river. 'C. K. PECK.' On the same day be executed and delivered to McLean a paper, similar in terms, for the payment to him of $17,000 out of the same fund. The appellant insists that the contract of partnership between Peck and the plaintiffs, and the promises of Peck above mentioned, were forbidden by the statutes of the United States, and were therefore illegal and void, and gave no rights to the plaintiffs to the fund in controversy. The statutes relied on are sections 3477 and 3737 of the Revised Statutes, which read as follows: 'Sec. 3477. All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.' 'Sec. 3737. No contract or order, or any interest therein, shall be transferred by the party to whom such contract or order is given to any other party, and any such transfer shall cause the annulment of the contract or order transferred, so far as the United States are concerned. All rights of action, however, for any breach of such contract by the contracting parties, are reserved to the United States.' We shall first consider these two sections in their bearing upon the contract of partnership between Peck and the plaintiffs. It is obvious that section 3477, which forbids assignments of claims against the United States, or any interest therein, unless under the circumstances therein stated, can have no reference to such a contract as the partnership articles between Peck and the plaintiffs. When those articles were signed there was no claim against the United States to be transferred. Peck had at that time no contract even with the United States, and there was no certainty that he would have one. What is a claim against the United States is well understood. It is a right to demand money from the United States. Peck acquired no claim in any sense until after he had made and performed wholly or in part his contract with the United States. Section 3477, it is clear, only refers to claims against the United States which can be presented by the claimant to some department or officer of the United States for payment, or may be prosecuted in the court of claims. The section simply forbids the assignment of such claims before their allowance, the ascertainment of the amount due thereon, and the issue of a warrant for their payment. When the contract of partnership was made Peck had no claim which he could present for payment, or on which he could have brought suit. He therefore had no claim the assignment of which the statute forbids. It is so clear that the articles of partnership do not constitute such an assignment as is forbidden by the section under consideration that it would be a waste of words further to discuss the point. Nor are the articles of partnership forbidden by section 3737. They do not transfer the contract, or any interest therein, to the plaintiffs, and cannot fairly be construed to do so. But if the articles of partnership were fairly open to two constructions, the presumption is that they were made in subordination to and not in violation of section 3737, and if they can be construed consistently with the prohibitions of the section they should be so construed; for it is a rule of interpretation that, where a contract is fairly open to two constructions, by one of which it would be lawful and the other unlawful, the former must be adopted. Whart. Ev. § 654; Best, Ev. §§ 346, 347; Shore v. Wilson, 9 Clark & F. 397; Moss v. Bainbrigge, 18 Beav. 478; Lorillard v. Clyde, 86 N. Y. 384; Mandal v. Mandal, 28 La. Ann. 556. Interpreting the articles in the light of the statute, as it is the duty of the court to do, they were not intended to transfer, and do not transfer, to the plaintiffs any claim or demand, legal or equitable, against the United States, or any right to exact payment from the government by suit or otherwise. They may be fairly construed to be the personal contract of Peck, by which, in consideration of money to be advanced and services to be performed by the plaintiffs, he agreed to divide with them a fund which he expected to receive from the United States, on a contract which he had not yet entered into. This is the plainly-expressed meaning of the partnership contract, and it is only by a strained and forced construction that it can be held to effect a transfer of Peck's contract with the United States, and to be a violation of the statute. We are of opinion that the partnership contract was not opposed to the policy of the statute. The sections under consideration were passed for the protection of the government. Goodman v. Niblack, 102 U. S. 556. They were passed in order that the government might not be harassed by multiplying the number of persons with whom it had to deal, and might always know with whom it was dealing until the contract was completed and a settlement made. Their purpose was not to dictate to the contractor what he should do with the money received on his contract after the contract had been performed. One or both of the sections of the statute which we are now considering have been under the review of this court in the following cases: U. S. v. Gillis, 95 U. S. 407; Erwin v. U. S., 97 U. S. 392; Spofford v. Kirk, Id. 484; Goodman v. Niblack, 102 U. S. 556; Bailey v. U. S., 109 U. S. 432; S. C. 3 Sup. Ct. Rep. 272; St. Paul R. Co. v. U. S., 112 U. S. 733; S. C. 5 Sup. Ct. Rep. 366. In none of them is any opinion expressed in conflict with the views we have announced in this case. Our conclusion, therefore, is that the articles of partnership were not forbidden by the letter or policy of this statute. In respect to the papers executed by Peck on July 20, 1877, by which he agreed to pay $23,000 to Harmon and $17,000 to McLean, respectively, 'out of moneys' he might 'thereafter receive on account of' his 'claim against the United States government for contract for wood,' etc., it is plain they confer no new rights on the plaintiffs, and taken away no old ones. The evidence shows that Harmon and McLean were entitled, under the partnership articles, to the money specified in these memoranda. Peck was therefore only promising to do what, on a good consideration, he had already by the articles of partnership promised to do. There was no new consideration for these new promises. The only office, therefore, which the memoranda performed was to show the amount then due the plaintiffs, respectively, under the articles of partnership. It would be a strange conclusion to hold that, by accepting these papers, the plaintiffs lost their right, which they had already acquired under the articles of partnership, to have the money therein mentioned paid over to them when it should be collected by Peck, their copartner. If the obligation assumed by Peck in his articles of partnership was valid and binding, it was not impaired or annulled by the giving and the acceptance of these memoranda. From what we have already said in discussing the articles of partnership, it is clear that they were not forbidden by the language or policy of the sections prohibiting the transfer of claims and contracts. It is next assigned for error that the circuit court did not give effect to the defense of the statute of limitation of two years, prescribed by section 5057 of the Revised Statutes, which was set up in the answer of the defendant. The section mentioned forms a part of section 2 of the bankrupt act of March 2, 1867, c. 176, (14 St. 517,) and provides that no suit at law or in equity shall be maintained in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property, or rights of property, transferable to or vested in such assignee, unless brought within two years from the time when the cause of action accrued for or against such assignee. It is plain that the facts shown by the record do not sustain this defense. This suit is for the recovery, as assets of a partnership, of the money collected on the contract between Peck and the United States, and its distribution among the partners on a settlement of the partnership affairs. If Peck had lived, and had not been adjudicated bankrupt, the plaintiffs could not have maintained this suit against him until the money which is the subject of this controversy had been collected from the United States. They had no right under this contract with Peck to demand their share of the money until the money had come to his hands. The bankruptcy and death of Peck did not change the terms of the contract. They could not sue his assignee for a distribution of the fund until the fund had been received. The judgment against the United States in favor of Peck's administratrix was not affirmed by this court until February 10, 1880, and the money was not received by the defendant until after he had been substituted as claimant in the case in place of Helen A. Peck, administratrix, by order of the court of claims, on May 10, 1880. This suit was begun September 22, 1880. A bill like the present, for the settlement of the affairs of the partnership and the distribution of its assets among the partners, would have been premature until the final determination of the suit of Peck against the United States, for that suit involved all the assets of the partnership, and until it was decided there could be no adjustment of the partnership concerns and no distribution of its assets; in fact, it was uncertain whether there would be any assets to distribute. As, therefore, the plaintiffs were not entitled to the relief prayed in the bill until final judgment in the suit of Peck against the United States, and especially had no demand against the defendant until the fund, which they assert was assets of the partnership, came to his hands, it is plain that the statute of limitation was not well pleaded. It is next assigned for error that the circuit court admitted the testimony of McLean and Harmon, the plaintiffs, offered in their own behalf, in regard to transactions with and statements by Peck, he being dead, and the suit being against his assignee in bankruptcy. It is insisted that the testimony of these witnesses was incompetent under section 858 of the Revised Statutes, which provides as follows: 'In the courts of the United States no witness shall be excluded * * * in any action because he is a party to or interested in the issue tried: provided, that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with, or statement by, testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of the witnesses in the courts of the United States, in trials at common law and in equity and admiralty.' The witnesses admitted by the circuit court were not excluded by the terms of this statute. The suit in which they testified was not an action by or against an executor, administrator, or guardian. But the counsel for the plaintiffs insists that the policy of the act applies to suits by or against assignees as well as to suits by or against executors, administrators, or guardians, and that we ought to construe the act so as to include such suits. We cannot concur in this view. The purpose of the act was to remove generally the old incapacity to testify imposed on parties or persons interested in the suit. This was done by a sweeping provision, subject to certain well-defined exceptions, but the exceptions did not include suits by or against assignees in bankruptcy. We cannot insert the exception. When a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate and not to construe. 'We are bound,' says Mr. Justice BULLER, in Jones v. Smart, 1 Term R. 44, 'to take the act of parliament as they have made it;' and Mr. Justice STORY, in Smith v. Rines, 2 Sum. 354, 355, observes: 'It is not for courts of justice proprio marte to provide for all the defects or mischiefs of imperfect legislation.' See, also, King v. Burrell, 12 Adol. & E. 460; Lamond v. Eiffe, 3 Q. B. 910; Bloxam v. Elsee, 6 Barn. & C. 169; Bartlett v. Morris, 9 Port. (Ala.) 266. The objection made to the admission of the testimony of the plaintiffs was properly overruled. The next ground of complaint against the decree of the circuit court is that the court did not hold the plaintiffs estopped from asserting title to the fund in controversy by the fact that they each testified in the suit of Peck against the United States, in which the fund was recovered, that he had no interest, direct or indirect, in the claim of Peck, except that he held one of the notes or memoranda made by Peck, a copy of one of which has already been given. It must be conceded that this testimony was evasive and disingenous, but it was not false. But admitting that the testimony was untrue, it is difficult to see how any estoppel is raised which the defendant can set up against a recovery in this case by the plaintiffs. An equitable estoppel is raised when there is some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence on his part as to amount to a constructive fraud, by which another has been misled to his injury. Brant v. Virginia Coal & Iron Co., 93 U. S. 326. If any estoppel could be set up in this case by reason of the testimony of the plaintiffs, it would be one in favor of the United States, who alone could have been injured by that testimony. It is clear that the estoppel could not be set up by the defendant, for the evidence was given on his side of the controversy, and he is now in possession of and claims the fund which that testimony aided Peck, whose assignee he is, to recover. There was therefore no injury to the defendant, and no estoppel which he could set up against these plaintiffs. See Cushing v. Laird, 107 U. S. 69; S. C. 2 Sup. Ct. Rep. 196. It is true, his counsel say that, by reason of the denial by the plaintiffs that they had any interest in Peck's claim, the defendant was induced to employ counsel, and move both this court and the court of claims that he be made, as assignee of Peck, the party plaintiff in the suit against the United States, and to expend a large sum of money in prosecuting his motions. As we have already found that the plaintiffs were entitled to the fund in controversy, and the defendant was not, this contention amounts to this, that the plaintiffs should be precluded from a recovery of their own property, and it ought to be turned over to the defendant, because the defendant, misled by the testimony of the plaintiffs given in a case to which he was not at the time either a party or privy, was induced to expend money in a proceeding to get possession of the subject-matter of the controversy, to which, as it turned out, he had no title whatever. Upon such a state of facts no estoppel is raised. But there is no proof in the record that the defendant was misled by the testimony of the plaintiffs, or that he did not know the exact truth when he took the proceedings referred to. In no point of view, therefore, can the defendant assert that the plaintiffs are estopped to claim the fund in controversy. Lastly, the defendant insists that the circuit court erred in not allowing him compensation for his services, expenses, and attorneys' fees in recovering the fund in the court of claims from the United States. In reply to this contention, it is sufficient to say that the defendant rendered no services whatever in the recovery of the fund. Judgment had been rendered in the court of claims in favor of the administratrix of Peck, and had been affirmed by this court, and the mandate of this court had been sent to the court of claims before the defendant was admitted as plaintiff in the suit for the recovery of the fund. All he did was to get the fund into his possession. As in our view the fund belongs to the plaintiffs in this suit, all that comes out of it for the compensation of the defendant comes out of their pockets. We see no reason why they should pay the defendant, who, instead of aiding them in securing their rights, has been an obstacle and obstruction to their enforcement. The services for which the defendant seeks pay from the plaintiffs were not rendered in their behalf, but in hostility to their interest. When many persons have a common interest in a trust property or fund, and one of them, for the benefit of all and at his own cost and expense, brings a suit for its preservation or administration, the court of equity in which the suit is brought will order that the plaintiff be reimbursed his outlay from the property of the trust, or by proportional contribution from those who accept the benefits of his efforts. See Trustees v. Greenough, 105 U. S. 527, where the subject is discussed by Mr. Justice BRADLEY, and the cases cited; and Central R. R. v. Pettus, 113 U. S. 116; S. C. 5 Sup. Ct. Rep. 387. But where one brings adversary proceedings to take the possession of trust property from those entitled to it, in order that he may distribute it to those who claim adversely, and fails in his purpose, it has never been held, in any case brought to our notice, that such person had any right to demand reimbursement of his expenses out of the trust fund, or contribution from those whose property he sought to misappropriate. The circuit court was right in not compelling the plaintiffs to pay for services rendered and expenses incurred in a proceeding adversary to their interest, and carried on for the benefit of others. There is no error in the record. Decree affirmed.	Where three persons form a partnership, and agree to bear the losses and share the profits of the partnership venture in proportion to their contribution to its capital, and two of the partners furnish all the money and do all the work, they are entitled to be repaid their advances out of its assets, before payment of the individual creditors of the partner who paid nothing and did nothing to promote the partnership business. When a contract is open to two constructions, the one lawful and the other unlawful, the former must be adopted. When many persons have a common interest in a trust fund, and one, for the benefit of all, at his own cost and expense, brings suit for its preservation or administration, a court of equity will order that the plamtiff be reimbursed his outlay from the property of the trust, or by proportional contribution from those who accept the benefit of his efforts. 'When one brings adversary proceedings to take trust property from the possession of those entitled to it, in order that he may distribute it to those entitled adversely, and fails in his purpose, he cannot demand reimbursement of his expenses from the trust fund, or contribution from those whose property he has sought to misappropriate. A, having contracted with the United States to furnish supplies of wood and hay to troops in Montana, entered into partnership with B and C for the purpose of executing the contract. A was to furnish half the capital, B and C one-fourth each, and profits and losses were to be divided on that basis but in fact the capital was furnished by B and C. A delivered the wood according to the contract, but failed to deliver the hay, and, payment being refused, he brought suit in his own name in the Court of Claims against the United States to recover the contract price of the wood. In this suit B and 0, each was a witness on behalf of A, and each testified that he had " no interest direct or indirect in the claim," except as a creditor of A. holding his note. Pending the suit A became bankrupt, and then died. His administratrix was admitted to prosecute the suit, but before entry of final judgment his assignee in bankruptcy was substituted in her place. Minal judgment was then rendered in favor of the assignee, and the amount of the judgment was paid to hn. B and C as surviving partners then filed a bill in equity against the asskMee and the attorneys and counsel, to rpcover their shares in the partnership property. Hrezd (I) That the interests of B and C in the partnership property were not affected by the fact that the contract under which they claimed was not made and attested by witnesses after the issue of a warrant for payment, as required by Rev. Stat. § 3477. (2) That they were not affected by the provisions of Rev. Stat. § 3737 that a transfer of a contract with the United States shall cause an annulment of the contract so far as the United States are concerned. (3) That the cause of action to recover of the assignee their proportionate shares of the partnership fund in his hands accrued to B and C on the receipt of the money by the assignee. (4) That B and C were not subject in this suit to the disabilities as witnesses imposed by Rev. Stat. § 858 upon parties to suits by or against executors, administrators or guardians. (5) That B and C were not estopped by their declarations in the Court of Claims as to their interest in the claim there in controversy, from setting up the interest in it which they seek to enforce in this suit. (6) That the assignee was entitled to no allowance for compensation for services, expenses and attorney's fees, in recovering the fund in the Court of Claims from the United States.
These two cases are appeals from the Circuit Court of Appeals for the First Circuit, which were heard and will be decided together. The Pynchon National Bank of Springfield, Mass., with a capital stock of $200,000, divided into 2,000 shares of $100 each, became insolvent and in June, 1901, the Comptroller of the Currency appointed a receiver to liquidate its affairs. Upon examination there were found among its assets bonds of the American Writing Paper Company, of the par value of $577,000, which the bank had purchased at a discount, but which, at the time of the transaction we are about to consider, had so depreciated that they were worth on the market only 65 cents on the dollar. A consideration of the condition of the bank resulted on March 18, 1902, in an assessment by the Comptroller on the shareholders of their full statutory liability of 100 per cent., payable on the 15th day of the following May. Thereupon a plan was devised under which it was proposed that all of the shareholders, except the three defendant savings banks, should purchase from the receiver the paper company bonds at 95 cents on the dollar, each shareholder to purchase one bond of $1,000 for every three shares of stock owned by him. This purchase price was an advance over the market price of 30 cents on the dollar and the excess payment by each shareholder would equal 82 per cent. of the assessment which had been made by the Comptroller. Because they lacked corporate power to invest in such bonds the savings banks with the approval of the Comptroller and shareholders were to pay to the receiver the required advance over the market price without purchasing their quota of the bonds. The Comptroller cordially approved of this proposed purchase, and in a letter to the board of directors of the insolvent bank, the contents of which were intended to be and were communicated to its shareholders while the plan was under consideration, he stated that it would result in a settlement of the affairs of the bank highly satisfactory for all interests concerned, and that he was satisfied that if such sale of the bonds were made the receiver would be able to promptly pay all of the creditors in full, but that if the plan failed and it became necessary to sell the bonds on the market there would be no escape from an assessment of 100 per cent. against the shareholders. This proposed settlement was approved by all of the shareholders, and the defendant banks made payment to the receiver as follows: The Springfield Institution for Savings, $30,360.17; the Springfield Five Cents Savings Bank, $9,820; and the Hampden Savings Bank, $5,319.16. For these payments the banks did not receive any consideration other than the joining of the other shareholders in the plan, together with the anticipated saving of 18 per cent. of the assessment which the Comptroller had made against them. The bonds allotted the banks were sold at the market price. After the completion of this bond transaction, the receiver, under instructions from the Comptroller, on July 22, 1902, wrote to the shareholders as follows: 'Large amounts of securities sold make it probable that the payment of the assessment will not be required. The Comptroller has accordingly decided to withdraw this assessment and I have been instructed to suspend any action to enforce its payment. This withdrawal is made, however, without prejudice to the right of the Comptroller to levy and collect any assessment or assessments that may hereafter be necessary.' The results anticipated from this action on the part of the shareholders were not realized, and in order to satisfy the still unpaid debts of the bank and interest and costs of administration, the Comptroller on December 28, 1906, made a second assessment of $49 on each share of stock. The banks refusing to pay this second assessment, this suit was instituted against them in the District Court, and resulted in a holding in favor of the defendants, which was affirmed by the Circuit Court of Appeals in the decision which is now under review. It will be necessary to consider but two questions, viz.: (1) Was the second assessment invalid because the Comptroller did not withdraw and had no legal authority to withdraw the first assessment? and (2) was it the understanding that the payments made by the savings banks should be applied on the assessment for their statutory liability, so that they remained liable for only 18 per cent. additional? From the earliest days of the administration of the National Banking Act to this case attempts have been made in many forms to give to it a technical construction which would so restrict the powers of the Comptroller as to greatly delay and impede the settlement of the affairs of insolvent banks. But this court has uniformly declined to narrow the act by construction and has placed a liberal interpretation upon its provisions to promote its plain purpose of expeditiously and justly winding up the affairs and paying the debts of such unfortunate institutions. Studebaker v. Perry, 184 U. S. 258, 22 Sup. Ct. 463, 46 L. Ed. 528; Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476; United States v. Knox, 102 U. S. 422, 26 L. Ed. 216; Bushnell v. Leland, 164 U. S. 684, 17 Sup. Ct. 209, 41 L. Ed. 598; and Bowden v. Johnson, 107 U. S. 251, 2 Sup. Ct. 246, 27 L. Ed. 386. There is nothing in the act to prevent the Comptroller from withdrawing an assessment before it is paid, or when it is partly paid, if it should be concluded that further payment is not necessary, and no form is prescribed in which such action shall be taken by him. A large executive discretion is given to the Comptroller in this respect to adjust the assessments made to the exigencies of each case, so that the shareholders may not be burdened by paying more than is necessary or at a time when the money for any reason cannot be advantageously used. The wisdom of giving such large discretion to the Comptroller finds excellent illustration in the case before us. All persons interested in this bond transaction were convinced in July, 1902, that further payment than that which had been made would not be needed, and a construction should not be given to the act, its specific terms not requiring it, which would prevent such action as was taken by the Comptroller in withdrawing for the time being the unpaid portion of the first assessment. We conclude that the claim that the Comptroller did not have power to recall the first assessment in whole or in part is unsound in principle and wholly unsupported by the terms of the act or by court decisions. The remaining question is: Was it the understanding that the payments to the receiver should be applied upon the statutory liability of the savings banks for which assessment, then in full force, had been made-by the Comptroller? The case was tried in large part upon a stipulation as to the facts, which contains the following: 'Inasmuch as it was ultra vires of savings banks under the statutes of the commonwealth, as the receiver and comptroller at the time well knew, to purchase such bonds as an investment, it was arranged with the knowledge and approval of the comptroller and the receiver that the savings banks in question, instead of purchasing their proportion of the bonds, should pay the difference between their market value and what the national bank paid for them.' The checks of the banks were received 'without any agreement on the part of the Comptroller or receiver that the payments thereby made should in whole or in part discharge the liability of the savings banks for or on account of the indebtedness of the national bank and any stock assessments, excepting so far if at all, as such agreement or obligation may be lawfully implied from the facts stated in this stipulation and such evidence as may be introduced.' It is argued for the receiver that if it had been understood or intended that the payments by the banks should be credited on the outstanding assessment this would very certainly have found written expression, if not elsewhere, in the receipts given and received for the payments. It is notable that, although this bond purchase involved more than half a million dollars, the terms and purposes of it were not expressed in any writing, either between the shareholders themselves or between the receiver and the shareholders, which indicates that the transaction, while large, seemed simple to the men of affairs engaged in it, and that to their minds, at least, the implication from the payments to be made could not be doubtful. The shareholders who purchased the bonds had the prospect—how valuable it was the record does not indicate, but still a prospect—of recouping their losses through a later increase in the market value of the bonds, but the savings banks had no such prospect, because, not having legal authority to make such purchase, their payment of what equaled 82 per cent. of the assessment against them was a naked payment, without chance of reimbursement, in whole or in part, from any source. The evidence introduced in addition to the stipulation of facts is slight, consisting of contemporaneous entries in the corporation record and account books of the banks, and the indorsement on the checks by which payment was made. This evidence is not conclusive, but the implications from it, such as they are, are favorable to the contention of the banks. Since no clearly definite expression is found in the record either that these payments were or were not to be applied on the shareholding liability of the savings banks, we are required to decide which contention of the parties is the more reasonable and probable, having regard to all the facts and circumstances, stipulated and proved in the case. There being no evidence to the contrary, we must adopt the assumption of ordinary life and of law that the trustees for the savings banks acted lawfully, within the limits of their powers, and we must also have regard to the long-settled rule of law that where neither the debtor nor the creditor has applied payments before controversy has arisen, the courts will make application of them in a manner to accomplish the ends of justice. United States v. Kirkpatrick, 9 Wheat. 720, 6 L. Ed. 199; National Bank v. Mechanics' Bank, 94 U. S. 437, 439, 24 L. Ed. 176. When to this we add that natural justice, as distinguished from a technical conclusion, requires that the savings banks be allowed credit for the payments that they have made, since thereby the creditors of the insolvent bank may get the benefit of the full statutory liability of the shareholders without a new and unanticipated obligation being imposed on the stockholding banks, we are compelled to resolve any doubt in which the record might otherwise leave us in favor of the defendants. It is impossible for us to conclude that the officials of these savings banks, trustees as they were for their depositors and stockholders, and having in mind the limitations on their powers, as the stipulation declares that they and the receiver did have, should have made these considerable payments in such a manner as not to at all diminish the statutory liability of their banks, especially since payments not made to be applied on the assessment would be substantially unauthorized gifts, for, as we have said, the banks had no prospect, as the other stockholders had, of being reimbursed for such payments by the possible rise in the market value of the bonds. It results that the decree of the Circuit Court of Appeals must be affirmed, but not on the ground stated in the opinion of that court, and that the second assessment must be held void because excessive. This, however, without prejudice to the making of another assessment by the Comptroller upon the shareholding banks for the difference, if needed, between the amount paid and the amount of an assessment for the full statutory liability. Affirmed. Mr. Justice VAN DEVANTER and Mr. Justice PITNEY dissent.	Under the National Banking Act the Comptroller has discretionary power to withdraw an assessment on shareholders before it is paid, or when partly paid. Upon the evidence, held, that certain sums paid by savings banks to the receiver of a national bank in which they held shares were intended to be applied against their liabilities under the National Banking Act, to enforce which an assessment, made by the Comptroller, was then outstanding. A second assessment, exceeding the differences between their statutory liabilities and the amounts so paid, was void. In determining the effect of certain payments made by the trustees of savings banks, the court here assumes, in the absence of contrary evidence, that it was the purpose of the trustees to act within their powers, and heeds the settled rule that when neither debtor nor creditor has applied payments before the controversy has arisen the courts will apply them in a manner to accomplish the ends of justice. 218 Fed. Rep. 814, affirmed.
In this case, the Supreme Court of Pennsylvania vacated the decision of a postconviction court, which had granted relief to a prisoner convicted of first-degree murder and sentenced to death. One of the justices on the State Supreme Court had been the district attorney who gave his official approval to seek the death penalty in the prisoner’s case. The justice in question denied the prisoner’s motion for recusal and participated in the decision to deny relief. The question presented is whether the justice’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. This Court’s precedents set forth an objective standard that requires recusal when the likelihood of bias on the part of the judge “ ‘is too high to be constitutionally tolerable.’ ” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 872 (2009) (quoting Withrow v. Larkin, 421 U. S. 35, 47 (1975) ). Applying this standard, the Court concludes that due process compelled the justice’s recusal. I Petitioner is Terrance Williams. In 1984, soon after Williams turned 18, he murdered 56-year-old Amos Norwood in Philadelphia. At trial, the Commonwealth presented evidence that Williams and a friend, Marc Draper, had been standing on a street corner when Norwood drove by. Williams and Draper requested a ride home from Norwood, who agreed. Draper then gave Norwood false directions that led him to drive toward a cemetery. Williams and Draper ordered Norwood out of the car and into the cemetery. There, the two men tied Norwood in his own clothes and beat him to death. Testifying for the Commonwealth, Draper suggested that robbery was the motive for the crime. Williams took the stand in his own defense, stating that he was not involved in the crime and did not know the victim. During the trial, the prosecutor requested permission from her supervisors in the district attorney’s office to seek the death penalty against Williams. To support the request, she prepared a memorandum setting forth the details of the crime, information supporting two statutory aggravating factors, and facts in mitigation. After reviewing the memorandum, the then-district attorney of Philadelphia, Ronald Castille, wrote this note at the bottom of the document: “Approved to proceed on the death penalty.” App. 426a. During the penalty phase of the trial, the prosecutor argued that Williams deserved a death sentence because he killed Norwood “ ‘for no other reason but that a kind man offered him a ride home.’ ” Brief for Petitioner 7. The jurors found two aggravating circumstances: that the murder was committed during the course of a robbery and that Williams had a significant history of violent felony convictions. That criminal history included a previous conviction for a murder he had committed at age 17. The jury found no mitigating circumstances and sentenced Williams to death. Over a period of 26 years, Williams’s conviction and sentence were upheld on direct appeal, state postconviction review, and federal habeas review. In 2012, Williams filed a successive petition pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §9541 et seq. (2007). The petition was based on new information from Draper, who until then had refused to speak with Williams’s attorneys. Draper told Williams’s counsel that he had informed the Commonwealth before trial that Williams had been in a sexual relationship with Norwood and that the relationship was the real motive for Norwood’s murder. According to Draper, the Commonwealth had instructed him to give false testimony that Williams killed Norwood to rob him. Draper also admitted he had received an undisclosed benefit in exchange for his testimony: the trial prosecutor had promised to write a letter to the state parole board on his behalf. At trial, the prosecutor had elicited testimony from Draper indicating that his only agreement with the prosecution was to plead guilty in exchange for truthful testimony. No mention was made of the additional promise to write the parole board. The Philadelphia Court of Common Pleas, identified in the proceedings below as the PCRA court, held an evidentiary hearing on Williams’s claims. Williams alleged in his petition that the prosecutor had procured false testimony from Draper and suppressed evidence regarding Norwood’s sexual relationship with Williams. At the hearing, both Draper and the trial prosecutor testified regarding these allegations. The PCRA court ordered the district attorney’s office to produce the previously undisclosed files of the prosecutor and police. These documents included the trial prosecutor’s sentencing memorandum, bearing then-District Attorney Castille’s authorization to pursue the death penalty. Based on the Commonwealth’s files and the evidentiary hearing, the PCRA court found that the trial prosecutor had suppressed material, exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83 (1963) , and engaged in “prosecutorial gamesmanship.” App. 168a. The court stayed Williams’s execution and ordered a new sentencing hearing. Seeking to vacate the stay of execution, the Commonwealth submitted an emergency application to the Pennsylvania Supreme Court. By this time, almost three decades had passed since Williams’s prosecution. Castille had been elected to a seat on the State Supreme Court and was serving as its chief justice. Williams filed a response to the Commonwealth’s application. The disclosure of the trial prosecutor’s sentencing memorandum in the PCRA proceedings had alerted Williams to Chief Justice Castille’s involvement in the decision to seek a death sentence in his case. For this reason, Williams also filed a motion asking Chief Justice Castille to recuse himself or, if he declined to do so, to refer the recusal motion to the full court for decision. The Commonwealth opposed Williams’s recusal motion. Without explanation, Chief Justice Castille denied the motion for recusal and the request for its referral. Two days later, the Pennsylvania Supreme Court denied the application to vacate the stay and ordered full briefing on the issues raised in the appeal. The State Supreme Court then vacated the PCRA court’s order granting penalty-phase relief and reinstated Williams’s death sentence. Chief Justice Castille and Justices Baer and Stevens joined the majority opinion written by Justice Eakin. Justices Saylor and Todd concurred in the result without issuing a separate opinion. See ___ Pa. ___, ___, 105 A. 3d 1234, 1245 (2014). Chief Justice Castille authored a concurrence. He lamented that the PCRA court had “lost sight of its role as a neutral judicial officer” and had stayed Williams’s execution “for no valid reason.” Id., at ___, 105 A. 3d, at 1245. “[B]efore condemning officers of the court,” the chief justice stated, “the tribunal should be aware of the substantive status of Brady law,” which he believed the PCRA court had misapplied. Id., at ___, 105 A. 3d, at 1246. In addition, Chief Justice Castille denounced what he perceived as the “obstructionist anti-death penalty agenda” of Williams’s attorneys from the Federal Community Defender Office. Ibid. PCRA courts “throughout Pennsylvania need to be vigilant and circumspect when it comes to the activities of this particular advocacy group,” he wrote, lest Defender Office lawyers turn postconviction proceedings “into a circus where [they] are the ringmasters, with their parrots and puppets as a sideshow.” Id., at ___, 105 A. 3d, at 1247. Two weeks after the Pennsylvania Supreme Court decided Williams’s case, Chief Justice Castille retired from the bench. This Court granted Williams’s petition for certiorari. 576 U. S. ___ (2015). II A Williams contends that Chief Justice Castille’s decision as district attorney to seek a death sentence against him barred the chief justice from later adjudicating Williams’s petition to overturn that sentence. Chief Justice Castille, Williams argues, violated the Due Process Clause of the Fourteenth Amendment by acting as both accuser and judge in his case. The Court’s due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor. For the reasons explained below, however, the principles on which these precedents rest dictate the rule that must control in the circumstances here. The Court now holds that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case. Due process guarantees “an absence of actual bias” on the part of a judge. In re Murchison, 349 U. S. 133, 136 (1955) . Bias is easy to attribute to others and difficult to discern in oneself. To establish an enforceable and work-able framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present. The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Caperton, 556 U. S., at 881. Of particular relevance to the instant case, the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case. See Murchison, 349 U. S., at 136–137. This objective risk of bias is reflected in the due process maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” Id., at 136. The due process guarantee that “no man can be a judge in his own case” would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision. This conclusion follows from the Court’s analysis in In re Murchison. That case involved a “one-man judge-grand jury” proceeding, conducted pursuant to state law, in which the judge called witnesses to testify about suspected crimes. Id., at 134. During the course of the examinations, the judge became convinced that two witnesses were obstructing the proceeding. He charged one witness with perjury and then, a few weeks later, tried and convicted him in open court. The judge charged the other witness with contempt and, a few days later, tried and convicted him as well. This Court overturned the convictions on the ground that the judge’s dual position as accuser and decisionmaker in the contempt trials violated due process: “Having been a part of [the accusatory] process a judge cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.” Id., at 137. No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision. When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome. There is, furthermore, a risk that the judge “would be so psychologically wedded” to his or her previous position as a prosecutor that the judge “would consciously or unconsciously avoid the appearance of having erred or changed position.” Withrow, 421 U. S., at 57. In addition, the judge’s “own personal knowledge and impression” of the case, acquired through his or her role in the prosecution, may carry far more weight with the judge than the parties’ arguments to the court. Murchison, supra, at 138; see also Caperton, supra, at 881. Pennsylvania argues that Murchison does not lead to the rule that due process requires disqualification of a judge who, in an earlier role as a prosecutor, had significant involvement in making a critical decision in the case. The facts of Murchison, it should be acknowledged, differ in many respects from a case like this one. In Murchison, over the course of several weeks, a single official (the so-called judge-grand jury) conducted an investigation into suspected crimes; made the decision to charge witnesses for obstruction of that investigation; heard evidence on the charges he had lodged; issued judgments of conviction; and imposed sentence. See 349 U. S., at 135 (petitioners objected to “trial before the judge who was at the same time the complainant, indicter and prosecutor”). By contrast, a judge who had an earlier involvement in a prosecution might have been just one of several prosecutors working on the case at each stage of the proceedings; the prosecutor’s immediate role might have been limited to a particular aspect of the prosecution; and decades might have passed before the former prosecutor, now a judge, is called upon to adjudicate a claim in the case. These factual differences notwithstanding, the constitutional principles explained in Murchison are fully applicable where a judge had a direct, personal role in the defendant’s prosecution. The involvement of other actors and the passage of time are consequences of a complex criminal justice system, in which a single case may be litigated through multiple proceedings taking place over a period of years. This context only heightens the need for objective rules preventing the operation of bias that otherwise might be obscured. Within a large, impersonal system, an individual prosecutor might still have an influence that, while not so visible as the one-man grand jury in Murchison, is nevertheless significant. A prosecutor may bear responsibility for any number of critical decisions, including what charges to bring, whether to extend a plea bargain, and which witnesses to call. Even if decades intervene before the former prosecutor revisits the matter as a jurist, the case may implicate the effects and continuing force of his or her original decision. In these circumstances, there remains a serious risk that a judge would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. The involvement of multiple actors and the passage of time do not relieve the former prosecutor of the duty to withdraw in order to ensure the neutral-ity of the judicial process in determining the consequences that his or her own earlier, critical decision may have set in motion. B This leads to the question whether Chief Justice Castille’s authorization to seek the death penalty against Williams amounts to significant, personal involvement in a critical trial decision. The Court now concludes that it was a significant, personal involvement; and, as a result, Chief Justice Castille’s failure to recuse from Williams’s case presented an unconstitutional risk of bias. As an initial matter, there can be no doubt that the decision to pursue the death penalty is a critical choice in the adversary process. Indeed, after a defendant is charged with a death-eligible crime, whether to ask a jury to end the defendant’s life is one of the most serious discretionary decisions a prosecutor can be called upon to make. Nor is there any doubt that Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. The importance of this decision and the profound consequences it carries make it evident that a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion and professional judgment. Pennsylvania nonetheless contends that Chief Justice Castille in fact did not have significant involvement in the decision to seek a death sentence against Williams. The chief justice, the Commonwealth points out, was the head of a large district attorney’s office in a city that saw many capital murder trials. Tr. of Oral Arg. 36. According to Pennsylvania, his approval of the trial prosecutor’s request to pursue capital punishment in Williams’s case amounted to a brief administrative act limited to “the time it takes to read a one-and-a-half-page memo.” Ibid. In this Court’s view, that characterization cannot be credited. The Court will not assume that then-District Attorney Castille treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part. Chief Justice Castille’s own comments while running for judicial office refute the Commonwealth’s claim that he played a mere ministerial role in capital sentencing decisions. During the chief justice’s election campaign, multiple news outlets reported his statement that he “sent 45 people to death rows” as district attorney. Seelye, Castille Keeps His Cool in Court Run, Philadelphia Inquirer, Apr. 30, 1993, p. B1; see also, e.g., Brennan, State Voters Must Choose Next Supreme Court Member, Legal Intelligencer, Oct. 28, 1993, pp. 1, 12. Chief Justice Castille’s willingness to take personal responsibility for the death sentences obtained during his tenure as district attorney indicate that, in his own view, he played a meaningful role in those sentencing decisions and considered his involvement to be an important duty of his office. Although not necessary to the disposition of this case, the PCRA court’s ruling underscores the risk of permitting a former prosecutor to be a judge in what had been his or her own case. The PCRA court determined that the trial prosecutor—Chief Justice Castille’s former subordinate in the district attorney’s office—had engaged in multiple, intentional Brady violations during Williams’s prosecution. App. 131–145, 150–154. While there is no indication that Chief Justice Castille was aware of the alleged prosecutorial misconduct, it would be difficult for a judge in his position not to view the PCRA court’s findings as a criticism of his former office and, to some extent, of his own leadership and supervision as district attorney. The potential conflict of interest posed by the PCRA court’s findings illustrates the utility of statutes and professional codes of conduct that “provide more protection than due process requires.” Caperton, 556 U. S., at 890. It is important to note that due process “demarks only the outer boundaries of judicial disqualifications.” Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 , 828 (1986). Most questions of recusal are addressed by more stringent and detailed ethical rules, which in many jurisdictions already require disqualification under the circumstances of this case. See Brief for American Bar Association as Amicus Curiae 5, 11–14; see also ABA Model Code of Judicial Conduct Rules 2.11(A)(1), (A)(6)(b) (2011) (no judge may participate “in any proceeding in which the judge’s impartiality might reasonably be questioned,” including where the judge “served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding”); ABA Center for Professional Responsibility Policy Implementation Comm., Comparison of ABA Model Judicial Code and State Variations (Dec. 14, 2015), available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/2_11.authcheckdam.pdf (as last visited June 7, 2016) (28 States have adopted language similar to ABA Model Judicial Code Rule 2.11); 28 U. S. C. §455(b)(3) (recusal required where judge “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding”). At the time Williams filed his recusal motion with the Pennsylvania Supreme Court, for example, Pennsylvania’s Code of Judicial Conduct disqualified judges from any proceeding in which “they served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter. . . .” Pa. Code of Judicial Conduct, Canon 3C (1974, as amended). The fact that most jurisdictions have these rules in place suggests that today’s decision will not occasion a significant change in recusal practice. Chief Justice Castille’s significant, personal involvement in a critical decision in Williams’s case gave rise to an unacceptable risk of actual bias. This risk so endangered the appearance of neutrality that his participation in the case “must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U. S., at 47. III Having determined that Chief Justice Castille’s participation violated due process, the Court must resolve whether Williams is entitled to relief. In past cases, the Court has not had to decide the question whether a due process violation arising from a jurist’s failure to recuse amounts to harmless error if the jurist is on a multimember court and the jurist’s vote was not decisive. See Lavoie, supra, at 827–828 (addressing “the question whether a decision of a multimember tribunal must be vacated because of the participation of one member who had an interest in the outcome of the case,” where that member’s vote was outcome determinative). For the reasons discussed below, the Court holds that an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote. The Court has little trouble concluding that a due process violation arising from the participation of an inter-ested judge is a defect “not amenable” to harmless-error review, regardless of whether the judge’s vote was dispositive. Puckett v. United States, 556 U. S. 129, 141 (2009) (emphasis deleted). The deliberations of an appellate panel, as a general rule, are confidential. As a result, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to assure jurists that they can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. As Justice Brennan wrote in his Lavoie concurrence, “The description of an opinion as being ‘for the court’ connotes more than merely that the opinion has been joined by a majority of the participating judges. It reflects the fact that these judges have exchanged ideas and arguments in deciding the case. It reflects the collective process of deliberation which shapes the court’s perceptions of which issues must be addressed and, more importantly, how they must be addressed. And, while the influence of any single participant in this process can never be measured with precision, experience teaches us that each member’s involvement plays a part in shaping the court’s ultimate disposition.” 475 U. S., at 831. These considerations illustrate, moreover, that it does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position. That outcome does not lessen the unfairness to the affected party. See id., at 831–832 (Blackmun, J., concurring in judgment). A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself. When the objective risk of actual bias on the part of a judge rises to an unconstitutional level, the failure to recuse cannot be deemed harmless. The Commonwealth points out that ordering a rehearing before the Pennsylvania Supreme Court may not provide complete relief to Williams because judges who were exposed to a disqualified judge may still be influenced by their colleague’s views when they rehear the case. Brief for Respondent 51, 62. An inability to guarantee complete relief for a constitutional violation, however, does not justify withholding a remedy altogether. Allowing an appellate panel to reconsider a case without the participation of the interested member will permit judges to probe lines of analysis or engage in discussions they may have felt constrained to avoid in their first deliberations. Chief Justice Castille’s participation in Williams’s case was an error that affected the State Supreme Court’s whole adjudicatory framework below. Williams must be granted an opportunity to present his claims to a court unburdened by any “possible temptation . . . not to hold the balance nice, clear and true between the State and the accused.” Tumey v. Ohio, 273 U. S. 510, 532 (1927) . * * * Where a judge has had an earlier significant, personal involvement as a prosecutor in a critical decision in the defendant’s case, the risk of actual bias in the judicial proceeding rises to an unconstitutional level. Due process entitles Terrance Williams to “a proceeding in which he may present his case with assurance” that no member of the court is “predisposed to find against him.” Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980) . The judgment of the Supreme Court of Pennsylvania is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.	Petitioner Williams was convicted of the 1984 murder of Amos Norwood and sentenced to death. During the trial, the then-district attorney of Philadelphia, Ronald Castille, approved the trial prosecutor’s request to seek the death penalty against Williams. Over the next 26 years, Williams’s conviction and sentence were upheld on direct appeal, state postconviction review, and federal habeas review. In 2012, Williams filed a successive petition pursuant to Pennsylvania’s Post Conviction Relief Act (PCRA), arguing that the prosecutor had obtained false testimony from his codefendant and suppressed material, exculpatory evidence in violation of Brady v. Maryland, 373 U. S. 83 . Finding that the trial prosecutor had committed Brady violations, the PCRA court stayed Williams’s execution and ordered a new sentencing hearing. The Commonwealth asked the Pennsylvania Supreme Court, whose chief justice was former District Attorney Castille, to vacate the stay. Williams filed a response, along with a motion asking Chief Justice Castille to recuse himself or, if he declined to do so, to refer the motion to the full court for decision. Without explanation, the chief justice denied Williams’s motion for recusal and the request for its referral. He then joined the State Supreme Court opinion vacating the PCRA court’s grant of penalty-phase relief and reinstating Williams’s death sentence. Two weeks later, Chief Justice Castille retired from the bench. Held: 1. Chief Justice Castille’s denial of the recusal motion and his subsequent judicial participation violated the Due Process Clause of the Fourteenth Amendment. Pp. 5–12. (a) The Court’s due process precedents do not set forth a specific test governing recusal when a judge had prior involvement in a case as a prosecutor; but the principles on which these precedents rest dictate the rule that must control in the circumstances here: Under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case. The Court applies an objective standard that requires recusal when the likelihood of bias on the part of the judge “is too high to be constitutionally tolerable.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868 . A constitutionally intolerable probability of bias exists when the same person serves as both accuser and adjudicator in a case. See In re Murchison, 349 U. S. 133 –137. No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision. As a result, a serious question arises as to whether a judge who has served as an advocate for the State in the very case the court is now asked to adjudicate would be influenced by an improper, if inadvertent, motive to validate and preserve the result obtained through the adversary process. In these circumstances, neither the involvement of multiple actors in the case nor the passage of time relieves the former prosecutor of the duty to withdraw in order to ensure the neutrality of the judicial process in determining the consequences his or her own earlier, critical decision may have set in motion. Pp. 5–8. (b) Because Chief Justice Castille’s authorization to seek the death penalty against Williams amounts to significant, personal involvement in a critical trial decision, his failure to recuse from Williams’s case presented an unconstitutional risk of bias. The decision to pursue the death penalty is a critical choice in the adversary process, and Chief Justice Castille had a significant role in this decision. Without his express authorization, the Commonwealth would not have been able to pursue a death sentence against Williams. Given the importance of this decision and the profound consequences it carries, a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion. The fact that many jurisdictions, including Pennsylvania, have statutes and professional codes of conduct that already require recusal under the circumstances of this case suggests that today’s decision will not occasion a significant change in recusal practice. Pp. 9–12. 2. An unconstitutional failure to recuse constitutes structural error that is “not amenable” to harmless-error review, regardless of whether the judge’s vote was dispositive, Puckett v. United States, 556 U. S. 129 . Because an appellate panel’s deliberations are generally confidential, it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process. Indeed, one purpose of judicial confidentiality is to ensure that jurists can reexamine old ideas and suggest new ones, while both seeking to persuade and being open to persuasion by their colleagues. It does not matter whether the disqualified judge’s vote was necessary to the disposition of the case. The fact that the interested judge’s vote was not dispositive may mean only that the judge was successful in persuading most members of the court to accept his or her position—an outcome that does not lessen the unfairness to the affected party. A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. Because Chief Justice Castille’s participation in Williams’s case was an error that affected the State Supreme Court’s whole adjudicatory framework below, Williams must be granted an opportunity to present his claims to a court unburdened by any “possible temptation . . . not to hold the balance nice, clear and true between the State and the accused,” Tumey v. Ohio, 273 U. S. 510 . Pp. 12–14. __ Pa. __, 105 A. 3d 1234, vacated and remanded. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Alito, J., joined. Thomas, J., filed a dissenting opinion.
'The plaintiff in error insists that the map of its line of road was filed in 1859. The court of original jurisdiction finds that, up to the time of the trial in October, 1878, a period of nearly twenty years, no selection of these lands had ever been made by that company, or anyone for it. Was there a vested right in this company, during all this time, to have, not only these lands, but all the other odd sections within the 20-mile limits on each side of the line of the road, await its pleasure? Had the settlers in that populous region no right to buy of the government because the company might choose to take them, or might, after all this delay, find out that they were necessary to make up deficiencies in other quarters? How long were such lands to be withheld from market and withdrawn from taxation, and forbidden to cultivation? 'It is true that in some cases the statute requires the Land Department to withdraw the lands within these secondary limits from market, and in others, the officers do so voluntarily. This, however, is to give the company a reasonable time to ascertain their deficiencies and make their selections. 'It by no means implies a vested right in said company, inconsistent with the right of the government to sell, or of any other company to select, which has the same right of selection within those limits. Each company having this right of selection in such case, and having no other right, is bound to exercise that right with reasonable diligence; and when it is exercised in accordance with the statute, it becomes entitled to the lands as selected.' If the command of the statute were to withdraw from the market, instead of survey, all odd-numbered sections within the 40-mile strip, the position of the railroad company in this case would be impregnable; but as the withdrawal only extends to the lands 'hereby granted,' we must look elsewhere to ascertain the meaning of those precise words. There is good reason for withdrawing lands within the place limits, since these lands already belong to the railroad company, as soon as they are identified by the location of the line, while lands within the indemnity limits may never be required at all, and in most cases are required only to a limited extent. Undoubtedly the company acquires title to both classes of lands by the 3d section of the granting act; but it acquires a title to lands within the place limits by a present grant; but to land within the indemnity limits, only by a future power of selection. In both cases the statute is the origin of the title; but in the one case it gives instantaneously; in the other it is a mere promise to give in the future, and requires the action of the railroad to perfect it. The words 'hereby granted' evidently refer to the former. Treating this case as a reargument of the question involved in Hewitt v. Schultz, and it practically comes to that, we still adhere to the principle there announced. It seems to us the more reasonable, if not the necessary, inference to be deduced from the language of §§ 3 and 6. By the former there is 'hereby granted . . . every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state.' These words terminate the grant, the remainder of the clause being immaterial in this connection, and if the whole clause had been followed by a period, instead of a semicolon, the meaning, perhaps, would have been clearer. But there follows another clause, that 'whenever, prior to said time, any of said section, or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than 10 miles beyond the limits of said alternate sections,' etc. There is here a clear distinction between the lands granted in procsenti in the first clause, and lands to be thereafter selected by the company, whenever the deficiency in the granted lands shall be ascertained. The 6th section carries out the same idea. It requires a survey of 40 miles in width on both sides of the entire line, whether passing through states or territories. This would include only the granted or place limits within a territory, but within a state would cover the indemnity limits as well. There was no order in the act to withdraw any lands from settlement or sale, but such withdrawal seems to have been made in pursuance of the practice of the Interior Department, and for the purpose of preventing lands granted to the railroad company from being taken up by settlers, before the completion of the line and the final issue of patents. As was said by Mr. Secretary Lamar in the Atlantic & P. R. Co. 6 Land Dec. 84: 'Waiving all questions as to whether or not said granting act took from the Secretary all authority to withdraw said indemnity limits from settlement, it is manifest that the said act gave no special authority or direction to the executive to withdraw said lands; and when such withdrawal was made it was done by virtue of the general authority over such matters possessed by the Secretary of the Interior, and in the exercise of his discretion; so that, were the withdrawal to be revoked, no law would be violated, no contract broken.' But as the power to withdraw extends only to the 'lands hereby granted' and all other lands, except those hereby granted, remain open to settlement, we are thrown back upon § 3 to determine what are the lands 'hereby granted.' Now, as already observed, there is a clear distinction in § 3 between granted lands and lands to be selected after the deficiency in the granted lands has been ascertained. It is true that, prior to this selection being made, many of these indemnity lands may be taken up, and an insufficient amount left for the railroad (and we do not deny the force of the dissenting opinion in Hewitt v. Schultz in that connection), but we think this possibility serves rather as a basis for a further action by Congress, such as was made in the Northern Pacific case by the joint resolution of May 31, 1870 (16 Stat. at L. 378), than as a reason for withdrawing from settlement a vast amount of land which the railroad may never have occasion to require. It was said by Secretary Lamar in the case of the Atlantic & P. R. Co. 6 Land Dec. 84, 87: 'As to the lands within the indemnity limits, the contract was based upon two contingencies; that of losing lands within the granted limits, and being able to find sufficient to indemnify the company among the odd-numbered sections within a further limit of 10 miles. Here the interest of the company was so remote and contingent, being a mere potentiality, and not a grant, that Congress declined to order a withdrawal for the benefit of the same, or even a survey within the territories.' In view of the constant trend of population toward the western territories, it is a serious matter to withdraw these enormous tracts from settlement and hold them, as it were, in mortmain against the protest of those who stand ready to enter upon and possess them. It becomes still more serious when, as in this case, there was a delay of twenty-seven years between the granting act and the act of selection. It seems intolerable that a settler, who had entered and paid for lands in good faith, should be liable to an ouster after a possible lapse of twenty-seven years, when the very improvements he may have put upon the lands might be the reason for their selection by the company. We are therefore of opinion that the act of July 27, 1866, did not authorize the withdrawal by the Secretary of the Interior of the indemnity lands, that such lands remained open to homestead and pre-emption entry, and that patents issued to settlers within such indemnity limits, based upon the entries made prior to the selection by the railroad company, approved by the Interior Department, were valid as conveyances of the land as against the selection by the railroad company. The judgment of the Supreme Court of California is therefore affirmed.	The Atlantic and Pacific Railroad Company took no title to lands within the indemnity limits of its grant until the deficiency in the place limits had been ascertained, and the company had exercised its right of selection. The Secretary of the Interior had no authority, upon the filing of a plat in the office of the Commissioner of the General Land Office, to withdraw lands lying within the indemnity limits of the grant from sale or preemption; and a patent issued to a settler under the land laws, prior to the selection made by the railroad company, of the land in dispute as lieu lands, was held to be valid, notwithstanding the lands lay within the forty-mile strip ordered by the act to be surveyed, after the general route of the road had been fixed. The case of Hewitt v. Schultz, 180 U. S. 139, followed and applied to the facts of this case.
Appellant challenges the validity of the Act of the Alaska Legislature approved May 1, 1919 (Session Laws 1919, c. 29), which imposes upon each male person, with certain exceptions, within the territory or the waters thereof an annual poll tax of $5 to be used for school purposes; and also that portion of the Act of the same Legislature approved May 5, 1921 (Session Laws 1921, c. 31), which imposes an annual license tax of $5 upon every nonresident fisherman—the term 'to include all persons employed on a boat engaged in fishing.' Congress established an organized government for Alaska by the Act of August 24, 1912, c. 387, 37 Stats. 512 (Comp. St. § 3530). It declares that: 'The Constitution of the United States, and all the laws thereof which are not locally inapplicable, shall have the same force and effect within the said territory as elsewhere in the United States.' It also created a legislature, with power and authority which 'shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States,' subject to specified restrictions. One of them is this: 'Nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents.' While residing in California, appellant was employed by appellee corporation, owner and operator, to serve as seaman and fisherman upon the sailing vessel Star of Finland. He sailed upon her to Alaska, and served with her there while she engaged in fishing, from the middle of May, 1921, until the middle of September. In compliance with the abovementioned statutes, appellee paid the taxes which they imposed upon him, and on final settlement charged the same against his wages. By this proceeding he seeks to recover the amount so deducted. Without opinion the court below sustained the validity of the taxes. Both statutes have been considered and upheld by the Circuit Court of Appeals for the Ninth Circuit. Alaska Packers' Association v. Hedenskoy, 267 Fed. 154; Northern Commercial Co. v. Territory of Alaska, 289 Fed. 786. Plainly, we think, the territorial Legislature had authority under the terms of the Organic Act to impose both the head and the license tax, unless, for want of power, Congress itself could not have laid them by direct action. Talbott v. Silver Bow County, 139 U. S. 438, 448, 11 Sup. Ct. 594, 35 L. Ed. 210; Binns v. United States, 194 U. S. 486, 491, 24 Sup. Ct. 816, 48 L. Ed. 1087; Alaska Pacific Fisheries v. United States, 248 U. S. 78, 87, 39 Sup. Ct. 40, 63 L. Ed. 138; Territory of Alaska v. Troy, 258 U. S. 101, 42 Sup. Ct. 241, 66 L. Ed. 487. Appellant went to the territory for the purpose of engaging in the business of fishing, and remained there for at least four months. He was not merely passing through—not a mere sightseer or tourist—but for a considerable period while so employed enjoyed the protection and was within the jurisdiction of the local government. To require him to contribute something toward its support did not deprive him of property without due process of law, within the Fifth Amendment. Such cases as Dewey v. Des Moines, 173 U. S. 193, 19 Sup. Ct. 379, 43 L. Ed. 665, and Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 202, 26 Sup. Ct. 36, 50 L. Ed. 150, 4 Ann. Cas. 493, relied upon to support the contrary view, are not controlling. The tax was upon an individual actually within the territory; there was no attempt to reach something in a mere state of transit or beyond the borders. Some general rules touching the taxation of property were pointed out in Brown v. Houston, 114 U. S. 622, 632, 633, 5 Sup. Ct. 1091, 29 L. Ed. 257, and Pullman's Palace Car Company v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876, 35 L. Ed. 613. No more stringent ones should be applied when poll taxes are questioned. Unless restrained by constitutional provision, the sovereign has power to tax all persons and property actually within its jurisdiction and enjoying the benefit and protection of its laws. Cooley on Taxation (3d Ed.) p. 22. We are not here concerned with taxation by a state. The license tax cannot be said to conflict with section 2, art. 4, of the Constitution: 'The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' It applies only to nonresident fishermen; citizens of every state are treated alike. Only residents of the territory are preferred. This is not wholly arbitrary or unreasonable, and we find nothing in the Constitution which prohibits Congress from favoring those who have acquired a local residence and upon whose efforts the future development of the territory must largely depend. See Alaska Pacific Fisheries v. United States, supra, and Alaska Fish Co. v. Smith, 255 U. S. 44, 47, 48, 41 Sup. Ct. 219, 65 L. Ed. 489. None of the points relied upon by appellant is well taken, and the decree below must be affirmed.	1. An annual poll tax, and an annual license imposed only on nonresident fishermen within Alaska, are within the power delegated to the Alaska legislature by the Organic Act. P. 514. 2. These taxes, as applied to a citizen of California who went to Alaska to engage in the business of fishing and remained there, so engaged, for four months, are not in conflict with the due process clause of the Fifth Amendment. Id. 3. Nor does the license tax, confined to non-residents, violate the "privileges and immunities" provision (Const., Art. IV, § 2,) ; nor was it arbitrary or unreasonable to favor local residents by exempting them from it. P. 515. Affirmed.
Introduction Congress facilitated the development of railroads, especially railroads in the West, throughvarious forms of federal assistance. Primary among this assistance was the granting of rights of wayacross the public lands. Not all of these grants were the same, but some arguably contemplated aretained interest in the United States. As the continued operation of certain railways became lesspracticable and portions of rail lines were sold or closed, attention increasingly turned to title issuesand the nature and scope of the authority of Congress to dispose of rail corridors. This reportdiscusses the history of the federal railroad rights of way grants, the various forms such grants havetaken, and the provisions Congress has enacted to govern disposition of railroad rights of way. Thisreport will be updated as circumstances warrant. Background The middle of the nineteenth century witnessed a burst of federal legislation fostering theconstruction of railroads in America. (1) Many factors contributed to this legislative initiative, among themthe discovery of gold in California, the American civil war, the absence after secession of opposingvotes by southern states, and a desire to encourage the settlement and development of the vast newwestern territories, thereby increasing tax revenues, opening markets, and providing more adequatelyfor the defense of the West. It was also felt that transcontinental rail lines could not be built withoutsubstantial Federal assistance. The grants sometimes consisted only of a right of way across publiclands, but sometimes also included a greater subsidy in the form of additional grants of land,financial support, or both. Some land grants were made to states to be conveyed by them to arailroad company upon completion of specified segments of line. Other grants were made to railroadcorporations directly. Usually this latter course was followed if the route was to cross territoriesrather than states. Typically, in this latter instance, a federally chartered corporation was created bythe same legislation that established the land grants. Several transcontinental railroads were authorized in a ten-year period, including the UnionPacific/Central Pacific in 1862 and 1864, (2) the Northern Pacific in 1864, (3) the Atlantic and Pacific in1866, (4) and the TexasPacific in 1871. (5) Theterms of grants varied, but all of these railroads received a right of way and additional land grants. These lands were typically granted in a "checkerboard" layout -- blocks of railroad lands alternatedwith government-retained lands -- with the intent that the railroads would sell their lands to settlersto finance the railroad, and the presence of the railroad would make the retained government landsmore valuable. Other, non-transcontinental railroads also received federal grants to begin operation. By the time the fourth transcontinental line was authorized in 1871, vehement opposition wasdeveloping to the railroads that only a few short years before had received enthusiastic support. Asone historian put it, when the West "saw evidence that railroads were not prompt in bringing theirlands on the market and putting them into the hands of farm makers, the West turned from warmfriendship to outright hostility to railroads." (6) This hostility was reflected in a cessation of congressional land grants to railroads. (7) Congress did, however, wishto continue to encourage the expansion of railroads across the western lands. Special acts continuedto be passed that granted a right of way through the public lands of the United States to designatedrailroads, but this piecemeal approach was burdensome. In 1875, Congress enacted a statute knownas the "General Railway Right of Way Act (GRRWA)," (8) that granted a right of way two hundred feet wide across publiclands and, as codified at 43 U.S.C. Â§ 934, states in pertinent part: The right of way through the public lands of the UnitedStates is granted to any railroad company duly organized under the laws of any State or Territory,except the District of Columbia, or by the Congress of the United States, which shall have filed withthe Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organizationunder the same, to the extent of one hundred feet on each side of the central line of said road; alsothe right to take, from the public lands adjacent to the line of said road, material, earth, stone, andtimber necessary for the construction of said railroad; also ground adjacent to such right of way forstation buildings, depots, machine stops, side tracks, turnouts, and water stations, not to exceed inamount twenty acres for each station, to the extent of one station for each ten miles of itsroad. At times, railroads also acquired some rights through the exercise of state power of eminentdomain and through the exercise of federal power of eminent domain. In addition, some rights ofway were simply purchased by the railroads from non-federal owners. In the latter instance, therailroad obviously could hold full title to the right of way lands and the federal government none. By contrast, in those instances in which the right of way was obtained by an exercise of the federalpower of eminent domain, one would have to examine the particular authority for that exercise andalso the particular condemnation proceedings to determine the scope and conditions of the title therailroad obtained. This report does not address privately-owned railroad rights of way but discusses railroadrights of way granted by the federal government, either as part of a land grant or under the 1875 rightof way statute. Legal Nature of "Rights of Way" The courts have interpreted the right of way interests conveyed to railroads in various ways,and it has become increasingly difficult to reconcile the sequence of congressional enactments andjudicial holdings into a coherent body of law. A complete review of the extensive enactments,litigation, and interpretations is beyond the scope of this report, but some of the principal cases andissues are set out. The Supreme Court has said that a pre-1871 right of way granted to a land grant railroad wasa "limited fee," (9) while theright of way granted under the 1875 statute was an easement. (10) More recent cases seemto indicate that the terminology may not be of vital importance; the significance of the terms useddepends on the context in which an inquiry arises. (11) However, the "rail banking" provisions of the Rails to Trails Act(discussed below) have again resulted in a focus on the exact nature of the right of way interest andthe authority of Congress over rail corridors. To encourage settlement of the West, Congress notonly enacted railroad rights of way grants but also statutes that authorized the conveyance of landsto private citizens. The railroads crossed these lands and whether the "banking" of the rail corridorsonce trains no longer operate results in a taking of private property for which compensation is owedunder the 5th Amendment to the Constitution has been addressed in several recent cases discussedlater in this report. A review of property law terms may be helpful. Usually when land is granted to anotherowner, the conveyance is complete and final. If the interest conveyed is complete and includes allrights associated with the property, it is a "fee simple." It is possible, however, to convey less thanall property rights, or to convey title to a grantee so that title may revert to the grantor in somecircumstances. If the interest conveyed is only the right to use the land of another for a particularpurpose (such as the right to cross the land of another), the interest is an easement. There can be agradation of interests between fee title and an easement depending on the exclusivity of possessiongranted, the duration of the interest granted, and the completeness of the rights granted. A right ofway interest may be structured and conveyed in such a manner that the grantor retains a"reversionary" interest in the property, which means that the property may in some circumstancesrevert to the grantor. A fee grant may be made so that it continues only so long as some use or circumstancecontinues, and if that use or circumstance ceases, then title reverts automatically to the grantor. Thisis called a determinable grant. Or a fee grant may be interpreted as being made on the condition thatif "x" occurs, then the grantor may reenter the property, and title may revert to the grantor. This iscalled a grant on a condition subsequent. Both of these could be characterized as "limited fees,"since they are less than full fee title. The principal difference between these two types of grants is that in the former instance, noaction on the part of the grantor is necessary to reassert title; title reverts by action of law as soon asthe envisioned use or circumstance ceases. In contrast, if the grant is deemed to be a grant on acondition subsequent, the grantor must take some action to reassert title upon the breach (orfulfillment) of the condition (depending on whether the grant and condition were worded positivelyor negatively). This action usually takes the form of a judicial proceeding to determine that the termsof the condition have in fact been met or breached. If the right of way is a mere easement, at common law when the easement use ceases, theeasement simply disappears and the "servient" estate -- the land burdened by the easement -- nolonger is so burdened. (Therefore, it usually is not technically correct to speak of a "reversionaryinterest" in connection with a common law easement.) However, Art. IV, Â§ 3, cl. 2 of the Constitution gives Congress the "Power to dispose of andmake all needful Rules and Regulations respecting the Territory or other Property belonging to theUnited States." When Congress grants a property interest, the grant is both a grant of property anda law and Congress is free to specify terms or elements different from those that otherwise wouldapply either by virtue of the common law or in other statutes. This fact seems to have been lost insome of the discussions of congressional railroad grants. A railroad grant may also be both a grantof a property interest and a contractual agreement between the federal government and therailroad. (12) One of the earlier cases in which the Supreme Court considered the title taken by a land-grantrailroad was Schulenberg v. Harriman in 1874, in which the Court said: "A legislative grant operatesas a law as well as a transfer of the property, and has such force as the intent of the legislaturerequires." (13) Considering all the conditions and provisos that in the legislation granted lands to the railroad inquestion, the court found the interests granted to the railroad to be a fee on condition, and that breachcould only be asserted by the government as grantor. In this respect, the Court clearly distinguishedbetween what could happen at common law where the two private parties were involved from thesecongressionally created property interests where one party was the sovereign government and mustenforce the terms of the property grant either by judicial proceedings or by legislative assertion thatwas the equivalent -- "the mode of asserting or of resuming the forfeited grant is subject to thelegislative authority of the government." (14) Another early case interpreted a land grant railroad right of way as a limited fee, made on animplied condition of reverter in the event that the company ceased to use the land for railroadpurposes. (15) In thiscase, the Court also said: "No express provision for a forfeiture was required to fix the rights of theGovernment. If an estate be granted upon a condition subsequent, no express words of forfeiture orreinvestiture of title are necessary to authorize the grantor to reenter in case of a breach of suchconditions." (16) It isimportant to note that this case involved private persons who had been patented lands over whichthe train tracks ran, and the Court voided those patents on the ground that they could not convey theblock of lands they purported to convey due to the fact that the railroad held limited fee title to theright of way strip of land. In 1875, Congress approved the general railroad right of way grant (GRRWA) using the samelanguage as in some of the land-grant rights of way grants: "The right of way through the publiclands of the United States is hereby granted to any railroad company ...." (17) The Supreme Court heldin Great Northern Railway Co. v. United States that this language clearly granted only a surfaceeasement rather than the strip of land right of way. (18) In reaching this conclusion, the Court looked to other languageof GRRWA, to administrative interpretations, and to subsequent enactments by Congress thatreferred to the "easements" given by the 1875 Act. The Court pointed to Â§ 4 of the Act as especiallypersuasive in that it states that once each right of way is noted on plats in the local land office,"thereafter all such lands over which such right of way shall pass shall be disposed of subject to theright of way. " (Emphasis added.) "Apter words to indicate the intent to convey an easement wouldbe difficult to find." (19) As will be discussed, however, it is possible that Congress did not intend by this language torelinquish its authority over the ultimate disposition of the rail corridor. The Great Northern case illustrates the mixture of facts and terminology that rendersharmonizing the various judicial holdings difficult. In Great Northern , the United States sued toenjoin the plaintiff Railway Company from drilling for oil and gas beneath an 1875 right of way. The railroad owned the adjacent lands and hence at common law could have been the owner ofunderlying estate. No evidence of title in the United States was introduced; but the court allowedthe parties to stipulate that "the United States has retained title to certain tracts of land over whichpetitioner's right of way passes ...." (20) This stipulation avoided a resolution of issues involving thepossible rights of adjacent landowners or the nature of possible retained authority of Congress. In another case in which the government sued to enjoin a railroad company from drilling foroil and gas on the land-grant right of way granted it by the government, the Supreme Court ruled thatthe right of way grant did not include mineral rights because of other language in the Act thatexcepted out mineral lands -- language the Court held applied to the entire statute and not just togrants of lands. (21) Inreviewing the "limited fee" cases, the Court said that the most such cases decided was that "therailroads received all surface rights to the right of way and all rights incident to a use for railroadpurposes." This case has sometimes been regarded as holding that even land-grant rights of waywere merely easements, but in fact the Court held only that the grant did not give the mineral rightsto the owner of the right of way because nothing passed except what was conveyed in clear language;the grants were construed favorably to the government with doubts resolved in favor of thegovernment; and oil and gas development was not within the railroad purposes of the right of way. Nevertheless, the Supreme Court did strongly suggest that all railroad rights of way were easements. Although the courts have struggled at times to articulate the nature and scope of the interestheld by a railroad, the cases are clear that the right of way interest, whether limited fee or easement,is conditioned on the continued use of the right of way for railroad purposes, although that phrasemay be broadly construed. (22) Conveyances by the Railroads Congress has authorized the railroads to convey part of their rights of way for highwaypurposes. In 1920, Congress authorized railroads to convey to state, counties, or municipalities,portions of rights of way to be used as public highways or streets provided the conveyance wouldnot diminish the railroad right of way to less than 100 feet. As codified at 43 U.S.C. 913, thisprovision reads: Â§ 913 Conveyance by land-grant railroads ofportions of rights-of-way to State, county, or municipality All railroad companies to which grants for rights of waythrough the public lands have been made by Congress, or their successors in interest or assigns, areauthorized to convey to any State, county, or municipality any portion of such right of way to be usedas a public highway or street: Provided , That no such conveyance shall have the effect to diminishthe right of way of such railroad company to a less width than 50 feet on each side of the center ofthe main track of the railroad as now established and maintained. (23) Section 16 of the Federal Highway Act of 1921 (24) gave the consent of the United States to any railroad or canalcompany conveyance to the highway department of any state "any part of its right of way or otherproperty in that State acquired by grant from the United States." Note that this provision did notmention the necessity for retaining the central right of way, and the legislative history offers noclarification on the point. The Federal Highway Act included language stating "all acts or parts ofacts in any way inconsistent with the provisions of this act are hereby repealed ...," and courts thathave addressed the issue have found that the 1921 enactment amended Â§ 913, eliminating therequirement that the retained central core be 100 feet in width. (25) It is arguable, however,that because the railroad is only authorized to convey "property acquired" from the United States,neither a full fee title nor any retained interest of the United States could be conveyed. Under suchreasoning, the railroad must continue to use the right of way for railroad purposes or, if that useceased, the railroad could not convey the central core. In addition, if the railroad were legallyabandoned, the public highway exception in section 912 would still allow one year for anyabandoned portion of a right of way to be "embraced in a public highway." (26) Controversies have arisen as to the authority of the railroads to convey all or part of theirinterest in the rights of way aside from the highway context, and as to the authority of private citizensto obtain rights to property within the rights of way through adverse possession -- what might becharacterized as "squatter's rights." The Supreme Court interpreted the grant of a federal right of way as a unit, no portion ofwhich could be obtained for private purposes by adverse possession. By granting a right of way four hundred feet in width,Congress must be understood to have conclusively determined that a strip of that width wasnecessary for a public work of such importance, and it was not competent for a court, in the suit ofa private party, to adjudge that only twenty-five feet thereof were occupied for railroad purposes inthe face of the grant .... (27) Similarly, the court has held that the right of way purposes would be negated by the existenceof the power of the railroad to alienate the right of way or any portion of it. (28) Despite the limitations on the alienability of federal rights of way, the railroads still purportedto convey, and adjacent landowners continued to encroach upon, rights of way and claim rightsthereto. Over the years, Congress has repeatedly legislated to legitimize particular conveyances andactivities to alleviate the hardships to innocent purchasers. (29) In doing so, Congress hasconsistently asserted that Congress, not the railroads, had the authority to dispose of rail corridors. Many of the validation statutes involved land-grant railroad rights of way, which Congressrepeatedly characterized as limited fee grants with a reversionary interest in the federalgovernment. (30) Subsequent statutes interpreting and declaring the intent of earlier statutes are entitled to be givengreat weight in statutory construction. (31) In this context, Congress has enacted statutes for more than acentury that in text or committee reports refer to the reversionary interest of the United States, a pointthat will be discussed further below. A review of these enactments may shed light on the issues,although this consistent view of Congress that a residual interest remains in the United States hasnot figured prominently in judicial decisions thus far. Congressional Disposition of Underlying Federal Interests Congress legislated specially to provide for the final disposition of particular rights of wayno longer being used for railroad purposes, and in 1922 also enacted a general statute. (32) As codified at 43 U.S.C.Â§ 912, the 1922 statute provides that upon forfeiture or abandonment, the lands granted to anyrailroad company for use as a right of way for its railroad etc. would pass to a municipality if theright of way passed through one, or to adjacent landowners, except that a highway could beestablished within the right of way within one year after the date of a forfeiture or abandonment. Theprovisions state: Whenever public lands of the United States have beenor may be granted to any railroad company for use as a right of way for its railroad or as sites forrailroad structures of any kind, and use and occupancy of said lands for such purposes has ceasedor shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declaredor decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right,title, interest, and estate of the United States in said lands shall, except such part thereof as may beembraced in a public highway legally established within one year after the date of said decree orforfeiture or abandonment[,] be transferred to and vested in any person, firm, or corporation, assigns,or successors in title and interest to whom or to which title of the United States may have been ormay be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisionstraversed or occupied by such railroad or railroad structures of any kind as aforesaid, except landswithin a municipality the title to which, upon forfeiture or abandonment, as herein provided, shallvest in such municipality, and this by virtue of the patent thereto and without the necessity of anyother or further conveyance or assurance of any kind or nature whatsoever: Provided , That thissection shall not affect conveyances made by any railroad company of portions of its right of wayif such conveyance be among those which have been or may after March 8, 1922, and before suchforfeiture or abandonment be validated and confirmed by any Act of Congress; nor shall this sectionaffect any public highway on said right of way on March 8, 1922: Provided further , That the transferof such lands shall be subject to and contain reservations in favor of the United States of all oil, gas,and other minerals in the land so transferred and conveyed, with the right to prospect for, mine andremove same. Note that this statute begins by referring to grants of lands for railroad rights of way, and atleast two fundamental elements of section 912 remain integral to disposition of railroad rights of way-- the concept of abandonment and the public highway exception. Under section 912, as amended, certain rights vest upon abandonment. (33) A finding of abandonmentmust also be declared by a court of competent jurisdiction or by an act of Congress. (34) What constitutesabandonment remains, however, somewhat uncertain. The relevant statutes do not defineabandonment, and no single court decision has definitively resolved the question. Likewise, thecongressional debate on the statute was limited and does not provide clarification of the intendedmeaning. (35) The courtsthat have addressed the abandonment requirement have often looked to common law principles ininterpreting the term. A particularly influential case has read Â§ 912 to require a present intent toabandon as well as physical abandonment, evidenced by the cessation of tax payments related to theproperty, discontinuation of service and other railroad-related use, and removal of tracks. (36) Additional requirements,however, vary from circuit to circuit. The major point of dissension appears to be the status ofabandonment determinations by the Interstate Commerce Commission ("ICC") or, for cases arisingafter the termination of the ICC, by the Surface Transportation Board ("STB"). (37) The Tenth Circuit hasconsistently found such a determination a prerequisite to abandonment. (38) However, in the NinthCircuit, an ICC or STB determination of abandonment may not always be necessary. As stated in Vieux v. East Bay Regional Park District , "a railroad could abandon without any involvement fromthe I.C.C., if there is no injunctive action brought [by the I.C.C., the U.S. or state government] andif a court decrees that the railroad has abandoned the line. The I.C.C. regulation and processdetermine what effects an abandonment will have and what the railroad must do to counteract thoseeffects before it abandons, but they do not determine that an abandonment has actuallyoccurred." (39) Section 912 also established a public highway exception. A state or local agency has theright to include portions of any railroad right of way in a public highway within one year of its legalabandonment, thus eliminating other title claims. (40) The relevant committee report indicates: It seemed to the committee that such abandoned orforfeited strips are of little or no value to the Government and that in case of lands in ruralcommunities they ought in justice to become the property of the person to whom the whole of thelegal subdivision had been granted or his successor in interest. Granting such relief in reality giveshim only the land covered by the original patent. The attention of the committee was called,however, to the fact that in some cases highways have been established on abandoned rights of waysor that it might be desirable to establish highways on such as may be abandoned in the future. Recognizing the public interest in the establishment of roads, your committee safeguarded suchrights by suggesting the amendments above referred to protecting not only roads now established butgiving the public authorities one year's time after a decree of forfeiture or abandonment to establisha public highway upon any part of such right of way. (41) Two cases have held that the United States retained a reversionary interest in railroad rightsof way, including those established after 1871 (i.e. non-land grant railroad rights of way), and thatthe adjacent landowners had non-vested reversionary rights that were cut off when recreational trailuses were properly established as public highways under state law within the one-year publichighway exception set out in Â§Â§ 912 and 913. (42) The 1922 Act and the report language explaining it reveal an important point that arguablyhas not received adequate attention. Clearly, Congress believed that it had retained the authority toprovide for the disposition of railroad rights of way, whether because Congress continued to holdsome traditional property interest, such as a reversionary interest (note the reference to Congress'understanding that the rights of way were "strips" of land), or because its retained authority over thetermination of the rights granted was an element of the property interests granted . If the railroadrights of way exactly paralleled some common law property interest such as an easement, how canCongress make an alternative disposition of the underlying lands other than that which wouldotherwise apply at common law? The one-year window within which highways could be establishedin an abandoned rail corridor only makes sense if Congress retained the authority to deviate fromcommon law property rights with respect to termination of the grants. Recalling that the railroadgrants were both grants of a property interest and a law, the argument could be made that Congressintended as a matter of law to retain authority over the termination of the property rights granted. Arguably, this principle has been embodied in the enactments of Congress for more than a centurythat provided for the disposition of the rights of way. The importance of this question has beenhighlighted by recent cases involving the Rails to Trails litigation. "Rails to Trails" Congress has established a National Trails System to designate and manage a system ofnational trails. Amendments in 1983 (43) and 1988 (44) authorized the banking of railroad rights of wayto preserve themfor possible future railroad use and to allow interim use of the rights of way corridors for recreation. As indicated in the legislative history, Congress intended the trails system to increase recreationalopportunities, conserve natural resources, and, through the "Rails to Trails" provisions, preserverapidly diminishing rail corridors for possible future railroad use. (45) Specifically, the Rails toTrails provisions were enacted to deal with the problem of state property laws providing for theexpiration of easements upon abandonment. (46) As codified at 16 U.S.C. Â§ 1247(d), Congress provided railroadswishing to discontinue service on a particular route an opportunity to negotiate with state, municipal,or private entities who were prepared to assume responsibility for conversion and management ofthe rail corridor as a trail. (47) If the negotiations were successful, the right of way would notbe deemed abandoned; rather it was considered to be under an "interim use," with the possibility thatrail service could be reinitiated in the future. (48) By avoiding final abandonment status, the railroad right of waydid not pass under applicable state law or 43 U.S.C. Â§ 912. The 1988 amendment (16 U.S.C. Â§ 1248(c)) provides for the retention by the federalgovernment of any and all federal interests in railroad rights of way. (49) The statute provides Commencing on October 4, 1988, any and all right, title,interest, and estate of the United States in all rights-of way of the type described in the Act of March8, 1922 (43 U.S.C. 912), shall remain in the United States upon the abandonment or forfeiture ofsuch rights-of way, or portions thereof, except to the extent that any such right-of way, or portionthereof, is embraced within a public highway no later than one year after a determination ofabandonment or forfeiture, as provided under such Act. (50) Section 1248(c) thus significantly changes the disposition of federal interests involved infederally-granted rail corridors over which trains no longer run, causing all interests to be retainedby the United States rather than passing to adjacent landowners or municipalities. By its ownlanguage, section 1248(c) confirms the continuing force of the 1922 Act, specifically reinforcing thecontinued vitality of Â§912 public highway exception. Accordingly, courts have continued torecognize Â§912 in so far as it does not conflict with section 1248(c). (51) 5th Amendment Takings Cases After the enactment of Rails to Trails, cases examined whether the retention of non-operatingrailroad rights of way for use as recreational trails constitutes a taking entitling the landowners to justcompensation under the 5th Amendment to the Constitution. With respect to some privately grantedrights of way, the Supreme Court in Preseault held that the law was constitutional because the"Tucker Act" (52) provided an avenue to obtain compensation if any were owed. (53) A subsequent caseinvolving the same plaintiffs held that a compensable taking had occurred, but that not every exerciseof authority by the United States under the Rails to Trails Act would necessarily result incompensable takings. The Preseault cases involved private fee-title landowners whose predecessorshad sold an easement for railroad purposes to a railroad. Ultimately, the Court of Appeals for theFederal Circuit decided that use of the right of way for recreational purposes was beyond the scopeof the easement granted and agreed to by the private parties, and hence the use of the corridor forthose purposes constituted a taking. (54) With respect to federal rights of way, early decisions after the 1988 statutory changeconcluded that, despite the absence of an explicit reservation of interest, the federal government didretain an implied interest when it patented (conveyed title to) lands crossed by federal railroadeasements into private ownership, such that the retention of the rights of way for interim use as trailswas not a taking, when a public highway was established under state law. (55) More recent cases haveheld the opposite. (56) There has not yet been a Supreme Court ruling in the federal right of way context. In the Hash case, (57) landowners brought a class action challenging a conversion ofa railroad right of way across their lands to a recreational trail. The federal district court for Idahofound no taking and plaintiffs appealed. The lower-court decision was vacated and remanded in lightof an Idaho Supreme Court decision. The right of way in question was granted under the 1875GRRWA, and the landowners argued that under the reasoning of Preseault , the application of theTrails Act after abandonment of railway use prevented the railroad easement from reverting to theowners of the servient estate and entitled them to compensation. This claim required the court toascertain whether the federal right of way was an easement and the claimant landowners owned theunderlying estate, or whether the underlying estate never left ownership by the United States, orwhether the estate was deeded in fee to the railroad. There were various categories of landowners,but for purposes of this report, we shall address only those who obtained title to their lands from thefederal government after the establishment of the railroad right of way, thereby raising the questionof what Â§ 4 of the GRRWA means when it states that subsequent land owners take "subject to" theright of way. The court in Hash noted the previous cases that had held that the 1875 statute granted onlyeasements, and further noted that the United States had failed to expressly reserve any interest toitself when conveying lands to homesteaders, except that settlers took lands "subject to" the railroadright of way. "We have been directed to no suggestion, in any land patent, deed, statute, regulation,or legislative history, that can reasonably be construed to mean that the United States silentlyretained the fee to the land traversed by the right-of-way, when the United States granted that landto homesteaders." (58) Similarly, the court did not find that language directing the railroads to share their rights of way withhighways under either 43 U.S.C. Â§ 912 or Â§ 913 mandated the conclusion that the United States hadretained the fee to the land underlying the right of way after land patents including that land weregranted to private persons. Similarly, the court found that Â§ 913 (that authorizes highways withinthe right of way for up to a year after abandonment) does not weaken the position of the landownersbecause it required that the rights of the United States be conveyed to the private owner. However,this reasoning arguably does not adequately take into account the fact that if the United States couldvalidly legislate regarding the one-year window for the establishment of the highways, Congressmust have had some interest in the right of way. As discussed above with respect to the statutesvalidating railroad right of way conveyances, Congress has repeatedly enacted statutes premised onsome legislative or proprietary interest over termination of the rights of way. Similarly, the court stated that the statute requires the United States to convey any rights ithas in the right of way, and that the statute does not indicate what rights the United States had. However, the statute actually directs that all right, title, and interest of the United States beconveyed, except for highways within the year after abandonment. "All" is not an equivocal wordas "any" is, and arguably may indicate that Congress believed there was such right or interest heldby the United States. The Beres case also involved an 1875 right of way, and the Court of Federal Claims held thatthe right of way granted only an easement, so that when the right of way was no longer used forrailroad purposes, the easement was lifted and no property interest reverted to the United States. When the underlying lands were patented, the court held, the government gave up all its interest inthe land, including any reversionary interest. This case again did not take into account the years ofenactments by Congress premised upon some retained interest or authority over the rights of way,nor the language of Â§ 913 that on its face makes a disposition different from that which wouldpertain if the right of way were an easement at common law. The government in Beres again argued that the United States had retained some interest inthe railroad rights of way, quoting from Whipps Land & Cattle Co. v. Level 3 Communications, LLC in which the Nebraska Supreme Court stated that, "while the vocabulary of the common law of realproperty is often imported into the discussion of railroad rights-of-way, where those rights-of-wayhave been created by federal law, they are entirely creatures of federal statute, and their scope andduration are determined, not by common law principles, but by the relevant statutoryprovisions." (59) Thegovernment argued that even if the 1875 Act were an easement, Congress in the 1922 Act hadaffirmed its understanding that the United States had a reversionary interest in the rights of way evenwhere the whole of the land traversed had subsequently been patented. However, the discussion by both the government attorneys and the court devolved into anattempt to fit the various congressional actions into some traditional property interest. The courtstated the issue as being "whether the 1988 legislation can have retroactive effect on the transfer ofland rights which occurred years earlier...." The 1875 Act appeared to the court to have"intentionally omitted any words to create a reversionary right in the United States in grants ofrailroad rights of way, especially in light of the clarifying legislation in the 1922 Act, whichspecifically addressed the issue." An argument can be made that all elements of the court's reasoning miss the mark in that what land rights might have been transferred years earlier is part of the question; it is possible thatthe 1875 Act did not need to expressly create a reversionary right in the United States; and the 1922Act itself arguably reflects Congress' continuing belief that it had the power to dispose of part of theright of way in a manner different from what would pertain at common law. (60) Under Art. IV, Â§ 3 of the Constitution, Congress has the authority to dispose of and make all needful Rules and Regulationsrespecting the Territory or other Property belonging to the United States.... Perhaps an avenue by which the enactments to date can be reconciled is the possibility thatCongress' actions were premised on its authority to legislate regarding the ultimate disposal of therights of way, and that this continuing authority over termination and disposition was an intrinsic partof both the railroad rights of way and the land titles homesteaders and others received when title waspatented "subject to the right of way." This retention of disposal authority makes sense of Congress'repeated and consistent enactments and accompanying committee reports regarding its "reversionaryinterest" in the rights of way. Perhaps Congress was using that term to indicate its reserved authorityto articulate the disposition of the rights of way upon termination of rail service. As one court saidwhen commenting on Congress' imprecise choice of words regarding another aspect of railroad landgrants: "[y]et it will not do for us to tell the Congress 'We see what you were driving at but you didnot use choice words to describe your purpose.'" (61) Perhaps many of the recurring difficulties could be resolved ifthe courts focused less on contradictory property/title words and more on the intent of Congressevident from decades of congressional enactments, including the 1922 Act, premised on Congress'continuing authority to specify disposition of terminating federal rights of way. There is analogous precedent for this approach in the "navigational servitude" context inwhich the government may sometimes take private property without compensation being owed underthe 5th Amendment. Over the years, the rationale for this result has been articulated either as annavigational easement of some sort implicitly reserved to the government -- i.e. a property interest-- or as a constitutional authority of the government that is always a part of all property conveyances,and hence no compensation is owed when it is exercised within the constitutional parameters. Therule of no compensation derives from the fact that the property damage "results from the lawfulexercise of a power to which the property has always been subject." (62) Most recently, this conceptmight be worded that the power of the government to take property for navigation purposes is abackground principle applicable to all title, and hence no compensation is owed because the ownernever had a property interest not subject to that limiting background principle of property law. (63) Similarly, the argument can be made that because Congress has the plenary power under Art.IV of the Constitution to provide for the regulation and disposal of the property of the United States,the power to control the ultimate disposal of federal rights of way was a part of the right of way titlethe railroads took and of the title homesteaders received to lands "subject to" the railroad right ofway. Arguably, if Congress made an alternative disposition of the lands before the conditions weremet that would have fully vested private title under the 1922 Act, no compensation would be owed. Congress could of course give up this authority, but arguably it must be clear that it has doneso. Again, in the context of the navigational servitude such a waiver "will not be implied, but insteadmust be surrendered in unmistakable terms, (64) and conferral by Congress of title to a streambed does not,without more, waive applicability of the navigational servitude. (65) Whether the courts will consider such an argument, of course, is not yet clear. However, thecases to date do not seem to have adequately taken into account the numerous enactments byCongress over the last 100 years, in which Congress has legislated regarding disposition of federalrailroad rights of way. Conclusion The legal status of land within any particular right of way depends on the interest held by arailroad or landowner, the general and particular applicable statutes, and the facts of a particularsequence of conveyances. Although Congress has on many occasions addressed the disposition ofrailroad rights of way, controversies may be expected to continue to arise because of issues as to thenature and scope of Congress' authority over the rights of way; the nature and scope of the interestof the railroad, the validity of attempts by the railroad to convey all or part of that interest,ambiguities associated with dating abandonment, disputes between adjacent landowners overperceived entitlements to lands within a right of way, and assertions that compensation is owed. Congress has from time to time legitimized conveyances that otherwise would be invalid, and inother legislation has permitted certain general types of conveyances. In particular, the conversionof federal rail corridors to recreational use under the Rails to Trails legislation may occasion furtherlitigation as to the interests held by the United States and those of adjacent landowners.	During the drive to settle the western portion of the United States, Congress sought toencourage the expansion of railroads, at first through generous grants of rights of way and lands tothe great transcontinental railroads between 1862 and 1871, and later through the enactment of ageneral right of way statute. The 1875 General Railroad Right of Way Act permitted railroads toobtain a 200-foot federal right of way by running tracks across public lands. Some railroads alsoobtained rights of way by private purchase or through the exercise of state or federal powers ofeminent domain. Therefore, not all railroad rights of way are on federal lands, and the propertyinterest of a railroad in a right of way may vary. The courts have characterized the interest held bya railroad pursuant to a federally granted right of way variously: as a "limited fee" in the case of aland grant right of way, or as an easement in the case of a right of way under the 1875 Act. As railroads closed rail lines, questions arose as to the disposition of the lands within theformer rights of way. Many individual instances were resolved in separate legislation. In 1922,Congress enacted a general law to provide that federal railroad rights of way on federal lands becomethe property of the adjacent landowner or municipality through which the right of way passed. Thislaw is unclear in several respects -- for example, as to what procedures are sufficient to constitutean abandonment of a right of way, and on what authority Congress could provide for theestablishment of highways within the right of way after abandonment of the rail line. In 1988, inwhat is popularly known as the Rails to Trails Act, Congress opted to bank rail corridors, keepingthem available for possible future use as railroads and making them available for interim use asrecreational trails. Some cases have held that Rails to Trails results in takings of private property whennon-federal easements were involved. In the context of federal rights of way, recent cases have heldthat the federal government did not retain any interest in federal railroad rights of way when theunderlying lands were conveyed into private ownership, and therefore if an abandoned rail corridoris held for interim trail use, compensation is owed the adjacent landowners. However, Congress haslegislated numerous times over the years regarding federal railroad rights of way, as though Congressbelieved it had continuing authority over their ultimate disposition. Issues may continue to arisesurrounding the disposition of federal railroad rights of way, possibly involving, for example, theauthority of Congress over the rights of way, the nature of the interest held by the railroad, thevalidity of attempts by the railroad to convey all or part of that interest, and disputes betweenadjacent landowners over perceived entitlements to lands within a particular right of way. This report discusses the history of federal railroad rights of way and some of the casesaddressing them. It will be updated from time to time as circumstances warrant.
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"Motion is made to dismiss this case upon the ground that no Federal question is involved; or if the(...TRUNCATED)	"Where the title claimed by the State of Iowa to land formerly the bed of a lake rested solely upon (...TRUNCATED)
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LegalSumm: A Comprehensive Legal Document Summarization Dataset

LegalSumm is a merged dataset combining three prominent legal document collections (GovReport, BillSum, and CaseSumm) to create a comprehensive resource for training and evaluating legal text summarisation models.

Dataset Composition

Total samples: 69,992 document-summary pairs

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GovReport: 19,466 U.S. government reports (27.8%)
BillSum: 23,455 U.S. Congressional bills (33.5%)
CaseSumm: 27,071 U.S. Supreme Court opinions (38.7%)

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text: Original legal document (full text)
summary: Human-written summary of the document

Preprocessing

Documents have been standardized to ensure consistent formatting across different legal document types.
All samples have been randomly shuffled and split into training (80%), validation (10%), and test (10%) sets.

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69,992