§ 273-8 Basis of approval.
§ 273-9 Basis of denial.
§ 273-10 Appeals to Township Council.
§ 273-13 Soil removal application requirements.
§ 273-14 Waiver of application of plan requirements.
§ 273-15 Conditions of approval.
§ 273-18 Violations and penalties; restoration of property.
Land use procedures — See Ch. 70.
Environmental impact statement — See Ch. 222.
Subdivision of land — See Ch. 435.
Zoning — See Ch. 490.
The purpose of this chapter is to protect and preserve the forests and soils of Jefferson Township from indiscriminate destruction, disturbance and/or removal. This chapter is intended to maintain the aesthetic and environmental benefits provided by trees and stable soils and to prevent erosion and sedimentation which can have severe negative effects on the environment in general. The protection of streams and lakes from the damage caused by sediment and avoidance of impaired water quality are major goals of this chapter. This chapter also provides a means to mitigate the adverse effects of tree loss as a result of development projects.
Any person who has met the qualifying conditions of education and experience set forth by NJDEP Bureau of Forestry, and whose name appears on their annual approved forester's list.
The area in which trees have been designated for cutting, obtained by traversing the outer periphery of those trees and taking into consideration the delineation of the natural boundaries located within the property.
To dig, move, deposit, fill, grade, replace, level or otherwise alter or change the location or contour of the land or transport or supply soil; to cut, remove or otherwise destroy existing trees or forested areas.
Any area of land which has been disturbed in accordance with the definitions herein or is contemplated to be disturbed.
The application of business methods, techniques and technical forest principles applied to the management of a forested property.
A specific document that describes the need for forest planning on timbered land proposed for management, prepared by a forester approved by the NJDEP Bureau of Forest Management. Said plan must be reviewed and approved by NJDEP Bureau of Forest Management.
A plan prepared by an approved forester describing the area to be harvested, its existing forested condition, the numbers, sizes, species, and volumes to be harvested, a description of equipment and methods to be used during the actual removal of the timber, conservation and soil erosion control methods to be used during the operation, a plat map showing the location of all landing areas, skid trails and logging roads and the boundaries of the proposed harvest/cutting area.
Any parcel of land located within the boundaries of Jefferson Township, either improved or unimproved, which shall be designated as a lot on the Official Tax Map of the Township of Jefferson and any amendments thereto. All contiguous properties in the same ownership shall be considered as one lot for purposes of this chapter.
Lands which are used for horticultural purposes under a controlled agricultural plan whereby trees are grown from seedlings or planted saplings with their roots maintained in their natural state (not balled or otherwise packaged for sale).
A person having actual possession of any premises or any part thereof.
A person or entity who or which, alone or jointly with others, has legal or equitable title to premises with or without accompanying actual possession, including an executor, administrator, trustee or guardian of an estate or a mortgagee in possession.
A license issued by the Township Forester or the Township Engineer (or other designated official) of the Township of Jefferson to disturb land under the provisions herein.
Any change or alteration in the grade of any property.
A tree of a species approved by the Township Forester having a diameter of at least 2 1/2 inches measured 4 1/2 feet above the ground.
The reestablishment of vegetative cover or other surface treatment as necessary to prevent erosion and as approved by the Township Engineer or Forester.
Earth, sand, clay, loam, gravel, humus, rock or dirt, without regard to the presence or absence or organic matter.
A tree of any species having a diameter of 18 inches or larger, measured 4 1/2 feet above the ground.
A person professionally qualified and appointed by the Mayor with the advice and consent of the Council to supervise the conservation of trees and soil within the Township, and to administer the provisions of this chapter, which position is hereby created. The Township Forester shall be appointed annually, and his term shall expire by January 15 of each year if his successor has been appointed. In the event that his successor has not been appointed by January 15, his term shall expire on the appointment of his successor.
Any living, woody, perennial plant having a diameter of four inches or greater measured 4 1/2 feet above ground.
Disturbance of less than 5,000 square feet of soil during any calendar year; provided, however, that no disturbance area exists as a result of disturbance which occurred during a prior calendar year and which has not been restored.
The removal from a lot of less than 50 cubic yards of soil during a calendar year.
The removal of no more than one specimen tree during a calendar year.
Soil disturbance, removal and/or tree removal in the public right-of-way under the authority of a public entity.
Trees removed in accordance with a forest management plan, which has been prepared by an approved forester, and has received NJDEP Bureau of Forest Management approval, provided certification of said approval is filed with the Township Forester and accompanied by a harvesting plan to be reviewed and approved by the Township Forester.
Soil disturbance and trees removed within the infrastructure disturbance limit during the construction of improvements required by a minor or major subdivision or within the property which is the subject of a site plan approved by the Planning Board or Board of Adjustment is exempt from the requirement to obtain a permit under this chapter. This exemption is conditioned on off-site soil removal not exceeding 1,000 cubic yards, or an amount specified in the resolution of approval and provided that the soil disturbance or tree removal is completed within three years of final approval of the development plan, and that said disturbance is done on notice to the Township Forester and Engineer at least 10 days prior to the disturbance. The forgoing exemption is limited to the removal of trees specifically allowed by the approving Board and does not exempt any other trees. The exemption provided herein does not exempt the development project from the mitigation provisions of this chapter with respect to all trees which are to be removed and including those that are allowed by the approving Board.
Soil removal within an approved subdivision site, provided that no more than 1,000 cubic yards of soil is removed from the subdivision site or as provided in the resolution of approval, and further provided that soil is not transported over any existing public roadways.
Disturbance of soil during the tilling of soil for agricultural or horticultural purposes.
Removal of dead, diseased or hazardous trees upon authorization of the Township Forester or Director of Public Works.
The exceptions provided above shall not relieve the owner from compliance with other local ordinances, state and federal regulations. Particular attention shall be given to regulations which control disturbance and fill in floodplains, wetlands and other critical areas.
No person shall disturb or remove soil and/or remove trees from any lot within the Township without first having obtained a permit, or unless excepted under § 273-3. Any person violating this section shall be subject to the penalty provisions hereinafter set forth. In the event that disturbance does occur without a permit being issued or if the same do not fall under the exemptions in § 273-3 above, it shall be presumed that the owner or owners of the property had knowledge of the disturbance, and said owner or owners shall be responsible for the violations of this chapter in conjunction and together with the persons who actually created or directed the disturbance.
Owner's name, mailing address and phone number.
Area of proposed disturbance in square feet or acres.
Volume of proposed disturbance in cubic yards.
Volume of proposed soil removal in cubic yards.
Number of trees to be removed.
Number of specimen trees to be removed.
Proposed period of soil disturbance or tree removal.
Purpose of soil disturbance or tree removal.
Contractor responsible for work, if any.
Other information as may be required for the administration of this chapter.
Volume of timber in board feet or cords for application involving the harvesting of trees for commercial or personal use.
Date that lot received preliminary subdivision approval.
Four inches but not more than eight inches.
Eight inches but not more than 15 inches.
Fifteen inches but not more than 20 inches.
Twenty inches but not more than 24 inches.
Trees with multiple trunks shall be based on the largest trunk.
The existing surface drainage pattern as it affects the subject property and all abutting properties, including streams, lakes and wetlands.
Any proposed changes in the existing surface drainage pattern which will result from the proposed soil disturbance on the subject property, including any proposed changes on abutting properties.
The elevation of the street at each limit of the subject property frontage.
The elevations of the finished garage floor and first floor of the dwelling proposed for the subject property.
The proposed location of all roof leader drains.
The location of any existing or proposed storm sewer system.
The outer limits of all areas in which soil disturbance or tree removal is proposed.
Wooded areas are to be indicated, and all specimen trees and all other trees to be saved within the disturbance area shall be mapped with size and species. Trees to be saved within the disturbance area shall be indicated. Location of replacement trees shall be noted.
Details for the protection of specimen trees within the disturbed area; for delineation and protection of area not to be disturbed; and for soil erosion control.
Details for proposed retaining walls by a licensed professional engineer, if over four feet high.
For lots which receive preliminary minor or major subdivision or site plan approval after the adoption of this chapter, the mapping requirement of Subsection H above shall include all trees over four inches in diameter within the disturbance area and for a distance of 10 feet outside the disturbance area.
The applicant shall submit two copies of the application form and plan to the Division of Construction and Housing Inspection for all applications involving a building permit or to the Planning Board Secretary for applications not associated with work requiring a building permit. The Division of Construction and Housing Inspection or Planning Board Secretary will collect fees and distribute copies to the Township Engineer and Township Forester. Approval of the application and issuance of a permit under this chapter may be conditioned on specified conditions and/or revisions to the application or plan established by the Township Engineer or Forester. Applications shall be approved or denied within 45 days. Any applicant who is dissatisfied with the conditions of approval or denial of the application may appeal the decision to the Township Council. Applications appealed to the Township Council shall be acted upon in accordance with the schedule established by the Township Council. The Township Council may request recommendations from the Planning Board and/or Environmental Commission prior to taking action on any application. The applicant is required to present the appeal to the Township Council, provide additional copies of the application and pay fees and escrow as established by the Township Council.
Stripping of vegetation, grading or other soil disturbance shall be done in a manner which will minimize soil erosion and stormwater runoff. Compliance with the Standards for Soil Erosion and Sediment Control in New Jersey shall be required.
The extent of the disturbed area and the duration of its exposure shall be limited based upon the application or conditions of approval.
Either temporary seeding, mulching or other suitable stabilization measures shall be used to protect exposed critical areas during construction and other land disturbance.
Drainage provisions shall accommodate increased on-site runoff resulting from modified soil and surface conditions both during and after site development.
Stormwater runoff leaving the site shall be minimized according to design standards and shall be retained on site wherever possible to facilitate groundwater recharge.
Sediment shall be retained on site.
Diversions, settlement basins and similar required structures shall be installed prior to any on-site grading or disturbance.
Tree loss and soil disturbance along streams and lakes is to be avoided.
Loss of specimen trees is to be avoided, particularly along ridgelines.
If necessary to save a specimen tree, a tree well with subsurface root aeration piping may be installed to facilitate fill within the dripline, provided prior approval is obtained.
Causes adverse drainage conditions and/or the inundation of real property and/or buildings on other premises.
Constitutes an undue burden upon the drainage system of the Township or hampers the proper, present or future course of development of the Township drainage system.
Presently constitutes or in the reasonable foreseeable future will constitute a danger or hazard to the well-being, safety or general welfare of the residents of the municipality or any property located therein.
The area of tree removal and/or soil disturbance exceeds the area allowed by the maximum lot improvement disturbance as defined in the Township Zoning Ordinance.
Editor's Note: See Ch. 490, Zoning.
More than 10 specimen trees are proposed to be removed.
More than 500 cubic yards of soil is proposed to be removed from a lot unless exempt pursuant to § 273-3.
Soil disturbance or tree removal is proposed within 25 feet of a stream or lake.
Soil disturbance or tree removal is proposed in a wetland, wetland transition area, as defined by DEP regulations, or conservation easement.
Any applicant who is denied a permit or is dissatisfied with the conditions of approval for a permit may appeal said decisions to the Township Council within 45 days of the action taken by the Township Forester and/or Township Engineer. The appeal shall be accomplished by filing a written notice with the Township Clerk on a form as provided by the Township Clerk. No additional fees shall be required than the fees which were submitted with the original application. The Township Clerk shall notify the applicant of a date for the hearing. No later than 10 days prior to the hearing date, the applicant shall cause to be provided notice to all property owners within 200 feet of the boundary lines of the lot or lots from which the soil disturbance is proposed. The applicant shall obtain a list of property owners within 200 feet from the person or department in the Township which provides that notice pursuant to the Land Use Procedure Ordinances of the Township. The notice minimally shall include the lots and blocks of the property sought to be disturbed, the amount of soil to be removed, if it involves soil removal, the area of soil disturbance and the number of specimen trees sought to be removed if any are to be removed. The application shall further indicate that plans are available for review in the Township offices. If the application is to seek any soil removal over any public roadways within the Township, the notice shall so indicate the same and the public roadways sought to be used.
Editor's Note: See Ch. 70, Land Use Procedures.
Applications which are made in conjunction with a building permit for a single-family home shall include provisions for replacement trees.
The applicant shall be encouraged to save as many trees as possible within the disturbed area. However, for each 5,000 square feet of disturbed area or any portion thereof, the applicant shall replant a replacement tree within the disturbed area on the same lot and to consist of one or more of the following species: red maple, sugar maple, red oak, white oak, chestnut oak, scarlet oak, pin oak, black oak, hickory, American birch, yellow birch, black birch, dogwood, yellow poplar, black locust, red cherry, sweet gum or weeping willow or any other species as approved by the Township Forester. The developer may take credit for each tree retained within the disturbed area that has a diameter of four inches or greater measured at 4 1/2 feet above grade. Each tree shall be planted before the issuance of a certificate of occupancy, unless weather shall prohibit the planting of the same, in which event the developer shall post escrow money with the Township with a definite date, not to exceed six months, as to when the trees will be planted and under an agreement that the Township shall have a right to use said funds in the event that the trees are not planted within the time period to plant trees on the property or in some other appropriate area of the Township in the event that trees cannot be planted on the property. Escrow shall be posted in the amount of $300 for each tree to be replaced prior to the issuance of a certificate of occupancy. The developer and the property owner are mutually responsible for the replacement of trees, and should the developer convey property prior to the replanting, the developer shall receive a written agreement from the purchaser to permit the planting.
Editor's Note: Former Subsections C, D and E, pertaining to a tree loss mitigation plan, which originally followed this subsection, were repealed 3-15-2006 by Ord. No. 8-06.
Editor's Note: Former § 273-12, Tree Loss Mitigation Fund, as amended, was repealed 3-15-2006 by Ord. No. 8-06.
The kind and quantity, in cubic yards, of soil to be removed and the projected daily removal in cubic yards.
The destination of soil to be moved, the route over which the material will be transported and the hours of operation.
The proposed date of commencement and completion of the soil removal.
The name, address and telephone number of the person having direct charge over the soil removal operation.
Existing and proposed topography with two-foot contour interval.
The Township Engineer and/or Forester may waive requirements contained in § 273-5, 273-6 or 273-13 if determined to be unnecessary for the review of the application.
All permits are valid for a maximum of one year from date of issuance. The duration of disturbance shall be limited as provided in the application or as a condition of approval. Time extensions shall be requested for approval prior to exceeding the proposed duration.
Posting of escrow for progress and final inspection.
Traffic control provisions, including payment for uniformed traffic directors, warning signs, etc., particularly where soil removal is approved.
Provisions for drywells, drains and/or slope stabilization.
Erosion and sediment control requirements.
Road opening permits and/or bond requirements may be required for truck access and protection of municipal roads.
Retaining wall inspection by applicant's licensed engineer if over four feet high.
Such other requirements as may be necessary to fulfill the intent of this chapter.
Tree protection measures and the limit of disturbance line shown on the landscape plan shall be provided in the field with snow fencing or other durable material and verified by the Township Forester or other designated official prior to soil disturbance.
Protective barriers shall not be supported by the plants they are protecting, but shall be self-supporting. Barriers shall be a minimum of four feet high and shall last until construction is complete.
Chain link fence may be required for tree protection if warranted by site conditions and relative rarity of the plant.
Snow fencing used for tree protection shall be firmly secured along the dripline, but shall be no less than six feet from the trunk.
The grade of the land located within the dripline shall not be raised or lowered more than six inches unless compensated by welling or retaining wall methods; and in no event shall welling or retaining wall methods be less than six feet from the trunk of a tree.
No soil stockpiling, storage of building materials, construction equipment or vehicles shall be permitted within the dripline or within six feet of any remaining trees, whichever is greater.
Any clearing within the dripline or within six feet of the trunk of a remaining tree, whichever is greater, shall be done by hand-operated equipment.
Where a tree that has been noted for preservation is severely damaged and unable to survive, tree replacement shall occur as provided in § 273-11.
The Township Forester shall attend all preconstruction meetings for development projects that involve the protection and/or removal of trees.
This chapter shall be enforced by the Code Enforcement Officer, Township Forester or other designated officials of the Township of Jefferson.
For each 5,000 square feet of soil disturbance, a fine of up to $500 and restoration of the site.
For removal of each 50 cubic yards of soil, a fine of up to $500 and restoration of the site.
For removal of each tree, a fine of up to $500.
For removal of each specimen tree, an additional fine of up to $1,000.
All maximum fines listed above shall be additive for any multiple violation of this chapter.
In addition, the destruction, cutting or removal of each tree in violation of the provisions of this chapter shall be considered as a separate offense and subject to a separate penalty for each offense. In addition to the penalties fixed herein, any court having competent jurisdiction shall have the right to order appropriate action to be taken by the person or persons found to be in violation of the provisions of this chapter, including the owner, to restore the property which has been the subject of a violation of the provisions of this chapter.
Upon the filing of any application, there shall be a permit fee paid in the amount of $200 which shall be considered a fee for the administrative costs of review of any application for any area to be disturbed of 7,000 square feet or less, and for each area to be disturbed in excess of 7,000 square feet, the fee shall be the sum of $50 for each additional area of 7,000 square feet or less of disturbance.
In addition to the fees established above, an additional fee of $0.10 per cubic yard shall be charged for soil removal in excess of 100 cubic yards.


A resident of Illinois, dying there, willed all her property to her son, also a resident of that state. The will was probated in Illinois, and an inheritance tax was there laid upon all her intangible personalty, wherever situate. At the time of her death, she owned credits for cash deposited in banks located in Missouri, and coupon bonds of the United States and promissory notes, all physically within that state. Some of the notes had been executed by citizens of Missouri, and some were secured on lands there. Held that the credits, bonds, and notes were not within the jurisdiction of Missouri for taxation purposes, and that to enforce Missouri transfer or inheritance taxes reckoned upon their value would violate the due process clause of the Fourteenth Amendment. P. 281 U. S. 591.
Appeal from a judgment of the Supreme Court of Missouri, which reversed a judgment of the state Circuit Court and sustained an inheritance tax, assessed by the Probate Court, which the Circuit Court, on appeal, had found invalid.
The validity of § 558, R.S. of Missouri.1919, was duly challenged in the court below; by the judgment there, the rights of the parties were finally determined; the cause is properly here on appeal.
While a resident of Quincy, Adams county, Illinois, Carrie Pool Baldwin died October 4, 1926. By will, she left all her property to Thomas A. Baldwin, her son, a resident of the same place, and appointed him sole executor. The will was duly probated at her residence, and, under the statute of Illinois, an inheritance tax was there laid upon the value of all her intangible personalty, wherever situated.
States and sundry promissory notes which were then physically within that state. Most of these notes were executed by citizens of Missouri, and the larger part were secured by liens upon lands lying therein.
Under § 558, R.S.1919 * (copied in margin) the state of Missouri demanded transfer or inheritance taxes reckoned upon the value of all the above described property. No denial of this claim was made in respect of the real estate; but as to the personalty it was resisted upon the ground that the property was not within the jurisdiction of the state for taxation purposes and to enforce the demand would violate the due process clause of the Fourteenth Amendment.
The Lewis County Circuit Court declared the transfer of the personal property not subject to taxation; the Supreme Court reached a different conclusion, and directed payment.
It does not appear and is not claimed that either the decedent or her son ever resided in Missouri. The record discloses nothing tending to show that the personal property had been given a business situs in that state.
"In recent cases we have held, for the purpose of property tax, that the situs of a credit is the domicile of the creditor. . . ."
"If we could apply the same rule to an inheritance tax, we might have less difficulty in disposing of this case. The inheritance tax statute, Article XXI, c. 1, . . . R.S.1919, provides an entirely independent method of ascertaining the property subject to inheritance tax from that applicable for general tax. The definition of the term 'property' in the last section, 589, of that Article, makes inapplicable any definition relating to general property tax. An inheritance tax is not a property tax, but an excise tax, or a tax upon succession. In re Zook's Estate, 317 Mo. 986, 296 S.W. 780, and cases cited. . . ."
"These notes, bonds, and cash were all in the possession of the administrator in Missouri. For what purpose they were in Missouri is not shown. We cannot assume that they were in the State of Missouri for the purpose of escaping taxation in the State of Illinois. It is a reasonable inference that the cash and notes in such large quantities in Missouri, when none of it was held in Illinois, was retained in this state for the purpose of investment. They may have established a business situs in this state, in which case it would be subject to a general tax, as well as the inheritance tax. . . ."
jurisdiction of the state, and property subject to the transfer tax. It would have been a proper subject of inquiry by the trial court to determine how and why and under what conditions these evidences of debt were in this state, but, whatever the determination of that question, the property was legally within the jurisdiction of the Probate Court of Lewis county in this state, and subject to the tax."
The challenged judgment rests upon the broad theory that a state may lay succession or inheritance taxes measured by the value of any deposits in local banks passing from a nonresident decedent; also upon the value of bonds issued by the United States and promissory notes executed by individual citizens of the state when devised by such nonresident if these bonds or notes happen to be found within the confines of the state when death occurs. The cause was decided below prior to our determination of Farmers' Loan & Trust Co. v. Minnesota, 280 U. S. 204. Blackstone v. Miller, 188 U. S. 189, was cited in support of the conclusion reached. Considering Farmers' Loan & Trust Co. v. Minnesota and previous opinions there referred to, the theory upon which the court below proceeded is untenable, and its judgment must be reversed.
Ordinarily, bank deposits are mere credits, and, for purposes of ad valorem taxation, have situs at the domicile of the creditor only. The same general rule applies to negotiable bonds and notes, whether secured by liens on real estate or otherwise.
upon real estate situated in the state in which the debtor resides."
"The question does not seem to us to be very difficult of solution. The creditor, it is conceded, is a permanent resident within the jurisdiction of the state imposing the tax. The debt is property in his hands, constituting a portion of his wealth, from which he is under the highest obligation, in common with his fellow citizens of the same state, to contribute for the support of the government whose protection he enjoys."
"That debt, although a species of intangible property, may, for purposes of taxation, if not for all others, be regarded as situated at the domicile of the creditor. It is nonetheless property because its amount and maturity are set forth in a bond. That bond, wherever actually held or deposited, is only evidence of the debt, and, if destroyed, the debt -- the right to demand payment of the money loaned, with the stipulated interest -- remains. Nor is the debt, for the purposes of taxation, affected by the fact that it is secured by mortgage upon real estate situated in Illinois. The mortgage is but a security for the debt, and, as held in State Tax on Foreign-held Bonds, supra, [15 Wall. 300], the right of the creditor"
"etc. Cooley on Taxation, 15, 63, 134, 270. The debt, then, having its situs at the creditor's residence, both he and it are, for the purposes of taxation, within the jurisdiction of the state."
bonds are not thus distinguishable from other choses in action. It is not enough to show that the written or printed evidence of ownership may, by the law of the state in which they are physically present, be permitted to be taken in execution or dealt with as reaching that of which they are evidence, even without the presence of the owner. While bonds often are so treated, they are nevertheless, in their essence, only evidences of debt. The Supreme Court of Errors expressly admits that they are choses in action. Whatever incidental qualities may be added by usage of business or by statutory provision, this characteristic remains, and shows itself by the fact that their destruction physically will not destroy the debt which they represent. They are representative, and not the thing itself."
We find nothing to exempt the effort to tax the transfer of the deposits in Missouri banks from the principle applied in Farmers' Loan & Trust Co. v. Minnesota, supra. So far as disclosed by the record, the situs of the credit was in Illinois, where the depositor had her domicile. There, the property interest in the credit passed under her will, and there the transfer was actually taxed. This passing was properly taxable at that place, and not otherwhere.
The bonds and notes, although physically within Missouri, under our former opinions were choses in action with situs at the domicile of the creditor. At that point, they too passed from the dead to the living, and there this transfer was actually taxed. As they were not within Missouri for taxation purposes, the transfer was not subject to her power. Rhode Island Trust Co. v. Doughton, 270 U. S. 69.
double taxation -- by two states on the same transfer -- should be sustained in order to prevent escape from liability in exceptional cases. We cannot assent. In Schlesinger v. Wisconsin, 270 U. S. 230, 270 U. S. 240, a similar notion was rejected.
"The presumption and consequent taxation are defended upon the theory that, exercising judgment and discretion, the legislature found them necessary in order to prevent evasion of inheritance taxes. That is to say, 'A' may be required to submit to an exactment forbidden by the Constitution if this seems necessary in order to enable the state readily to collect lawful charges against 'B.' Rights guaranteed by the federal Constitution are not to be so lightly treated; they are superior to this supposed necessity. The state is forbidden to deny due process of law or the equal protection of the laws for any purpose whatsoever."
If the possibility of evasion be considered from a practical standpoint, then the federal estate tax law, under which credit is only allowed where a tax is paid to the state, § 1093, Title 26, U.S.C., must be given due weight. Also the significance of the adoption of reciprocal exemption laws by most of the states, Farmers' Loan & Trust Co. v. Minnesota, supra, cannot be disregarded.
Normally, as in the present instance, the state of the domicile enforces its own tax, and we need not now consider the possibility of establishing a situs in another state by one who should undertake to arrange for succession there, and thus defeat the collection of the death duties prescribed at his domicile.
This cause does not involve the right of a state to tax either the interest which a mortgagee, as such, may have in lands lying therein or the transfer of that interest.
Reversed. The cause will be remanded to the Supreme Court of Missouri for further proceedings not inconsistent with this opinion.
and the tax was warranted by decisions of this Court. Liverpool & London & Globe Ins. Co. v. Assessors for the Parish of Orleans, 221 U. S. 346, 221 U. S. 354-355; Wheeler v. Sohmer, 233 U. S. 434. (I suppose that these cases and many others now join Blackstone v. Miller on the Index Expurgatorius -- but we need an authoritative list.) It seems to me to be exceeding our powers to declare such a tax a denial of due process of law.
And what are the grounds? Simply, so far as I can see, that it is disagreeable to a bond owner to be taxed in two places. Very probably it might be good policy to restrict taxation to a single place, and perhaps the technical conception of domicil may be the best determinant. But it seems to me that, if that result is to be reached, it should be reached through understanding among the states, by uniform legislation or otherwise, not by evoking a constitutional prohibition from the void of "due process of law" when logic, tradition, and authority have united to declare the right of the state to lay the now prohibited tax.
state; Savings Society v. Multnomah County, 169 U. S. 421, upholding a tax measured by a nonresident's notes, secured by mortgages on land within the taxing state; or Bristol v. Washington County, 177 U. S. 133, and Metropolitan Life Insurance Co. v. New Orleans, 205 U. S. 395, upholding a tax upon intangibles having a "business situs" within the taxing state, but owned by a nonresident. These cases rest upon principles other than those applied in Blackstone v. Miller, and are not dependent upon it for support.
It is true that the bonds and notes located in Missouri are choses in action, rights in which may be transferred at the domicile of the owner as well as in any other state in which he may chance to be. But the transfer made there is not completely effected without their delivery, which ordinarily can be compelled only in Missouri and in accordance with its laws. If negotiable, which, so far as appears, some of them were, their transfer by delivery within Missouri could defeat the transfer made in Illinois. When secured by mortgage on real estate, the transfer of the security, which is an inseparable incident of the chose in action, Carpenter v. Longan, 16 Wall. 271; Lipscomb v. Talbott, 243 Mo. 1, 31, may be affected by the recording laws, availed of only through the recording facilities where the land is located. See Pickett v. Barron, 29 Barb. 505; Curtis v. Moore, 152 N.Y. 159, 163.
of the laws of both, does not seem to me so oppressive or arbitrary as to infringe constitutional limitations.
Taxation is a practical matter, and if, in the choice of the rule we adopt, we may, as the Court has said in Farmers' Loan & Trust Co. v. Minnesota, give some consideration to its practical effect, we ought not, I think, to overturn long established rules governing the constitutional power to tax without some consideration of the necessity and of all consequences of the change. Under the law as it has been, no one need subject himself to double taxation by keeping his securities in a state different from his domicile or by seeking the protection of its laws for his mortgage investments. But it is a practical consideration of some moment that taxation becomes increasingly difficult if the securities of a nonresident may not be taxed where located, and where alone they may be reached, but where the courts are not open to the tax gatherers of the domicile. See Moore v. Mitchell, ante, p. 281 U. S. 18; 30 F.2d 600; Colorado v. Harbeck, 232 N.Y. 71.
"It is a reasonable inference that the cash and notes in such large quantities in Missouri, when none of it was held in Illinois, was retained in this state for the purpose of investment. They may have established a business situs in this state. . . ."
establish its unconstitutionality. Upon this ambiguous record, it is for the appellant to show that the stock and bonds subjected to the tax had no business situs within the taxing jurisdiction. See Corporation Commission of Oklahoma v. Lowe, ante, p. 281 U. S. 431; Toombs v. Citizens Bank of Waynesboro, post, p. 281 U. S. 643.
MR. JUSTICE HOLMES and MR. JUSTICE BRANDEIS join in this opinion.
"A tax shall be and is hereby imposed upon the transfer of any property, real, personal, or mixed, or any interest therein or income therefrom, in trust or otherwise, to persons, institutions, associations, or corporations not hereinafter exempted, in the following cases: when the transfer is by will or by the intestate laws of this state from any person dying possessed of the property while a resident of the state. When the transfer is by will, or intestate law of property within the state or within the jurisdiction of the state and decedent was a nonresident of the state at the time of his death. When the transfer is made by a resident or by a nonresident when such nonresident's property is within this state, or within its jurisdiction, by deed, grant, bargain, sale or gift made in contemplation of the death of grantor, vendor or donor, or intending to take effect in possession or enjoyment at or after such death. Every transfer by deed, grant, bargain, sale or gift made within two years prior to the death of grantor, vendor or donor, of a material part of his estate or in the nature of a final disposition or distribution thereof without an adequate valuable consideration shall be construed to have been made in contemplation of death within the meaning of this section. Such tax shall be imposed when any person, association, institution, or corporation actually comes into the possession and enjoyment of the property, interest therein, or income therefrom, whether the transfer thereof is made before or after the passage of this act: Provided, that property which is actually vested in such persons or corporations before this act takes effect shall not be subject to the tax."


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Analysis of L.H. v. Hamilton County Department of Education. On August 20, 2018, the U.S. Court of Appeals for the Sixth Circuit issued a wide-ranging decision about FAPE, LRE, parental rights, school culture, and tuition reimbursement.
Endrew F. v. Douglas County: IDEA Demands More: Inclusion & Progress in Regular Curriculum; IEP 'Tailored to Unique Needs'. It's a great day! On March 22, 2017, the U.S. Supreme Court issued another unanimous ruling in favor of children with special needs and their parents.
Educational Benefit: "Merely More Than De Minimis" or "Meaningful?" Supreme Court to Revisit Requirements in Endrew F. v. Douglas C. Sch. Dist. RE-1. On Wednesday, January 11, 2017, the U.S. Supreme Court will hear oral argument in Endrew F.. A 2015 ruling from the U.S. Court of Appeals for the Tenth Circuit widened the split among circuits about the level of educational benefit school districts must provide.
Fry v. Napoleon Comm. Sch. District began as a damages case brought under Section 504 / ADA on behalf of a child with cerebral palsy who needed her service dog as a reasonable accommodation and shifted into a case about exhausting administrative remedies under IDEA and is now being appealed to the U.S. Supreme Court.
School District’s Persistent Failures Cause “Severe and Lasting Harm” to Vulnerable Children with Disabilities in D.L. v. District of Columbia. This is the latest in a series of federal court decisions that found serious deficiencies in the District of Columbia’s special education programs. Judge Lamberth held that DC Public Schools failed to identify, locate and evaluate hundreds of preschool children with disabilities, and failed to provide them with FAPE, as required by IDEA and Section 504.
Remedies When School Officials Violate a Child's Constitutional Rights: Safford v. Redding, HH v. Moffett, NN v. Tunkhannock - The Constitution provides remedies when a student’s rights are violated. In Safford v. Redding, a violation of a Constitutional right was the primary vehicle to gain access to the courthouse. In HH v. Moffett, a decision from the 4th Circuit in which a child was illegally restrained in wheelchair, abused, and cursed, we saw the same strategy. More recently, this strategy was used in a case about the illegal search of a student's cell phone.
Legal Considerations When Advocating for Children with Special Education Needs by William B. Reichhardt, Esq. Explains the principles of eligibility determination, due process rights, and provision of services or placements and focuses on common problems and issues for special needs children in family law, personal injury and criminal law cases.
Demystifying Settlement Agreements by Marcy Tiffany and Steven Wyner. Settling a case avoids the delay, expense, uncertainty, and emotional strain associated with litigation. A settlement agreement offers more flexibility in crafting a remedy, but a poorly-crafted agreement can create new problems, and lead to even more litigation. The authors explain how settlement agreements should be structured and common pitfalls to avoid. The article includes a Sample Settlement Agreement that explains the basis and importance of each clause.
Supreme Court Issues Pro-Child Decision in Forest Grove School District v. T.A. by Peter Wright, Esq. and Pamela Wright, MA, MSW. On June 22, 2009, the Supreme Court issued a decision in Forest Grove School District v. T.A., a case about tuition reimbursement for a child who was never found eligible and never received special education services from the public school.
Supreme Court Issues Unanimous Decision in Fitzgerald v. Barnstable: Parents Can Sue School Officials Under Discrimination Laws by Pamela Darr Wright, MA, MSW & Peter W. D. Wright, Esq. On January 21, 2009, the Court held that Title IX does not preclude a §1983 action alleging unconstitutional gender discrimination in schools.
Did Strip Search Violate Student's Privacy Rights? Safford United School District v. Redding (08-479). In a 6-5 en banc decision, the full Court reversed the earlier panel and found that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure.
Appeals Court Upholds Award of Four Years of Compensatory Ed - On March 6, 2008, the Court of Appeals unanimously upheld the decision of the District Court in Jarron Draper v. Atlanta Independent School System (11th Cir. 2008); ordered Atlanta Independent School System to to pay student's tuition at a private school for four years or until he graduates from high school as prospective compensatory education for their failure to educate him.
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ADA: Burriola v. Greater Toledo YMCA. Many parents find day care centers unwilling to accept their children with disabilities. The doors to day care centers opened wider for children when a federal judge issued an injunction under the ADA on behalf of Jordan Burriola, ordering the center to reinstate him and train their staff. This article includes the pleadings and an article by Tom Zraik, Jordan's attorney.
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Judge Orders Sanctions Against School District, Remedies for Kids. On September 11, 2007, the U.S. District Court (Eastern District of Wisconsin) rendered its decision in Jamie S. v. Milwaukee Public Schools (01-C-928). Judge Goodstein found that between 2000 and 2005, Milwaukee Public Schools (MPS) violated the Child Find provisions in IDEA by failing to evaluate students who had suspected disabilities, failing to review all relevant data to determine the child's needs, and routinely suspending students instead of determining if they needed special education services. Citing the 2005 Supreme Court decision in Schaeffer v. Weast, Judge Goodstein found that the Wisconsin Department of Public Instruction (DPI) violated the IDEA by failing to discharge its oversight and supervisory obligations and failing to ensure that Milwaukee Public Schools was in compliance with the IDEA.
Analysis of Winkelman v. Parma. Supreme Court Rules: Parents Have Separate Enforceable Rights - Learn how the Winkelman decision goes beyond the question presented about whether parents can represent their children in court.
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In Kevin T. v. Elmhurst Comm. School District No. 205, a federal District Court found that compensatory education was an appropriate remedy for the district's failure to provide FAPE and ordered the district to pay for Kevin's education at a private school until age 22.
Fales v. Garst: Analysis by Pete Wright, Esq.- In Fales v. Garst, three Arkansas special education teachers brought suit against the principal of their school. After the teachers received a favorable decision from the U. S. District Court, the principal appealed. The Court of Appeals attempted to balance the teachers' interest in freedom of speech v. their "employer's interest in promoting efficiency."
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Henrico County School Board v. R.T. - Analysis by Pete Wright, Esq. - Pete Wright discusses Burden of Proof and Burden of Persuasion after the U. S. Supreme Court ruling in Schaffer v. Weast, the analysis of ABA and TEACCH, and the deference, if any, that should be provided to school board programs, methodology, and to testimony by school board witnesses.
How to Prepare for a Due Process Hearing. Vermont advocate Brice Palmer offers advice about how to prepare for a hearing or review. This article focuses on importance of planning and organizing. "If you do not plan and organize the pursuit, you are likely to wind up as road kill."
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Murphy v. Arlington: Analysis by Pete Wright, Esq. - After the Supreme Court issued a 6-3, pro-school decision in this case, Pete Wright summarizes the majority and dissenting opinions, provides an overview and background of the case, describes the different roles that lay advocates and expert witnesses play in resolving special education disputes, and the possible practical implications of this decision.
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Tests and Measurements for the Parent, Teacher, Advocate and Attorney - To successfully negotiate or litigate for appropriate services that provide educational benefit, you need to know how to interpret test scores. Assume a child has received three years of special education for reading problems. Has the child made progress? Has the child fallen further behind? In special education cases, your evidence includes standard scores, percentile ranks, subtest scores, and age and grade equivalent scores.
Witte v. Clark County School District: Key Points in Abuse Case - Pete Wright notes that when the Ninth Circuit reversed the U. S. District Court's decision, they found that parents are not necessarily required to go through a due process hearing before bringing the school district into court for punitive damages.
Your Child's IEP: Practical & Legal Guidance for Parents, Attorneys & Advocates - This will provide you with a basic overview of the IEP process. It should be read in conjunction with the Tests and Measurements article above. You will learn how to write IEP's that have meaningful goals and objectives, rather than subjective, vague, meaningless terms of "80% success on teacher made tests."


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Lukin P. A., Anisenkov A. V., Aulchenko V. M., Akhmetshin R. R., Banzarov V. Sh, Bashtovoy N. S., Berkaev D. E., Bragin A. V., Vorobiov A. I., Gayazov S. E., Grebenuk A. A., Grigoriev D. N., Gromov E. M., Epifanov D. A., Erofeev A. L., Zharinov Yu M., Ignatov F. V., Karpov S. V., Kazanin V. F., Kirpotin A. N., Koop I. A., Kovalenko O. A., Kozyrev A. N., Kozyrev E. A., Krokovny P. P., Kuzmenko A. E., Kuzmin A. S., Logashenko I. B., Lysenko A. P., Mikhailov K. Yu, Okhapkin V. S., Pestov Yu N., Perevedentsev E. A., Popov A. S., Popov Yu S., Razuvaev G. P., Rogovsky Yu A., Romanov A. L., Ruban A. A., Ryskulov N. M., Ryzhenenkov A. E., Sibidanov A. L., Solodov E. P., Titov V. M., Talyshev A. A., Fedotovich G. V., Khazin B. I., Shatunov P. Yu, Shatunov Yu M., Shwartz B. A., Shwartz D. B., Shebalin V. E., Shemyakin D. N., Eidelman S. I., Epshteyn L. B., Yudin Yu V.
© 2015, Pleiades Publishing, Ltd. The cross sections for the processes e+e− → 2(π+π−π0) and e+e− → 3(π+π−) at c.m. energies in the range of 1.5–2 GeV were measured with the aid of the CMD-3 detector at the VEPP-2000 collider of the Budker Institute of Nuclear Physics (Novosibirsk, Siberian Branch, Russian Academy of Sciences). The integrated luminosity in the respective experiment was 22 pb−1.


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FRANK W. EATON, Leonidas Merritt, Merrill M. Clark, Richard H. Fagan, and Margaretha Lonstorf.
Argued December 4, 5, 1901.
The plaintiff in error claims title under a United States patent issued to its grantor, one Frank Hicks, upon a homestead settlement. The defendants in error claim under locations of what is commonly known as 'Sioux half-breed scrip,' issued under the act of July 17, 1854. 10 Stat. at L. 304, chap. 83. These locations, it is alleged, were prior in time and right to the claim of Hicks, and therefore the patent was illegally issued to Hicks. It was prayed that the title represented by the patent be adjudged to be held in trust for the defendants in error, and that the plaintiff in error be required to convey such title to them in proportion to their interests set forth in their cross bill.
The controversy turns upon the validity of the scrip locations. Their validity was adjudged by the district court, and by the supreme court of the state. 79 Minn. 442, 82 N. W. 861. This writ of error was then sued out.
On the 20th of July, 1885, the lands having been duly surveyed, a plat and survey of the township in which the lands were situated were 'duly filed in the local land office at the city of Duluth, Minnesota, and thereupon, and on the 21st day of July, 1885, upon application of the said Orillie Stram, acting by and through her said attorney in fact, said certificate of Sioux half-breed scrip number 19D was adjusted to and upon the lands in controversy' (they were specifically described), and the scrip was then and there duly located upon said lands as surveyed lands, and the locations were allowed by the officers of the local land office at Duluth, there not being at that time, nor at the time the scrip was located upon the lands when unsurveyed, nor at any other time, any valid adverse claim to said lands; and on the 21st of July, 1885, receiver's final receipts and certificates of entry were duly and regularly issued to said Orillie Stram, and duly and regularly recorded in the counties of Lake and St. Louis, Minnesota, within a few days thereafter.
That on the 20th of July, 1885, one Thomas Hyde and one Angus McDonald respectively made application to make preemption filings on portions of the lands in controversy, which applications were denied both on the ground of the prior locations of the scrip and that the applications were not made in good faith, but in fraud, and in violation of the pre-emption laws. And it was determined by the local land office and sustained by the Commissioner of the General Land Office, and by the Secretary of the Interior, that neither Hyde nor McDonald ever had or obtained any rights whatsoever by reason of their application or any subsequent proceedings, but, notwithstanding, said Hyde and said McDonald 'made an attack upon the said decisions of the Land Department some time in November, 1885, and upon the location of the said certificates of scrip and the entry of lands thereunder.' A hearing was had on the 6th of April, 1886, and the local land officers sustained the scrip locations. An appeal was taken to the Commissioner of the General Land Office, and he held 'adversely to the scrip locations.' An appeal was then taken to the Secretary of the Interior. A hearing was had before the Secretary February 18, 1889, and he held and determined that neither Hyde nor McDonald had any interest or valid claim to the lands, but notwithstanding, also held that the scrip locations were illegal and invalid, and that neither Orillie Stram nor those claiming under her were entitled to the lands for the following reasons: (1) that the improvements made upon the land when it was unsurveyed were not made under the personal supervision of Orillie Stram, and that she had not had personal contact with the land; (2) that the power of attorney to Eaton to locate the scrip, and the power of attorney executed at the same time to Leonidas Merritt to sell the lands which should be located, operated as an assignment of the scrip, and were in violation of the act of July 17, 1854, and the entry of the lands therefore was not for the benefit of said Orillie Stram; (3) that the subsequent location and adjustment of the scrip to the lands after the latter were surveyed were ineffectual in view of the previous attempt to locate the scrip, and in view of his (the Secretary's) decision relative to the question of improvements; (4) that Orillie Stram had no power to alienate the lands before location of the scrip, or to contract for the sale of them, or to grant a power of attorney to sell the same for her after they should be located, but held that she had the right to sell immediately after location of the scrip. As a deduction from these conclusions, the Secretary held that the lands were still public lands, and open to entry. The decision of the Secretary was attached to the findings as an exhibit.
The deed recited the location of the scrip in the land office at Duluth, June 16, 1883, by Eaton, as the constituted and appointed attorney in fact of the Strams, and that the title thereby vested in Orillie Stram. It also recited the survey of the lands and the adjustment of the scrip and entry to such lands, and 'thereby the aforesaid scrip and entry were adjusted July 21, A. D. 1885, thereby specifically and perfectly describing the land filed upon for me, the said Orillie Stram, by the said Frank W. Eaton, and intended to be entered on June 15, A. D. 1883, in the name of the said Orillie Stram, by our attorney in fact, the said Frank W. Eaton.' It also recited the power of attorney given to Leonidas Merritt, acknowledged it, and ratified and confirmed the conveyance by him to Eaton.
Messrs. Walter Ayers and P. H. Seymour for plaintiff in error.
Messrs. Jed L. Washburn, Luther C. Harris, Charles A. Towne, and William D. Bailey for defendants in error.
The decision of the controversies in this case depends upon the validity or invalidity of the scrip locations, either originally when the land was unsurveyed, or subsequently when the location was adjusted to the land as surveyed.
The act of Congress of July 17, 1854 (10 Stat. at L. 304, chap. 83), authorized the issue of scrip to the half-breeds of the Sioux Nation of Indians in exchange for certain lands, which scrip might be located (1) upon any land within the Sioux half-breed reservation; or (2) 'upon any other unoccupied lands subject to pre-emption or private sale;' or (3) 'upon any other unsurveyed lands not reserved by government, upon which they [the half-breeds] have respectively made improvements. It is provided in said act 'that no transfer or conveyance of any said certificates or scrip shall be valid.' On the latter provision of the act the plaintiff in error bases the contention that the scrip is not assignable, and that the power of location is strictly personal to the Indian, and must be made whether on surveyed or unsurveyed land either by him or for his benefit, and that the improvements on unsurveyed land must be made under his personal supervision and direction; that he must come in personal contact with the land. And it is hence asserted that the powers of attorney given to Eaton and Merritt were virtual assignments of the scrip, and frauds upon the act of Congress; that the improvements were made, not by Orillie Stram, the half-breed, or for her benefit, but by Eaton, and for his benefit; and that the subsequent adjustment of the locations of the land after its survey was made for him, not for her; for his benefit, not for hers. On the other hand, the defendants in error contend that the prohibition against the assignment of the scrip is strictly of the scrip as such, not of the rights or powers conferred by it. That the provision of the statute is not a prohibition upon the alienation of the land, but is intended to protect the government against controversies about the transfer of the scrip, and to require and secure all of the steps and proceedings to be in the name of the Indian, and the title to be issued in his name. It is claimed, therefore that the requirements of the statute have been observed; that the locations were made in the name of the Indian, and for her benefit. And it is also claimed that if there was any defect in the location upon the land when unsurveyed, by reason of the insufficiency of the improvements or by whom erected, that defect was supplied by the location of the scrip after the land was surveyed, and the acceptance of the location of the scrip by the local land office, there being then no adverse rights to the land. And further that the power of Eaton to make the location for the Indian was ratified by her (if it needed ratification), and all rights which inured to her were conveyed by her warranty deed to Eaton.
These contentions exhibit the controversy between the parties, and present the only questions upon which we think it is necessary to pass, and the questions are certainly close ones. The Interior Department has not always given the same answer to them, and the latest decision of that Department is opposed in the case at bar by the courts of Minnesota.
In the circular issued February 22, 1864, those instructions were repeated, and the following added: 'When not located by the reservee in proper person the application to locate must be accompanied by the affidavit of the agent that the reservee is living, and that the location is made for the sole use and benefit of said reservee.' Prior to the issuance of the circular of February 22, 1864, to wit, in 1863, a contest came on appeal to the Land Department, between a location made by Sioux scrip which was issued to one Sophia Felix, and a claim under a pre-emption settlement. The Commissioner of the Land Department decided against the scrip location on two grounds, one of which was: 'That 'the location of the scrip, although made in her name, was not made by her in person, nor by her guardian or duly authorized agent, for her use and benefit, but by an unauthorized person, and for the use and benefit of a person having no legal interest therein."
'As to your second objection, I remark that this kind of scrip is by the law declared to be not assignable. In this case Sophia Felix has signed the application to locate her own scrip. The signature must be treated by us as genuine, when there is no proof to the contrary; and when she has made no complaint against this use of her scrip. The fact that the scrip was carried to the land office and the business transacted by another person, does not affect the validity of her entry of the land.
'As the certificate of location issued in her name, and the patent will issue to her, neither the register's report nor the affidavits of third parties can be admitted to establish the interest of any other person in the location.
'That the application must be accompanied with the affidavit of the Indian, or other evidence that the land contains improvements made by or under the personal supervision or direction of said Indian, giving a detailed description of said improvements, and that they are for his personal use and benefit; in other words, you should be satisfied that the Indian has a direct connection with the land and is claiming the same for his personal use. Unless such evidence is filed, you will reject the application.
Then came the decision of the Secretary of the Interior, Vilas, in Allen v. Merrill, 8 Land Dec. 207, and in Hyde v. Eaton [12 Land Dec. 157]. They were affirmed on review by Secretary Noble. Those cases laid down the propositions upon which plaintiff in error relies in the case at bar. Between the decision in those cases and that in the Felix Case there was an interval of thirty years, and pending that interval there were decisions of the courts which took the same view as Secretary Otto expressed in the Felix Case.
'It was the intention of Congress that the right to acquire public lands by means of this scrip should be a personal right in the one to whom the scrip issued, and not property, in the sense of being assignable; but no restraint is imposed upon the right of property in the land after it is acquired by location of the scrip. In the scrip itself the half-breed had nothing which he could transfer to another; but his title to the land, when perfected under it, was as absolute as though acquired in any other way. It follows that any attempt to transfer the scrip, directly or indirectly, would be of no effect as a transfer. The title to the scrip would remain in him, and the title to the land acquired by it would vest in him, just as though no such attempt had been made. Such attempt to transfer would not involve any moral turpitude nor the breach of any legal duty, as is the case with an attempt to transfer a pre-emptive right. It would be simply ineffectual, because the scrip is not transferable.
'Holders of such certificates or scrip were forbidden to transfer the same, and the defendants contended that the real object of the agreement was to effect a transfer of the same; but the state supreme court overruled the defense, and referred to one of their former decisions, assigning the reasons for their conclusion that the defense was not well founded. Gilbert v. Thompson, 14 Minn. 544, Gil. 414.
We do not think those cases were as confined as represented. It is very evident that the courts did not think that 'parol additions' could unite and make single the documents, or, when thus united, they constituted a violation of the statute. And it is a deduction from the opinions that it was not the manner of proof, but the substance of what was proved or to be proved, that was passed upon. If evidence was excluded in Gilbert v. Thompson, it was admitted and considered in Thompson v. Myrick; and in both cases the delivery of scrip and its location under letters of attorney were decided to be valid, forming in one case a good title, and in the other constituting a ground for a compulsory conveyance from the half-breed. The moral and legal effect of the transfer of scrip was declared by the court in Gilbert v. Thompson. The first involved, the court said, no 'turpitude nor the breach of any legal duty, as in the case of an attempt to transfer a pre-emption right; of the second, it was said, it would be of no effect as a transfer; that 'the title to the scrip would remain in him (the half-breed), and the title to the land covered by it would vest in him (the half-breed) just as though no such attempt had been made.' The power of attorney, however, was given full legal effect as authority to sell the land located. It is true the court excluded parol evidence of an intention to transfer the scrip. But why? Manifestly because the transactions did not constitute a transfer of the scrip as such, and their legal character could not be destroyed by parol proof that they were intended to be something else. In other words, the court decided that the transactions were intended as a conveyance of the land, and represented that intention, and could not be shown to be a transfer of the scrip. And in Thompson v. Myrick the court observed: 'We can conceive of no reason why Myrick was not at liberty, either before or after location was made, to enter into an agreement to secure the title (inuring from the location) to the plaintiff upon the payment of an agreed consideration.' The reasoning and the conclusions of the supreme court of Minnesota were approved by this court, as we have seen.
Felix was a half-breed to whom scrip had been regularly issued. It was obtained from her by some person unknown, 'by wicked devices and fraudulent means;' the power of attorney omitted the name of the attorney, the number of the scrip, and the description of the land. The quitclaim deed also omitted the name of the grantee and the description of the land; otherwise the instruments were in legal form. The transaction was held to be a fraud upon Felix, and Patrick was adjudged to hold the title he obtained by the location of her scrip and the deed to him, as trustee for her. The court made no question of the validity of the location. Indeed it was necessarily assumed, and the half-breed given the benefit of it. It may be said that neither of the litigants was concerned to dispute the location, or to assert the provision of the act of Congress prohibiting the transfer of the scrip. If so, that provision, from the point of view of the case at bar, was not in judgment, and the expression in regard to it must therefore be strictly confined to the facts and the issue which was presented.
This brings us to the consideration of the amount and kind of improvements required by the act of 1854 to be erected upon unsurveyed land. The act is not explicit. It does not define the extent or kind of improvements. It permits a location to be made upon 'unoccupied land . . . upon which they (half-breeds) have respectively made improvements.' Residence is not required, either initial or subsequent, temporary or continuous. The purpose of the provision of the statute would seem, therefore, necessarily to be identification, notice of appropriation, and the kind and extent of improvements only to be necessary for that. But we may concede, as held by Secretary Noble, 'that the requirement of improvements must have some substantial significance,' and 'it is not satisfied by doing something which is a betterment of the land but of too slight a character to mark anything more than a pretext of compliance.' The improvements erected on the land in controversy satisfied the rule whether they were as it is claimed Secretary Vilas found, or were as the trial court found in the present case.
It is further urged that the improvements were not erected for the benefit of the Indian, nor did she have 'a direct connection with the land;' and that those requirements are made conditions precedent to a valid location by the circulars of the land office issued in 1872 and subsequently.
1. It was decided in Thompson v. Myrick, 20 Minn. 205, Gil. 184, that a valid location could be made by an attorney in fact of the Indian, and that he could, 'either before or after the location was made,' enter into an agreement to secure or convey the title. That case was affirmed by this court, and the facts of the case at bar bring it within the ruling.

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