pointed for that purpose is sustained by the great weight of authority, Quincy v. Kennard, 151 Massachusetts, 563; Commonwealth v. Davis, 162 Massachusetts, 510, and by this court the delegation of such power, even to a single individual, was sustained in Wilson v. Eureka City, 173 U. S. 32, and Gundling v. Chicago, 177 U. S. 183."

These cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the State is not violative of rights secured by the Fourteenth Amendment. There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorize the interference of a Federal court. Yick Wo v. Hopkins, 118 U. S. 356. In the case of Jacobson v. Massachusetts, supra, it was insisted that the compulsory vaccination ordinance was broad enough to require a person to submit to compulsory vaccination when his physical condition might be such as to render such treatment dangerous to life and even cruelly oppressive. But it was held that the case presented no such situation; that the person complaining of the enforcement of the ordinance was, for aught that appeared, an adult in good health and a proper subject for vaccination; that the Supreme Court of Massachusetts had not sustained the authority of the board in the extreme case supposed, and that the individual complaining made no case wherein the operation of the statute deprived him of his constitutional right of protection. So, in the present case, there is nothing in this record to show why the permit which had been granted to the plaintiff in error was revoked or the conditions upon which, in the exercise of the power conferred by section 66, a permit to carry on the business was granted or withheld. It is true that a conversation was proved in which the milk inspector said to Lieberman that the milk

sold by him "stood well;" but there is nothing to show upon what ground the action of the board was taken. For aught that appears he may have been conducting his business in such wise, or with such surroundings and means, as to render it dangerous to the health of the community, or his manner of selling or delivering the milk may have been objectionable. There is nothing in the record to show that the action against him was arbitrary or oppressive and without a fair and reasonable exercise of that discretion which the law reposed in the board of health. We have, then, an ordinance which, as construed in the highest court of the State, authorizes the exercise of a legal discretion in the granting or withholding of permits to transact a business, which, unless controlled, may be highly dangerous to the health of the community, and no affirmative showing that the power has been exerted in so arbitrary and oppressive a manner as to deprive the appellant of his property or liberty without due process of law.

In such cases it is the settled doctrine of this court that no Federal right is invaded, and no authority exists for declaring a law unconstitutional, duly passed by the legislative authority and approved by the highest court of the State. Nor do we think there is force in the contention that the appellant has been denied the equal protection of the laws, because of the allegation that the milk business is the only business dealing in foods which is thus regulated by the sanitary code. All milk dealers within the city are equally affected by the regulations of the sanitary code. It is primarily for the State to select the kinds of business which shall be the subjects of regulation, and if the business affected is one which may be properly the subject of such legislation, it is no valid objection that similar regulations are not imposed upon other businesses of a different kind. Soon Hing v. Crowley, 113 U. S. 703; Fischer v. St. Louis, 194 U. S. 361.

We find no error in the judgment of the Supreme Court of New York, and the same is

Affirmed.

Counsel for Plaintiff in Error.

199 U.S.

MR. JUSTICE HOLMES. I'do not gather from the statute or from the decision of the Court of Appeals that the action of the board of health was intended to be subject to judicial revision as to its reasonableness. But whether it was or was not, I agree that the statute, which in substance is older than the Fourteenth Amendment, was not repealed or overthrown by the adoption of that Amendment.

SJOLI v. DRESCHEL.

ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.

No. 79. Submitted November 27, 1905.-Decided December 18, 1905.

1. The Northern Pacific Railroad Company could not acquire a vested interest in particular lands, within or without place limits, merely by filing a map of general route and having the same approved by the Secretary of the Interior, although upon the definite location of its line of road and the filing and acceptance of a map thereof in the office of the Commissioner of the General Land Office, the lands within primary or place limits, not theretofore reserved, sold, granted or otherwise disposed of and free from preemption or other claims or rights, become segregated from the public domain, and no rights in such place lands will attach in favor of any settler or occupant, after definite location.

2. No rights to lands within indemnity limits will attach in favor of the railroad company until after selections made by it with the approval of the Secretary of the Interior.

3. Up to the time such approval is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States or to be settled upon and occupied under the preëmption and homestead laws of the United States.

4. The Secretary of the Interior has no authority to withdraw from sale or settlement lands within the indemnity limits which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company's róad.

THE facts are stated in the opinion.

Mr. Moses E. Clapp for plaintiff in error.

199 U.S.

Opinion of the Court.

Mr. W. E. Hale for defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case was tried upon a stipulation of facts. It involves the title to the northeast quarter of the southeast quarter of section five, township one hundred and thirty-three north, of range forty-two, west of the fifth principal meridian, Minnesota, which is situated opposite to and coterminous with a part of the line of the Northern Pacific Railroad as definitely located on the twenty-first day of November, 1871, and is within the first indemnity limits of the grant of public lands made by the act of Congress of July 2, 1864, in aid of the construction by the Northern Pacific Railroad Company of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast. 13 Stat. 365, c. 217.

The state court adjudged that plaintiff Sjoli was not entitled to the land and that the defendant Dreschel, who asserts title under the railroad company, was the owner.

From the numerous cases in this court relating to the above act of July 2, 1864, the following propositions are to be deduced: That the railroad company will not acquire a vested interest in particular lands, within or without place limits, merely by filing a map of general route and having the same approved by the Secretary of the Interior, although upon the definite location of its line of road and the filing and acceptance of a map thereof in the office of the Commissioner of the General Land Office, the lands within primary or place limits, not theretofore reserved, sold, granted or otherwise disposed of and free from preëmption or other claims or rights, become segregated from the public domain, and no rights in such place lands will attach in favor of a settler or occupant, who becomes such after definite location;

That no rights to lands within indemnity limits will attach in favor of the railroad company until after selections made by it with the approval of the Secretary of the Interior;

That up to the time such approval is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States or to be settled upon and occupied under the preëmption and homestead laws of the United States; and,

That the Secretary of the Interior has no authority to withdraw from sale or settlement lands that are within indemnity limits which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company's road.1

These principles, it would seem, make it easy to determine the present case, the controlling facts in which are undisputed. Let us see.

The plaintiff Sjoli, a qualified entryman, settled upon the land in dispute in 1884, with the intention in good faith to perfect his title under the homestead laws. He grubbed and broke about two and one-half acres, built a house and stable thereon, and moved into the house with his family on the fourth day of October, 1884. He has lived upon the premises continuously with his family ever since that time. At the time of the bringing of this action he had broken about twenty-two acres, constructed 220 rods of fencing, and made improvements of the value of $500. In 1889 he applied at the proper local land office to make entry of this land under the homestead laws. That

1 Hewitt v. Schultz, 180 U. S. 139; Nelson v. Northern Pacific Railway, 188 U. S. 108; United States v. Northern Pacific Railroad Co., 152 U. S. 284, 296; Northern Pacific Railroad v. Sanders, 166 U. S. 620, 634, 635; Menotti v. Dillon, 167 U. S. 703; United States v. Oregon & California Railroad, 176 U. S. 28, 42; St. Paul Railroad v. Northern Pacific Railroad, 139 U. S. 1, 5; St. Paul, Sioux City &c. Railroad v. Winona &c. Railroad, 112 U. S. 720, 726; M., K. & T. Ry. Co. v. Kansas Pacific Ry., 97 U. S. 491, 501; Cedar Rapids & M. R. R. Co. v. Herring, 110 U. S. 27; Grinnell v. Railroad Co., 103 U. S. 739; Kansas Pacific R. R. Co. v. Atchison, Topeka & Santa Fé, 112 U. S. 414; Wilcox v. Eastern Oregon Land Co., 176 U. S. 51; Northern Pacific Railroad v. Miller, 7 L. D. 100; Northern Pacific R. R. v. Davis, 19 L. D. 87, 90; Spicer v. Northern Pacific R. R. Co., 10 L. D. 440, 443; Northern Pacific R. R. Co. v. McCrimmon, 12 L. D. 554; Northern Pacific R. R. Co. v. Plumb, 16 L. D. 80.