194 F. 207 | U.S. Circuit Court for the District of Northern California | 1904
(orally). Two applications have been presented to the court, one on behalf of F. A. Hyde, and the other on behalf of Henry P. Dimond, for writs of habeas corpus. The petitioners allege that they are held by the United States marshal under color of authority of the United States by virtue of warrants of removal issued under section 1014 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 716), -the warrants of re
Section 1014 of the Revised Statutes of the United States provides as follows:
“For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a Circuit Court to take bail, * * * be arrested and imprisoned or bailed, as the case may be, for trial before such court of the United States as by law has cognizance of the offense. * * * And where any offender is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.”
It appears that the petitioners were indicted by the grand jury of the Supreme Court of the District of Columbia, in which indictment they are charged with having conspired with others to defraud the United States out of the possession and use of, and the title to, divers large tracts of public land of the United States open and to be opened to selection under the laws of the United States in that behalf, in lieu of lands included and to be included within the limits of certain forest reserves established and to be established by the United States in the states of California and Oregon.
The indictment is based upon section 5440 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3676), which provides that :
“If two or. more persons conspire, either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, and to imprisonment for not more than two years, or both fine and imprisonment, in the discretion of the court.”
The petitioners are residents of this district. The indictment was accordingly sent to this district, and the petitioners were arrested here and brought before the commissioner of this district, examined with respect to the charges contained in the indictment, and were held by the commissioner to answer the charges.
Upon application to the district judge for a warrant, the district judge reviewed the proceedings before the commissioner, and determined that they should be held under the indictment, and issued his warrant for removal. The matter is now brought to the attention of this court by petition for writ of habeas corpus, and the court is urged to issue writs of habeas corpus upon the ground that there is a debatable question in this case as to whether these petitioners should be held upon this indictment and removed to the District of Columbia for trial.
In the case of Ex parte Milligan, 4 Wall. 2, 18 L. Ed. 281, I find upon page 110 of 4 Wall. (18 L. Ed. 281) the following, with reference to the procedure upon petition for writ of habeas corpus:
“It is true tliat it is usual for a court, on application for a writ of habeas corpus, to issue the writ, and, on the return, to dispose of the case; but the court can elect to waive the issuing of the writ and consider whether, upon the facts presented in the petition, the prisoner, if brought before it. could be discharged. One of the very points on which the case of Tobias Watkins, reported in 8 Pet. 193, 7 L. Ed. 650. turned was whether, if the writ was issued, the petitioner would be remanded upon the case which he had made. The Chief Justice, in delivering the opinion of the court, said: ‘The cause of imprisonment is shown as fully by the petitioner as it could appear on the return of the writ; consequently, the writ ought not to be awarded if the court is satisfied that the prisoner would be remanded to prison.’ ”
That opinion was followed in the case of Ex parte Royall, reported in 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868. The part of the opinion of the court to which I refer is on page 250 of 117 U. S., on page 739 of 6 Sup. Ct. (29 L. Ed. 868). The court, speaking of the proceeding in that case, said:
“It remains, however, to bo considered whether the refusal of that court to issue the -writ and to take the accused from the custody of the state officer can be sustained upon any other ground than the one upon which it proceeded. If it can be, the judgment will not bo reversed because an insufficient reason may have been assigned for the dismissal of the petitions. Undoubtedly the writ should be forthwith awarded, ‘unless it appears from the petition itself that the party is not entitled thereto’; and the ease summarily lieárd and determined ‘as law and justice require.’ Such are the express requirements of the statute. If, however, it is apparent upon the petition that the writ, if issued, ought not, on principles of law and justice, to result in the immediate discharge of the accused from custody, the court is not bound to award it as soon as the application is made” — citing a number of cases.
These cases have been followed in a number of other cases that have come before the courts of the United States, so that it is clearly within the province of the court to inquire preliminarily, upon the allegations of the petition, whether it shall issue the writs of habeas corpus or not.
The objections to the warrant of removal and to the petitioners being held upon the indictment in this case are based upon the charges contained in the indictment, and not upon any matter outside of that document. It is therefore competent for the court to examine into this case upon the merits, upon this application.
In the case of Horner v. United States, 143 U. S. 207, 12 Sup. Ct. 407, 36 L. Ed. 126, this very question of the scope of the inquiry upon writ of habeas corpus involving removal was considered by the court. It was there sought by writ of habeas corpus to test the .sufficiency of the indictment upon which the petitioner was held under the lottery act for sending circulars through the mails for the sale of certain Austrian bonds, which were charged to be nothing but a scheme for a lottery. The question made on the petition for the writ of habeas corpus was that the bonds were not a lottery, within the meaning of the federal statute. The Supreme Court held that the question whether the scheme was a lottery was a question to be determined by the commissioner, by the grand jury, and by the District Or Circuit Court in which the indictment was to be tried, and that it was not for the Circuit Court or for the Supreme Court, on the writ of habeas corpus, to determine this question in advance.
This case was referred to in another case, brought before Circuit Judge Taft of the Ohio Circuit, that of In re Riclcelt, reported in 61 Fed. 203. Judge Taft follows the case of Horner v. United States, and decided that a writ of habeas corpus would not lie to determine the question of law whether the facts proved before a United States commissioner on a preliminary hearing are sufficient to constitute the crime for which the prisoner has been committed. In this connection the court said:
“Tile only question which it is sought .to make here on behalf pf the petitioner is that the facts developed, before the commissioner were .not evidence sufficient to constitute the offense described in section 3892 [U. S. Comp. St. 1901, p. 2657]. That is a mere question of law, the decision of which is in the first instance committed, by section 1014 of the Revised Statutes, to the jurisdiction of the United States commissioner before whom the preliminary examination is had. * * * The writ of habeas corpus cannot be used as a writ of error to review the action of the United States commissioner within his jurisdiction. If it were a question whether the crime charged had been committed in the district to which the removal was about to be made — that is, whether the crime charged was within the jurisdiction of the courts of that district — this would be a proper proceeding to test it. If it were a question- whether the act under which the prosecution is being conducted was constitutional, that, too, might be tested by habeas corpus proceedings, hfot so, however, the simple question whether the facts alleged and proven are in law sufficient to constitute the crime described in the statute. That is a question for the consideration of the regular tribunals before whom it may be raised in the due procedure of preliminary examination, indictment, and trial. The writ of habeas corpus is a collateral proceeding, and its scope is limited, as above stated.”
Applying these decisions to the cases now before the court, we find that the scope of the inquiry upon these applications is limited; that the question as to whether or not the indictment sufficiently charges an offense under the laws of the United States is not to be reviewed .as a case would be reviewed upon a writ of error. The sufficiency of the indictment has been considered by the commissioner and by the district judgé, and may again be considered by the trial court; but it is not, in any technical sense, a subject for review upon this pro
I have considered very carefully the question whether or not the District of Columbia has jurisdiction of this case, and I consider the law settled. I am satisfied that it has such jurisdiction, and that that claim of the petitioners cannot be considered as entitling them to be discharged from arrest.
The objection to the indictment is that it charges these petitioners with having conspired together to obtain title to certain lands from the state of California or Oregon in the name of fictitious persons, and that the titles obtained from the state were to have been used in obtaining, by exchange under the forest reserve act, titles from the United States for lands which the United States holds and owns.
It is said that that is not an offense against the United States; that if these petitioners hate conspired to secure titles from the state, and under the statutes of the United States they were entitled to exchange-those titles, however fraudulently obtained, for lands belonging to the United States, the exchange does not amount to a fraud under section 5440 of the Revised Statutes of the United States.
Judge Lacombe, of the Circuit Court of New York, has taken this view of the indictment, and has held that this does not constitute an.
The charging part of the indictment material to be considered upon this inquiry is as follows:
“That the said Frederick A. Hyde, John A. Benson, Henry P. Dimond, and Joost H. Schneider, * * * unlawfully did conspire, combine, confederate, and agree together, and with divers other perons to the said grand jurors unknown, knowingly, wickedly, and corruptly to defraud the said United States out of the possession and use of, and the title to, divers large tracts of the public lands of the said United • States, * * * in pursuance and by means of a false and fraudulent practice whereby the said Frederick A. Hyde and John A. Benson were to obtain fraudulently from the said states of California and Oregon title to and possession of school lands lying within the limits of such forest reserves and open to purchase from those states; * * * which said school lands were to be so obtained from the said states by making and filing with the said authorities applications for the purchase of the sanne, and assignments of the same, and of the certificates of purchase thereof, in the names of fictitious persons, * * * and by supporting such applications -with forged and fraudulent affidavits and affidavits false, and known to the said Frederick A. Hyde and John A. Benson to be false, in this, that they would purport to be, some the affidavits of real persons, and others the bona ficle sworn affidavits of the persons %ohose names were signed thereto, whereas in truth and in fact the former would be the affidavits of fictitious persons and would not be the affidavits of real persons or affidavits sworn to by any person, and the-latter would not be the bona fide or sworn affidavits of the persons whose names were signed thereto, because such latter affidavits would not only state that the affiants therein were persons qualified under the laws of the said state of California, or of the said státe of Oregon, as the ease might be, to make such applications and to purchase such lands, by reason, amongst other things, of their intending to purchase the same in good faith and for their own benefit respectively, and of their having made no contract or agreement to sell the same, while in truth and in fact none of such real persons would intend to purchase such lands in good faith for his own use or benefit at all, but would be either knowingly aiding and assisting the said Frederick A. Hyde and John A. Benson in their said fraudulent practice, or innocently acting upon their said false representations, but because, also, the said latter affidavits would not in truth and in fact have ever been sworn to at all by any of the persons whose names were signed thereto; and whereby the said Frederick A. Hyde and John A. Benson were to cause to be relinquished, assigned, transferred, and conveyed, by means of false and forged relinquishments, assignments, and conveyances, to the said United States, * * * the pretended rights of such fictitious persons respectively, and require and procure such real persons to make relinquishments, assignments, tranfers, and conveyances, either directly, or indirectly through the said Frederick A. Hyde, or through*213 the said agents and attorneys of the said Frederick A. Hyde and .Tolm A. Benson, * * * of the titles to and possession of such school lands * * * in exchange as aforesaid for public lands to be selected, and for titles thereto by patent to be obtained, by and on behalf of the said Frederick A. IXyde and John A. Benson in the names of such fictitious or real persons, * * * in lieu of such school lands lying within the limits of such forest reserves as aforesaid, * * * well knowing such title to such school lands to be, as they were and would he, false, fraudulent, fictitious, void, and worthless, and the possession acquired thereunder unlawful, and intending thereby, and by afterwards selling and disposing of such public lands and patent titles to the general public, to defraud the said United States out of the possession and use of, and of the title to, the public lands so to be selected, obtained, and appropriated in lieu of such school lands as aforesaid, to the profit, gain, use, and benefit of themselves as aforesaid.”
This charge, reduced to a simple term, is that the accused conspired together to obtain from the United States, under the forest reserve act, patents to lands belonging to the United States in exchange for and in lieu of school lands lying within the limits of such forest reserve, the title to which the accused had obtained, or were to obtain, fraudulently from the state by means of applications for the purchase of the same in the names of fictitious persons.
By the Act of March 3, 1891, c. 561, 26 Stat. 1103 (U. S. Comp. St. 1901, p. 1537), it is provided, in section 24 thereof:
“That the President of the United States may, from time to time, set apart and reserve, in any state or territory having public land hearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and * the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof.”
The Forest Reserve Act of June 4, 1897, c. 2, 30 Stat. 34, 36 (U. S. Comp. St. 1901, pp. 1538, 1541), provides as follows:
“That in cases in which a tract covered by an unperfeetod bona fide claim or by a patent is included within the limits of a public forest reservation, the settler or owner thereof may, if he desires to do so, relinquish the tract to the government, and may select in lieu thereof a tract of vacant land ojien to settlement not exceeding in area the tract covered by his- claim or patent; and no charge shall he made in such cases for making the entry of record or issuing the patent to cover the tract selected: Provided further, that in cases of uuperfected claims the requirements of the laws respecting settlement, residence, improvements, and so forth, are complied with on the new claims, credit, being allowed for the time spent on the relinquished claims.”
The purpose of this last act and the original act of March 3, 1891, was to preserve the remaining forests on the public lands of the United States from depredation and destruction. To accomplish this object, it was necessary that all lands within such forest reservations should belong to the United States for the purpose of full and complete administration and control; but Congress had previously granted to California, Oregon, and other public land states sections 16 and 36 in each township of the public lands within those states for school purposes. These lands were either held by the state for sale, or they had been sold and conveyed to private parties under the laws of the state providing for such sales. There were also settlers upon some of the lands within such reservations who had gone upon, the
We had before .the Circuit Court of Appeals for this circuit the question as to the title that could be exchanged under the forest reserve act, in Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. C. A. 79, 61 L. R. A. 230, and, while the precise question involved in this case was not there discussed, it was determined, in effect, that the titles to be exchanged were full and complete titles, and that the government would not recognize the selection of land in lieu of land the title to which had been surrendered, until the selection had been approved in the manner provided by law, for the reason that until such approval the selection was subject to be defeated by proof, either that the land was mineral in character and therefore not open to settlement, or that'it was not vacant at the time the selection was made. In other words, no rights accrued against the government until it was in a'position to convey, an indefeasible title. And this must be so. The government cannot deal in fraudulent titles. It cannot impose an imperfect title upon the purchasers of its lands, and it cannot be imposed upon by those who seek to exchange fraudulently acquired titles for good ones. The United States has frequently been compelled to bring suit to recover the title to land where the patent has' been issued, upon the grounds that the grantees, have merely secured the legal title, and that the equitable title, the right to the land, ’Still remains in the United States, and has never gone out of it, because the title had been obtained by fraud. Any one familiar with the Spanish land grants, and the litigation that grew out of those grants, knows that a great many suits were brought by the United States to cancel those patents and recover the titles that had been conveyed, upon the allegation of fraud and upon the claim that the equitable title remained in the United States.
The conspiracy in this case is charged to be the claim of ownership
"Ownership” means the possession of the full and complete title. The books are full of decisions to that effect. To assume that Congress intended that patents should issue to lands in exchange for lands to which the parties making the exchange had no title except that acquired by fraud is to assume that Congress was proposing to engage in a most extraordinary method of disposing of the public lands. It is impossible to imagine that Congress would sanction anything of that kind. It has been forfeiting railroad land grants because it was claimed the railroads had not earned them or built the roads as Congress intended. It has forfeited grants to the states for the same reasons, and has authorized suits to recover grants for much less reason than the fraudulent transactions alleged in this indictment. It is impossible for this court to believe that Congress intended to dispose of the title to its public lands in any such way. As suggested by Judge De Haven, if the accused had gone into the I,and Office and said: “We have the title to this land; but we went into the stale land office and used the names of fictitious persons in our applications, and presented fictitious affidavits to obtain this land; and now we want you to give us a perfect title to land in exchange for our fraudulently acquired title” — does any one suppose that an officer of the government, while in possession of his senses, would carry out such a fraud? Does any one suppose that the Secretary of the Interior would knowingly enter into a transaction of that'kind? I think, if he did, he would expect to be impeached the next day and brought before the bar of Congress.
I am of the opinion that the indictment sufficiently charges an offense under the laws of the United States, and that the Supreme Court of the District of Columbia has jurisdiction of the offense. The court therefore declines to issue the writs of habeas corpus.