been sooner made because the indictment was not found by the grand jury until February, 1902.

the same place as that named in the other | commonwealth, and that application for the two counts, but laid the date as the 20th arrest and return of the fugitive had not day of November, 1901. There was also before the governor of New Hampshire an application, dated the 26th of February, 1902, signed by George A. Sanderson, district attorney for the northern district of Middlesex, to the governor of Massachusetts, requesting a requisition from him upon the governor of New Hampshire for the extradition of the plaintiff in error, who, as stated in the application, stood charged by indictment with the crime of uttering forged wills, committed in the county of Middlesex (on the days stated in the indictment), and who, to avoid prosecution, had fled from the jurisdiction of the commonwealth, and was a fugitive from justice, and was within the jurisdiction of the state of New Hampshire. It was also stated in the application that the indictment was not found by the grand jury until the February sitting of the superior court in the year 1902. There was also before the governor of New Hampshire a copy of what purported to be an affidavit of one Whitney, the original of which was used before the governor of Massachusetts, to obtain the requisition. It is short, and is as follows:

Commonwealth of Massachusetts,

Middlesex.

I, Jophanus H. Whitney, of Medford, in the county of Middlesex and said commonwealth, on oath depose and say that Martha S. Munsey, who stands charged by indictment with the crime of uttering forged wills, as is more fully set forth in the papers hereto annexed, has fled from the limits of said commonwealth, and is a fugitive from justice. And I further depose that at the time of the commission of said crime she was in the state of Massachusetts, in the county of Middlesex of said commonwealth, and that at the same time and previous thereto she was a resident of Cambridge in the said county of Middlesex; that she fled from said commonwealth of Massachusetts on or about the fourth day of November, A. D. 1901; that she is not now within the limits of the commonwealth, but, as I have reason to believe, is now in Pittsfield, in the state of New Hampshire. The grounds of my knowledge are that I have interviewed her since the fourth of November last in Pittsfield, New Hampshire, where she was living with her husband during the last week January last.

The governor of the commonwealth of Massachusetts having given the requisition applied for, the papers above mentioned were presented to the governor of New Hampshire, and a request made that he should issue his warrant of arrest to take the plaintiff in error back to the commonwealth of Massachusetts, as a fugitive from justice, and for the purpose of being tried on the indictment referred to. The counsel for the plaintiff in error appeared before the governor, and stated they desired a hearing before him before the warrant of arrest should be granted. should be granted. This hearing was refused, and the governor then granted the warrant for the arrest and return of the plaintiff in error to the commonwealth of Massachusetts as a fugitive from justice. In that warrant it was provided that the plaintiff in error should be afforded an opportunity to sue out a writ of habeas corpus before being delivered over to the authorities of Massachusetts. She availed herself of that right and sued out such writ, and upon its return the plaintiff in error made several objections to the execution of the governor's warrant, and alleged the insufficiency of the papers to authorize the granting of the same. ing of the same. At the close of the hearing the counsel for plaintiff in error moved that she be discharged for the reasons stated in the motion; the motion was denied, subject to the objection and exception of the plaintiff in error. The record then shows the following:

"The court thereupon ordered that the relator proceed to introduce evidence upon the question whether she was in fact a fugitive from justice. This the relator's counsel declined to do, upon the ground that such action, on their part, would constitute a waiver of their right to object to the refusal of the governor to grant a hearing upon this question of fact.

"The court then directed that the counsel for the relator state whether the relator waived the right to then, or at any future time, introduce further evidence upon this, or any question of fact, and counsel for relator declared that she did waive that right.

"No evidence was offered by the relator either upon the question whether the reJophanus H. Whitney. lator was a fugitive from justice, or upon any other question of fact, other than as above stated."

There was also a certificate of the district attorney for the northern district of Middlesex, that the offense charged against the plaintiff in error is a felony within that'

The question of the legality of the detention of the plaintiff in error is thus brought before the court. The proceedings

If the indictment be for three distinct offenses (although of the same nature) set out in the three different counts, as is argued by plaintiff in error, it will not be presumed that such an indictment is void under the laws of Massachusetts, and the question of procedure under the indictment is one for the courts of the state where it was found. The courts of that state would undoubtedly protect her in the enjoyment of all her constitutional rights. These are matters for the trial court of the demanding state, and are not to be inquired of on this writ. If it appear that the indictment substantially charges an offense for which the person may be returned to the state for trial, it is enough for this proceeding.

in matters of this kind before the governor | 311, 39 L. ed. 164, 15 Sup. Ct. Rep. 116; are summary in their nature. The ques- Ex parte Hart, 59 Fed. 894. tions before the governor, under the section of the Revised Statutes, above cited, are whether the person demanded has been substantially charged with a crime, and whether he is a fugitive from justice. The first is a question of law and the latter is a question of fact, which the governor, upon whom the demand is made, must decide upon such evidence as is satisfactory to him. Strict common-law evidence is not necessary. The statute does not provide for the particular kind of evidence to be produced before him, nor how it shall be authenticated, but it must at least be evidence which is satisfactory to the mind of the governor. Roberts v. Reilly, 116 U. S. 80, 95, 29 L. ed. 544, 549, 6 Sup. Ct. Rep. 291. The person demanded has no constitutional right to be heard before the governor on either question, and the statute provides for none. To hold otherwise would, in many cases, render the constitutional provision, as well as the statute passed to carry it out, wholly useless. The governor, therefore, committed no error in refusing a hearing. The issuing of the warrant by him, with or without a recital therein that the person demanded is a fugitive from justice, must be regarded as sufficient to justify the removal, until the presumption in favor of the legality and regularity of the warrant is overthrown by contrary proof in a legal proceeding to review the action of the governor. Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. Ct. Rep. 291; Hyatt v. New York, 188 U. S. 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456.

After the decision of the governor, and the issuing of the warrant, the plaintiff in error sued out this writ of habeas corpus for the purpose of reviewing his action. The position taken by the plaintiff in error upon the hearing on the return of the writ, in refusing to introduce evidence upon the question whether she was in fact a fugitive from justice, left the case for decision upon the papers before the governor upon which he acted in issuing the warrant of arrest. We have no doubt that a prima facie case was made out, and as the plaintiff in error waived any right to give further evidence, she is concluded by that prima facie case. The indictment undoubtedly set forth a substantial charge against the plaintiff in error, and the facts therein set forth constituted a felony in the commonwealth of Massachusetts, as certified by the district attorney. The sufficiency of the indictment, as a matter of technical pleading, will not be inquired into on habeas corpus. Ex parte Reggel, 114 U. S. 642, 29 L. ed. 250, 5 Sup. Ct. Rep. 1148; Pearce v. Texas, 155 U. S.

Upon the question of fact, whether the plaintiff was a fugitive from justice, her counsel, in the argument before this court, set up several objections of a technical nature, which, he argued, showed that the plaintiff in error was not present in Massachusetts at the time when one of the crimes, at least, was alleged to have been committed. As the indictment sets up in the first two counts that the plaintiff in error had not been usually or publicly a resident of Massachusetts at any time since the commission of the offense set forth in those counts, it is argued that the indictment shows that she was not present in the state at the time when the third count charges a crime to have been committed, and the Whitney affidavit shows she fled from the state before the alleged commission of the crime set forth in the third count. There is no impossibility in the plaintiff in error having returned and been present in the state at the time of the alleged commission of the offense set forth in the third count, even though she had not been "usually or publicly a resident of that state" since the time when it is alleged that she committed the offenses set

therefrom before the commission of the last forth in the first two counts, and had fled therefrom before the commission of the last

offense set forth in the third count.

The

affidavit of Mr. Whitney is to the effect that

at the time of the commission of the crimes. she was in the state of Massachusetts, and that at the same time, and previous thereto, she was a resident of Cambridge, in the county of Middlesex. Whether she was a resident or not is not important, as to the third count, if she were present in the state and committed the crime therein. The statement in the affidavit that she fled on or about the 4th day of November, 1901, while the third count of the indictment avers the commission of the crime on the 20th November of that year, is sufficiently exact, considering the facts in the case, as

ary 30, 1905.

the affiant states that she was in the com- | Argued January 18, 1905. Decided Janu monwealth at the time of the commission of the crime. Reasonably construed, the affidavit of Whitney shows the presence of the plaintiff in error in the state, and is sufficient, unexplained and uncontradicted, for that purpose.

State of Montana to review a judgment N ERROR to the Supreme Court of the which affirmed a judgment of the District Court of Flathead County, in that State, sustaining a demurrer to, and dismissing, a complaint which seeks to establish a trust in certain real property which the defendant holds under a patent from the United States. Affirmed.

See same case below, 28 Mont. 413, 72 Pac. 746.

The facts are stated in the opinion. Messrs. George A. King, William B. King, and William E. Harvey for plaintiff in error.

No counsel for defendant in error.

Mr. Justice Holmes delivered the opinion of the court:

When it is conceded, or when it is so conclusively proved that no question can be made, that the person was not within the demanding state when the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time, in the demanding state, then the court will discharge the defendant. Hyatt v. New York, 188 U. S. 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456, affirming the judgment of the New York court of appeals, 172 N. Y. 176, 60 L. R. A. 774, 92 Am. St. Rep. 706, 64 N. E. 825. But the court will not discharge a defendant arrested under the governor's warrant where there is merely contradictory evidence on the subject of presence in or absence from the state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused. As a prima facie case existed for the return of the plaintiff in error and she refused to give any evidence upon the re-ceiver, a reversal of this by the Commisturn of the writ which she had herself sued out, other than the papers before the governor, no case was made out for her discharge, and the judgment of the Supreme Court of New Hampshire, refusing to grant it, must, therefore, be affirmed.

(196 U. S. 403)

WALTER W. SMALL, Plff. in Err.,

v.

SAMUEL O. RAKESTRAW.

Public lands-homestead entry-finding of Secretary of the Interior as to residenceeffect of residence elsewhere for voting

purposes.

1. A finding by the Secretary of the Interior that the residence of a homestead entryman

for voting purposes was in another precinct from that in which the land lies cannot be said to be erroneous as a matter of law, where it was admitted that the entryman, on one occasion after his entry, voted in another county from that in which the land is situated, and it does not clearly appear that the Secretary did not have other evidence before him on that question.

2. A residence for voting purposes in another precinct from that in which a homestead entry lies precludes the entryman from claim: ing residence at the same time on the land for homestead purposes.

[No. 133.]

This is a complaint by the plaintiff in error to charge the defendant with a trust in respect of land which the latter holds under a patent from the United States. It alleges a homestead entry by the plaintiff, a contest by the defendant, a decision for the defendant by the local register and re

sioner of the Land Office, and a reversal of the latter decision and a cancelation of the plaintiff's entry by the Secretary of the Interior. The last order is set forth in full, and the complaint goes on the ground that

this order discloses a mistake of law on its face. The complaint was demurred to, the demurrer was sustained, and the suit dismissed. An appeal was taken to the supreme court of the state, which affirmed the judgment. 28 Mont. 413, 72 Pac. 746. The case then was brought here.

The material portion of the Secretary's decision is as follows:

"January 21, 1892, plaintiff filed his affidavit of contest against the defendant's homestead entry, charging that the entryman had failed to comply with the law as to residence. The testimony of Small, himself, is that he never voted in the precinct in which his homestead entry lies, but did vote at other points a long distance from his homestead at least twice during the time he claims he was seeking to maintain residence upon the land. He runs a carpenter shop in town, and, to use his own words, 'determined to return to the ranch only often enough to keep a good showing of habitation.' His excuse for that was that the plaintiff threatened him with violence if he undertook to stay on the land.

"Without passing upon any other question it is enough to say that a residence for voting purposes in another precinct from

the land precludes an entryman from claiming residence at the same time, on the land for homestead purposes. Re Burns, 4 Land Dec. 62; Hart v. McHugh, 17 Land Dec. 176; Edwards v. Ford (decided June 18, 1894) 18 Land Dec. 546."

(196 U. S. 360) SUSAN A. RAMSEY, Piff. in Err.,

v.

TACOMA LAND COMPANY and Philadelphia Trust, Safe Deposit, & Insurance Company and John C. Bullitt, Trustees of the estate of Charles B. Wright, Deceased. Railroad land grants-bona fide purchasers -state corporation a citizen-effect of delay on right to purchase from government.

1. A state corporation is a citizen of the United States within the meaning of the act of March 3, 1887 (24 Stat. at L. 557, chap. 376, U. S. Comp. Stat. 1901, p. 1595), § 5, conferring upon such citizens who are bona fide purchasers from a railway company of land excepted from its grant, the right to purchase the same from the government.

The plaintiff's case rests on the assumption that the words "without passing upon any other question," mean without passing upon any other question than an absolute proposition of law, and that this proposition is that a vote in another precinct is fatal to a claim of residence. But the Secretary found, by implication, that the plaintiff not merely voted elsewhere, but resided elsewhere for voting. It was after this finding that he laid down the rule complained of. The case presents no exceptional circumstances which would warrant our going behind the finding of fact. Bohall v. Dilla, 114 U. S. 47, 29 L. ed. 61, 5 Sup. Ct. Rep. 782; Lee v. Johnson, 116 U. S. 48, 51, 29 L. ed. 570, 571, 6 Sup. Ct. Rep. 249; Stewart v. McHarry, 159 U. S. 643, 650, 40 L. ed. 290, 292, 16 Sup. Ct. Rep. 117. The plaintiff admits that, on one occasion after his entry, he voted in a county other than that in which the land lies, so that it appears from the complaint that there was some evidence that his residence for voting was not in the latter county, and, as the supreme court of Montana remarks, it does not appear clearly that all the facts before the Secretary are those set forth. It is true Submitted January 17, 1905. Decided Janthat a vote in another county is only a circumstance to be considered, but, when it

2. Delay cannot successfully be urged to prevent bona fide purchasers from a railway company of land excepted from its grant from exercising the right to purchase the same from the government, conferred by the act of March 3, 1887 (24 Stat. at L. 557, chap. 376, U. S. Comp. Stat. 1901, p. 1595), § 5, where the application to purchase was made within ten months after the land had been stricken from the company's list, pursuant to a decision of the Land Department, and, prior to such decision, both the railway company and the Land Department had assumed that the land was already the property of the railway company's grantee by virtue of its purchase from that company.

[No. 138.]

uary 30, 1905.

leads to the conclusion of a voting residence IN ERROR to the Supreme Court of the

elsewhere, it leads to the conclusion of a residence elsewhere for all purposes by the very words of the Compiled Statutes of Montana on which the plaintiff relies. §§ 1007, 1020.

In view of what we have said it does not appear as matter of law that the Secretary's finding of voting residence was wrong, and it does not appear that his proposition, taken as a proposition of law, was wrong. But, further, the words, "without passing on any other question" cannot be taken absolutely to limit the ground of decision to the proposition of law. It hardly goes further than to emphasize one aspect of the facts as dominant in the Secretary's mind. He already had adopted the plaintiff's own words as establishing that the plaintiff's purpose was only to keep up a good showing. This goes to the general conclusion which the Secretary drew, and shows that it was a conclusion, not from the plaintiff's voting residence merely, but from other facts. Judgment affirmed.

State of Washington to review a judg ment which reversed a decree of the Superior Court of Pierce County, in favor of plaintiff, in a suit to establish a trust in certain real property, and dismissed the suit. Affirmed.

See same case below, 31 Wash. 351, 71 Pac. 1024.

Statement by Mr. Justice Brewer: rior court of Pierce county, Washington, by This was a suit commenced in the supecreed to be the owner of the S. W. of the the plaintiff in error, praying that she be deN. W. of section 3, township 20 north, range 2 east, in said county, and that the defendants be adjudged to hold the legal title in trust for her. A decree of the trial court in her favor was reversed by the supreme court of the state, and the cause dismissed. 31 Wash. 351, 71 Pac. 1024.

The essential facts, which are not disputed, are stated in the opinion of the supreme court. The land was within the primary limits of the grant to the Northern

.

Pacific Railroad Company by joint resolu- | be considered a debatable question, for in tion of Congress, of May 31, 1870. 16 Stat. United States v. Northwestern Exp., Stage at L. 378. The company filed its map of & Transp. Co. 164 U. S. 686, 41 L. general route on August 13, 1870, and its ed. 599, 17 Sup. Ct. Rep. 296, simmap of definite location on May 14, 1874. ilar language in the Indian depredaThe Land Department thereupon withdrew tions statute [26 Stat. at L. 851, chap. 538, from sale and entry this with other tracts. U. S. Comp. Stat. 1901, p. 758] was adjudged On May 19, 1869, one W. C. Kincade made a broad enough to include a state corporation. pre-emption filing on the land, but had aban- No review of authorities there considered doned the filing and the land prior to the and no restatement of the argument is necesact of 1870. Subsequently to the filing of sary. Obviously, in a remedial statute like the map of definite location the tract was this, the term "citizens" is to be considered held by the company and considered by the as including state corporations, unless there Land Department to have passed to the com- be something beyond the mere use of the pany until the departmental, decision of word to indicate an intent on the part of July 13, 1896, in Corlis v. Northern P. R. Co. Congress to exclude them. 23 Land Dec. 265, on review, 26 Land Dec. 652, which held that lands situated as this were excepted from the grant. In 1874 the railroad company, for value and in good faith, sold and conveyed the land to the Tacoma Land Company, a corporation created under the laws of Pennsylvania. Thereafter that company, for value, and in good faith, sold to the other defendants, who also acted in good faith. The several deeds representing these transactions were placed on record in the county where the tract is situated. On October 13, 1896, the Commissioner of the General Land Office canceled the railroad company's list of the tract in question, on the basis of the decision in Corlis v. Northern P. R. Co. On February 24, 1897, the plaintiff filed in the local land office her application to enter the land as a home-ilege. We shall assume that that privilege stead, which filing was accepted by the local officers, and in May of that year she went upon the land, and has there since remained, making improvements to the value of $1,200. In August, 1897, the land company filed its application to purchase the tract, under § 5 of the act of Congress of March 3, 1887. 24 Stat. at L. 557, chap. 376, U. S. Comp. Stat. 1901, p. 1595. A contest between the plaintiff and the land company was had in the Department, which resulted in a decision in its favor, and to it a patent was issued.

Messrs. John F. Shafroth, John C. Stallcup, and J. W. A. Nichols for plaintiff in error.

The other question arises on the contention of the plaintiff that the statute of 1887 is not curative, but simply permissive; that it does not attempt to confirm the title of the purchaser from the railroad company, but simply gives him the privilege of purchasing from the government at the ordinary price. It is urged that it cannot be presumed that Congress intended that the land should be held indefinitely, waiting for the election of the purchaser, and that the privilege must be exercised at once or considered as abandoned. It is said that the land company did not attempt to exercise the priv ilege immediately after the passage of the act, but waited for more than ten years. Obviously the statute is not a curative one, confirms no title, but simply grants a priv

is not one continuing indefinitely, that the land is not held free from entry until the purchaser from the railroad company has formally refused to purchase, and that he must act within a reasonable time. Nevertheless, we are of opinion that the action of the Land Department must be sustained. It is true that the land company did not proceed immediately after the passage of the act of 1887, but until 1896 both the railroad company and the Land Department assumed that the land was already the property of the land company by its purchase from the railroad company. While all parties considered the full equitable title as vested in the land company, there was no duty cast upon

Messrs. Stanton Warburton and E. R. it of securing a further title by purchase York for defendants in error.

from the government. Only after the decision in the Corlis Case in 1896, and on Oc

Mr. Justice Brewer delivered the opinion tober 13 of that year, was the land stricken of the court:

from the railroad company's list. Within Plaintiff in error presents but two ques- ten months thereafter the land company tions which have not already been deter- made its application. Now, whether it acted mined by this court. One is whether a state with reasonable promptness was a question corporation is entitled to the benefit of § 5 primarily for the consideration of the Land of the act of 1887, which names as bene- Department. That Department had before ficiaries "citizens of the United States," or it the application of the plaintiff to enter "persons who have declared their intentions the land under the general land laws, and to become such citizens." This can scarcely that of the land company to purchase it un