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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 been sooner made because the indictment before the governor of New Hampshire an was not found by the grand jury until Febapplication, dated the 26th of February, ruary, 1902. 1902, signed by George A. Sanderson, district The governor of the commonwealth of attorney for the northern district of Mid Massachusetts having given the requisition dlesex, to the governor of Massachusetts, re-applied for, the papers above mentioned questing a requisition from him upon the were presented to the governor of New governor of New Hampshire for the extra- Hampshire, and a request made that he dition of the plaintiff in error, who, as should issue his warrant of arrest to take stated in the application, stood charged by the plaintiff in error back to the commonindictment with the crime of uttering forged wealth of Massachusetts, as a fugitive from wills, committed in the county of Middlesex justice, and for the purpose of being tried (on the days stated in the indictment), and on the indictment referred to. The counsel who, to avoid prosecution, had fled from the for the plaintiff in error appeared before jurisdiction of the commonwealth, and was the governor, and stated they desired a heara fugitive from justice, and was within the ing before him before the warrant of arrest jurisdiction of the state of New Hampshire. should be granted.

should be granted. This hearing was reIt was also stated in the application that fused, and the governor then granted the the indictment was not found by the grand warrant for the arrest and return of the jury until the February sitting of the su- plaintiff in error to the commonwealth of perior court in the year 1902. There was Massachusetts as a fugitive from justice. also before the governor of New Hampshire In that warrant it was provided that the a copy of what purported to be an allidavit plaintiff in error should be afforded an opof one Whitney, the original of which was portunity to sue out a writ of habeas corpus used before the governor of Massachusetts, before being delivered over to the authori- . to obtain the requisition. It is short, and ties of Massachusetts. She availed herself is as follows:

of that right and sued out such writ, and

upon its return the plaintiff in error made Commonwealth of Massachusetts, ?

several objections to the execution of the Middlesex.

88.:

governor's warrant, and alleged the insuffiI, Jophanus H. Whitney, of Medford, in ciency of the papers to authorize the grantthe county of Middlesex and said commoning of the same. At the close of the hearing wealth, on oath depose and say that Martha the counsel for plaintiff in error moved that S. Munsey, who stands charged by indict- she be discharged for the reasons stated in ment with the crime of uttering forged the motion; the motion was denied, subject wills, as is more fully set forth in the to the objection and exception of the plainpapers hereto annexed, has fled from the tiff in error. The record then shows the limits of said commonwealth, and is a fugi- following: tive from justice. And I further depose “The court thereupon ordered that the that at the time of the commission of said relator proceed to introduce evidence upon crime she was in the state of Massachusetts, the question whether she was in fact a fugiin the county of Middlesex of said common- tive from justice. This the relator's counsel wealth, and that at the same time and pre- declined to do, upon the ground that such vious thereto she was a resident of Cam- action, on their part, would constitute a bridge in the said county of Middlesex; that waiver of their right to object to the refusal she fled from said commonwealth of of the governor to grant a hearing upon this Massachusetts on or about the fourth day question of fact. of November, A. D. 1901; that she is not now “The court then directed that the counsel within the limits of the commonwealth, but, for the relator state whether the relator as I have reason to believe, is now in Pitts-waived the right to then, or at any future field, in the state of New Hampshire. The time, introduce further evidence upon this, grounds of my knowledge are that I have or any question of fact, and counsel for interviewed her since the fourth of Novem- relator declared that she did waive that ber last in Pittsfield, New Hampshire, where right. she was living with her husband during the "No evidence was offered by the relator last week January last.

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 There was also a certificate of the dis- above stated.” trict attorney for the northern district of The question of the legality of the deMiddlesex, that the offense charged against tention of the plaintiff in error is thus the plaintiff in error is a felony within that' brought before the court. The proceedings 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 If the indictment be for three distinct of the Revised Statutes, above cited, are offenses (although of the same nature) set whether the person demanded has been sub- out in the three different counts, as is stantially charged with a crime, and wheth- argued by plaintiff in error, it will not be er he is a fugitive from justice. The first presumed that such an indictment is void is a question of law and the latter is a under the laws of Massachusetts, and the question of fact, which the governor, upon question of procedure under the indictment whom the demand is made, must decide is one for the courts of the state where it upon such evidence as is satisfactory to himn. was found. The courts of that state would Strict common-law evidence is not necessary. undoubtedly protect her in the enjoyment The statute does not provide for the par- of all her constitutional rights. These are ticular kind of evidence to be produced be- matters for the trial court of the demanding fore him, nor how it shall be authenticated, state, and are not to be inquired of on this but it must at least be evidence which is writ. If it appear that the indictment subsatisfactory to the mind of the governor. stantially charges an offense for which the Roberts v. Reilly, 116 U. S. 80, 95, 29 L. ed. person may be returned to the state for 544, 549, 6 Sup. Ct. Rep. 291. The person trial, it is enough for this proceeding. demanded has no constitutional right to be Upon the question of fact, whether the heard before the governor on either question, plaintiff was a fugitive from justice, her and the statute provides for none. To hold counsel, in the argument before this court, otherwise would, in many cases, render the set up several objections of a technical constitutional provision, as well as the stat nature, which, he argued, showed that the ute passed to carry it out, wholly useless. plaintiff in error was not present in MassaThe governor, therefore, committed no error chusetts at the time when one of the crimes, in refusing a hearing. The issuing of the at least, was alleged to have been committed. warrant by him, with or without a recital | As the indictment sets up in the first two therein that the person demanded is a fugi- counts that the plaintiff in error had not tive from justice, must be regarded as suffi- been usually or publicly a resident of Massacient to justify the removal, until the pre-chusetts at any time since the commission sumption in favor of the legality and regu- of the offense set forth in those counts, it larity of the warrant is overthrown by con- is argued that the indictment shows that trary proof in a legal proceeding to review she was not present in the state at the time the action of the governor. Roberts v. when the third count charges a crime to Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. have been committed, and the Whitney afiCt. Rep. 291; Hyatt v. New York, 188 U. S. davit shows she fled from the state before 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456.

the alleged commission of the crime set forth After the decision of the governor, and in the third count. There is no impossibility the issuing of the warrant, the plaintiff in in the plaintiff in error having returned error sued out this writ of habeas corpus for and been present in the state at the time the purpose of reviewing his action. The of the alleged commission of the offense set position taken by the plaintiff in error forth in the third count, even though she upon the hearing on the return of the writ, had not been “usually or publicly a resident in refusing to introduce evidence upon the of that state” since the time when it is alquestion whether she was in fact a fugitive leged that she committed the offenses set from justice, left the case for decision upon therefrom before the commission of the last

forth in the first two counts, and had fled the papers before the governor upon which he acted in issuing the warrant of arrest. 1 affidavit of Mr. Whitney is to the effect that

offense set forth in the third count. The We have no doubt that a prima facie case

at the time of the commission of the crimes was made out, and as the plaintiff in error

she was in the state of Massachusetts, and waived any right to give further evidence, that at the same time, and previous thereto, she is concluded by that prima facie case. she was a resident of Cambridge, in the The indictment undoubtedly set forth a sub-county of Middlesex. Whether she was a stantial charge against the plaintiff in error, resident or not is not important, as to the and the facts therein set forth constituted third count, if she were present in the state a felony in the commonwealth of Massachu- and committed the crime therein. The setts, as certified by the district attorney. statement in the affidavit that she fled on The sufficiency of the indictment, as a mat- or about the 4th day of November, 1901, ter of technical pleading, will not be in- while the third count of the indictment quired into on habeas corpus. E parte avers the commission of the crime on the Reggel, 114 U. S. 642, 29 L. ed. 250, 5 Sup. 20th November of that year, is sufficiently Ct. Rep. 1148; Pearce v. Texas, 155 U. S.' exact, considering the facts in the case, as

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that purpose.

the affiant states that she was in the com- | Argued January 18, 1905. Decided Janumonwealth at the time of the commission of

ary 30, 1905. the crime. Reasonably construed, the affi

N plaintiff in error in the state, and is sufficient, unexplained and uncontradicted, for which affirmed a judgment of the District

Court of Flathead County, in that State, When it is conceded, or when it is so con sustaining a demurrer to, and dismissing, a clusively proved that no question can be complaint which seeks to establish a trust made, that the person was not within the in certain real property which the defendant demanding state when the crime is said to holds under a patent from the United States. have been committed, and his arrest is Affirmed. sought on the ground only of a constructive

el "See same case below, 28 Mont. 413. 72 presence at that time, in the demanding Pac. 746. state, then the court will discharge the de

The facts are stated in the opinion. fendant. Hyatt v. New York, 188 U. S. 691,

Messrs. George A. King, William B.
47 L. ed. 657, 23 Sup. Ct. Rep. 456, affirm- King, and William E. Harvey for plaintiff
ing the judgment of the New York court in error.
of appeals, 172 N. Y. 176, 60 L. R. A. 774,

No counsel for defendant in error.
92 Am. St. Rep. 706, 64 N. E. 825. But the
court will not discharge a defendant arrest-

Mr. Justice Holmes delivered the opin-
ed under the governor's warrant where there ion of the court:
is merely contradictory evidence on the sub- This is a complaint by the plaintiff in
ject of presence in or absence from the state, error to charge the defendant with a trust
as habeas corpus is not the proper proceed- in respect of land which the latter holds
ing to try the question of alibi, or any ques- under a patent from the United States. It
tion as to the guilt or innocence of the alleges a homestead entry by the plaintiff,
accused. As a prima facie case existed for a contest by the defendant, a decision for
the return of the plaintiff in error and she the defendant by the local register and re-
refused to give any evidence upon the receiver, a reversal of this by the Commis-
turn of the writ which she had her- sioner of the Land Office, and a reversal of
self sued out, other than the papers before the latter decision and a cancelation of the
the governor, no case was made out for her plaintiff's entry by the Secretary of the In-
discharge, and the judgment of the Supreme terior. The last order is set forth in full,
Court of New Hampshire, refusing to grant and the complaint goes on the ground that
it, must, therefore, be affirmed.

this order discloses a mistake of law on its face. The complaint was demurred to, the

demurrer was sustained, and the suit dis(196 U. S. 403)

missed. An appeal was taken to the suWALTER W. SMALL, Piff. in Err.,

preme court of the state, which affirmed the judgment. 28 Mont. 413, 72 Pac. 746. The

case then was brought here. SAMUEL 0. RAKESTRAW.

The material portion of the Secretary's

decision is as follows: Publio lands-homestead entryfinding of . “January 21, 1892, plaintiff filed his afii

Secretary of the Interior as to residence- davit of contest against the defendant's effect of residence elsewhere for voting homestead entry, charging that the entrypurposes.

man had failed to comply with the law as 1. A finding by the Secretary of the Interior self, is that he never voted in the precinct

. of , himthat the residence of a homestead entryman for voting purposes was in another precinct in which his homestead entry lies, but did from that in which the land lies cannot be vote at other points a long distance from said to be erroneous as a matter of law, his homestead at least twice during the where it was admitted that the entryman, time he claims he was seeking to maintain on one occasion after his entry, voted in an

residence upon the land. He runs a carother county from that in which the land is situated, and it does not clearly appear that penter shop in town, and, to use his own the Secretary did not have other evidence words, 'determined to return to the ranch before bim on that question.

only often enough to keep a good showing 2. A residence for voting purposes in another of habitation. His excuse for that was

precinct from that in which a homestead en that the plaintiff threatened him with vio-
try lies precludes the entryman from claim-
ing residence at the same time on the land lence if he undertook to stay on the land.
for homestead purposes.

“Without passing upon any other ques.

tion it is enough to say that a residence for [No. 133.]

voting purposes in another precinct from

V.

(196 U. S. 360) the land precludes an entryman from claim- SUSAN A. RAMSEY, Piff. in Err.s ing residence at the same time, on the land

V. for homestead purposes. Re Burns, 4 Land TACOMA LAND COMPANY and PhiladelDec. 62; Hart v. McHugh, 17 Land Dec. 176; phia Trust, Safe Deposit, & Insurance Edwards v. Ford (decided June 18, 1894) Company and John C. Bullitt, Trustees of 18 Land Dec. 546."

the estate of Charles B. Wright, Deceased. The plaintiff's case rests on the assumption that the words "without passing upon

Railroad land grantsbona fide purchasers any other question," mean without pass

-state corporation a citizen-effect of deing upon any other question than an abso

lay on right to purchase from govern

ment. lute proposition of law, and that this proposition is that a vote in another precinct is

1. A state corporation is a citizen of the Unitfatal to a claim of residence. But the Sec

ed States within the meaning of the act of retary found, by implication, that the plain- March 3, 1887 (24 Stat. at L. 557, chap. 376, tiff not merely voted elsewhere, but resided

U. S. Comp. Stat. 1901, p. 1595), § 5, con.

ferring upon such citizens who are bona fide elsewhere for voting. It was after this

purchasers from a railway company of land finding that he laid down the rule com- excepted from its grant, the right to purchase plained of. The case presents no exception

the same from the government. al circumstances which would warrant our 2. Delay cannot successfully be urged to pre

vent bona fide purchasers from a railway going behind the finding of fact. Bohall v.

company of land excepted from its grant from Dilla, 114 U. S. 47, 29 L. ed. 61, 5 Sup. Ct.

exercising the right to purchase the same Rep. 782; Lee v. Johnson, 116 U. S. 48, 51, from the government, conferred by the act of 29 L. ed. 570, 571, 6 Sup. Ct. Rep. 249;

March 3, 1887 (24 Stat. at L. 557, chap.

376, U. S. Comp. Stat. 1901, p. 1595), § 5, Stewart v. McHarry, 159 U. S. 643, 650, 40

where the application to purchase was made L. ed. 290, 292, 16 Sup. Ct. Rep. 117. The within ten months after the land had been plaintiff admits that, on one occasion after stricken from the company's list, pursuant his entry, he voted in a county other than

to a decision of the Land Department, and, that in which the land lies, so that it ap

prior to such decision, both the railway com

pany and the Land Department had assumed pears from the complaint that there was that the land was already the property of the some evidence that his residence for voting railway company's grantee by virtue of its was not in the latter county, and, as the su

purchase from that company. preme court of Montana remarks, it does not

[No. 138.] 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 cir

uary 30, 1905. cumstance to be considered, but, when it leads to the conclusion of a voting residence N ERROR to the Supreme Court of the elsewhere, it leads to the conclusion of a State of Washington to review a judg. residence elsewhere for all purposes by the ment which reversed a decree of the Superior very words of the Compiled Statutes of Mon-Court of Pierce County, in favor of plaintana on which the plaintiff relies. $$ 1007, tiff, in a suit to establish a trust in certain 1020.

real property, and dismissed the suit. Af In view of what we have said it does not firmed. appear as matter of law that the Secretary's

See same case below, 31 Wash. 351, 71

. finding of voting residence was wrong, and Pac. 1024. it does not appear that his proposition, taken as a proposition of law, was wrong.

Statement by Mr. Justice Brewer:

This was a suit commenced in the supeBut, further, the words, "without passing on any other question” cannot be taken ab. rior court of Pierce county, Washington, by solutely to limit the ground of decision to the plaintiff in error, praying that she be de

creed to be the owner of the S. W. # of the the proposition of law. It hardly goes N. W. 1 of section 3, township 20 north, further than to emphasize one aspect of the range 2 east, in said county, and that the defacts as dominant in the Secretary's mind. fendants be adjudged to hold the legal title He already had adopted the plaintiff's own in trust for her. A decree of the trial court words as establishing that the plaintiff's in her favor was reversed by the supreme purpose was only to keep up a good showing. court of the state, and the cause dismissed. This goes to the general conclusion which 31 Wash. 351, 71 Pac. 1024. the Secretary drew, and shows that it was a The essential facts, which are not disconclusion, not from the plaintiff's voting puted, are stated in the opinion of the suresidence merely, but from other facts.

preme court. The land was within the priJudgment affirmed.

mary limits of the grant to the Northern

I

Pacific Railroad Company by joint resolu-l 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. The other question arises on the conten652, which held that lands situated as this tion of the plaintiff that the statute of 1887 were excepted from the grant. In 1874 the is not curative, but simply permissive; that railroad company, for value and in good it does not attempt to confirm the title of faith, sold and conveyed the land to the Ta- | the purchaser from the railroad company, coma Land Company, a corporation created but simply gives him the privilege of purunder the laws of Pennsylvania. Thereafter chasing from the government at the ordinary that company, for value, and in good faith, price. It is urged that it cannot be presold to the other defendants, who also acted sumed that Congress intended that the land in good faith. The several deeds represent- should be held indefinitely, waiting for the ing these transactions were placed on record election of the purchaser, and that the priv. in the county where the tract is situated. ilege must be exercised at once or considered On October 13, 1896, the Commissioner of as abandoned. It is said that the land comthe General Land Office canceled the rail pany did not attempt to exercise the privroad company's list of the tract in question, ilege immediately after the passage of the on the basis of the decision in Corlis v. act, but waited for more than ten years. Northern P. R. Co. On February 24, 1897, Obviously the statute is not a curative one, the plaintiff filed in the local land office her confirms no title, but simply grants a privapplication to enter the land as a home ilege. We shall assume that that privilege stead, which filing was accepted by the local is not one continuing indefinitely, that the officers, and in May of that year she went land is not held free from entry until the upon the land, and has there since remained, purchaser from the railroad company has making improvements to the value of $1,200. formally refused to purchase, and that he In August, 1897, the land company filed its must act within a reasonable time. Neverapplication to purchase the tract, under $ 5theless, we are of opinion that the action of of the act of Congress of March 3, 1887. 24 the Land Department must be sustained. It Stat. at L. 557, chap. 376, U. S. Comp. Stat. is true that the land company did not pro1901, p. 1595. A contest between the plain- ceed immediately after the passage of the tiff and the land company was had in the act of 1887, but until 1896 both the railroad Department, which resulted in a decision in company and the Land Department assumed its favor, and to it a patent was issued. that the land was already the property of

the land company by its purchase from the Messrs. John F. Shafroth, John C. railroad company. While all parties considStallcup, and J. W. A. Nichols for plaintiff ered the full equitable title as vested in the in error.

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 deci

sion in the Corlis Case in 1896, and on OcMr. 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

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