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of that body of water. In the last of these rian proprietors are to be preferred to the cases the complainants, the owners of 859.- claims of the settler. 38 acres as shown by the descriptions in We see no error in the judgment of the their patents of fractional lots, claimed by Supreme Court of Nebraska, and it is afreason thereof to be the owners of 1,202 firmed. acres lying between the meandered lines and a lake, and sought by injunction to restrain the Land Department from making a survey

(197 U. S. 343) of these latter lands. We held that injunc- SAMUEL MOMILLEN et al., Plffs. in Err., tion would not lie, and that the officers of

0. the government could not be restrained from

FERRUM MINING COMPANY. making a survey; that the rights of the complainants could be settled, after a sur- Error to state court-Federal question vey and transfer of the legal title from the

when raised in time. government, by an action at law.

It is suggested in one of the briefs that 1. A Federal question first raised by a petithis island extends up or down the river be- tion for a rehearing in the highest state court yond the side lines of the tracts belonging

is too late to support the appellate jurisdicto these riparian proprietors. A plat which

tion of the Supreme Court of the United

States, where the state court, in denying the is in evidence seems to support this state

petition, made no reference to the Federal ment, but the finding of the trial court,

question, which is not disturbed by the supreme court, 2. The mere fact that the suit was brought is to the effect that it lies between the under U. S. Rev. Stat. § 2326 (U. S. Comp. tracts of the of the riparian proprietors. Of

Stat. 1901, p. 1430), to try adverse rights

to a mining claim, does not necessarily incourse, their title is only to the land which

volve a Federal question so as to authorize is in front of their banks, and not beyond a writ of error from the Supreme Court of the side lines in either direction.

the United States to a state court. It must also be noticed that the government is not a party to this litigation, and

[No. 185.] nothing we have said is to be construed as a determination of the power of the govern-Argued March 15, 16, 1905. Decided April ment to order a survey of this island, or of

3, 1905. the rights which would result in case it did make such survey. As

th N ERROR to the Supreme Court of the rights of the United States we do not even

State of Colorado to review a judgment impliedly sanction the intimation contained which affirmed a judgment of the District in the opinion of the court below that, un

Court of Lake County in that State in fader the decision in Hardin v. Jordan, 140 U. vor of defendant in a suit to try adverse S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, rights to a mining claim. Dismissed for 838, although, on non-navigable waters, ri- want of jurisdiction.

See same case below (Colo.) 74 Pac. 463. parian rights were not conferred by the state law, nevertheless the land beyond the

Statement by Mr. Justice Brown: banks passed to the state in virtue of the patents of the United States to the lot own

By, this writ of error it is sought to reers. Upon that question we express

view a judgment of the supreme court of

no opinion.

Colorado, affirming a judgment of the dis-. Our conclusion, therefore, is that by the trict court of Lake county in favor of the

Ferrum Mining Company in a proceeding law of Nebraska, as interpreted by its high- brought by the plaintiffs in error under est court, the riparian proprietors are the Rev. Stat. § 2326 (U. S. Comp. Stat. 1901, owners of the bed of a stream to the center

p. 1430), to determine the right of possesof the channel; that the government, assion to certain mining grounds, plaintiffs original proprietor, has the right to survey claiming title as owners of the Eulalia Lode and sell any lands, including islands in a Mining claim, and the defendants claiming river or other body of water; that if it omits title to the same ground as the Golden Rod to survey an island in a stream, and re-Lode Mining claim. fuses, when its attention is called to the The case was tried before the court and a matter, to make any survey thereof, no citi-jury, resulting in a verdict and judgment in zen can overrule the action of the Depart- favor of the defendants, which was affirmed ment, assume that the island ought to have by the supreme court upon the ground that been surveyed, and proceed to occupy it for plaintiffs had not complied with either the the purposes of homestead or pre-emption Federal or the state statutes, in showing a entry. In such a case the rights of ripa- ' valid discovery of mineral in their location.




Mr. George R. Elder for plaintiffs in | there had been a discovery of a vein or lode

within his location, he might base his locaMessrs. Charles Cavender and John A. tion upon it, although he made no discovery Ewing for defendant in error.

himself; but the statutes of Colorado pro

vide (Mills's Anno. Stat. $ 3152) certain Mr. Justice Brown delivered the opinion requirements in addition to those specified of the court:

in the Revised Statutes, among which were In their amended complaint the plaintiffs that the discoverer, before filing his location averred that in the location and record of certificate, shall sink a discovery shaft to the Eulalia Lode Mining claim their grant- the depth of at least 10 feet from the lowest or had complied with the laws of the United part of the rim of such shaft at the surface, States, the laws of Colorado, and the rules or deeper, if necessary, to show a well-deand regulations of miners in the district, fined crevice, and shall also post at the point with reference to the discovery, location, of discovery a notice containing the name of and appropriation of said Eulalia Mining the lode, the name of the locator, and the claim. They did not question the validity of date of the discovery, and shall also mark the state statutes, which prescribe certain the surface boundary of the claim. The acts as necessary to a valid location, but set court further held that where "the locator up a compliance with them, and contended himself selects the discovery shaft, as the that the defendant did not establish a valid one in which the discovery of mineral has location.

been made, and there posts his location Plaintiffs did not claim by virtue of a dis- stake, and bases his location upon such discovery of their own, but by virtue of their covery, he may not, after intervening rights knowledge of the existence of a vein within have attached, abandon and disregard the the surveyed limits of that claim, though same, neglect to comply with such proviseveral hundred feet distant from the dis- sions, and select another discovery upon covery shaft of the Eulalia, which he, Mc- which his location was not predicated.” [74 Millen, together with his co-owner, had pre- Pac. 463.] viously discovered in the process of its de- In this connection the court held that, if velopment; and insisted that this knowl- the plaintiffs relied upon a former discovery edge was equivalent to an actual discovery they were bound to show that it was claimed by him of a vein within the Eulalia loca- by their locator, or adopted by him as the tion.

only one upon which the Eulalia lode was The proposition of plaintiffs, as stated by made; and that the court was correct in retheir counsel, was this:

fusing to hear the proof offered, since it did “That Mr. McMillen, as an owner and a not meet the requirements of the decisions, locator of the Eulalia lode, knew at the time to the effect that a former discovery may be he placed his stake upon the Eulalia claim made the basis of a valid location. The on the 30th of May, 1893, that he in com-court, however, found expressly that the pany with the co-owners of the Pocket Liner plaintiffs not only did not question the vaclaim had discovered ore in the shaft of the lidity of the state statutes, which prescribe Pocket Liner claim; that at the moment certain acts as necessary to a valid location, that he placed his stake upon that ground, but averred in their complaint that those claiming the Eulalia claim as abandoned statutes had been complied with. and unoccupied territory, that theretofore After the disposition of the case by the there had been a discovery of mineral within supreme court, plaintiffs in error filed a pethe requirements of the statutes of the tition for a rehearing, in which, for the first United States and of the state of Colorado, time, they raised the question that, as there and that that knowledge within the mind of had been upon their part a full compliance Mr. McMillen constituted a complete, final, with the requirements of Rev. Stat. § 2320 and perfect location of that mining claim, (U. S. Comp. Stat. 1901, p. 1424), before provided he did the other things requisite any valid adverse rights had intervened, under the statutes of the state of Colorado, there was a perfect and complete appropriaby sinking a discovery shaft 10 feet in tion of this ground, and that court should depth, etc., etc., etc.”

have so adjudicated. In its opinion the The substance of the plaintiffs' argument court reiterated what it had previously said, was that the mere knowledge of the Eulalia that, admitting that the plaintiffs might locator of the existence of a vein in the have availed themselves of the previous disPocket Liner, the previous lode, made his lo- covery within the Eulalia location, and cation valid, provided he performed the oth- adopted the same as their own without maker things requisite under the statutes of the ing a valid discovery for themselves, they state of Colorado, besides the actual discovo had not brought themselves within this ery of mineral. The court did not deny the principle, since in their offer of proof they proposition that, if the locator knew that 'merely relied upon a former knowledge of such location. In its opinion the court a committing magistrate is authorized by made no mention of the Federal question, the Federal Constitution, and whether the which does not seem to have been pressed congressional legislation providing for such upon their attention. Though unnecessary extradition is unconstitutional. The first to our decision, a recent case upon this sub- question answered in the affirmative and the ject is instructive. Butte City Water Co. second in the negative. V. Baker, 196 U. S. 119, 25 Sup. Ct. Rep. 211, 49 L. ed. 409.

Statement by Mr. Justice Brewer: It is sufficient for the purposes of this

The petitioner was charged by affidavit case to say that no Federal question appears before a justice of the peace of Youngstown to have been raised until the petition was township, Ohio, with the crime of obtaining filed for a rehearing. This was obviously $400 worth of jewelry at Youngstown, Ohio, too late, unless, at least, the court grants | by false pretenses, contrary to the law of the rehearing and then proceeds to consider that state. He was arrested as a fugitive the question. Mallett v. North Carolina, 181 | from justice and brought before a magisU. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. trate of the city of New York, August 11, 730; Loeber v. Schroeder, 149 U. S. 580, 37 | 1902. The governor of New York, after a L. ed. 856, 13 Sup. Ct. Rep. 934; Miller v. hearing, at which the accused was representTexas, 153 U. S. 535, 38 L. ed. 812, 14 Suped by counsel, issued his warrant, dated AuCt. Rep. 874.

gust 22, 1902, directed to the police commisIn both courts the question was treated sioner of New York city, directing him to as one of local law, and the mere fact that arrest the accused and deliver him to the suit was brought under Rev. Stat. § 2326 duly accredited agent of Ohio, to be taken (U. S. Comp. Stat. 1901, p. 1430), to try to that state. adverse rights to a mining claim, does not

The warrant recites that it has been repnecessarily involve a Federal question, so resented by the governor of Ohio that the as to authorize a writ of error from this accused stands charged in that state of the court. Bushnell v. Crooke Min. & Smelting crime of securing property by false pretenCo. 148 U. S. 682, 37 L. ed. 610, 13 Sup. Ct. ses, which is a crime under its law, and that Rep. 771; Telluride Power Transmission Co. he has fled from that state. It also recites v. Rio Grande Western R. Co. 175 U. S. that the requisition was accompanied by 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245; affidavits and other papers, duly certified by Blackburn v. Portland Gold Min. Co. 175 the governor of Ohio to be authentic, chargU. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. ing the accused with having committed the 222; Shoshone Min. Co. v. Rutter, 177 U. S. said crime, and with having fled from Ohio 505, 44 L. ed. 864, 20 Sup. Ct. Rep. 726. and taken refuge in the state of New York. The writ of error is accordingly dis

On the 29th of August, after the arrest missed.

of the petitioner, a writ of habeas corpus

was allowed by the district court. The po(197 U. S. 324)

lice commissioner made return that he held IN THE MATTER OF MORRIS STRAUSS. the accused by virtue of the governor's war

rant. On September 16, 1902, the district Extraditioncomplaint before committing court discharged the writ and remanded the magistrate is a charge of crime.

accused to the custody of the police commis

sioner. This order was taken on appeal to A person against whom a complaint for a

felony has been Aled before a committing the circuit court of appeals of the second magistrate, who can only charge or hold for circuit, which certified the following questrial before another tribunal, is “charged” tions: with the crime within the meaning of U. S. "First. Whether the delivery up of an al

. . 4, 2. Rev. Stat. $ 5278 (U. S. Comp. Stat. 1901, leged fugitive from justice against whom a p. 3597), providing for the extradition of complaint for the crime of securing proppersons charged with treason, felony, or other erty by false pretenses has been sworn to crime.

and is pending before a justice of the peace

of Ohio, having the jurisdiction conferred [No. 186.]

upon him by the laws of that state, is author

ized in view of the provisions of article 4, Argued and submitted March 16, 1905. De- $ 2, subd. 2, of the Constitution? cided April 3, 1905.

“Second. Is § 5278 of the Revised Stat

utes (U. S. Comp. Stat. 1901, p. 3597), in N as up of

States Circuit Court of Appeals for the alleged fugitive from justice upon an affiSecond Circuit presenting the questions davit of complaint pending before a justice whether extradition of a person against of the peace in Ohio for the crime of secur. whom a complaint of felony is filed before ing property by false pretenses, which said justice of the peace has the jurisdiction con- | try the defendant, and does not include one ferred upon him by the laws of the said before a committing magistrate, who can state, violative of article 4, § 2, subd. 2, of only discharge or hold for trial before anthe Constitution ?"

other tribunal. Article 4, § 2, subd. 2, of the Constitution But why should the word "charged” be reads:

given a restricted interpretation? It is “A person charged in any state with trea- found in the Constitution, and ordinarily son, felony, or other crime, who shall flee words in such an instrument do not receive from justice and be found in another state, a narrow, contracted meaning, but are preshall, on demand of the executive authority sumed to have been used in a broad sense, of the state from which he fled, be delivered with a view of covering all contingencies. up to be removed to the state having juris-In M’Culloch v. Maryland, 4 Wheat. 316, 4 diction of the crime."

L. ed. 579, one question discussed was as to Revised Statutes, § 5278, so far as is the meaning of the word "necessary,” as material, is:

found in the clause of the Constitution giv"Whenever the executive authority of any ing to Congress power “to make all laws state or territory demands any person as a which shall be necessary

which shall be necessary and proper for carfugitive from justice, of the executive au- rying into execution the foregoing powers, thority of any state or territory to which and all other powers vested by this Constisuch person has fled, and produces a copy of tution in the government of the United an indictment found or an affidavit made be- States, or in any department or officer therefore a magistrate of any state or territory, of.” Chief Justice Marshall, speaking for charging the person demanded with having the court, said (p. 415, L. ed. p. 603): committed treason, felony, or other crime, “This word, then, like others, is used in certified as authentic by the governor or various senses; and, in its construction, the chief magistrate of the state or territory subject, the context, the intention of the from whence the person so charged has fled, person using them, are all to be taken into it shall be the duty of the executive author- view. ity of the state or territory to which such “Let this be done in the case under conperson has fled to cause him to be arrested sideration. The subject is the execution of and secured, and to cause notice of the ar- those great powers on which the welfare of rest to be given to the executive authority a nation essentially depends. It must have making such demand, or to the agent of been the intention of those who gave these such authority appointed to receive the fug- powers, to insure, as far as human prudence itive, and to cause the fugitive to be deliv- could insure, their beneficial execution. ered to such agent when he shall appear.” This could not be done by confining the

choice of means to such narrow limits as Messrs. Max J. Kohler and Moses . not to leave it in the power of Congress to Grossman for Strauss.

adopt any which might be appropriate, and Messrs. Howard S. Gans and William which were conducive to the end. Travers Jerome for respondent.

vision is made in a Constitution intended to

endure for ages to come, and, consequently, Mr. Justice Brewer delivered the opinion to be adapted to the various crises of human of the court:

affairs. To have prescribed the means by The Constitution provides for the surren- which government should, in all future time, der of a person charged with treason, felony, execute its powers, would have been to or other crime. The statute prescribes the change entirely the character of the instruevidence of the charge to be produced, to ment, and give it the properties of a legal wit: “A copy.of an indictment found or an code. It would have been an unwise ataffidavit made before a magistrate

tempt to provide, by immutable rules, for charging

treason, felony, or other exigencies which, if foreseen at all, must crime." The offense for which extradition have been seen dimly, and which can be best. was sought is, under the Ohio statute, a fel. provided for as they occur. To have deony (Bates' Anno. Stat. Ohio 4th ed. sclared that the best means shall not be used, 7076), and subject to trial only upon an in- but those alone without which the power dictment (Ohio Const. art. 1, § 10, Bill of given would be nugatory, would have been Rights), the proceedings in such a case be to deprive the legislature of the capacity to fore a justice of the peace being only pre- avail itself of experience, to exercise its realiminary and for the purpose of securing ar- son, and to accommodate its legislation to rest and detention. It is contended that circumstances.” the constitutional provision for the extradi- Under the Constitution each state was tion of persons "charged with treason, fel-left with full control over its criminal proony, or other crime' requires that the cedure. No one could have anticipated charge must be pending in a court that can'what changes any state might make therein,

This pro

and doubtless the word "charged” was used | may be had. Why should the state be put in its broad signification, to cover any pro- to the expense of a grand jury and an inceeding which a state might see fit to adopt dictment before securing possession of the by which a formal accusation was made party to be tried? It may be true, as counagainst an alleged criminal. In the strict- sel urge, that persons are sometimes wrong. est sense of the term a party is charged fully extradited, particularly in cases like with crime when an affidavit is filed, alleg. the present; that a creditor may wantonly ing the commission of the offense, and a swear to an affidavit charging a debtor with warrant is issued for his arrest; and this is obtaining goods under false pretenses. But true whether a final trial may or may not be it is also true that a prosecuting officer may had upon such charge. It may be, and is, true, either wantonly or ignorantly file an inforthat in many of the states some further pro- mation charging a like offense. But who ceeding is, in the higher grade of offenses at would doubt that an information, where least, necessary before the party can be put that is the statutory pleading for purposes upon trial, and that the proceedings before of trial, is sufficient to justify an extradian examining magistrate are preliminary, tion? Such possibilities as these cannot be and only with a view to the arrest and de- guarded against. While courts will always tention of the alleged criminal; but extra- endeavor to see that no such attempted dition is a mere proceeding in securing ar- wrong is successful, on the other hand care rest and detention. An extradited defend must be taken that the process of extradiant is not put on trial upon any writ which tion be not so burdened as to make it pracis issued for the purposes of extradition, tically valueless. It is but one step in seany more than he is upon the warrant which curing the presence of the defendant in the is issued by the justice of the peace direct court in which he may be tried, and in no ing his arrest.

manner determines the question of guilt. Cases are referred to, such as Virginia v. While perhaps more pertinent as illustraPaul, 148 U. S. 107, 37 L. ed. 386, 13 Sup. tion than argument, the practice which obCt. Rep. 536, in which a distinction is made tains in extradition cases between this and between the preliminary proceedings look- other nations is worthy of notice. Sections ing to the arrest and detention of the de- 5270 to 5277, Rev. Stat. (U. S. Comp. fendant, and those final proceedings upon Stat. 1901, pp. 3591 to 3597), inclusive, prowhich the trial is had. That was a remov- vide for this matter. In none of these secal case, and, discussing the question, Mr. tions or in subsequent amendments or addiJustice Gray, speaking for the court, said tions thereto is there any stipulation for an (p. 119, L. ed. p. 390, Sup. Ct. Rep. p. 540): indictment as a prerequisite to extradition.

"By the terms of § 643 (U. S. Comp. Stat. On the contrary, the proceedings assimilate 1901, p. 521), it is only after “any civil suit very closely those commenced in any state or criminal prosecution is commenced in for the arrest and detention of an alleged any court of a state,' and 'before the trial or criminal. They go upon the theory that final hearing thereof,' that it can be re-extradition is but a mere step in securing the moved for trial into the circuit court next presence of the defendant in the court in to be holden in the district where the same which he may lawfully be tried. In the is pending,' and 'shall proceed as a cause memorandum issued by the Department of originally commenced in that court.'

State in May, 1890, in reference to the ex"Proceedings before a magistrate to com- tradition of fugitives from the United mit a person to jail, or to hold him to bail, States in British jurisdiction, is this statein order to secure his appearance to answer for a crime or offense, which the magistrate ment !1 Moore, Extradition, p. 335) : has no jurisdiction himself to try, before

"It is stipulated in the treaties with the court in which he may be prosecuted and Great Britain that extradition shall only be tried, are but preliminary to the prosecu- granted on such evidence of criminality as, tion, and are no more a commencement of according to the laws of the place where the prosecution than is an arrest by an offi- the fugitive or person charged shall be cer without a warrant for a felony commit found, would justify his apprehension and ted in his presence."

commitment for trial if the crime or offense But such decisions, instead of making had there been committed. against the use in this constitutional sec- "It is admissible, as constituting such tion of the word "charged” in its broad evidence, to produce a properly certified sense, make in its favor, because, as we have copy of an indictment found against the noticed, an extradition is simply one step fugitive by a.grand jury, or of any informain securing the arrest and detention of the tion made before an examining magistrate, defendant. And these preliminary proceed- accompanied by one or more depositions ings are not completed until the party is setting forth as fully as possible the circumbrought before the court in which the trial' stances of the crime."

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