upon the authority of Re Ah Cheung, 136 | for argument's sake, that one might visit Cal. 678, 69 Pac. 492, dismiss the writ of habeas corpus heretofore issued herein, and remand the petitioner to the custody of the chief of police of the city and county of San Francisco. Ordered accordingly. The petitioner reserved an exception to the judgment." innocently a barred or barricaded house or room where gambling implements are exhibited or exposed to view, and if, as plaintiff in error alleges in his petition, that he was convicted, notwithstanding he established that he had innocently visited the house mentioned in the charge against him, we are not at liberty to declare the ordi for that ruling was not by habeas corpus. It was by appeal to the superior court, which the Penal Code of the state gave him. We may observe he could have raised on such appeal the questions he now raises, and have them reviewed by this court. Plaintiff in error's petition presents the question of the constitutionality of the ordinance unconstitutional. Besides, his remedy nance under which he was convicted. Section 1 makes it unlawful for any person to exhibit any gambling implements whatsoever in any "barred or barricaded house or room or other place built or protected in a manner to make it difficult of access or ingress to police officers, where any cards, Plaintiff in error avers "that said ordidice, dominoes, fan-tan table or layout, or nance and the provisions thereof are enany part of such layout, or any gambling forced and executed by the said municipalimplements whatsoever, are exhibited or ex-ity of San Francisco, and said state of posed to view where three or more persons California, solely and exclusively against are present." Section 2 makes it unlawful to visit or resort to such barricaded house or room. The ordinance received consideration in Re Ah Cheung by the supreme court of the state of California. 136 Cal. 680, 69 Pac. 493. It was decided that it refers "only to places which are specially barred and barricaded against intrusion by officers of the law, so that illegal gambling may be protected from discovery. Rightly construed, the words 'barred and barricaded' do not include an ordinary private residence or room, where doors are sometimes locked or bolted in the ordinary method. Neither should it be construed to mean an attempted prevention of ordinary innocent games played with cards, dice, or dominoes." persons of the Chinese race, and not otherwise." The contention is that Chinese persons are thereby denied the equal protection of the law, in violation of the 14th Amendment of the Constitution of the United States. Yick Wo v. Hopkins, 118 U. S. 373, 30 L. ed. 227, 6 Sup. Ct. Rep. 1064, is cited to sustain the contention. And it is further contended that the fact of a partial execution of the ordinance is admitted by the order of the superior court, wherein it is recited that, upon the presentation of the case, "it was stipulated and agreed in open court by counsel for the people and by counsel for the petitioner that the facts are as set forth in the petition on file herein for the writ of habeas corpus." There is a misunderstanding between counsel as to The suppression of gambling is concededly what was intended by the stipulation. Counwithin the police powers of a state, and sel for defendant in error contends it was legislation prohibiting it, or acts which may not intended to admit a discrimination in tend to or facilitate it, will not be inter- the administration of the law, but to submit fered with by the court unless such legis-the case on such facts as would test and lation be a "clear, unmistakable infringe- cause a review of Re Ah Cheung, 136 Cal. ment of rights secured by the fundamental 678, 69 Pac. 492. This seems to be suplaw." Booth v. Illinois, 184 U. S. 425, 429, ported by the order of the court taken as a 46 L. ed. 623, 626, 22 Sup. Ct. Rep. 425; whole, and it is the understanding of the Otis v. Parker, 187 U. S. 606, 47 L. ed. 323, court we are to ascertain. In other words, 23 Sup. Ct. Rep. 168. As interpreted by the we are to ascertain what questions of law supreme court of the state, the ordinance and fact were submitted to the court. It cannot be so characterized. cannot be certainly said that the court regarded the fact of discrimination to have been admitted, for it rested its decision on the authority of the Cheung Case. The court indeed may have regarded the allegation of the petition as lacking in certainty of averment, and hence not bringing the case within the ruling of the Yick Wo Case. That case concerned the use of property for lawful and legitimate purposes. The case at bar is concerned with gambling, to suppress. which is recognized as a proper exercise of governmental authority, and one which It is contended that the ordinance makes criminal "the mere act of innocently visiting such a house or room where the visitor had no knowledge and nothing whatever to do with the barring or barricading of the premises or the prescribed articles." It is hence contended by plaintiff in error that "he is deprived of his liberty without due process of law, in that he is prohibited thereby from visiting, innocently and for a lawful purpose, the house or room or place mentioned in said ordinance." Granting, would have no incentive in race or class | should be indulged in a case like this. There prejudice or administration in race or class should be certainty to every intent. Plaindiscrimination. In the Yick Wo Case there tiff in error seeks to set aside a criminal was not a mere allegation that the ordinance law of the state, not on the ground that it attacked was enforced against the Chinese is unconstitutional on its face, not that it only, but it was shown that not only the pe- is discriminatory in tendency and ultimate titioner in that case, but two hundred of his actual operation as the ordinance was which countrymen, applied for licenses, and were was passed on in the Yick Wo Case, but that refused; and that all the petitions of those it was made so by the manner of its adminnot Chinese, with one exception, were grant- istration. This is a matter of proof; and no ed. The averment in the case at bar is that fact should be omitted to make it out comthe ordinance is enforced "solely and ex- pletely, when the power of a Federal court clusively against persons of the Chinese is invoked to interfere with the course of race, and not otherwise." There is no aver- criminal justice of a state. ment that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese, as to whom it was not enforced. No latitude of intention We think, therefore, the judgment of the Superior Court should be and it is hereby affirmed. Mr. Justice Peckham dissents. 1. A person indicted in the supreme court of the District of Columbia for an offense against the United States may be removed to that district for trial, under U. S. Rev. Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, authorizing the removal for trial of a person charged with such a crime to the Federal district where the trial is to be had.* 2. The jurisdiction of the supreme court of the District of Columbia over a criminal con spiracy charged to have been entered into in the city of Washington is not defeated because such offense was also triable in the states of California and Oregon, on the theory that it was therefore "lawfully triable in any other court," within the meaning of D. C. Comp. Stat. chap. 35, § 23, excluding offenses so triable from the jurisdiction of that court over crimes and misdemeanors committed in the District, and which are, by law, to be prosecuted by indictment or information. 3. A conspiracy to obtain school lands from the states of California and Oregon in the names of fictitious or disqualified persons by the use of forged affidavits, assignments, and other documents, and to relinquish them to the United States under the act of June 4, 1897 (30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1541), in exchange for other public lands, cannot escape condemnation under U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, forbidding conspiracies to defraud the United States, on the theory that the United States, having received the school lands in lieu of the other lands patented, has not been defrauded, even assuming that the United States stands in the position of a bona fide purchaser in respect to the school lands. 4. The sufficiency of an indictment charging a conspiracy under U. S. Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, "to defraud the United States out of the possession and use of, and the title to, divers large tracts of public lands of the United States," as against objections based on the lack of description of the lands, the uncertainty of the allegations as to the means to be used to carry out the alleged conspiracy, the failure to give the names of the fictitious or disqualified persons through whom the fraud was effected, the indefiniteness and inconsistency of the allegations, and the improper conclusion, will not be determined on habeas corpus to inquire into a detention to await a warrant for the removal of the accused, under § 1014, to the Federal district where the trial is to be had, but such objections are for the trial court to determine. 5. A Federal court is not required to weigh the evidence of probable cause on habeas corpus to inquire into a detention to await the re moval of the accused to another Federal district for trial, although a prisoner may have the right, on habeas corpus, under the state practice, to have the state court consider that question, since the provision of U. S. Rev. Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, that the usual mode of process adopted in the state shall be pursued, refers to the proceedings in arrest and examination of the accused before the commissioner; and has no bearing upon a subsequent independent proceeding on habeas corpus. 6. The refusal of a Federal circuit court to grant certiorari as ancillary to a writ of habeas corpus is within its discretion, and cannot be assigned as error. [No. 406.] Argued February 21, 23, 1905. Decided May 29, 1905. APPEAL from the Circuit Court of the United States for the Northern District of California to review the denial of habeas corpus and certiorari to inquire into a detention to await the removal of a person charged with an offense against the United States to the District of Columbia, where the trial is to be had. Affirmed. Statement by Mr. Justice Brown: This is an appeal from an order of the circuit court, denying the appellant's application for writs of habeas corpus and certiorari, and dismissing his petition therefor. The proceedings which culminated in the arrest and remanding of the appellant originated in an indictment found in the supreme court of the District of Columbia against the appellant and John A. Benson, Henry P. Dimond, and Joost H. Schneider, charging them with a conspiracy, under Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676, "to defraud the United States out of the possession and use of, and the title to, divers large tracts of the public lands of the United States." All of the defendants except Schneider are residents of San Francisco, California. Upon a complaint made, based upon such indictment, before a United States commissioner for the northern district of California, Hyde was arrested under Rev. Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, taken before a commissioner, and held to bail to answer the indictment in the sum of $50,000, and in default thereof was committed to the custody of the defendant, Shine, to await the order of the district judge for his removal to the District of Columbia, or until he should be discharged by due course of law. Upon such order of removal being issued (United States v. Hyde, 132 Fed. 545), appellant presented his petition to the circuit court for the northern district of California, praying for writs of habeas corpus and certiorari, and for his *EA. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 509. discharge from imprisonment, which denied, and this appeal taken. were | 204, 27 L. ed. 698, 700, 2 Sup. Ct. Rep. 531, that the offense consisted in the conspiracy, and that the overt act afforded a locus peni Messrs. William B. Hornblower and tentiæ, so that, before the act done, either Charles C. Cole for appellant. Solicitor General Hoyt and Messrs. Francis J. Heney and Arthur B. Pugh for appellee. one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute. As the indictment in this case charges that the conspiracy was entered into in the city of Washington, it Mr. Justice Brown delivered the opinion becomes unnecessary to consider whether an of the court: The petitioner assigns as error 1. That Rev. Stat. § 1014, does not authorize a removal from a judicial district in a state to the District of Columbia; 2. That the supreme court of the District of Columbia has no jurisdiction over the alleged offense charged in the indictment; 3. That the indictment charges no offense against the United States; 4. That the evidence introduced before the commissioner proved that there was no probable cause for believing him guilty of the offense, and that the writ of certiorari should have been issued to bring the record before the court, and upon its inspection the appellant should have been discharged. indictment will lie within the jurisdiction where the overt act was committed, though there are many authorities to that effect. King v. Brisac, 4 East, 164; People v. Mather, 4 Wend. 229, 21 Am. Dec. 122; Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475; Noyes v. State, 41 N. J. L. 418; Com. v. Corlies, 3 Brewst. 575. We have ourselves decided that, if the conspiracy be entered into within the jurisdiction of the trial court, the indictment will lie there, though the overt act is shown to have been committed in another jurisdiction, or even in a foreign country. Dealy v. United States, 152 U. S. 539, 38 L. ed. 545, 14 Sup. Ct. Rep. 680; Re Palliser (Palliser v. United States), 136 U. S. 257, 34 L. ed. 514, 10 Sup. Ct. Rep. 1034; King v. Brisac, 4 East, 164; Rev. Stat. § 731, U. S. Comp. Stat. 1901, p. 585. 1. The first assignment is practically disposed of by the recent case of Benson v. Henkel, 198 U. S. 1, 25 Sup. Ct. Rep. 569, 49 L. ed., in which one of the codefendants In this connection it is also suggested of the petitioner in this case, who had been that, as the conspiracy is alleged in all the arrested in Brooklyn, was held to be prop-counts to have been entered into prior to erly removed to the District of Columbia under Rev. Stat. § 1014. No additional considerations being presented, that case must be treated as controlling. 2. The second assignment, that the supreme court of the District of Columbia had no jurisdiction of the alleged offense, is based upon the proposition that the conspiracy, if any existed, was entered into either in the northern district of California or the district of Oregon; and that nothing but overt acts in pursuance of the conspiracy were done in the District of Columbia. Granting that the gravamen of the offense is the conspiracy, and that, at common law, it was neither necessary to aver nor prove an overt act (Rex v. Gill, 2 Barn. & Ald. 204; Bannon v. United States, 156 U. S. 464-468, 39 L. ed. 494-496, 15 Sup. Ct. Rep. 467), an overt act is necessary, under Rev. Stat. § 5440, to complete the offense. The language of the section is, "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," etc. It was aptly said by Mr. Justice Woods in United States v. Britton, 108 U. S. 199, January 1, 1902, as well as the overt act charged in fifteen of the counts, the supreme court of the District of Columbia cannot take cognizance of the case under the new code which took effect upon that date, and that we must look to the law prior thereto to determine the jurisdiction of that court. By § 23, chap. 35, of the Compiled Statutes of the District of Columbia, it was enacted that "the criminal court of the District of Columbia shall have jurisdiction of all crimes and misdemeanors committed in said district, not lawfully triable in any other court, and which are required by law to be prosecuted by indictment or information." The argument is made that, as the conspiracy in this case was triable in California or Oregon, as well as in the District of Columbia, it was lawfully triable in another court, and hence the supreme court of the District of Columbia has no jurisdiction. We are not impressed with the force of this contention. Chapter 35 provides for the organization of the judiciary of the District of Columbia, and relates exclusively to the jurisdiction and powers of the several courts of the District, providing that one of the justices may hold a criminal court, and that such court shall have jurisdiction of all crimes and misdemeanors committed in said District not lawfully triable in any other court, and which are required by law | by and on behalf of the said Hyde and Bento be prosecuted by indictment or informa- son. A further element of the conspiracy tion. It is entirely clear that this has reference only to other courts within the District, and was not intended to change the law with respect to the general jurisdiction of courts having jurisdiction of the same offense. Although it involves a seeming hardship to commit an accused person in San Francisco for trial in the District of Columbia, the terms of Rev. Stat. § 1014, are as applicable to such a case as they would be if the arrest were made in Baltimore. The section makes no discrimination based upon distance, and requires the commitment to be made for trial before the court having cognizance of the offense, wherever that court may sit. Where the statute contains no exception, the courts cannot create one. Indeed, the Constitution itself requires that the trial of all crimes shall be held in the state where the crimes have been committed, and the power of Congress to order the surrender of accused persons from other states is a necessary complement to the duty of trying offenses in the jurisdiction where the crime was committed. But we do not wish to be understood as approving the practice of indicting citizens of distant states in the courts of this District, where an indictment will lie in the state of the domicil of such person, unless in exceptional cases, where the circumstances seem to demand that this course shall be taken. To require a citizen to undertake a long journey across the continent to face his accusers, and to incur the expense of taking his witnesses, and of employing counsel in a distant city, involves a serious hardship, to which he ought not to be subjected if the case can be tried in a court of his own jurisdiction. 3. The third assignment-that the indictment charges no offense against the United States-requires a statement of its substance. As it contains forty-two different counts and covers some ninety-four pages of printed matter, a consideration of each count would unnecessarily prolong this opinion. The conspiracy charged embraced certain false practices by the defendants, whereby school lands were to be obtained fraudulently from the states of California and Oregon by Hyde and Benson, (1) in the names of fictitious persons, and (2) in the names of persons not qualified to purchase the same, whereby the said Hyde and Benson were to cause and require such school lands to be relinquished by means of false and forged relinquishments, assignments, and conveyances to the United States, in exchange for public lands, to be selected, and for titles thereto by patents to be obtained is that defendants were, by bribery, to induce certain United States officials in the General Land Office, at Washington, in the District of Columbia, corruptly, and contrary to their official duties, to aid defendants to secure the approval of their fraudulent selections in advance of their regular order, and to inform defendants of any discovery or investigation by the government of their said fraudulent practices. To grasp the significance of these somewhat complicated counts, and to appreciate the details of the offense charged, it should be borne in mind that the government had granted to California and Oregon large tracts of lands, many of which were covered with forests, known as school lands. Congress subsequently changed its intention with regard to them, and desired to retain them as forest reserves, and to reacquire the title thereto, and, for that purpose, enacted a law approved June 4, 1897 (30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. 1901, p. 1541), as follows: "That in cases in which a tract covered by an unperfected 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 open to settlement, not exceeding in area the tract covered by his claim or patent, and no charge shall be made in such cases for making the entry of record, or issuing the patent to cover the tract selected." It seems that both of these states had passed laws by which any citizen of the United States resident in such state, or any person who had declared his intention to become a citizen, might acquire from such states a section or half section of such lands at $1.25 per acre. They were required to make application to the land offices of the state, and to make the necessary affidavits to show that they were qualified to purchase them, and that they were purchasing them for their own use or benefit, and had not sold or agreed to sell the same. Doubtless the intention was that the sale should be made to persons who desired to settle upon the lands; but there was nothing to prohibit such persons from afterwards disposing of them by assigning the certificates of purchase, and in this method the assignee might, by purchase from several patentees, acquire title to an unlimited amount of such lands, and might thereafter exchange such lands under the act of June 4, 1897, with the United States, provided he had acquired a valid title from the states, and |