matter of peremptory challenges is clear in its terms and provides: "When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to six peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers." The requirement to treat the parties defendant as a single party for the purpose of peremptory challenges has long been a part of the federal system of jurisprudence, it certainly dates back to 1865 and was adopted in the Revised Statutes, and has now become a part of the Judicial Code. 36 Stat. 1166, § 287. Schwartzberg v. United States, 241 Fed. 348, 154 C. C. A. 228. There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured. The number of challenges is left to be regulated by the common law or the enactments of Congress. That body has seen fit to treat several defendants, for this purpose, as one party. If the defendants would avail themselves of this privilege they must act accordingly. It may be, as is said to have been the fact in the trial of the present case, that all defendants may not wish *587 to exercise the right of peremptory challenge as to the same person or persons, and that some may wish to challenge those who are unobjectionable to others. But this situation arises from the exercise of a privilege granted by the legislative authority and does not invalidate the law. The privilege must be taken with the limitations placed upon the manner of its exercise. [3, 4] 2. It is insisted that there was prejudicial error in so much of the charge as is contained in the following language: "The next question for you to determine is the presence of essential elements. One of them is, for instance, that the United States is at war. Secondly, that what was done was an attempt to cause insubordination, or what was done did amount to obstructing enlistment, and the question may arise in your mind how are you to determine that. Whenever you are asked as a jury to pass upon anything which is a matter within common knowledge, common information, things which people ordinarily know, which are generally and practically universally known, when you are passing upon such questions, you have the right to call upon your general knowledge and information. You must determine, for instance, the question whether or not we are at war, because unless we are, this indictment goes for nothing. You may determine that from your general information this is something of which, in the phrase of the law, the law takes judicial notice. So also when you come to determine the question of whether or not there was an attempt to cause insubordination, you take, of course, all the evidence into the case, and you have a right to direct your minds, as naturally you would, to the character of these publications themselves, these pamphlets and these articles, and determine from them, assisted by all the other evidence in the case, whether or not they do reach the dignity of the charge of attempting to cause insubordination; or amount to an obstruction of enlistment." *588 *Certainly no prejudice could arise from an instruction that the jury might be supposed to know the fact that the country was at war. As to the other part of the charge, the jury were told to look at all the evidence, including the character of the publications, and determine from them whether there was an attempt to cause insubordination and a willful obstruction of enlistment; in other wordswhether they amounted to a substantial violation of the statute. We find no well-founded objection to this part of the charge. It is true this language was used in connection with the observations concerning judicial notice as to the country being in a state of war, but we are of opinion, taking the charge together, that the question was fairly left to the jury upon the evidence in the part of the instruction which we have quoted, which left to it to determine whether the facts made a case coming within the denunciation of the statute. [6-8] 4. As to the contention that there was no evidence to warrant the convictions of the accused-it must be borne in mind that it is not the province of this Court to weigh testimony. It is sufficient to support the judgment of the District Court, if there was substantial evidence inculpating the defendants which, if believed by the jury, would justify the submission of the issues to it. It would serve no good purpose to set forth the contents of the newspaper articles and the circulars, the publication and distribution of which were alleged to be the overt acts in furtherance of the alleged conspiracy. That they contain appeals tending to cause disloyalty and refusal of duty in *the military *589 forces of the United States, and to obstruct the recruiting and enlistment service of the government is sufficiently apparent on the (40 Sup. Ct.) face of the publications. That those who by concerted action prepared and circulated such writings could be found guilty of a conspiracy is equally clear. The connection of the plaintiffs in error with the Lithuanian Socialist Federation, whose membership was shown to be actively opposed to the prosecution of the war, is apparent from a perusal of the record. Stilson was the translatorsecretary of the Federation. There is evidence tending to show that one of the circulars entitled, "Let Us Not Go to the Army," was mimeographed from the typewriter controlled and operated by him. Language of the same character as that set forth in the incriminating circulars is found in articles in evidence which were admittedly written by him. Sukys had been a correspondent of "Kova," and was afterwards manager of the Kova printing plant and was appointed by the executive committee of the Federation, and incriminating acts of his are clearly shown in the record. We agree with the trial court that there was ample testimony justifying the submission of the question of the guilt of the accused to the jury, who found both of the plaintiffs in error guilty of concerted action amounting to a conspiracy to violate the provisions of the act. We find no error in this record, and the judgments are Affirmed. Mr. Justice HOLMES and Mr. Justice BRANDEIS dissenting on the ground that as the sentence was upon a general verdict of guilty on both counts, one of which is not sustained, the judgment should be reversed. (250 U. S. 590) MULLEN et al. v. PICKENS et al. SAME v. GARDNER et al. (Submitted Oct. 13, 1919. Decided Nov. 10, 1919.) Nos. 25 and 26. actual allotment effect as covenants to convey allotments thereafter to be selected, either on the ground of estoppel, or because of a state statute having like force, and this even though the allotments should be set aside, other lands the conveyances contained a clause that, if should be selected instead, which should pass to the grantees; the grantors executing further conveyances. In Error to the Supreme Court of the State of Oklahoma. Actions by Malinda Pickens and others and by Anderson Gardner and another against J. S. Mullen and others. To review judgments for plaintiffs, defendants brought error to the Supreme Court of Oklahoma, which affirmed (56 Okl. 65, 155 Pac. 871; 57 Okl. 186, 156 Pac. 1150), and defendants bring error. Judgments affirmed. Messrs. Fred R. Ellis, of Lawton, Okl., and H. A. Ledbetter, of Ardmore, Okl., for plaintiffs in error. Mr. C. S. Arnold, of Enid, Okl., for defendants in error Pickens and others. Mr. Justice PITNEY delivered the opinion of the Court. These cases were submitted together and involve but a single question, which turns upon the effect to be given to the provisions of the Supplemental Agreement with the Choctaw and Chickasaw Tribes of Indians (Act July 1, 1902, c. 1362, 32 Stat. 641) rélating to the allotment of the tribal lands. In each case an enrolled Indian died subsequent to the ratification of the Agreement and be 591 fore *selection of an allotment; in each case the personal representative selected lands for allotment in the name of the deceased Indian, which shortly afterwards were attempted to be conveyed by the heirs of such Indian by warranty deeds through which plaintiffs in error claim, each of which deeds contained a clause to the effect that if for any reason the selection of the lands described in the deed should be set aside, other lands should be selected instead, and these should pass to the grantees, and the grantors would execute further conveyances if necessary. In each case the selection for allotment thus INDIANS 15(1) DEEDS OF HEIRS OF DE- made was set aside in contest proceedings, CEASED INDIAN PRIOR TO ALLOTMENT. In view of Act April 21, 1904, Act April 26, 1906, and Act May 27, 1908, under Supplemental Agreement with the Choctaw and Chickasaw Tribes of Indians embodied in Act of Congress of July 1, 1902, relating to the allotment of the tribal lands, not only does the equity of the heir of a deceased member of a tribe take its inception at the selection of the allotment, but any previous attempt to sell his expectancy is contrary to the spirit and policy of the act, which cannot be evaded by giving to conveyances with warranty or its equivalent made by heirs of a deceased Indian prior to and another selection thereafter made, followed by an allotment in the name of the deceas ed Indian. And the question is whether plaintiffs in error, by virtue of the deeds for the prior selections and the special covenants contained in them, are entitled in equity to the lands subsequently allotted. The Supreme Court of Oklahoma held not. Mullen v. Pickens, 56 Okl. 65, 155 Pac. 871; Mullen v. Its Gardner, 57 Okl. 186, 156 Pac. 1160. judgments were entered before the taking effect of Act Sept. 6, 1916, c. 448, 39 Stat. 726, amending section 237, Judicial Code For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (Comp. St. § 1214), and the present writs of error were applied for and allowed within the time permitted by section 7 of the amending act. Pertinent provisions of the Supplemental Agreement are set forth in the margin.1 *592 *593 interest in the tri*bal land nor any vendible interest in any particular tract, and because the attempted conveyance was in conflict with the provisions of sections 15 and 16 of the Supplemental Agreement to the effect that lands allotted should not be affected by any deed, debt, or obligation contracted prior to the time at which such land might be alienated under the act, and should not be alienable except after issuance of patent. It was contended that the prohibition against sale, in its application to the particular case, had been removed by Act April 21, 1904, c. 1402, 33 Stat. 189, 201, providing that "all restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes of Indians who are not of Indian *In Franklin v. Lynch, 233 U. S. 269, 34 Sup. Ct. 505, 58 L. Ed. 954; a white woman, widow of a Choctaw Indian, having applied to be admitted as a member of the tribe by intermarriage, made a warranty deed in October, 1905, for lands exclusive of homestead which might be finally allotted to her, with an accompanying agreement to make conveyance when the land should be actually allotted. Thereafter she was enrolled as an intermarried citizen, made her selection, and received a patent for land, all of which, ex-blood" should be removed. But we held that cept the homestead, she sold for value to other parties. This court held (affirming the Supreme Court of Oklahoma) that the earlier deed and the agreement were void because until allotment the Indian had no undivided 111. There shall be allotted to each member of the Choctaw and Chickasaw Tribes, as soon as while this removed the restriction to the extent of permitting members who were not of Indian blood to sell land after it had been actually allotted in severalty, it did not permit even a non-Indian to sell a mere float or expectancy. It is insisted that a different rule must be applied with respect to lands allotted pursupracticable after the approval by the Secretary ant to section 22 in the name of a deceased of the Interior of his enrollment as herein provid- member for the benefit of his heirs, as to ed, land equal in value to three hundred and twen- which there is no express restriction upon ty acres of the average allottable land of the Choc-alienation like those found in sections 15 and taw and Chickasaw Nations, and to each Choctaw 16, and, in the absence of such restriction, and Chickasaw freedman, as soon as practicable after the approval by the Secretary of the Interior of his enrollment, land equal in value to forty acres of the average allottable land of the Choctaw and Chickasaw Nations. ... 12. Each member of said tribe shall, at the time of the selection of his allotment, designate as a homestead out of said allotment land equal in value to one hundred and sixty acres of the average alas nearly as may be, which shall be inalienable during the lifetime of the allottee, not exceeding twenty-one years from the date of certificate of allotment, and separate certificate and patent shall issue for said homestead. lottable land of the Choctaw and Chickasaw Nations, 15. Lands allotted to members and freedmen shall not be affected or encumbered by any deed, debt, or obligation of any character contracted prior to the time at which said land may be alienated under this act, nor shall said lands be sold except as herein provided. 16. All lands allotted to the members of said tribes, except such land as is set aside to each for a homestead as herein provided, shall be alienable after issuance of patent as follows: One-fourth in acreage in one year, one-fourth in acreage in three years, and the balance in five years; in each case from date of patent: Provided, that such land shall not be alienable by the allottee or his heirs at any time before the expiration of the Choctaw and Chickasaw tribal governments for less than its appraised value. 22. If any person whose name appears upon the rolls, prepared as herein provided, shall have died subsequent to the ratification of this agreement and before receiving his allotment of land the lands to which such person would have been entitled if living shall be allotted in his name, and shall, together with his proportionate share of other tribal property, descend to his heirs according to the laws of descent and distribution as provided in Chapter forty-nine of Mansfield's Digest of the Statutes of Arkansas: Provided, that the allotment thus to be made shall be selected by a duly appointed admin istrator or executor. no obstacle in the way of the owner conveying his equitable interest after allotment, as was held by this court in Mullen v. United States, 224 U. S. 448, 457, 32 Sup. Ct. 494, 56 L. Ed. 834 (and see like rulings, as to the corresponding provisions of the Creek Agree ment, in Skelton v. Dill, 235 U. S. 206, 210, 35 Sup. Ct. 60, 59 L. Ed. 138, and Woodward v. De Graffenried, 238 U. S. 284, 319, 35 Sup. Ct. 761, 59 L. Ed. 1310). But the decision in Franklin v. Lynch, supra, was based not alone upon the express restrictions, but upon the absence of individual interest in the tribal land prior to allotment and the general policy of the Agreement not to permit the improvident sales that would result if a prospective allottee were enabled to sell his expectancy. We have not overlooked the fact that in *594 construing a *treaty made October 27, 1832 (7 Stat. 399), between the United States and the Pottawatomie Indians, ceding their possessory interest in certain lands to the United States, with a reservation of a considerable number of sections to particular named Indians to be granted to them when selected, it was held by this court in two cases that the treaty itself converted the reserved sections into individual property and created an equitable interest that was the subject of sale and conveyance, and that warranty deeds made prior to selection operated to vest the title in the grantee as soon as the lands were selected and patented. Doe v. Wilson (1859) 23 How. 457, 16 L. Ed. 584; Crews v. Burcham (1861) 1 Black, 352, 17 L. Ed. 91. Nor (40 Sup. Ct.) tive declaration of the true intent and meaning of the Agreements respecting allotment of the lands of these tribes. that a similar result was reached in Jones v. Meehan, 175 U. S. 1, 21, 23, 32, 20 Sup. Ct. 1, 44 L. Ed. 49, under the provisions of a treaty with certain bands of Chippewa Indians The provisions of the Supplemental Agreemade October 2, 1863, by which a particularment having permitted no conveyance of reservation was set apart for one of their an interest in the tribal lands prior to principal chiefs. allotment, it is obvious that this policy But we deem it impossible in right reason to apply the doctrine of these decisions to the case in hand. Section 22 of the Supplemental Agreement provides, not for any special grant or reservation in favor of particular Indians upon any special meritorious consideration, but makes a substituted provision, in the allotment scheme, in favor of the heirs of any enrolled Indian who might happen to die after the ratification of the Agreement and before selection of his allotment. In the absence of anything to the contrary, the lands prior to allotment were to remain communal, without private interest that was capable of descent or alienation. Gritts v. Fisher, 224 U. S. 640, 642, 32 Sup. Ct. 580, 56 L. Ed. 928; Sizemore v. Brady, 235 U. S. 441, 449-451, 35 Sup. Ct. 135, 59 L. Ed. 308. And no reason is suggested, nor does any occur to us, for creating by implication from the provisions of section 22 a separate in- (Argued Oct. 14, 1919. Decided Nov. 10, 1919.) terest or equity in the heirs of a deceased member prior to allotment that by the general scheme of the act and the express provisions of sections 15 and 16 was withheld from a member entitled to receive an allot*595 ment in his own right. The *implication is clearly to the contrary; and we hold that not only by the terms of section 22 does the equity of the heir of a deceased member take its inception at the selection of the allotment, but that any previous attempt to sell his expectancy is contrary to the spirit and policy of the act. Mullen v. United States, 224 U. S. 448, 457, 32 Sup. Ct. 494, 56 L. Ed. 834, cited by plaintiff in error, is not in point, for the lands there in controversy had been duly allotted, and the only question was whether they might be alienated thereafter and before the issuance of patent, a question affirmatively answered by reference to the proviso of section 19 of the act of April 26, 1906 (34 Stat. 137, 144, c. 1876). In confirmation of our view as to the meaning and effect of section 22 of the Supplemental Agreement, reference may be made to several acts of Congress respecting restrictions upon the lands of the Five Civilized Tribes, containing some provisions for their removal, and others for their maintenance except so far as removed, the language of which is inconsistent with the theory that there was any individual interest or equity in such lands prior to the selection of an allotment. Act April 21, 1904, c. 1402, 33 Stat. 189, 204; Act April 26, 1906, c. 1876, § 19, 34 Stat. 137, 144; Act May 27, 1908, c. 199, 35 Stat. 312. They amount to a legisla (250 U. S. 549) UNITED STATES ex rel. ALASKA SMOKE- No. 36. 1. MINES AND MINERALS 40-POWER OF GENERAL LAND OFFICE IN PASSING ON COAL CLAIMS NOT MINISTERIAL. The power of the General Land Office to approve and pass to patent an application for certain coal claims necessarily is something more than ministerial, and yet is not arbitrary, without statutory direction or regulation by settled rules and principles; the Land Office is like any other tribunal, its institution and purpose defining and measuring its power, the determining elements being those of fact and law, on which judgment necessarily must be passed. 2. MANDAMUS 85-TO COMPEL PATENT OF COAL CLAIMS AFTER ADVERSE FINDING BY Where a local land office of the United States in Alaska, the Commissioner of the General Land Office, and the Secretary of the Interior in succession decided that Rev. St. §8 ed to Alaska by Act Cong. June 6, 1900, amend2347-2352 (Comp. St. §§ 4659-4664), as extended by Act April 28, 1904 (Comp. St. §§ 50715074), contemplated as a basis of a valid location of coal claims the opening and developing of a producing mine of coal, and that the work to be performed upon a claim for prospecting purposes only does not fulfill the requirement, also that such was the character of the work done on the claims involved, there is no right, in the company seeking to patent the claims, to Commissioner to prove and pass them to patent. mandamus to require the Secretary and the 3. MANDAMUS 72-No CONTROL OF DISCRE TIONARY OFFICIAL ACTION. Where there is discretion in official action, even though the conclusion of the authority bo disputable, it is impregnable to mandamus. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes In Error to the Court of Appeals of the direct, that is, the power of the Land Office District of Columbia. Petition for mandamus by the United States, on the relation of the Alaska Smokeless Coal Company, against Franklin K. Lane, as Secretary of the Interior, and Clay Tallman, as Commissioner of the General Land Office. From a judgment dismissing the petition, relator appealed to the Court of Appeals, which affirmed (46 App. D. C. 443), and relator brings error. Judgment affirmed. Messrs. Dean Burkheimer and Charles E. Shepard, both of Seattle, Wash., James R. Caton, of Alexandria, Va., and A. A. Hochling, Jr., Stanton C. Peelle, and C. F. R. Ogilby, all of Washington, D. C., for plaintiff in error. Mr. Assistant Attorney General Nebeker, for defendants in error. under the cited statutes and the facts recited in the petition. This power, we may say at the outset, necessarily is something more than ministerial, the mere yielding to *551 and registry of any demand, *and yet, on the other hand, not arbitrary, without statutory direction or regulation by settled rules and principles. In other words, the Land Office is like any other tribunal-its institution and purpose defining and measuring its power, the determining elements being those of fact and law, upon which necessarily judgment must be passed. What are the elements of fact and of law in the present case? As set forth in the petition they are these: Sections 2347 to 2352 of the Revised Statutes (Comp. St. §§ 4659-4664) provide for the entry of vacant coal lands, 160 acres to an individual, 320 acres to an association, who Mr. Justice McKENNA delivered the opin- have opened and improved, or shall "open ion of the Court. Petition for mandamus to require the Secretary of the Interior and the Commis *550 sioner of the General Land Office *to approve and pass to patent the application of the petitioner for certain coal claims, or to show cause why they have not done so. Respondents replied that they are constituted by law the sole agents of the government in the administration and disposal of the public lands by and through the means appointed by Congress and have exclusive jurisdiction to determine the validity of all claims or applications to enter or acquire any part of them, and that the discharge of that duty involves judgment and discretion. And further replied that petitioner sought to acquire title to the coal claims under the Act of April 28, 1904, c. 1772, 33 Stat. 525 (Comp. St. §§ 5071-5074), and the Act of May 28, 1908, c. 211, 35 Stat. 424 (Comp. St. §§ 50755078), by virtue of the locations set out in the petition. That the locations came on to be heard and that they, respondents, after considering all of the evidence and applying the law thereto, found and determined that the locations involved were invalid, the locators not having opened or improved any mine or mines of coal on any of the tracts of land in controversy, as required by the cited statutes, and that petitioner was not entitled to purchase the same, and thereupon respondents in the exercise of their discretion and judgment rejected the application. Hence they prayed that the rule against them be discharged and the petition dismissed. and improve [italics ours], any coal mine or mines upon the public lands." Section 2348. These sections were extended to Alaska by an act passed June 6, 1900 (31 Stat. 658, c. 796), and the latter act was amended by the Act of April 28, 1904, supra, section 1 of which provides: "That any person or association of persons qualified to make entry under the coal land laws of the United States, who shall have opened or improved [italics ours] a coal mine or coal mines on any of the unsurveyed public lands of the United States in the district of Alaska, may locate the lands upon which such mine or mines are situated. * Section 2 of the act provides for the application for and issue of patent. The Act of May 28, 1908, provides for the consolidation of claims and their inclusion in a single claim. It is otherwise of no impor tance. It will be observed that the only substantial difference between the sections of the Revised Statutes and the act extending them to Alaska is that by the former the right of location is granted to one or those "who have opened and improved" a mine or mines, and by the latter the grant is to one or those who have opened or improved" a mine or mines. [2] Petitioner in great volume asserts loca*552 tions under the Act of April 28, 1904, to which locations it has succeeded. The facts concerning them are not in dispute; but whether what was done constituted an opening or improvement of mines, and constrained a decision other than that given by the Land Office, is in dispute. Petitioner demurred to the reply on the ground that it did not set forth any sub- Eight locations were made, all of which stantial or legal defense. The demurrer was were conveyed by the asserted locators to overruled, and, petitioner electing to stand petitioner in March, 1909. Surveys were upon it, the rule to show cause was discharg- made of the locations, which surveys were ed and the petition dismissed. The judgment duly examined and filed in the proper land was affirmed by the Court of Appeals. office in Alaska; and in 1909 petitioner paid [1] The question in the case, therefore, is to the Treasurer of the United States $10 |