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We see no error in the judgment of the Supreme Court of Nebraska, and it is affirmed.
(197 U. S. 343)
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 their patents of fractional lots, claimed by reason thereof to be the owners of 1,202 acres lying between the meandered lines and a lake, and sought by injunction to restrain the Land Department from making a survey of these latter lands. We held that injunc- SAMUEL MCMILLEN et al., Plffs. in Err., tion would not lie, and that the officers of the government could not be restrained from 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 government, by an action at law.
It is suggested in one of the briefs that this island extends up or down the river beyond the side lines of the tracts belonging to these riparian proprietors. A plat which is in evidence seems to support this statement, but the finding of the trial court, which is not disturbed by the supreme court, is to the effect that it lies between the tracts of the riparian proprietors. Of course, their title is only to the land which is in front of their banks, and not beyond the side lines in either direction.
FERRUM MINING COMPANY.
when raised in time.
IN ERROR to the Supreme Court of the State of Colorado to review a judgment which affirmed a judgment of the District Court of Lake County in that State in favor of defendant in a suit to try adverse rights to a mining claim. Dismissed for want of jurisdiction.
It must also be noticed that the government is not a party to this litigation, and 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 the rights which would result in case it did make such survey. As we reserve the rights of the United States we do not even impliedly sanction the intimation contained in the opinion of the court below that, under the decision in Hardin v. Jordan, 140 U. S. 371, 35 L. ed. 428, 11 Sup. Ct. Rep. 808, 838, although, on non-navigable waters, riparian rights were not conferred by the state law, nevertheless the land beyond the banks passed to the state in virtue of the patents of the United States to the lot owners. Upon that question we express opinion.
Our conclusion, therefore, is that by the law of Nebraska, as interpreted by its highest court, the riparian proprietors are the
See same case below (Colo.) 74 Pac. 463.
Statement by Mr. Justice Brown:
By this writ of error it is sought to review a judgment of the supreme court of Colorado, affirming a judgment of the dis-. trict court of Lake county in favor of the brought by the plaintiffs in error under Ferrum Mining Company in a proceeding Rev. Stat. § 2326 (U. S. Comp. Stat. 1901, p. 1430), to determine the right of possession to certain mining grounds, plaintiffs claiming title as owners of the Eulalia Lode Mining claim, and the defendants claiming title to the same ground as the Golden Rod Lode Mining claim.
owners of the bed of a stream to the center of the channel; that the government, as original proprietor, has the right to survey and sell any lands, including islands in a river or other body of water; that if it omits to survey an island in a stream, and refuses, 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 Department, assume that the island ought to have been surveyed, and proceed to occupy it for the purposes of homestead or pre-emption entry. In such a case the rights of ripa
favor of the defendants, which was affirmed by the supreme court upon the ground that plaintiffs had not complied with either the Federal or the state statutes, in showing a 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 provide (Mills's Anno. Stat. § 3152) certain
Mr. Justice Brown delivered the opinion requirements in addition to those specified of the court:
In their amended complaint the plaintiffs averred that in the location and record of the Eulalia Lode Mining claim their grantor had complied with the laws of the United States, the laws of Colorado, and the rules and regulations of miners in the district, with reference to the discovery, location, and appropriation of said Eulalia Mining claim. They did not question the validity of the state statutes, which prescribe certain acts as necessary to a valid location, but set up a compliance with them, and contended that the defendant did not establish a valid location.
in the Revised Statutes, among which were that the discoverer, before filing his location certificate, shall sink a discovery shaft to the depth of at least 10 feet from the lowest. part of the rim of such shaft at the surface, or deeper, if necessary, to show a well-defined crevice, and shall also post at the point of discovery a notice containing the name of the lode, the name of the locator, and the date of the discovery, and shall also mark the surface boundary of the claim. The court further held that where "the locator himself selects the discovery shaft, as the one in which the discovery of mineral has 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:
"That Mr. McMillen, as an owner and a locator of the Eulalia lode, knew at the time he placed his stake upon the Eulalia claim on the 30th of May, 1893, that he in company with the co-owners of the Pocket Liner claim had discovered ore in the shaft of the Pocket Liner claim; that at the moment that he placed his stake upon that ground, claiming the Eulalia claim as abandoned and unoccupied territory, that theretofore there had been a discovery of mineral within the requirements of the statutes of the United States and of the state of Colorado, and that that knowledge within the mind of Mr. McMillen constituted a complete, final, and perfect location of that mining claim, provided he did the other things requisite under the statutes of the state of Colorado, by sinking a discovery shaft 10 feet in depth, etc., etc., etc."
The substance of the plaintiffs' argument was that the mere knowledge of the Eulalia locator of the existence of a vein in the Pocket Liner, the previous lode, made his location valid, provided he performed the other things requisite under the statutes of the state of Colorado, besides the actual discovery of mineral. The court did not deny the proposition that, if the locator knew that
fusing to hear the proof offered, since it did not meet the requirements of the decisions, to the effect that a former discovery may be made the basis of a valid location. The court, however, found expressly that the plaintiffs not only did not question the validity of the state statutes, which prescribe certain acts as necessary to a valid location, but averred in their complaint that those statutes had been complied with.
After the disposition of the case by the supreme court, plaintiffs in error filed a petition for a rehearing, in which, for the first time, they raised the question that, as there had been upon their part a full compliance with the requirements of Rev. Stat. § 2320 (U. S. Comp. Stat. 1901, p. 1424), before any valid adverse rights had intervened, there was a perfect and complete appropriation of this ground, and that court should have so adjudicated. In its opinion the court reiterated what it had previously said, that, admitting that the plaintiffs might have availed themselves of the previous discovery within the Eulalia location, and adopted the same as their own without making a valid discovery for themselves, they had not brought themselves within this principle, since in their offer of proof they 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 upon their attention. Though unnecessary to our decision, a recent case upon this subject is instructive. Butte City Water Co. v. Baker, 196 U. S. 119, 25 Sup. Ct. Rep. 211, 49 L. ed. 409.
It is sufficient for the purposes of this case to say that no Federal question appears to have been raised until the petition was filed for a rehearing. This was obviously too late, unless, at least, the court grants the rehearing and then proceeds to consider the question. Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Loeber v. Schroeder, 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Rep. 934; Miller v. Texas, 153 U. S. 535, 38 L. ed. 812, 14 Sup. Ct. Rep. 874.
In both courts the question was treated as one of local law, and the mere fact that suit was brought under Rev. Stat. § 2326 (U. S. Comp. Stat. 1901, p. 1430), to try adverse rights to a mining claim, does not necessarily involve a Federal question, so as to authorize a writ of error from this court. Bushnell v. Crooke Min. & Smelting Co. 148 U. S. 682, 37 L. ed. 610, 13 Sup. Ct. Rep. 771; Telluride Power Transmission Co. V. Rio Grande Western R. Co. 175 U. S. 639, 44 L. ed. 305, 20 Sup. Ct. Rep. 245; Blackburn v. Portland Gold Min. Co. 175 U. S. 571, 44 L. ed. 276, 20 Sup. Ct. Rep. 222; Shoshone Min. Co. v. Rutter, 177 U. S. 505, 44 L. ed. 864, 20 Sup. Ct. Rep. 726. The writ of error is accordingly dismissed.
(197 U. S. 324)
IN THE MATTER OF MORRIS STRAUSS.
Extradition complaint before committing
magistrate is a charge of crime.
A person against whom a complaint for a felony has been filed before a committing magistrate, who can only charge or hold for trial before another tribunal, is "charged" with the crime within the meaning of U. S.
Const. art. 4, § 2, subd. 2, and of U. S.
Rev. Stat. § 5278 (U. S. Comp. Stat. 1901,
p. 3597), providing for the extradition of persons charged with treason, felony, or other
congressional legislation providing for such extradition is unconstitutional. The first question answered in the affirmative and the second in the negative.
Statement by Mr. Justice Brewer:
The petitioner was charged by affidavit before a justice of the peace of Youngstown township, Ohio, with the crime of obtaining $400 worth of jewelry at Youngstown, Ohio, by false pretenses, contrary to the law of that state. He was arrested as a fugitive from justice and brought before a magistrate of the city of New York, August 11, 1902. The governor of New York, after a hearing, at which the accused was represented by counsel, issued his warrant, dated August 22, 1902, directed to the police commissioner of New York city, directing him to arrest the accused and deliver him to the duly accredited agent of Ohio, to be taken to that state.
The warrant recites that it has been represented by the governor of Ohio that the accused stands charged in that state of the crime of securing property by false pretenses, which is a crime under its law, and that he has fled from that state. It also recites that the requisition was accompanied by affidavits and other papers, duly certified by the governor of Ohio to be authentic, charging the accused with having committed the said crime, and with having fled from Ohio and taken refuge in the state of New York.
On the 29th of August, after the arrest of the petitioner, a writ of habeas corpus was allowed by the district court. The police commissioner made return that he held
the accused by virtue of the governor's warrant. On September 16, 1902, the district
court discharged the writ and remanded the accused to the custody of the police commissioner. This order was taken on appeal to the circuit court of appeals of the second circuit, which certified the following questions:
"First. Whether the delivery up of an alleged fugitive from justice against whom a complaint for the crime of securing property by false pretenses has been sworn to and is pending before a justice of the peace of Ohio, having the jurisdiction conferred upon him by the laws of that state, is authorized in view of the provisions of article 4,
Argued and submitted March 16, 1905. De- § 2, subd. 2, of the Constitution?
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 reads:
"A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime."
Revised Statutes, § 5278, so far as is material, is:
But why should the word "charged" be given a restricted interpretation? It is found in the Constitution, and ordinarily words in such an instrument do not receive a narrow, contracted meaning, but are presumed to have been used in a broad sense, with a view of covering all contingencies. In M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579, one question discussed was as to the meaning of the word "necessary," as found in the clause of the Constitution giving to Congress power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Chief Justice Marshall, speaking for the court, said (p. 415, L. ed. p. 603):
"This word, then, like others, is used in various senses; and, in its construction, the subject, the context, the intention of the person using them, are all to be taken into view.
"Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fug-powers, to insure, as far as human prudence itive, and to cause the fugitive to be delivered to such agent when he shall appear."
Messrs. Max J. Kohler and Moses H. Grossman for Strauss.
Messrs. Howard S. Gans and William Travers Jerome for respondent.
Mr. Justice Brewer delivered the opinion of the court:
"Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these
could insure, their beneficial execution. This could not be done by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a Constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human 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 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. §clared that the best means shall not be used, 7076), and subject to trial only upon an indictment (Ohio Const. art. 1, § 10, Bill of Rights), the proceedings in such a case before a justice of the peace being only preliminary and for the purpose of securing arrest and detention. It is contended that 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,
but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances."
and doubtless the word "charged" was used | may be had. Why should the state be put in its broad signification, to cover any proceeding which a state might see fit to adopt by which a formal accusation was made against an alleged criminal. In the strictest sense of the term a party is charged with crime when an affidavit is filed, alleging the commission of the offense, and a warrant is issued for his arrest; and this is true whether a final trial may or may not be had upon such charge. It may be, and is, true, that in many of the states some further proceeding is, in the higher grade of offenses at least, necessary before the party can be put upon trial, and that the proceedings before an examining magistrate are preliminary, and only with a view to the arrest and detention of the alleged criminal; but extradition is a mere proceeding in securing arrest and detention. An extradited defendant is not put on trial upon any writ which is issued for the purposes of extradition, any more than he is upon the warrant which is issued by the justice of the peace directing his arrest.
Cases are referred to, such as Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386, 13 Sup. Ct. Rep. 536, in which a distinction is made between the preliminary proceedings looking to the arrest and detention of the defendant, and those final proceedings upon which the trial is had. That was a removal case, and, discussing the question, Mr. Justice Gray, speaking for the court, said (p. 119, L. ed. p. 390, Sup. Ct. Rep. p. 540): "By the terms of § 643 (U. S. Comp. Stat. 1901, p. 521), it is only after 'any civil suit or criminal prosecution is commenced in any court of a state,' and 'before the trial or final hearing thereof,' that it can be removed for trial into the circuit court next to be holden in the district where the same is pending,' and 'shall proceed as a cause originally commenced in that court.'
"Proceedings before a magistrate to commit a person to jail, or to hold him to bail, in order to secure his appearance to answer for a crime or offense, which the magistrate has no jurisdiction himself to try, before the court in which he may be prosecuted and tried, are but preliminary to the prosecution, and are no more a commencement of the prosecution than is an arrest by an officer without a warrant for a felony commit ted in his presence."
But such decisions, instead of making against the use in this constitutional section of the word "charged" in its broad sense, make in its favor, because, as we have noticed, an extradition is simply one step in securing the arrest and detention of the defendant. And these preliminary proceedings are not completed until the party is brought before the court in which the trial'
to the expense of a grand jury and an indictment before securing possession of the party to be tried? It may be true, as counsel urge, that persons are sometimes wrongfully extradited, particularly in cases like the present; that a creditor may wantonly swear to an affidavit charging a debtor with obtaining goods under false pretenses. But it is also true that a prosecuting officer may either wantonly or ignorantly file an information charging a like offense. But who would doubt that an information, where that is the statutory pleading for purposes of trial, is sufficient to justify an extradition? Such possibilities as these cannot be guarded against. While courts will always endeavor to see that no such attempted wrong is successful, on the other hand care must be taken that the process of extradition be not so burdened as to make it practically valueless. It is but one step in securing the presence of the defendant in the court in which he may be tried, and in no manner determines the question of guilt.
While perhaps more pertinent as illustration than argument, the practice which obtains in extradition cases between this and other nations is worthy of notice. Sections 5270 to 5277, Rev. Stat. (U. S. Comp. Stat. 1901, pp. 3591 to 3597), inclusive, provide for this matter. In none of these sections or in subsequent amendments or additions thereto is there any stipulation for an indictment as a prerequisite to extradition. On the contrary, the proceedings assimilate very closely those commenced in any state for the arrest and detention of an alleged criminal. They go upon the theory that extradition is but a mere step in securing the presence of the defendant in the court in which he may lawfully be tried. In the memorandum issued by the Department of State in May, 1890, in reference to the extradition of fugitives from the United States in British jurisdiction, is this statement (1 Moore, Extradition, p. 335):
Great Britain that extradition shall only be "It is stipulated in the treaties with granted on such evidence of criminality as, according to the laws of the place where the fugitive or person charged shall be found, would justify his apprehension and
commitment for trial if the crime or offense
had there been committed.
"It is admissible, as constituting such evidence, to produce a properly certified copy of an indictment found against the fugitive by a grand jury, or of any information made before an examining magistrate, accompanied by one or more depositions setting forth as fully as possible the circumstances of the crime."