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We deem it settled beyond controversy, until Congress shall otherwise provide, that circuit courts of the United States have no power to issue a writ of mandamus in an original action brought for the purpose of securing relief by the writ, and this result is not changed because the relief sought concerns an alleged right secured by the Constitution of the United States.

It follows that the circuit court should have dismissed the case for want of jurisdiction instead of determining it upon the merits. The judgment dismissing the petition is therefore modified so as to show that the case was dismissed for want of jurisdiction, and, as thus modified, the judgment is

affirmed.

although at the date of the commission of
the offense Comanche county had not been
organized, but was attached for judicial pur-
poses to Canadian county.
Territories-jurisdiction over land not open

to settlement.

of Comanche county, Oklahoma, had become part of that territory on August 4, 1901, so as to make a murder committed therein on that date an offense against the territorial rather than the Federal statutes, although the land had not then been opened for settlement.

5. Land now embraced within the limits

Habeas corpus-grounds-jurisdiction below. 6. Compelling the accused to stand up and walk before the jury, and stationing the jury during a recess so as to observe his size and walk, even if contrary to the 5th Amendment to the Federal Constitution, do not affect the jurisdiction of the court

IN THE MATTER OF GEORGE MORAN, so as to justify relief by habeas corpus.

Petitioner.

Habeas corpus-grounds-jurisdiction below.

1. The failure to specify a building in

[No. 8, Original.]

the order of the supreme court of the terri-Argued October 15, 1906. Decided November tory of Oklahoma fixing Lawton as the place where the district court should be held

5, 1906.

in and for the county of Comanche, there ORIGINAL PETITION for habeas corpus

being at the time of making the order and
at the time of trial no county or court
buildings in such county, did not go to the
jurisdiction of such district court so as to
justify relief by habeas corpus in favor of a
person convicted of crime therein who makes
no showing of any opportunities lost be-
cause no building was named.
Habeas corpus-grounds-selection of grand
jurors.

2. A person imprisoned under a convic-
tion in an Oklahoma court is not entitled to
his release on habeas corpus, under U. S.
Rev. Stat. § 753, U. S. Comp. Stat. 1901, p.
592, because the grand jurors were
moned from the body of the county, which
resulted in the selection as such jurors of
persons who were not electors nor residents
of the territory, since the Federal Constitu-
tion does not control the method of selec-
tion, and if any laws have been violated by
this method they are territorial enactments,
which are not laws of the United States.
Habeas corpus-grounds-jurisdiction below.
3. Disobeying the law governing the se-
lection of grand jurors does not affect the
jurisdiction of the court so as to justify the
release by habeas corpus of a person con-
victed under an indictment found by such
jurors.

Venue-of criminal trial.

4. The trial in Comanche county, Oklahoma, of an offense committed within territory which, at the time of trial, had been organized as such county, with a term of court fixed for it by order of the territorial supreme court, satisfies the requirements of the organic act of May 2, 1890, chap. 182, 10, that crimes shall be tried in the county to which territory not embraced in any organized county "shall be attached,"

and certiorari brought by a person imprisoned on a conviction for murder. Rule discharged. Writs denied.

The facts are stated in the opinion.
Messrs. Finis E. Riddle and William I.
Cruce for petitioner.

Messrs. Don C. Smith and W. O. Cromwell for respondent.

Mr. Justice Holmes delivered the opinion of the court:

This is a petition for a writ of habeas corpus and a writ of certiorari, brought by a person imprisoned on a conviction for murder, alleging that the judgment under which he is held is void. A rule to show cause was issued and the case was heard on the petition and and answer. The various grounds upon which the petition is supported are alleged to go to the jurisdiction of the trial court. Ex parte Harding, 120 U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780. See New v. Oklahoma, 195 U. S. 252, 49 L. ed. 182, 25 Sup. Ct. Rep. 68. habeas corpus for the same causes was heard A writ of by the circuit court of appeals and discharged. Ex parte Moran, 144 Fed. 594. The judgment also was affirmed by the supreme court of the territory in which the petitioner was tried. 14 Okla. 544, 78 Pac. 111.

court for Comanche county in the territory The petitioner was tried in the district of Oklahoma. The first ground now relied upon is that the court was not duly organized under the act of Congress requiring the supreme court to define the judicial districts,

the first to be considered by this court, we do not mean to give any countenance to the notion that, if the law was disobeyed, it affected the jurisdiction of the court. Ex parte Harding, 120 U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780; Re Wilson, 140 U. S. 575, 35 L. ed. 513, 11 Sup. Ct. Rep. 870.

and to fix the times and places at each county seat where the district court shall be held. The order of the supreme court went no further in the way of fixing the place than to specify Lawton for the county of Comanche. This order was made on January 15, 1902, about six months after the land, which had been Indian territory, was The third ground on which the jurisdiction opened for settlement and the county cre- of the trial court is denied is that, on ated. At that time and at the time of the August 4, 1901, the date of the commission trial there were no county or court buildings of the crime, the place was within territory in the county. The order of the supreme not embraced in any organized county, and court was as precise as the circumstances was attached for judicial purposes to permitted it to be, and the failure to specify | Canadian county. By the Oklahoma organic a building did not go to the jurisdiction of the trial court. There is no pretense that the petitioner lost any opportunities by reason of no building being named.

act, May 2, 1890, chap. 182, § 9 (26 Stat. at L. 85, 86), this is provided for, and by § 10 such offenses shall be tried in the county to which the territory "shall be attached." It is argued that there had been no law passed changing the place of trial or affecting the order of the supreme court attaching the territory to Canadian county. But the very words quoted from § 10 look to the state of things at the time of trial. At that time Comanche county had been organized, and a term of court fixed for it by the order of the supreme court dated January 15, 1902. The meaning of this order, so far as the power of the supreme court went, is plain. The statute gave the petitioner no vested right to be tried in Canadian county, and his trial in Comanche county conformed to its intent. See Post v. United States, 161 U. S. 583, 40 L. ed. 816, 16 Sup. Ct. Rep. 611.

The next ground argued is that the laws of the territory were not followed in the selection of the grand jury, because the persons selected were not electors of the territory, and some of them were nonresidents, with other subordinate matters. The order for the summons stated the reason, which was that there had been no election held in the county, and there were no names of jurors in the jury box; whereupon the presiding judge ordered the sheriff to summon twenty persons from the body of the county. We have heard no answer to the material portion of the reasoning of the circuit court of appeals upon this point. If the legislature of Oklahoma had prescribed the method of selection followed, that method would The fourth ground is that, as the crime not have violated the Constitution or any was committed on August 4, 1901, two days law or treaty of the United States. If it before the opening of the land for settledid prescribe a different one, a departure ment, the place was still under the exclusive from that was a violation of the territorial jurisdiction of the United States, and thereenactment alone. The acts of the legisla- fore the crime was punishable under Rev. ture of Oklahoma are not laws of the United Stat. § 5339, U. S. Comp. Stat, 1901, p. 3627, States within the meaning of Rev. Stat. alone. The order of the President with re§ 753, U. S. Comp. Stat. 1901, p. 592. If gard to the conditions of settlement and any laws have been violated it is the latter entry are referred to as confirming the arone. Therefore the petitioner is not entitled gument. But those orders were intended to release on this ground under Rev. Stat. merely to carry out the acts of Congress § 753. The 5th Amendment, requiring the governing the matter. There is no doubt presentment or indictment of a grand jury, that Congress was exercising control so far does not take up unto itself the local law as settlement was concerned. But there is as to how the grand jury should be made equally little doubt that the title to the up, and raise the latter to a constitutional territory had passed, that it had become requirement. See Rawlins v. Georgia, 201 part of the territory of Oklahoma, and, as U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560. such, no longer under the exclusive jurisdicIt is unnecessary to consider whether the tion of the United States within Rev. Stat. judge went beyond his powers under the § 5339. Act of May 2, 1890, chap. 182, §§ circumstances. See Clawson v. United v. United 1, 4, 6, 26 Stat. at L. 81; act of June 6, 1900, States, 114 U. S. 477, 29 L. ed. 179, 5 Sup. Ct. chap. 813, 31 Stat. at L. 677; act of March 3, Rep. 949. But it is proper to add that while 1901, chap. 846, 31 Stat. at L. 1093. See the reason which we have given is logically Bates v. Clark, 95 U. S. 204, 24 L. ed. 471; Buster v. Wright, 68 C. C. A. 505, 135 Fed. 947, 952; Ex parte Moran, 144 Fed. 594, 602. Therefore the application of the territorial statute was not excluded and the

[Obviously the court here intended to convey the idea that, if any law has been violated, the territorial enactment is the one.-Ed.]

murder was a violation of the territorial | Rose, and Wilmer B. Comstock for defendlaw. ant in error.

Finally it is contended that the petitioner was compelled to be a witness against himself, contrary to the 5th Amendment, because he was compelled to stand up and walk before the jury, and because, during a recess, the jury was stationed so as to observe his size and walk. If this was an error, as to which we express no opinion, it did not go to the jurisdiction of the court. Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366.

Rule discharged. Writs denied.

NORTHERN ASSURANCE COMPANY OF
LONDON, Plff. in Err.,

V.

GRAND VIEW BUILDING ASSOCIATION.
Judgment-full faith and credit.

1. A judgment of the Supreme Court of the United States to the effect that a policy of fire insurance could not be recovered upon as it stood nor be helped out by any doctrine of the common law is not denied full faith and credit by an adjudication of a state court that such judgment is not a bar to a suit in equity to reform the policy so that it will express consent to concurrent insurance, and to recover upon such policy as reformed.

Election of remedies.

2. The prosecution of an action at law upon a policy of fire insurance to final judg; ment denying recovery, upon the ground that the policy could neither be recovered upon as it stood nor be helped out by any doctrine of the common law, is not an election which bars a suit in equity to reform the policy so that it will express consent to concurrent insurance, and to recover up on such policy as reformed.*

[No. 40.]

Mr. Justice Holmes delivered the opinion of the court:

This is a bill to reform a policy and to recover upon it as reformed. An action at law upon the same instrument, between the same parties, has come before this court heretofore. 183 U. S. 308, 46 L. ed. 213, 22 Sup. Ct. Rep. 133. In that case it was held that the plaintiff could not recover. The question before us at the present time is whether the supreme court of Nebraska failed to give full faith and credit to the judgment in the former case by holding that it was no bar to the relief now sought. (Neb.) 102 N. W. 246.

The policy was conditioned to be void in case of other insurance, unless otherwise provided by agreement indorsed or added; and it stated, in substance, that no officer or agent had power to waive the condition except by such indorsement or addition. There was other insurance and there was no indorsement. The plaintiff alleged a waiver and an estoppel. The jury found that the agent who issued the policy had been informed on behalf of the insured and knew of the outstanding insurance. But this court held that the attempt to establish a waiver was an attempt to contradict the very words of the written contract, which gave notice that the condition was insisted upon and could be got rid of in only one way, which no agent had power to change. The judgment based upon this decision is what is now relied upon as a bar. Metcalf v. Watertown, 153 U. S. 671, 676, 38 L. ed. 861, 863, 14 Sup. Ct. Rep. 947; Hancock Nat. Bank v. Farnum, 176 U. S. 640, 645, 44 L. ed. 619, 621, 20 Sup. Ct. Rep. 506.

Whether sufficient grounds were shown for the relief which was granted is a matter

Argued October 18, 19, 1906. Decided No- with which we have nothing to do. But the

IN

vember 5, 1906.

N ERROR to the Supreme Court of the State of Nebraska to review a decree which affirmed a decree of the District Court of Lancaster County in that state, reforming a policy of fire insurance so as to express consent to concurrent insurance, and enforcing the policy as so reformed, notwithstanding a prior judgment of the Supreme Court of the United States in an action at law denying any recovery on the policy.

Affirmed.

See same case below (Neb.) 102 N. W. 246. The facts are stated in the opinion. Messrs. Charles J. Greene and Ralph W. Breckenridge for plaintiff in error.

Messrs. Joseph R. Webster, Halleck F.

state court was right in its answer to the question before us. The former decision, of course, is not an adjudication that the contract cannot be reformed. It was rendered in an action at law, and only decided that the contract could not be recovered upon as it stood, or be helped out by any doctrine of

the common law. If it were to be a bar it

would be so, not on the ground of the adjudication as such, but on the ground of election, expressed by the form in which the plaintiff saw fit to sue. As an adjudication it simply establishes one of the propositions on which the plaintiff relies,-that it cannot recover upon the contract as it stands. The supposed election is the source of the effect attributed to the judgment. If that depended on matter in pais it might be a ques

*Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Election of Remedies, §§ 14, 15.

tion, at least, as was argued, whether such a remedy, as had been laid down by the sua case fell within either U. S. Const. art. 4, | preme court of Nebraska and the circuit § 1, or Rev. Stat. § 905, U. S. Comp. Stat. 1901, p. 677. It may be doubted whether the election must not at least necessarily appear on the face of the record as matter of law in order to give the judgment a standing under Rev. Stat. § 905.

We pass such doubts, because we are of opinion that, however the election be stated, it is not made out. The plaintiff in the former action expressed on the record its reliance upon the facts upon which it now relies. It did not demand a judgment without regard to them and put them on one side, as was done in Washburn v. Great Western Ins. Co. 114 Mass. 175, where this distinction was stated by Chief Justice Gray. Its choice of law was not an election, but an hypothesis. It expressed the supposition that law was competent to give

court of appeals for the circuit. Home F. Ins. Co. v. Wood, 50 Neb. 381, 386, 69 N. W. 941; Fireman's Fund Ins. Co. v. Norwood, 16 C. C. A. 136, 32 U. S. App. 490, 69 Fed. 71. So long as those decisions stood the plaintiff had no choice. It could not, or at least did not need to, demand reformation, if a court of law could effect the same result. It did demand the result, and showed by its pleadings that the path which it did choose was chosen simply because it was supposed to be an open way. Snow v. Alley, 156 Mass. 193, 195, 30 N. E. 691.

A question argued as to the obligation of the contract having been impaired by a statute as construed was not taken below, and is not open here.

Decree affirmed.

DANIEL RED BIRD et al., Citizens of the, Cherokee enrolment-rights of intermarried Cherokee Nation by Blood, Appts., whites.

V.

UNITED STATES. (No. 125.)

CHEROKEE NATION, Appt.,

V.

UNITED STATES. (No. 126.)

FRANCIS B. FITE et al., Intermarried White Persons, Claiming to be Entitled to Citizenship in the Cherokee Nation, Appts.,

V.

UNITED STATES. (No. 127.)

PERSONS CLAIMING RIGHTS IN THE CHEROKEE NATION BY INTERMARRIAGE, Appts.,

V.

UNITED STATES. (No. 128.)

Cherokee enrolment-rights of intermarried whites.

1. White persons residing in the Cherokee Nation who became Cherokee citizens under the Cherokee laws by intermarriage with Cherokees by blood prior to November 1, 1875, when a Cherokee law became effective which declared that such persons by intermarriage acquired no rights of soil or interest in the vested funds of the Nation, are equally interested, and have per capita rights with Cherokee Indians by blood in the lands constituting the public domain of the Cherokee Nation, and are entitled to be enrolled for that purpose. Cherokee enrolment-rights of intermarried whites.

2. No rights, interest, or share in any funds belonging to the Cherokee Nation, except where such funds were derived by lease, sale, or otherwise from the lands of the Cherokee Nation conveyed to it by the United States by the patent of December, 1838, were acquired by white persons residing in the Cherokee Nation who became Cherokee citizens under the Cherokee laws by intermarriage with Cherokees by blood prior to November 1, 1875, when a Cherokee prior to November 1, 1875, when a Cherokee law became effective which declared that such persons by intermarriage acquired no rights of soil or interest in the vested funds

of the Nation.

Statutes-effect of compilation.

3. The original Cherokee law as duly passed and approved must prevail as against omissions in subsequent compilations, where

5. White persons who intermarried with Cherokees after November 1, 1875, when a Cherokee law became effective which declared that such persons by intermarriage acquired no right of soil or interest in the vested funds of the Cherokee Nation, are not entitled to share in the allotment of the lands or in the distribution of any of the funds belonging to such Nation, and are not entitled to be enrolled for that purpose. Indians-rights of intermarried whites.

6. The ratification by the Cherokee Nation of the act of Congress of July 1, 1902 (32 Stat. at L. 716, chap. 1375), which in § 26 declares that no white person intermarried since December 16, 1895, shall be entitled to enrolment or to participate in the distribution of the tribal property of the Cherokee Nation, does not amount to a concession of property rights by the Indians to all who intermarried prior to that date. Cherokee enrolment-rights of intermarried whites.

7. White persons who have intermarried with Delaware or Shawnee citizens of the Cherokee Nation, not thereby becoming citizens themselves under the Cherokee laws, have no part or share in the Cherokee property, and are not entitled to participate in the allotment of the lands or in the distribution of the funds belonging to such Nation, and are not entitled to be enrolled for that purpose.

Cherokee enrolment-rights of intermarried whites married out and abandoned whites.

persons

8. White persons who intermarried with Cherokees by blood, and, after the death of the Cherokee wife or husband, intermarried with not of Cherokee blood, and white men who, having married Cherokee women, abandoned them, have no part or share in the Cherokee property, and are not entitled to share in the allotments of the lands or in the distribution of any of the funds belonging to the Cherokee Nation, or to be enrolled for that purpose, although the proceedings in the nature of office found authorized by the Cherokee laws have not been instituted to derrive them of the rights and privileges acquired by intermarriage.

[Nos. 125, 126, 127, 128.]

vember 5, 1906.

the acts providing for such compilations did Argued February 19, 20, 1906. Decided Nonot declare that they should be effective as laws of the Cherokee Nation. Indians-rights of adopted whites.

4. Civil and political, and not property. APPEALS from the Court of Claims to

rights, were alone within the purview of the amendment made in 1866 to the 5th section of the Cherokee Constitution of 1839, relating to eligibility to a seat in the National Council, by which "whites legally members of the Nation by adoption" were declared to be citizens of the Cherokee Nation.

review a decree which adjudged that only such white persons as intermarried with Cherokees by blood prior to November 1, 1875, were entitled to any share in the Cherokee property, or to be enrolled for that purpose. Affirmed.

See same case below, 40 Ct. Cl. 411.

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