Standard Steel Car Co. 210 Pa. 464, 60 Ati. 4; Dock v. Dock, 180 Pa. 15, 57 Am. St. Rep. 617, 36 Atl. 411.

Mr. Justice Day delivered the opinion of the court:

J. C. McDowell, hereinafter called the petitioner, filed a petition in the United States district court for the western district of Pennsylvania, asking for an order for the return to him of certain books, papers, memoranda, correspondence, and other data in the possession of Joseph A. Burdeau, appellant herein, Special Assistant to the Attorney General of the United States.

In the petition it is stated that Burdeau and his associates intended to present to the grand jury in and for the western district of Pennsylvania a charge against petitioner of an alleged violation of § 215 of the Criminal Code of the United States for the fraudulent use of the mails; that it was the intention of Burdeau and his associates, including certain postoffice inspectors cooperating with him, to present to the grand jury certain private books, papers, memoranda, etc., which were the private property of the petitioner; that the papers had been in the possession and exclusive control of the petitioner in the Farmers' Bank Building, in Pittsburgh. It is alleged that during the spring and summer of 1920 these papers were unlawfully seized and stolen from petitioner by certain persons participating in and furthering the proposed investigation so to be made by the grand jury, under the direction and control of Burdeau as Special Assistant to the Attorney General, and that such books, papers, memoranda, etc., were being held in the possession and control of Burdeau and his assistants; that in the taking of the personal private books and papers, the person who purloined and stole the same drilled the petitioner's private safes, broke the locks upon his private [471] desk, and broke into and abstracted from the files in his offices his private papers; that the possession of the books, papers, etc., by Burdeau and his assistants, was unlawful and in violation of the legal and constitutional rights of the petitioner. It is charged that the presentation to the grand jury of the same, or any secondary or other evidence secured through or by them, would work a deprivation of petitioner's constitutional rights secured to him by the 4th and 5th Amendments to the Constitution of the United States.

An answer was filed, claiming the right to hold and use the papers. A hearing

was had before the district judge, who made an order requiring the delivery of the papers to the clerk of the court, together with all copies, memoranda, and data taken therefrom, which the court found had been stolen from the offices of the petitioner at rooms numbered 1320 and 1321 in the Farmers' Bank Building, in the city of Pittsburgh. The order further provided that, upon delivery of the books, papers, etc., to the clerk of the court, the same should be sealed and impounded for the period of ten days, at the end of which period they should be delivered to the petitioner or his attorney unless an appeal were taken from the order of the court, in which event, the books, papers, etc., should be impounded until the determination of the appeal. An order was made restraining Burdeau, Special Assistant Attorney General, the Department of Justice, its officers and agents, and the United States Attorney, from presenting to the United States Commissioner, the grand jury, or any official tribunal, any of the books, papers, memoranda, letters, copies of letters, correspondence, etc., or any evidence of any nature whatsoever secured by or coming into their possession as a result of the knowledge obtained from the inspection of such books, papers, memoranda, etc.

In his opinion the district judge stated that it was the [472] intention of the Department of Justice, through Burdeau and his assistants, to present the books, papers, etc., to the grand jury with a view to having the petitioner indicted for the alleged violation of § 215 of the Criminal Code of the United States, and the court held that the evidence offered by the petitioner showed that the papers had been stolen from him, and that he was entitled to the return of the same. In this connection the district judge stated that it did not appear that Burdeau, or any official or agent of the United States, or any of the Departments, had anything to do with the search of the petitioner's safe, files, and desk, or the abstraction there from of any of the writings referred to in the petition, and added that "the order made in this case is not made because of any unlawful act on the part of anybody representing the United States or any of its Departments, but solely upon the ground that the government should not use stolen property for any purpose after demand made for its return." Expressing his views, at the close of the testimony, the judge said that there had been a gross violation of the 4th and 5th

While the rooms were in charge of detectives both safes were blown open. In the small safe nothing of consequence was found, but in the large safe papers belonging to McDowell were found. The desk was forced open, and all the papers taken from it. [474] The papers were placed in cases, and shipped to Doherty & Company, 60 Wall street, New York.

Amendments to the Federal Constitu- took private papers of McDowell's also. tion; that the government had not been a party to any illegal seizure; that those Amendments, in the understanding of the court, were passed for the benefit of the states against action by the United States-forbidden by those Amendments, and that the court was satisfied that the papers were illegally and wrongfully taken from the possession of the petitioner, and were then in the hands of the government.

which he had received from a number of the transactions, and other data which, it is stated, would be useful in the investigation of the matter before the grand jury and subsequent prosecntion should an indictment be returned.

In June, 1920, following. Doherty & So far as is necessary for our consid- Company, after communication with the eration, certain facts from the record Department of Justice, turned over a may be stated. Henry L. Doherty & letter, found in McDowell's desk, to the Company of New York were operating Department's representative. Burdeau managers of the Cities Service Com- admitted at the hearing that, as the reppany, which company is a holding com- resentative of the United States in the pany, having control of various oil and Department of Justice, he had papers gas companies. Petitioner was a direc- which he assumed were taken from the tor in the Cities Service Company [473] office of McDowell. The communication and a director in the Quapaw Gas Com- to the Attorney General stated that Mcpany, a subsidiary company, and occu- Dowell had violated the laws of the pied an office room in the building owned United States in the use of the mail in by the Farmers' Bank of Pittsburgh. the transmission of various letters to The rooms were leased by the Quapaw parties who owned the properties which Gas Company. McDowell occupied one were sold by or offered to the Cities room for his private office. He was Service Company; that some of such letemployed by Doherty & Company as ters, or copies of them, taken from Mcthe head of the natural gas division Dowell's file, were in the possession of of the Cities Service Company. Do- the Cities Service Company; that the herty & Company discharged McDowell company also had in its possession porfor alleged unlawful and fraudulent tions of a diary of McDowell in which conduct in the course of the business. he had jotted down the commissions An officer of Doherty & Company and the Cities Service Company went to Pittsburgh in March, 1920, with authority of the president of the Quapaw Gas Company, to take possession of the company's office. He took possession of room 1320; that room and the adjoining room had McDowell's name on the door. At various times papers were taken from the safe and desk in the rooms, and the rooms were placed in charge of detectives. A large quantity of papers were taken and shipped to the auditor of the Cities Service Company at 60 Wall street, New York, which was the office of that company, Doherty & Company, and the Quapaw Gas Company. The secretary of McDowell testified that room 1320 was his private office; that practically all the furniture in both rooms belonged to him; that there was a large safe belonging to the Farmers' Bank and a small safe belonging to McDowell; that on March 23, 1920, a representative of the company and a detective came to the offices; that the detective was placed in charge of room 1320; that the large safe was opened with a view to selecting papers belonging to the company, and that the representative of the company

We do not question the authority of the court to control the disposition of the papers, and come directly to the contention that the constitutional rights of the petitioner were violated by their seizure, and that having subsequently come into the possession of the prosecuting officers of the government, he was entitled to their return. The Amendments involved are the 4th and 5th, protecting a citizen against unreasonable searches and seizures, and compulsory testimony against himself. An extended consideration of the origin and purposes of these Amendments would be superfluous in view of the fact that this court has had occasion to deal with those subjects in a series of cases. Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524: Adams v. New York, 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. Rep. 372; Weeks v. [475] United States, 232 U. S. 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1117; Johnson


United States, 228 U. S. 457, 57 L. ed. 919, 47 L.R.A.(N.S.) 263, 33 Sup. Ct. Rep. 572; Perlman v. United States, 247 U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Rep. 417; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 64 L. ed. 319, 40 Sup. Ct. Rep. 182; and Gouled v. United States, decided February 28th, this term [255 U. S. 298, ante, 647, 41 Sup. Ct. Rep. 261].

The 4th Amendment gives protection against unlawful searches and seizures, and, as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the 4th Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the posses sion of his property, subject to the right of seizure by process duly issued.

surrender the papers under such circumstances. Had it learned that such incriminatory papers, tending to show a violation of Federal law, were in the hands of a person other than the accused, it having had no part in wrongfully obtaining them, we know of no reason why a subpoena might not issue for the production of the papers as evidence. Such production would require no unreasonable search or seizure, nor would it amount to compelling the accused to testify against himself.

The papers having come into the possession of the government without a violation of petitioner's rights by governmental authority, we see no reason why the fact that individuals, unconnected with the government, may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of an incriminatory character.

It follows that the District Court erred in making the order appealed from, and the same is reversed.

Mr. Justice Brandeis dissenting, with whom Mr. Justice Holmes concurs:

Plaintiff's private papers were stolen. The thief, to further his own ends, delivered them to the law officer of the United States. He, knowing them to have been stolen, retains them for use against the plaintiff. Should the court permit him to do so?

In the present case the record clearly shows that no official of the Federal government had anything to do with the wrongful seizure of the petitioner's property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of the Cities Service Company. It is manifest that there was no invasion of the security afforded by the 4th Amendment against unreasonable search and seizure, as whatever wrong [477] That the court would restore was done was the act of individuals in the papers to plaintiff if they were still taking the property of another. A por- in the thief's possession is not question of the property so taken and held tioned. That it has power to control the was turned over to the prosecuting of disposition of these stolen papers, alficers of the Federal government. We though they have passed into the possesassume that petitioner has an unques- sion of the law officer, is also not questionable right of redress against those tioned. But it is said that no provision who illegally and wrongfully took his of the Constitution requires their surrenprivate property under the circum-der, and that the papers could have been stances herein disclosed, but with such remedies we are not now concerned.

The 5th Amendment, as its terms import, is intended to secure the citizen from compulsory testimony against himself. It protects from extorted confessions, or examinations in court proceedings by compulsory methods.

The exact question to be decided here is: May the [476] government retain incriminating papers, coming to it in the manner described, with a view to their use in a subsequent investigation by a grand jury, where such papers will be part of the evidence against the accused, and may be used against him upon trial should an indictment be returned?

We know of no constitutional principle which requires the government to

subpoenaed. This may be true. Still I cannot believe that action of a public official is necessarily lawful because it does not violate constitutional prohibitions, and because the same result might have been attained by other and proper means. At the foundation of our civil liberty lies the principle which denies to government officials an exceptional position before the law, and which subjects them to the same rules of conduct that are commands to the citizen. And in the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play.

ARCHIE J. McLAREN, Administrator, ing out of conflicting applications to en

etc., Petitioner,



(See S. C. Reporter's ed. 477-482.)


· public lands ation.

ter a quarter section of land under the Homestead Law. While the land was public and unappropriated one Rider made a homestead entry of it, and later it was included, with other lands, in a departmental construction first-form reclamation withdrawal.1 The entry after cancel-withdrawal did not extinguish Rider's entry, but, while in force, prevented the initiation of other claims. It was largely provisional, and whenever, in the judgment of the Secretary of the Interior, any of the lands were not required for the purpose for which the withdrawal was made, they were to be restored to public entry. While the withdrawal [479] was in force, one Fleischer instituted a contest against Rider's entry, at his own cost collected and presented evidence establishing its invalidity, and procured its cancelation. Rider acquiesced in that decision, and is not concerned in the present controversy. Fleischer had no claim to the land prior to the contest, and in instituting and carrying it through acted as a common informer, which was admissible under the Public Land Laws. To encourage the elimination of unlawful entries by such contests Congress had declared in the Act of May 14, 1880, chap. 89, 21 Stat. at L. 140; Comp. Stat. § 4536, S Fed. Stat. Anno. 2d ed. p. 597:

1. The long-continued, practical construction by the Land Department of the provision of the Act of May 14, 1880, that "in all cases where any person has contested, paid the land office fees, and procured the cancelation of any pre-emption, homestead, or timber-culture entry, he shall be notified by the register of the land office of the district in which such land is situated

of such cancelation, and shall be allowed
thirty days from date of such notice to en-
ter said lands," as giving a successful con-
testant, when, at the date of the notice, the
land, by reason of an existing withdrawal,
is not open to entry, thirty days after the
land is restored to entry within which to
exercise his preferred right of entry,-will
not be disturbed by the courts.
[For other cases, see Statutes, II. e. 2, in
Digest Sup. Ct. 1908.]

Courts dicta.

rules of decision obiter

2. Observations in the opinion of a court as to rights on which no claim was based in that case, the decision rendered being affirmed on other grounds, are neither authoritative nor persuasive. [For other cases, see Courts, VII. b, in Digest

Sup. Ct. 1908.]

[No. 291.]

Argued April 26 and 27, 1921.


June 1, 1921.

"In all cases where any person has contested, paid the land office fees, and procured the cancelation of any preDecided emption, homestead, or timber-culture entry, he shall be notified by the register of the land office of the district in which WRIT of Certiorari to the such land is situated of such cancelation, Supreme Court of the State of Cal- and shall be allowed thirty days from ifornia to review a judgment which af- date of such notice to enter said lands." firmed a judgment of the Superior Court When Rider's entry was canceled the of Riverside County, in that state, dis-register sent to Fleischer a written nomissing the bill in a suit to establish a trust in land patented under the Homestead Laws. Affirmed.

[blocks in formation]

tice informing him thereof, and stating that he would be allowed thirty days after the tract was restored to public entry within which to enter it in the exercise of his preferred right as a successful contestant. The notice was dated February 11, 1909. Afterwards the Secretary of the Interior issued an order whereby the lands included in the withdrawal were restored to settlement on April 18, 1910, and to public entry on May 18 following. On the earlier date one McLaren made homestead settlement on this tract, and on the later date both Fleischer and McLaren applied at the | 1 The withdrawal was made under the provision embodied in the first six lines of § 3 of the Act of June 17, 1902, chap. 1093, 32 Stat. at L. 388, Comp. Stat. § 4702, 9 Fed. Stat. Anno. 2d ed. p. 1366.

local land office to make homestead entry thereof,-Fleischer in the exercise of his preferred right, and McLaren in virtue of his settlement. Fleischer's application was allowed and McLaren's rejected, the local officers being of opinion that Fleischer had the prior and better right. McLaren appealed and the action of the local [480] officers was sustained by the Commissioner of the General Land Office and by the Secretary of the Interior. In due course Fleischer received a patent for the land, and McLaren then brought this suit to have Fleischer declared a trustee for him of the title, and to compel a conveyance in execution of the trust. During the pendency of the suit McLaren died, and it was revived in the name of his personal representative. Fleischer prevailed in the court of first instance and again in the supreme court of the state. 181 Cal. 607, 185 Pac. 967. A writ of certiorari brings the case here. 253 U. S. 479, 64 L. ed. 1023, 40 Sup. Ct. Rep. 482.

tion issues, the application to be made of the act is not so obvious, and it becomes necessary to inquire what is intended. Does the act mean that the preferred right to enter the land is lost if not exercised within thirty days after the notice issues, even though the land is not open to entry during that period? Or does it mean that the contestant shall have thirty days during which the land is open to entry within which to exercise his preferred right, and therefore that if the land is not open to entry at the date of the notice, the time during which that situation continues shall be eliminated in computing the thirty-day period? In the practical administration of the act the officers of the Land Department have adopted and given effect to [481] the latter view. They adopted it before the present controversy arose or was thought of; and, except for a departure soon reconsidered and corrected, they have adhered to and followed it ever since. Many outstanding titles are based upon it and much The sole question for decision is can be said in support of it. If not whether the officers of the Land Depart- the only reasonable construction of the ment erred in matter of law in holding act, it is at least an admissible one. It that, under the Act of May 14, 1880, therefore comes within the rule that the Fleischer was entitled to thirty days practical construction given to an act after the land was restored to entry of Congress fairly susceptible of differwithin which to exercise his preferred ent constructions, by those charged with right of entry. The words of the act the duty of executing it, is entitled to are: "Shall be allowed thirty days from great respect, and, if acted upon for a the date of such notice to enter said number of years, will not be disturbed lands." Generally when an existing en-except for cogent reasons.3 try is canceled the land becomes at once The case of Edwards v. Bodkin, 161 open to entry and the act is easily applied. But where, as here, an existing withdrawal prevents the land from becoming open to entry for more than thirty days after the notice of cancela

2 The instructions of June 6, 1905, 33, Land. Dec. 607, contained the following: "Seventh. When any entry for lands embraced within a withdrawal under the first form is canceled by reason of contest, or for any other reason, such lands become subject immediately to such withdrawal and cannot, thereafter, so long as they remain so withdrawn, be entered or other wise appropriated, either by a successful contestant or any other person; but any contestant who gains a preferred right to enter any such lands may exercise that right at any time within thirty days from notice that the lands involved have been released from such withdrawal and made subject to entry."

The regulations of May 18, 1916, § 29, 45 Land Dec. 385, 391, contained the following:

"Should the land embraced in the contested entry be within a first-form withdrawal at time of successful termination of

C. C. A. 488, 249 Fed. 562, and C. C. A. —, 265 [482] Fed. 621, in which there was a decree of affirmance by this court, 255 U. S. 221, ante, 595, 41 Sup. Ct. Rep. 268, is cited as upthe contest the preferred right may prove futile, for it cannot be exercised as long as the land remains so withdrawn, but should the lands involved be restored to the public domain or a farm-unit plat be approved for the lands and announcement made that water is ready to be delivered, the preference right may be exercised at any time within thirty days from notice of the restoration or the establishment of farm units." And see Wells v. Fisher, 47 Land Dec. 288, for a statement and discussion of the departmental rulings.

3 Brown v. United States, 113 U. S. 568, 571, 28 L. ed. 1079, 1080, 5 Sup. Ct. Rep. 648; Webster v. Luther, 163 U. S. 331, 342, 41 L. ed. 179, 182, 16 Sup. Ct. Rep. 963; United States v. Hammers, 221 U. S. 220, 228, 55 L. ed. 710, 715, 31 Sup. Ct. Rep. 593; Logan v. Davis, 233 U. S. 613, 627, 58 L. ed. 1121, 1128, 34 Sup. Ct. Rep. 685; LeRoque v. United States, 239 U. S. 62, 64, 60 L. ed. 147, 150, 36 Sup. Ct. Rep. 22.

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