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6. There is adequate ground for the return as a fugitive from justice under U. S. Rev. Stat. § 5278, of a person charged by authentic indictment with the commission of a criminal conspiracy in the demanding state on or about a specified date, who, by his own admission, had been personally present there and in communication with the alleged co-conspirator at or about that time, and was afterwards found in the surrendering state.

[For other cases, see Extradition, I. in Digest Sup. Ct. 1908.] Habeas corpus - extradition review of governor's finding.

7. Whether in fact a person whose interstate extradition is demanded is a fugitive from justice is for the governor of the surrendering state to determine, and his conclusion that he is such a fugitive must stand on habeas corpus unless clearly overthrown.

[For other cases, see Habeas Corpus, II. b: Extradition, IV. c, in Digest Sup. Ct. 1908.] Extradition fugitive from justice.

very

8. To be regarded as a fugitive from justice it is not necessary that one shall have left the state in which the crime is alleged to have been committed for the purpose of avoiding prosecution, but simply that, having committed there an act which, by the law of the state, constitutes a crime, he afterwards has departed from its jurisdiction, and, when sought to be prosecuted, is found within the territory of another

state.

[For other enses, see Extradition, I. in Digest

Sup. Ct. 1908.]

[No. 120.]

Submitted under the Twentieth Rule, No

vember 8, 1920. Decided January 31,

1921.

seeks his rendition. That appears on the face of the papers, is a fatal defect, and is always open to judicial inquiry in these rendition cases on an application for discharge under a writ of habeas corpus.

Roberts v. Reilly, 116 U. S. 80, 95, 29 L. ed. 544, 549, 6 Sup. Ct. Rep. 291; Hyatt v. New York, 188 U. S. 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456, 12 Am. Lean, 121, Fed. Cas. No. 12,968. Crim. Rep. 311; Ex parte Smith, 3 Mc

All the decisions of this court, though liberal to a degree in other respects, declare that it is essential that the indictment charge the accused with the commission of a crime within the state demanding him.

L. ed. 717; Robb v. Connolly, 111 U. S. Kentucky v. Dennison, 24 How. 66, 16 624, 638, 28 L. ed. 542, 547, 4 Sup. Ct. Rep. 544; Roberts v. Reilly, 116 U. S. 80, 95, 29 L. ed. 544, 549, 6 Sup. Ct. Rep. 291; Hyatt v. New York, 188 U. S. 691, 709, 710, 47 L. ed. 657, 669, 661, 23 Sup. Ct. Rep. 456, 12 Am. Crim. Rep. 311; Ex parte Reggel, 114 U. S. 642, 652, 653, 29 L. ed. 250, 253, 254, 5 Sup. Ct. Rep. 1148, 5 Am. Crim. Rep. 218; Munsey v. Clough, 196 U. S. 364, 49 L. ed. 515, 25 Sup. Ct. Rep. 282; Pettibone v. Nichols, 203 U. S. 192, 51 L. ed. 148, 27 Sup. Ct. Rep. 111, 7 Ann. Cas. 1047; Appleyard v. Massachusetts, 203 U. S. 222, 51 L. ed. 161, 27 Sup. Ct. Rep. 122, 7 Ann. Cas. 1073; Illinois ex rel. MeNichols v. Pease, 207 U. S. 100, 52 L. ed. 121, 28 Sup. Ct. Rep. 58; Strassheim v. Daily, 221 U. S. 280, 55 L. ed. 735, 31 Sup. Ct. Rep. 558; Biddinger v. Police Comr. 245 U. S. 128, 62 L. ed. 193, 38 Sup. Ct. Rep. 41.

The appellant may be lawfully tried in New York for receiving funds alleged to have been stolen by Hanson and sent to Hogan, without violating the limitations of the rendition clause of the Constitution as established by the uniform decisions of this court.

People ex rel. Briggs v. Hanley, 226 N. Y. 453, 123 N. E. 663; Re Jackson, 2 Flipp. 183, Fed. Cas. No. 7,125.

Rendition ought not to be left to the

APPEAL from the District Court of governors of the states, where, when

the United States for the District of New Jersey to review the denial of relief by habeas corpus to a person detained under an extradition warrant. Affirmed. The facts are stated in the opinion. Mr. Reuben D. Silliman submitted the cause for appellant:

Hogan is not charged with having committed a crime within the state which

contested, it will depend upon political expediency. The present system has stood the test of time and the trial of the slavery issue and war. The suggested change would be an innovation. Obsta principiis is a safe and wise maxim.

Re Cook, 49 Fed. 833.

Mr. Joseph C. Pelletier submitted the

1920.

HOGAN v. O'NEILL.

53-55

cause for appellee. Mr. William S. Kin- | it appeared that a demand for appelney was on the brief:

The defendant having admitted that, on or about the time the indictment alleges the crime was committed, he was in the commonwealth of Massachusetts, in company with the codefendant Hanson, and that thereafter he departed from the said commonwealth, establishes beyond contradiction that he is a fugitive from the justice of the commonwealth of Massachusetts.

Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. Ct. Rep. 291; Munsey v. Clough, 196 U. S. 364, 49 L. ed. 515, 25 Sup. Ct. Rep. 282; Appleyard v. Massachusetts, 203 U. S. 222, 51 L. ed. 161, 27 Sup. Ct. Rep. 122, 7 Ann. Cas. 1073; Drew v. Thaw, 235 U. S. 432, 59 L. ed. 302, 35 Sup. Ct. Rep. 137.

In the commonwealth of Massachusetts the crime of conspiracy is complete upon the making of the unlawful agreement, irrespective of whether or not any overt act is thereafter performed for the purpose of carrying out the conspiracy.

Com. v. Judd, 2 Mass. 329, 3 Am. Dec. 54; Com. v. Tibbetts, 2 Mass. 536; Com. v. Warren, 6 Mass. 74; Com. v. Hunt, 4 Met. 111, 38 Am. Dec. 346; Com. v. Rogers, 181 Mass. 184, 63 N. E. 421; Com. v. Stuart, 207 Mass. 563, 93 N. E.

825.

lant's apprehension and extradition to
Massachusetts [54] had been made by
the governor of that commonwealth upon
the governor of New Jersey, accompa-
nied with a copy of an indictment found
by the grand jury of Suffolk county, cer-
tified as authentic by the governor of
Massachusetts, and an affidavit to the
effect that appellant was in the com-
and at the time of the commission of the
monwealth for some time previous to
alleged crime, and afterwards fled
therefrom.

The following is a copy of the indict-
"Commonwealth of Massachusetts, Suf-
ment (signatures omitted):
folk, ss:

"At the superior court begun and holden
at the city of Boston, within and for the
county of Suffolk, for the transaction
of criminal business, on the first Monday
of February, in the year of our Lord
"The jurors for the commonwealth of
one thousand nine hundred and nineteen.
Charles K. Hogan and Luther R. Han-
Massachusetts, on their oath present that
son, on the eighteenth day of August in
the year of our Lord one thousand nine
hundred and sixteen, conspired together
to steal the property, moneys, goods and
chattels of the Market Trust Company, a
and existing."
banking corporation legally established

It appeared that since the month of The accusation on which the requisition is based will not be scrutinized with May, 1915, appellant had resided contechnical accuracy. If it charges a crime tinuously at East Orange, New Jersey; substantially, the determination of its but he admitted that in the summer of pleading must 1916-he said he could not remember the technical sufficiency as be referred to the courts of the demand-date-he visited Boston, and spent some time in the company of Hanson, the aling state. leged co-conspirator.

Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544, 6 Sup. Ct. Rep. 291; Re Roberts, 24 Fed. 132; Re Voorhees, 32 N. J. L. 141.

This court will take judicial notice of the laws of the demanding state in rendition cases.

Roberts v. Reilly, supra.

Mr. Justice Pitney delivered the opinion of the court:

This is an appeal from a final order of the district court, discharging a writ of habeas corpus and remanding appellant to the custody of appellee for rendition to a representative of the commonwealth of Massachusetts, pursuant to a warrant issued by the governor of New Jersey under § 5278, U. S. Rev. Stat. Comp. Stat. § 10,126, 3 Fed. Stat. Anno. 2d ed. p. 285.

Upon the hearing before the district court on return of the habeas corpus,

It is objected that the indictment does of a crime in Massachusetts; but when not charge appellant with the commission it is read in the light of the laws of that Revised Laws of Massachusetts, chap. 218, commonwealth the difficulty disappears. § 20, reads thus: "The time and place of the commission of the crime need not The allegation [55] of be alleged unless it is an essential element of the crime. time in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed The name before the finding of the indictment, after it became a crime, and within the period of limitations. of the county and court in the caption shall, unless otherwise stated, be considered as an allegation that the act was committed within the territorial jurisAll allegations of diction of the court. the indictment shall, unless otherwise

499

stated, be considered to refer to the same state. Roberts v. Reilly, 116 U. S. 80, time and place." Of course, the courts 95-97, 29 L. ed. 544, 549, 6 Sup. Ct. of the United States will take notice of Rep. 291; Munsey v. Clough, 196 U. S. the laws of the demanding state, as the 364, 372-375, 49 L. ed. 515-518, 25 governor of New Jersey was at liberty Sup. Ct. Rep. 282; Appleyard v. Massato do. Roberts v. Reilly, 116 U. S. 80, chusetts, 203 U. S. 222, 227, et seq., 51 96, 29 L. ed. 544, 549, 6 Sup. Ct. Rep. L. ed. 161, 163, 27 Sup. Ct. Rep. 122, 7 Ann. Cas. 1073; Illinois ex rel. MeNichols v. Pease, 207 U. S. 100, 108, 109, 52 L. ed. 121, 124, 125, 28 Sup. Ct. Rep. 58; Biddinger v. Police Comrs. 245 U. S. 128, 133, 134, 62 L. ed. 193, 198, 199, 38 Sup. Ct. Rep. 41.

291.

Were there any doubt of the sufficiency of the indictment as a pleading, it would not be open to inquiry on habeas corpus. Munsey v. Clough, 196 U. S. 364, 373, 49 L. ed. 515, 517, 25 Sup. Ct. Rep. 282. The suggestion that there is neither allegation nor proof of an overt act done by appellant in Massachusetts, pursuant to the alleged conspiracy, is without weight. By the law of Massachusetts, as by the common law, a conspiracy to commit a crime is itself a criminal offense, although no overt act be done in pursuance of it; such acts, however important as evidence of conspiracy or as matters of aggravation, not being of the essence of the offense, since there is no statute making criminality dependent upon the commission of an overt act. Com. v. Judd, 2 Mass. 329, 337, 3 Am. Dec. 54; Com. v. Tibbetts, 2 Mass. 536, 538; Com. v. Warren, 6 Mass. 74; Com. v. Hunt, 4 Met. 111, 125, 38 Am. Dec. 346.

Final order affirmed.

PORT OF SEATTLE, Appt.,

V.

OREGON & WASHINGTON RAILROAD
COMPANY and J. F. Duthie & Company.

(See S. C. Reporter's ed. 56-71.)

Waters relative rights of state and
United States.

1. The right of the United States in the navigable waters within the several states is limited to the control thereof for purposes of navigation; and, subject to that right, each state became, upon its organization as a state, the owner of the navigable waters within its boundary and of the land under the same.

[For other cases, see Waters, I. b, in Digest Sup. Ct. 1908.]

Waters state regulation and control

tidelands

riparian rights.

absolute owner of the tidelands within its
2. The state of Washington, being the
boundaries and of the waters over them, is
free, in conveying such lands, either to
grant with them rights in the adjoining
water area, or completely to withhold such
rights.

[For other cases, see Waters, I. d, 1, in
Digest Sup. Ct. 1908.]
Federal courts following decisions

of state courts

riparian rights.

Appellant being charged by authentic indictment with a criminal offense committed in Massachusetts on or about August 18, 1916, and having, by his own admission, been personally present there and in communication with the alleged co-conspirator at or about that time, and being afterwards found in the state of New Jersey, there [56] is adequate ground for his return as a fugitive from justice under § 5278, U. S. Rev. Stat. enacted to give effect to art. 4, § 2, of the Constitution. Whether in fact he was a fugitive from justice was for the determination of the governor of New Jersey. The warrant of arrest, issued in compliance with the demand of the governor of Massachusetts, shows that he found appellant to be a fugitive; and this conclusion must stand unless clearly overthrown, which appellant has not succeeded in doing. To be regarded as a fugitive from justice it is not necessary that one shall have left the state in which the crime is alleged to have been committed for the very purpose of avoiding prosecution, but simply that, having committed there an act which, by the law 4. Under the law of the state of Washof the state, constitutes a crime, he after-ington a conveyance by the state of uplands wards has departed from its jurisdiction, abutting upon a natural navigable waterway grants no right of any kind, either in and, when sought to be prosecuted, is land below high-water mark, or in, to, or found within the territory of another over the water, except the limited pref

3. Whether a conveyance made by a state of land abutting upon navigable water confers upon the grantee any right or interest in those waters or in the land under the which question the provisions of the Consame is a matter wholly of local law, upon stitution and statutes of the state and the decisions of its highest court are accepted by the Federal Supreme Court as

con

clusive.
[For other cases, see Courts, VII. c, 5, in
Digest Sup. Ct. 1908.]
Waters relative rights of public and
riparian rights.

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individual rights.

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7. The rule of the Washington law

Note. On state and Federal ownership of waters-see note to Smith v. Deniff, 50 L.R.A. 737.

As to riparian rights on navigable waters see note to Gibson v. United States, 41 L. ed. U. S. 997.

As to state decisions and laws as rules of decision in Federal courts-see notes to Clark v. Graham, 5 L. ed. U. S. 334; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; Mitchell v. Burlington, 18 L. ed. U. S. 351; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Snare & T. Co. v. Friedman, 40 L.R.A. (N.S.) 380.

On the right of government to divert water from nontidal stream without compensation to riparian owner-see note to Fulton Light, Heat & P. Co. v. State, 37 L.R.A. (N.S.) 307.

On right of action by owner of upland for interference with access to navigable water-see notes to Thiesen v. Gulf, F. & A. R. Co. L.R.A.1918E, 738; Ferry Pass Inspectors & Shippers' Asso. v. White River Inspectors & Shippers' Asso. 22 L.R.A. (N.S.) 345; and State ex rel. Denny v. Bridges, 40 L.R.A. 593.

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8. The clearly defined policy of the state of Washington not to grant riparian rights in navigable waters prevents the Federal courts, in the absence of a decision of the highest state court to the contrary, grantees of filled tidelands of a right of from inferring an implied grant to the over intervening property to the navigable channel, even conceding the truth of the assumption that such grants were made conformably to a development project,

access

which was an artificial creation; that land was artificially made up to a bulkhead; that, at some distance beyond, a navigable channel was artificially created out of an unnavigable stream; that between the bulkhead and the channel are shoals which pre

vent full use of waterside lots in connection

with navigation unless wharves are erected; that when the original grant was made no provision in the law authorized leasing those shoals for docking purposes, but, on the contrary, the whole waterway was reserved by statute forever from sale or lease; and that

On public right of access to water-see note to Slater v. Gunn, 41 L.R.A. 268.

On right of state to grant tideland so as to destroy wharfage rights of shore owner-see note to Cobb v. Lincoln Park, 63 L.R.A. 264.

On title to land under water-see note to Goff v. Cougle, 42 L.R.A. 161.

As to the right of riparian owner to construct wharves-see notes to Ex parte Easton, 24 L. ed. U. S. 373; and Madison v. Mayers, 40 L.R.A. 635.

As to title to bed of navigable river-see note to Kinkead v. Turgeon, 1 L.R.A. (N.S.) 762.

On right of way on shore-see note to Hartman v. Tresise, 4 L.R.A. (N.S.) 872. On removal of causes in cases of diverse citizenship-see notes to Whelan v. New York, L. E. & W. R. Co. 1 L.R.A. I. Co. 1 L.R.A. 108; Huskins v. Cincin65; Seddon v. Virginia T. & C. Steel & nati, N. O. & T. P. R. Co. 3 L.R.A. 545; Bierbower v. Miller, 9 L.R.A. 228; Brodhead v. Shoemaker, 11 L.R.A. 567; Delaware R. Constr. Co. v. Meyer, 25 L. ed. U. S. 593; Butler v. National Home for Disabled Volunteer Soldiers, 36 L. ed. U. S. 346; Torrence v. Shedd, 36 L. ed. U. S. 528; St. Louis & S. F. R. Co. v. Kitchen, 50 L.R.A. (N.S.) 828.

the plat by reference to which all lots were, is the real party in interest, so far as sold showed a pierhead line at the point of navigable water.

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individual lines. 10. State officials had no power, under the law of Washington, to establish pierhead lines when platting tidelands. [For other cases, see Waters, I. d, 2, a, in Digest Sup. Ct. 1908.]

Removal of causes -state as party immunity from suit.

11. The interest which the state of Washington has in the result of a suit by the Port of Seattle-a municipal corpora tion-to quiet the title of the state to tide lands as against a foreign corporation claiming, as grantee from the state, the right to wharf out to the navigable channel, does not prevent the removal of the cause to a Federal district court for diverse citizenship, since the Port had both the power and the duty to bring suit to protect the interests involved, and had an independent direct financial interest in the re

sult, a statute providing for the payment by abutting owners, in the nature of a rental, for a permit to use parts of the waterway in the erection of wharves, docks, or other structures, and requiring that a specified portion of such rental be paid to the county for the use of the Port.

[For other cases, see Removal of Causes, IV.

b; States, IX. b, in Digest Sup. Ct. 1903.1

[No. 107.]

the same appears in the record, and if the real party is a state, and the nominal party but a representative thereof, jurisdiction in the Federal court will be held not to exist.

Murray v. Wilson Distilling Co. 213 U. S. 151, 53 L. ed. 742, 29 Sup. Ct. Rep. 458; Lankford v. Platte Iron Works Co. 235 U. S. 461, 59 L. ed. 316, 35 Sup. Ct. Rep. 173; Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805, 6 Sup. Ct. Rep. 608; Louisiana v. Jumel, 107 U. S. 711, 746, 27 L. ed. 448, 460, 2 Sup. Ct. Rep. 128; Missouri, K. & T. R. Co. v. Missouri R. & Warehouse Comrs. (Missouri, K. & T. R. Co. v. Hickman) 183 U. S. 53, 46 L. ed. 78, 22 Sup. Ct. Rep. 20; Ferguson v. Ross, 3 L.R.A. 322, 38 Fed. 161; Stone v. South Carolina, 117 U. S. 430, 433, 29 L. ed. 962, 963, 6 Sup. Ct. Rep. 799; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 30 L. ed. 461, 7 Sup. Ct. Rep. 260; Arkansas v. Kansas & T. Coal Co. 96 Fed. 353.

The right to remove a case from the state to the Federal court is determined solely upon the face of the record made in the state court, and if an inspection of that record does not disclose ground for removal, it must be remanded.

Crehore v. Ohio & M. R. Co. 131 U. S. 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 50 L. ed. 441, 26 Sup. Ct. Rep. 161, 4 Ann. Cas. 1147; West Side R. Co. v. California P. R. Co. 202 Fed. 331; Phillips v. Western Terra Cotta Co. 174 Fed. 873; Thompson v. Ward, 199 Fed. 861; Key v. West Kentucky Coal Co. 237 Fed. 258; Smith v. Western U. Teleg. Co. 79 Fed. 132; Berry v. Mobile & O. R. Co. 228 Fed. 395; Beadleton v. Harpending, 32 Fed. 644.

The Federal court cannot retain jurisdiction of a case improperly removed on

Argued December 6, 1920. Decided January the ground of diversity of citizenship,

31, 1921.

APPEAL from the District Court of District of Washington to review a decree which dismissed the bill in a suit to quiet the title of the state of Washington to tidelands. Reversed and remanded for further proceedings.

the United States for the Western

The facts are stated in the opinion. Mr. Leander T. Turner argued the cause, and, with Messrs. Harold Preston and O. B. Thorgrimson, filed a brief for appellant:

This court will, for the purpose of determining jurisdiction, determine who

even though a Federal question is raised in the case after its removal to the Federal court.

Creshore v. Ohio & M. R. Co. 131 U. S. 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; Jackson v. Allen, 132 U. S. 27, 33 L. ed. 249, 10 Sup. Ct. Rep. 9; Healy v. MeCormick, 157 Fed. 318; Fitzgerald v. Missouri P. R. Co. 45 Fed. 812; Shane v. Butte Electric R. Co. 150 Fed. 801; Broadway Ins. Co. v. Chicago G. W. R. Co. 101 Fed. 507; Santa Clara County v. Goldy Mach. Co. 159 Fed. 750; Grand Trunk R. Co. v. Twitchell, 8 C. C. A. 237, 21 U. S. App. 45, 59 Fed. 727; Miller v. Soule, 221 Fed. 493.

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