for the term of twenty (20) years from the | as it can prevent, in any year a greater num-
first day of May, 1890 agreeably to the pro- ber of seals than is authorized by the Secre-
visions of the statutes of the United States." tary of the Treasury."
Among other things, the advertisement
stated: "The number of seals to be taken
for their skins upon said islands during the
year ending May 1, 1891, will be limited to
sixty thousand (60,000), and for the succeed-
ing years the number will be determined by
the Secretary of the Treasury, in accordance
with the provisions of law."

There were twelve proposals or bids, of which the North American Commercial Company put in three, numbered 10, 11, and 12, each of which offered a gross sum as rental, and, in addition to that and the revenue tax, a royalty per capitem. The three bids set forth the advertisement at length. No. 10 contained a proviso that the proposal was made on the express condition that the United States should not through the Secretary of the Treasury, or otherwise, limit the skins to be taken to any number less than 100,000 [125]skins per annum *after the first year of the lease; and No. 12 made the express condition that the United States should protect the exclusive right of the fur-seal fisheries in and within the islands and the waters known as the "Behring Sea." No. 11 contained no such express conditions, and it was this bid which was accepted by the government. The lease in question was thereupon entered into "in pursuance of chapter 3 of title 23, Revised Statutes," as it recites.

It was also agreed that "the annual rental, together with *all other payments to the Unit-[126 ed States provided for in this lease, shall be made and paid on or before the first day of April of each and every year during the existence of this lease, beginning with the first day of April, 1891." The lease also provided that the number of fur seals to be taken and killed for their skins during the year ending May 1, 1891, should not exceed 60,000.

1. It is contended on behalf of the company that, conceding that the right of kiiling in 1893 had been duly limited to 7,500 seals, and that it took and received that number of skins as full performance of the covenants of the lease on the part of the government, it is entitled under § 1962 of the Revised Statutes to a proportionate reduction of the rent reserved, that is, in the proportion that 7,500 bears to 100,000; and that this reduction applies to the per capita of $7.621⁄2 for each fur-seal skin taken and shipped by it, as well as to the $60,000 annual rental. On this theory, the company tendered to the United States, before action brought, the sum of $23,789.50, being $15,000 for the tax on 7,500 skins; $4,500, three fortieths of the annual rental; and $4,289.50, three fortieths of the full royalty on the skins.

The latter branch of this contention may be dismissed at once as untenable. By the terms of the lease, the per capita of $7.621⁄2 for each and every skin was not a part of the annual rental. The lease is explicit that. the annual rental is the sum of $60,000, and that in addition the lessee shall pay the revenue duty of $2 per skin, and also pay the further sum of this royalty on each and every skin. United States bonds were to be de posited "to secure the prompt payment of the sixty thousand dollars rental above referred to,” and “the annual rental, together with all other payments to the United States provided for in this lease," was to be paid on or before the 1st of April of each and every year.

We think the rent reserved as such was this specified annual rental, and that the per capita payment was in the nature of a bonus in the sense of an addition to the stated consideration.

By its terms, the company undertook, in consideration of the lease for twenty years of "the exclusive right to engage in the business of taking fur seals on the islands of St. George and St. Paul, in the territory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals," "to pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars upon each fur-seal skin taken and shipped by it from the islands of St. George and St. Paul, and also to pay to said Treasurer the further sum of seven dollars sixty-two and one half cents apiece for each and every fur-seal skin taken and shipped from said islands, and to secure the sixty thousand dollars rental above referred to" to deposit United States bonds of the face value of fifty thousand dollars; and further "faithfully to obey and *The Secretary was to lease to the best ad-[127) abide by all rules and regulations that the vantage to the United States, and that inSecretary of the Treasury has heretofore or cluded the right to accept an offer of this may hereafter establish or make in pursuance kind; and while the per capita was a part of law concerning the taking of seals on said of the return to the government, it does not islands, and concerning the comfort, morals, follow that the provision for reduction had and other interests of said inhabitants, and reference to anything else than the specified all matters pertaining to said islands and the rental, nor is any other construction comtaking of seals within the possession of the pelled by the fact that the per capita might United States. It also agrees to obey and exceed the rental. Natural causes might diabide by any restrictions or limitations upon minish the catch so that this would not be the right to kill seals that the Secretary of so, and, at all events, the construction of the the Treasury shall adjudge necessary, under words of the statute and contract cannot be the law, for the preservation of the seal fish-controlled by the amount of the reduction eries of the United States; and it agrees that in one view rather than the other. Of course it will not kill, or permit to be killed, so far at the time the lease was made it is evident

ment is immaterial, when the defendant could give evidence of all matters of defense set up In the equitable pleas under the plea of not guilty filed by him.

2. A party cannot defend against a patent for land, duly issued by the United States upon an entry made at a local land office, on the ground that he was in actual possession of the land at the time of the issue of the patent. [No. 239.]

Submitted April 28, 1898. Decided May 31, 1898.

for in the United States land laws." The patent to the plaintiff was issued September 30, 1882, and recited that it was upon a location of Valentine scrip, and in his equitable plea defendant averred that the patent was predicated upon an entry at the local land office of the United States at Gainesville, Florida. On August 18, 1856, Congress passed an act (11 Stat. at L. 87, chap. 129) containing this provision:

"That all public lands heretofore reserved for military purposes in the state of Florida, which said lands in the opinion of the Secretary of War, are no longer useful or desired for such purposes, or so much thereof as said Secretary may designate, shall be, and are hereby, placed under the control of the General Land Office, to be disposed of and sold in the same manner and under the same

IN ERROR to the Supreme Court of the State of Florida to review a judgment of that court affirming the judgment of the Circuit Court of that state in an action of ejectment brought by George F. Drew, plaintiff, against James Johnson, to recover possession of a tract of land, the judgment being for plain-regulations as other public lands of the tiff. Affirmed.

Statement by Mr. Justice Brewer:

In September, 1886, defendant in error commenced an action of ejectment in the circuit court of the state of Florida, for the county of Hillsborough to recover possession of a tract of land described as follows:

"Lot eight (8) of section nineteen (19), township twenty-nine (29) south, of range nineteen (19) east, and lot seven (7) of section twenty-four (24), in township twentynine (29) south, of range eighteen (18) east, containing about forty and nineteen onehundredths (40.19) acres."

The defendant, now plaintiff in error, filed a plea of not guilty and also a plea based on equitable grounds. A demurrer to this latter plea was sustained, and thereupon the defendant asked leave to file an amended equitable plea. This application was denied, the court holding that the grounds of defense set up therein were not sufficient. That plea alleged in substance that the plaintiff's title rested on a patent from the United States, issued on a location of Valentine scrip; that such scrip was, by the terms of the statute under which it was issued, to be located only upon unoccupied and unappropriated lands of the United States; that the land in controversy was, at the time of the location of the scrip, a part of Fort Brooke military reservation, and was also in the actual occupancy of the defendant. The case came on for trial in September, 1889, and the defendant offered evidence in support of all of his defenses, including therein the matters set up in the equitable plea which he had been refused leave to file. This testimony was held insufficient by the court, and the trial resulted in a verdict and judgment for the plaintiff, which judgment was thereafter, and in June, 1894, aflirmed by the supreme court of the state; whereupon the defendant sued out this writ of error.

The Valentine scrip act was passed April [95]5, 1872 (17 Stat. at L.649), chap. 89, *and authorized the location of such scrip on "the unoccupied and unappropriated public lands of the United States, not mineral, and in tracts not less than the subdivisions provided

United States: Provided, That said lands shall not be so placed under the control of said General Land Office until said opinion of the Secretary of War, giving his consent, communicated to the Secretary of the Interior in writing, shall be filed and recorded."

At that time there was in existence what was known as the Fort Brooke military reservation, near the town of Tampa, Florida. As appears from the testimony offered by the defendant, on July 24, 1860, the Secretary of War wrote to the Secretary of the Interior as follows:

War Department, July 24, 1860. Sir: Referring to the correspondence be tween the two departments on the subject, I have the honor to inclose to you a report of the quarter-master general showing that Fort Brooke is now in readiness to be turned over to the Department of the Interior, in pursuance of the arrangements made to that effect.

Very respectfully, your obedient servant, John B. Floyd, Secretary of War. Hon. J. Thompson, Secretary of the Interior.

*The inclosed report from the quartermaster [96] general stated that all the movable property of the government had been sold, and that there was no reason why the military reservation should not be turned over to the Interior Department. Probably the exigencies of the war, which soon thereafter commenced, prevented any further action by either department, for on April 6, 1870, the following communication was sent by the Secretary of War to the Secretary of the Interior:

War Department, Washington City,
April 6, 1870.

The Honorable Secretary of the Interior.
Sir: I have the honor to reply to a letter
addressed to this department by the Commis-
sioner of the General Land Office on the 26th
ultimo relative to the public lands occupied
by this department for military purposes at
Fort Brooke, Florida, and to inform you
that there is no longer any objection to their

might have been taken without an undue diminution of the seal herds." And it appears that the United States originally presented as part of its case a claim for the recovery of the damages which it and its lessee had sustained by reason of the limitation to 7,500, but this claim was certainly not presented as a claim which the company could maintain against the United States under the lease, and it involved no question of the power of the Secretary in respect of the lessee under the covenants of that instrument. There was no element of estoppel about the trans

scope were explained on behalf of that committee in each house, and those explanations declared the object to be as above indicated. Although the authority conferred as to the times of killing and the number to be killed was continuing and discretionary, and although the company in the present lease covenanted that it would not kill in any year a greater number than was authorized by the Secretary, yet we think it would be going much too far to hold that the original provision for a maximum number, and a proportionate reduction of the fixed rental in case of a limitation, was done away with by im-action, and counsel had no authority to bind plication. the government for any other purpose than the pending cause.

Repeals where the intention to do so is not expressed are not favored, and moreover, here the mischiefs sought to be remedied are quite obvious. One was that it was evidently thought that seals might properly be taken during the first half of August, and the existing statute forbade this; the other was, that the maximum was fixed for each island, whereas it had probably been ascertained that the distribution was erroneous, or that the numbers that might be safely taken on one or the other might vary, and consequently that greater elasticity was desirable. The language by which these objects were at tained was entirely reconcilable with the prior law so far as it did not purport to change it.

The legislation from the beginning was directed to the preservation of the fur seals, and the act of 1870 recognized that it might be necessary to such preservation that the number to be killed in the different years should be varied, and the discretion to do this was vested in the Secretary, but while this authority was made more comprehensive by the act of 1874, and a redistribution as between the two islands authorized, we cannot accept the view that it was the intention by that act to wholly change the scheme of leasing by making the discretion of the Secretary purely arbitrary, and dispensing with any

maximum or reduction.

[181] *It should be added that the action of the Treasury Department in the matter of the abatement of rent for 1890, 1891, and 1892 does not impress us as amounting to such departmental construction as entitles it to any particular weight, and the views of the Department of Justice were conflicting.

Reference is made to article 5 of the treaty of 1892 extending the modus vivendi and the action taken under it before the tribunal of arbitration, as if amounting to an estoppel, or an admission against interest, or at the least as having some considerable bearing on the construction of the lease and the statutes. That article provided, among other things, that "if the result of the arbitration shall be to deny the right of British sealers to take seals within the said waters, then compensation shall be made by Great Britain to the United States (for itself, its citizens and lessees) for this agreement to limit the island catch to 7,500 a season, upon the basis of the difference between this number and such larger catch as in the opinion of the arbitrators

Moreover, counsel for the United State were constrained to expressly admit that the evidence failed to establish that an additional take over and above the 7,500 could have been safely allowed. In the argument on behalf of the United States, Judge Blodgett, one of the counsel, and all the counsel concurred, made this statement: "Frankness requires us, as we think, to say that the proofs which appear in the counter case of the United States as to the condition of the seal herd on the Pribiloff islands show that the United *States could not have allowed its lessees to[132 have much, if any, exceeded the number of skins allowed by the modus vivendi of 1892 without an undue diminution of the seal herd, and upon this branch of the case we simply call the attention of the tribunal to the proofs, and submit the question to its decision." And later, counsel announced that the United States would not ask the tribunal for any finding for damages upon and under article 5.

Our opinion is, that, assuming that the les see took all the risk of a catch, reduced by natural causes, yet that when the number that might be killed was limited by the act of the government or its agent, the Secretary, the company was entitled to such reduction on the rental reserved as might be proper, and that the rule to be observed in that re gard would be a reduction in the same proportion as the number of skins permitted to be taken bore to the maximum. This would reduce the annual rental for the year under consideration from $60,000 to $4,500; the tax due would be $15,000, and the per capita $57,187.50, making a total of $76,687.50.

2. Laying out of view the concession under the first proposition, the company fur ther contended that the prohibition by the United States, by agreement with Great Britain, of seal killing in excess of 7,500, to be taken on the islands for the subsistence of the natives, relieved the company from its corenants for the payment of rent and royalty, and that no action could be maintained therefor on the lease.

The evidence disclosed that prior to 1890 the number of seals annually resorting to these islands was rapidly diminishing. This was attributed to the open sea or pelagic sealing, whereby the seals, especially the females, who were exempt from slaughter under the laws of the United States, were interrupted in

their passage to the islands by the crews of hibited and prevented the said company from foreign vessels and were killed in great num- taking any seals whatever from the said bers while in the water. For several years islands during the year 1893, and thus dethe United States, asserting that it had terri- prived the said defendant of the benefit of its torial jurisdiction over Behring sea, had been said lease." We think this so far partakes of striving to prevent vessels of foreign nations a conclusion of law that we are not shut up to from seal hunting on the open waters thereof. treating it as a finding of fact. The power to Great Britain denied the territorial jurisdic-regulate the seal fisheries in the interest of tion of the United States and denied that the the preservation of the species was a sovereign [133]United States *had a right of property in the protective power, subject to which the lease fur seals while on the high seas during their was taken, and if the government found it progress to or from the islands of St. Paul necessary to exercise that power to the exand St. George, and it became necessary to re- tent which this finding asserts, and if we assort to international regulation to prevent the sume that the company might thereupon have extermination of the seals. Indeed, it ap-treated this contract as rescinded, it is suffipears that the Treasury agent in charge made cient to say that it took no such position, but a report to the Secretary of the Treasury af- accepted the performance involved in the deter the season of 1890, in which he strenuous-livery of the 7,500 skins. The company did ly urged the necessity of stopping sealing for not wish to rescind or abandon, and it could a number of years absolutely upon the islands not but recognize that, as the modus was enas a necessary measure for the preservation tered into in an effort to save the seal race of the seals. On the 15th of June, 1891, an from extermination, and thereby to preagreement for a modus vivendi was concluded serve something for the future years of the between the government of the United States lease, the prohibition was so far for its beneand the government of Her Britannic Majesty fit.

ercising the power of regulation through the Secretary, so that it was immaterial whether the Secretary on his own judgment or in compliance with the will of the government confined the number of scals taken in the year 1893 to 7,500. Undoubtedly the government could have directed the Secretary by law to restrict the killing to 7,500 seals, and the treaty was nothing more.

"in relation to the fur seal fisheries in Behring Again, although the government acted in sea" (27 Stat. at L. 980), whereby with a view making the lease by the hand of the Secreto promote the friendly settlement of the tary, it was the real contracting party, exquestions between the two governments touching their respective rights in Behring sea, "and for the preservation of the seal species," it was agreed that seal killing should be prohibited until the following May, altogether by Great Britain, and by the United States "in excess of seventy-five hundred, to be taken on the islands for the subsistence and care of the natives." This was followed by a convention submitting to arbitration the questions concerning the jurisdictional rights of the United States in Behring sea; "the preservation of the fur seal in, or habitually resorting to, the said sea," and the right to take such seals, which was proclaimed May 9, 1892 (27 Stat. at L. 947).

The company could not object that the Secretary was constrained to impose the limitation, for the Secretary was bound to obey the instructions of his principal, and the company *could not make it the subject of a con-[135] test in pais as to whether the preservation of the herd in fact required the limitation. The whole business of taking seals was con

And under the same date the modus vivendi was renewed during the pendency of the ar-ducted under the supervision of the governbitration. 27 Stat. at L. 952.

The arbitral tribunal sat in Paris in 189293, and the prohibition covered the killing period for which recovery is sought in this


ment, and by § 1973 the Secretary was au-
thorized to appoint agents, who were charged
with the management of the seal fisheries.

The record shows that instructions were issued to the government supervising agent The learned circuit judge held that the on. April 26, 1893, and a copy delivered to the limitation under the modus vivendi was not superintendent of the company before the a designation by the Secretary, but was a commencement of the season of that year. prohibition by the government; and, conse- These instructions directed the number quently, that if the lessees had not received of seals to be taken during the season of 1893 any skins the action could not have been to be limited to 7,500. It was stated by the maintained. But he held that as the 7,500 Secretary that it was believed "that if the skins were received by the lessees they must killing be confined between the first of June make compensation for them; that a proper and the tenth of August, a better quality of [134]way to determine *this was to ascertain what skins would be obtained and less injury the fair product of the year, which might would be done to the rookeries;" and he safely be taken, was, and compute what each added: "This matter is, however, left, as skin would have cost the company, assuming above stated, to your discretion, and in referthey had taken that number; and by this ence thereto you will confer fully with the mode of computation, having found that representative of the company, its interests 20,000 might properly have been taken, he and those of the government in the preser reached the sum of $94,687.50 as the amount vation of the fur seals being identical." due to the government. In the letter of the attorney of the comThe circuit court found that the United pany of November 15, 1893, he said: "During States, pursuant to the modus vivendi. "pro-the present year this company, in strict com

for the corporation in a suit to which the off-
cer is a party, after hearing on due notice and
appearance, to order him to turn over such
property to the receiver.

6. A Jury trial is not necessary to due process
of law on an inquiry for contempt.
[Nos. 632, 633.]

State, requiring him to deliver to the receiver of the Houston Cemetery Company certain books and property of that company. Judgments of the Circuit Court and of the Court of Criminal Appeals affirmed.

See same case below (Tex. Civ. App.) 36 S. W. Rep. 802, 37 Tex. Crim. Rep.

Argued May 5, 6, 1898. Decided May 31, S. W. 306.



The facts are stated in the opinion. Mr. James L. Bishop for appellant and plaintiff in error:

The commitment and the order on which it was made were void.

Distinct and incompatible proceedings were blended in one judgment.

APPEAL from a judgment of the Circuit Court of the United States for the Northern District of Texas dismissing a writ of habeas corpus to inquire into the cause of the imprisonment of Thomas Tinsley for a contempt; and in error to the Court of Criminal Re Chiles, 22 Wall. 157 (22: 819); PeoAppeals of the State of Texas to review a ple, Munsell, v. New York County Ct. of Oyer judgment dismissing a writ of habeas corpus & Terminer, 101 N. Y. 245, 54 Am. Rep. 691. and remanding said Tinsley to the custody Regarding the order as made in the proof the sheriff for the same contempt of court, ceeding as a civil remedy directing the appelwhich was disobeying the order of the Dis-lant to deliver the property specified to the trict Court of the County of Harris in said receiver, or in default of delivery that he be

As to powers of court to punish for contempt, -see note to Eo parte Robinson, 22:205. That there is no review of decree punishing for contempt; limits to rule, see note to New Orleans v. New York Mail S. S. Co: 22: 354.

As to powers and duties of receivers,-see note to Davis v. Gray, 21:447.

As to presumption of innocence in habeas corpus proceedings, see note to State v. Jones (N. C.) 22 L. R. A. 678.

As to jurisdiction of United States courts, to issue writs of habeas corpus,-see note to Re Reinitz (C. C. S. D. N. Y.) 4 L. R. A. 236.


ceptional nature.
284 (42:748).

Baker v. Grice, 169 U. S.

Habeas corpus will lie to prevent the execution of the petitioner under order of a state court, pending an appeal in previous habeas corpus proceedings instituted by him in a Federal court, the effect of which is to stay proceedings in the state court. Re Ebanks, 84 Fed. Rep. 311.

Federal officers arrested under a charge made in state courts will be discharged by a Federal court on habeas corpus where there is no ground for a criminal charge under the state laws. Re Lewis, 83 Fed. Rep. 159.

has been guilty of a crime, will not be disturbed where the testimony, though not strong, tends to show the commission of the offense charged. Re Price, 83 Fed. Rep. 830.

The finding of a commissioner holding a prisoner for removal to another Federal disHabeas corpus; power of Federal courts to is-trict, as to probable cause to believe that he sue; in what cases; when discharge granted; review of decisions; contempt proceedings. The circuit courts of the United States have Jurisdiction to issue a writ of habeas corpus in favor of a person unlawfully restrained of his liberty by state officers under a statute in violation of the Constitution of the United States. Baker v. Grice, 169 U. S. 284 (42: 748).

Error in submitting to the jury only the question of murder in the first degree, while the evidence is sufficient at the most to convict of murder in the second degree, does not constitute such a jurisdictional defect in a conviction for murder in the first degree as to sustain a writ of habeas corpus. Crossley v. California, 168 U. S. 640 (42:610).

The action of the circuit court of the United States in refusing to grant appeals in habeas corpus cases in favor of a prisoner under judgment of a state court cannot be revised on application to the Supreme Court of the United States for such a writ. Re Boardman, 169 U. 8. 39 (42: 653).

A writ of habeas corpus will not be granted by a Federal court to investigate the detention of a person for selling cigarettes without a license, under a plain statute making no discriminations against foreign goods or foreign citizens, but simply requiring every person engaged in the business of selling cigarettes to pay a special license tax. Re May, 82 Fed. Rep. 422.

The court cannot upon habeas corpus review a judgment of deportation made by a United States commissioner in respect to a Chinese person upon the facts. Re Tsu Tse Mee, 81 Fed. Rep. 702.

A complaint in habeas corpus alleging invalidity of process or proceedings under which the party is held in custody must set out copies of such process or proceedings, or the essential parts thereof; and mere averments of conclusions of law are inadequate. Craemer v. Wash

A determination by a state court that judgington, 168 U. S. 124 (42: 407). ment of conviction in a capital case shall not be stayed, notwithstanding the pendency of an appeal which is alleged to present Federal questions, will not be interfered with by the Supreme Court of the United States on a writ of habeas corpus. Re Boardman, 169 U. S. 39 (42: 653).

A Federal court will not on habeas corpus discharge a prisoner charged with a violation of the criminal laws of one state and apprehended in another, where it appears by the recitals contained in the warrant under which he was arrested and the record of the extradition proceedings, that no right, privilege, or , immunity secured to him by the Constitution and laws of the United States will be violated by remanding him to the custody of the agent of the demanding state. Dawson v. Rushin, 49 U. S. App. 674, 83 Fed. Rep. 306, 28 C. C. A. 354.

The regular course of justice in a state court will not be interfered with by habeas corpus in a Federal court, unless the case is of an ex

Writ of habeas corpus cannot perform the office of a writ of error to review proceedings in extradition before an officer authorized to It is efficient only entertain such proceedings. to reach error fatal to the jurisdiction of the officer over the person accused, or over the subject-matter of the accusation. Sternaman v. Peck, 51 U. S. App. 312, 80 Fed. Rep. 883, 26 C. C. A. 214.

Habeas corpus wil' ite to review an imprisonment under 200 sentence of a state court, where the question is whether such court had jurisdiction to hear and determine the charge. Re Walte. 81 Fed. Rep. 359.

Federal courts will not, except in extreme cases, if at all interfere by habeas corpus with confinement of Insane person, because steps provided for by the state statute have not been followed, but the proper redress is by application to the state courts. Re Huse, 48 U. S. App. 318. 79 Fed. Rep. 305, 25 C. C. A. 1.

One held for extradition upon charge of forgery should not be released upon habeas corpus, 171 U. S.

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