(41 Sup.Ct.)

pers, memoranda, letters, copies of letters | Service Company went to Pittsburgh in correspondence, etc., or any evidence of any March, 1920, with authority of the president nature whatsoever secured by or coming into of the Quapaw Gas Company to take postheir possession as a result of the knowledge session of the company's office. He took obtained from the inspection of such books, possession of room 1320; that room and the papers, memoranda, etc., 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

In his opinion the District Judge stated $472

that it was the intention of the Department of Justice, through Burdeau and his assist-large quantity of papers were taken and ants to present the books, papers, etc., to the shipped to the auditor of the Cities Service grand jury with a view to having the peti- Company at 60 Wall street, New York, which tioner indicted for the alleged violation of section 215 of the Criminal Code of the Unit- Co., and the Quapaw Gas Company. The was the office of that company, Doherty & ed States, and the court held that the evisecretary of McDowell testified that room dence offered by the petitioner showed that 1320 was his private office; that practically the papers had been stolen from him, and all the furniture in both rooms belonged to that he was entitled to the return of the him; that there was a large safe belonging same. In this connection the District Judge to the Farmers' Bank and a small safe bestated that it did not appear that Burdeau, longing to McDowell; that on March 23, 1920, or any official or agent of the United States, a representative of the company and a detecor any of the departments, had anything to tive came to the offices; that the detective was do with the search of the petitioner's safe, placed in charge of room 1320; that the large files and desk, or the abstraction therefrom safe was opened with a view to selecting paof any of the writings referred to in the petition, and added that "the order made in this pers belonging to the company, and that the representative of the company took private case is not made because of any unlawful act on the part of anybody representing the papers of McDowell's also. While the rooms were in charge of detectives, both safes were United States or any of its departments but blown open. In the small safe nothing of solely upon the ground that the government consequence was found, but in the large safe should not use stolen property for any pur- papers belonging to McDowell were found. pose after demand made for its return." Ex-The desk was forced open, and all the papers pressing his views, at the close of the testimony the Judge said that there had been a gross violation of the Fourth and Fifth Amendments to the federal Constitution; 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 gov

⚫473

474

taken from it. *The papers were placed in cases, and shipped to Doherty & Co., 60 Wall street, New York.

In June, 1920, following, Doherty & Co., after communication with the Department of Justice, turned over a letter, found in McDowell's desk, to the department's representative. Burdeau admitted at the hearing that as the representative of the United States in the Department of Justice he had papers which he assumed were taken from the office of McDowell. The communication to the Attorney General stated that McDowell had vi

ernment. So far as is necessary for our considera-olated the laws of the United States in the tion certain facts from the record may be use of the mail in the transmission of varistated. Henry L. Doherty & Co. of New ous letters to parties who owned the properYork were operating managers of the Cities ties which were sold by or offered to the CitService Company, which company is a hold-ies Service Company; that some of such leting company, having control of various oil ters, or copies of them taken from McDowand gas companies. Petitioner was a direc-ell's file, were in the possession of the Cities tor in the Cities Service Company *and a di- Service Company, that the Company also had rector in the Quapaw Gas Company, a sub-in its possession portions of a diary of Mcsidiary company and occupied an room in the building owned by the Farmers' Bank of Pittsburgh. The rooms were leased by the Quapaw Gas Company. McDowell occupied one room for his private office. He was employed by Doherty & Co. as the head of the natural gas division of the Cities Service Company. Doherty & Co. discharged McDowell for alleged unlawful and fraudulent conduct in the course of the business. An officer of Doherty & Co. and the Cities

office

Dowell in which he had jotted down the commissions 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 prosecution should an indictment be returned.

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

The exact question to be decided here is:

*476

violated by their seizure, and that having subsequently come into the possession of the prosecuting officers of the government, he May the government retain incriminating was entitled to their return. The amend-papers, coming to it in the manner describments involved are the Fourth and Fifth, ed, with a view to their use in a subsequent protecting a citizen against unreasonable investigation by a grand jury where such pasearches and seizures and compulsory testi-pers will be part of the evidence against the mony against himself. An extended consid- accused, and may be used against him upon eration of the origin and purposes of these trial should an indictment be returned? 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, 6 Sup. Ct. 524, 29 L. Ed. 746; Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575;

*475

Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Johnson v. United States, 228 U. S. 457, 33 Sup. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263; Perlman v. United States, 247 U. S. 7, 38 Sup. Ct. 417, 62 L. Ed. 950; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 Sup. Ct. 182, 64 L. Ed. 319; Gouled v. United States, decided February 28th, 255 U. S. 298, 41 Sup. Ct. 261, 65 L. Ed. 647, this term.

[1] The Fourth 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 Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.

We know of no constitutional principle which requires the government to 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?

*477

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 prop*That the court would restore the papers to erty had been taken from him and was in the plaintiff if they were still in the thief's pospossession of the Cities Service Company. session is not questioned. That it has power It is manifest that there was no invasion of to control the disposition of these stolen pathe security afforded by the Fourth Amend-pers, although they have passed into the posment against unreasonable search and seizure, session of the law officer, is also not questionas whatever wrong was done was the act of ed. But it is said that no provision of the individuals in taking the property of another. Constitution requires their surrender and A portion of the property so taken and held that the papers could have been subpoenaed. was turned over to the prosecuting officers of This may be true. Still I cannot believe that the federal government. We assume that pe action of a public official is necessarily lawtitioner has an unquestionable right of re-ful, because it does not violate constitutional dress against those who illegally and wrong-prohibitions and because the same result fully took his private property under the circumstances herein disclosed, but with such remedies we are not now concerned.

might have been attained by other and proper means. At the foundation of our civil liberty lies the principle which denies to govern[2] The Fifth Amendment, as its terms ment officials an exceptional position before import is intended to secure the citizen from the law and which subjects them to the same compulsory testimony against himself. It pro- rules of conduct that are commands to the tects from extorted confessions, or examina-citizen. And in the development of our libtions in court proceedings by compulsory erty insistence upon procedural regularity methods. has been a large factor. Respect for law will

(41 Sup.Ct.)

not be advanced by resort, in its enforcement, | Rider's entry, but while in force prevented to means which shock the common man's sense of decency and fair play.

(256 U. S. 477)

McLAREN v. FLEISCHER.

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

*479

(Argued April 26 and 27, 1921. Decided June withdrawal *was in force one Fleischer insti

1, 1921.)

No. 291.

Public lands 102-Statutes 219-Successful contestant of entry on withdrawn lands can exercise preference right within 30 days after restoration to entry; practice of land office held decision in case of doubt as to construction of statute.

The applicability of Act May 14, 1880, § 2 (Comp. St. § 4537), allowing a successful contestant 30 days after notice of the cancellation of an entry in which to enter the lands, to a case where the lands had been temporarily withdrawn before the contest was decided, so

tuted a contest against Rider's entry, at his own cost collected and presented evidence establishing its invalidity, and procured its cancellation. 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, c. 89, § 2, 21 Stat. 140 (Comp. St. § 4537):

"In all cases where any person has contested,

which such land is situated of such cancellation, and shall be allowed thirty days from date of such notice to enter said lands."

that the contestant could not exercise his pref- paid the land office fees, and procured the canerence right within 30 days, presents a question cellation of any pre-emption, homestead, or of sufficient doubt as to the intention of Con- timber culture entry, he shall be notified by the gress to come within the rule that the prac-register of the land office of the district in tical construction given an act, fairly susceptible of different constructions, by those charged with the duty of executing it, is entitled to great respect, and, if acted on for a number of years, will not be disturbed, except for cogent reasons, so that the practice of the land office of giving the successful contestant 30 days after the land is restored to entry with-forming him thereof and stating that he in which to exercise his preference right will be sustained.

When Rider's entry was canceled the register sent to Fleischer a written notice in

would be allowed 30 days after the tract was restored to public entry within which to enter it in the exercise of his preferred right as

On Writ of Certiorari to the Supreme a successful contestant. The notice was datCourt of the State of California.

Action by John McLaren against L. G. Fleischer. A judgment dismissing the complaint was affirmed by the Supreme Court of the State of California (181 Cal. 607, 185 Pac. 967), and Archie J. McLaren, administrator, who had been substituted as plaintiff after the death of the original plaintiff, brings certiorari. Affirmed.

*478

ed 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 local land office to make homestead entry thereof-Fleischer in the exercise of his pre

*Mr. Samuel Herrick, of Washington, D. C., ferred right and McLaren in virtue of his for petitioner.

settlement. Fleischer's application was al

Mr. Patrick H. Loughran, of Washington, lowed and McLaren's rejected, the local D. C., for respondent.

Mr. Justice VAN DEVANTER delivered

the opinion of the Court.

officers being of opinion that Fleischer had the prior and better right. McLaren appeal*480 ed and the action of the local officers was This case presents a controversy arising sustained by the Commissioner of the Genout of conflicting applications to enter a quar-eral Land Office and by the Secretary of the ter section of land under the homestead law (12 Stat. 392). 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 first-form reclamation withdrawal. The withdrawal did not extinguish

1 The withdrawal was made under the provision embodied in the first six lines of section 3 of the

Act of June 17, 1902, c. 1093, 32 Stat. 388 (Comp.

St. § 4702).

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 Su-
preme Court of the State. 181 Cal. 607, 185

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
41 SUP.CT.-37

Pac. 967. A writ of certiorari brings the case here. 253 U. S. 479, 40 Sup. Ct. 482, 64 L. Ed. 1023.

only reasonable construction of the act, it is at least an admissible one. It therefore comes within the rule that the practical construction given to an act of Congress, fairly susceptible of different constructions, by those charged with the duty of executing it is entitled to great respect and, if acted upon for a number of years will not be disturbed ex

The case of Edwards v. Bodkin, 249 Fed.

*482

The

The sole question for decision is whether the officers of the land department erred in matter of law in holding that under the act of May 14, 1880, Fleischer was entitled to 30 days after the land was restored to entry within which to exercise his preferred right | cept for cogent reasons.3 of entry. The words of the act are, "shall be allowed thirty days from the date of such no- | 562, 161 C. C. A. 488, and Bodkin v. Edwards, tice to enter said lands." Generally when an existing entry is canceled the land becomes at once 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 30 days after the notice of cancellation 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 30 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 30 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 30-day period? In the practi

cal administration of the act the officers of

the land department have adopted and given

481

effect to 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.2 Many outstanding titles are based upon it and much can be said in support of it. If not the

*265 Fed. 621, in which there was a decree of
affirmance by this court (255 U. S. 221, 41
Sup. Ct. 268, 65 L. Ed. 595), is cited as up-
holding a different view of the act.
opinions rendered by the Circuit Court of
Appeals do indicate that it was disposed to
think the words "thirty days from the date
of such notice" should be taken literally and
strictly, but a careful reading of the opin-
ions discloses that the decision was not put
As was rightly said by
on that ground.
the Supreme Court of the state in the pres-

ent case, "the decision there was not to the
effect that the contestant was by mistake of
law given the preference right." Indeed,
that case did not call for any expression of
opinion on the subject. The plaintiff there
was the original homestead entryman and
was insisting that his entry had been unlaw-

fully canceled. If that claim was well taken,

as was held, the cancellation did not give

rise to any preferred right. Besides, the de fendant there was not claiming under an entry based on a preferred right, but under entries made after he had relinquished the entry which he claimed was based thereon. Thus the observations of the Circuit Court of Appeals respecting preferred rights were obiter dicta, and, as the decree of affirmance in this court was put on other grounds, those observations are neither authoritative nor

The instructions of June 6, 1905, 33 L. D. 607, persuasive. 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 rea

son, such lands become subject immediately to such withdrawal and cannot, thereafter, so long as they remain so withdrawn, be entered or otherwise 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 L. D. 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 the 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 30 days from notice of the restoration or the establishment of farm units." And see Wells v. Fisher, 47 L. D. 288, for a statement and discussion of the departmental rulings.

Here it is not questioned that the original or first entry-that of Rider-was lawfully canceled. McLaren recognized that that entry had been lawfully eliminated when he sought to initiate a claim to the land. Ile should also have recognized that Fleischer, by his contest, had brought about its elimination and was entitled, as a reward, to enter the land at any time within thirty days after it was restored to entry.

We conclude that the state courts rightly refused to disturb the construction which the officers of the land department had put on the act.

Judgment affirmed.

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

On Writ of Certiorari to the Supreme Court showing that claimants' ancestor, while a memof the State of California.

See, also, 253 U. S. 480, 40 Sup. Ct. 482, Claims against the claimants, based on the er64 L. Ed. 1023.

1. United States 105-Delegation of Choc- tion, on an Act of Congress of May 29, 1908, taw Nation to collect and pay over percent-c. 216, § 5, 35 Stat. 444, 445, which provides age of claim due previous delegation held as follows: agents of Nation.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes