upon the authority of Re Ah Cheung, 136 | for argument's sake, that one might visit Cal. 678, 69 Pac. 492, dismiss the writ of innocently a barred or barricaded house or habeas corpus heretofore issued herein, and room where gambling implements are ex. remand the petitioner to the custody of the hibited or exposed to view, and if, as plainchief of police of the city and county of tiff in error alleges in his petition, that he San Francisco. Ordered accordingly. The was convicted, notwithstanding he estabpetitioner reserved an exception to the judg- lished that he had innocently visited the ment."

house mentioned in the charge against him, Plaintiff in error's petition presents the we are not at liberty to declare the ordiquestion of the constitutionality of the ordi- nance unconstitutional. Besides, his remedy nance under which he was convicted. Sec- for that ruling was not by habeas corpus. It tion 1 makes it unlawful for any person to was by appeal to the superior court, which exhibit any gambling implements whatso- the Penal Code of the state gave him. We ever in any "barred or barricaded house or may observe he could have raised on such room or other place built or protected in a appeal the questions he now raises, and have manner to make it difficult of access or in- them reviewed by this court. gress to police officers, where any cards, Plaintiff in error avers “that said ordidice, dominoes, fan-tan table or layout, ornance and the provisions thereof are enany part of such layout, or any gambling forced and executed by the said municipalimplements whatsoever, are exhibited or ex-ity of San Francisco, and said state of posed to view where three or more persons California, solely and exclusively against are present.

persons of the Chinese race, and not otherSection 2 makes it unlawful to visit or wise.” The contention is that Chinese perresort to such barricaded house or room. sons are thereby denied the equal protection

The ordinance received consideration in of the law, in violation of the 14th AmendRe Ah Cheung by the supreme court of the ment of the Constitution of the United state of California. 136 Cal. 680, 69 Pac. States. Yick Wo v. Hopkins, 118 U. S. 373,

. 493. It was decided that it refers "only to 30 L. ed. 227, 6 Sup. Ct. Rep. 1064, is cited places which are specially barred and barri- to sustain the contention. And it is further caded against intrusion by officers of the contended that the fact of a partial execulaw, so that illegal gambling may be pro- tion of the ordinance is admitted by the tected from discovery. Rightly construed, order of the superior court, wherein it is

. the words 'barred and barricaded' do not in recited that, upon the presentation of the clude an ordinary private residence or room, case, “it was stipulated and agreed in open where doors are sometimes locked or bolted court by counsel for the people and by counin the ordinary method. Neither should it sel for the petitioner that the facts are as be construed to mean an attempted preven- set forth in the petition on file herein for tion of ordinary innocent games played with the writ of habeas corpus." There is a cards, dice, or dominoes."

misunderstanding between counsel as to The suppression of gambling is concededly what was intended by the stipulation. Counwithin the police powers of a state, and sel for defendant in error contends it was legislation prohibiting it, or acts which may not intended to admit a discrimination in tend to or facilitate it, will not be inter- the administration of the law, but to submit fered with by the court unless such legis- the case on such facts as would test and lation be a "clear, unmistakable infringe-cause a review of Re Ah Cheung, 136 Cal. ment of rights secured by the fundamental 678, 69 Pac. 492. This seems to be suplaw.” Booth v. Illinois, 184 U. S. 425, 429, ported by the order of the court taken as a 46 L. ed. 623, 626, 22 Sup. Ct. Rep. 425; whole, and it is the understanding of the Otis v. Parker, 187 U. S. 606, 47 L. ed. 323, court we are to ascertain. In other words, 23 Sup. Ct. Rep. 168. As interpreted by the we are to ascertain what questions of law supreme court of the state, the ordinance and fact were submitted to the court. It cannot be so characterized.

cannot be certainly said that the court reIt is contended that the ordinance makes garded the fact of discrimination to have criminal “the mere act of innocently visit- been admitted, for it rested its decision on ing such a house or room where the visitor the authority of the Cheung Case. The court had no knowledge and nothing whatever to indeed may have regarded the allegation of do with the barring or barricading of the the petition as lacking in certainty of averpremises or the prescribed articles." It is ment, and hence not bringing the case withhence contended by plaintiff in error that in the ruling of the Yick Wo Case. That “he is deprived of his liberty without due case concerned the use of property for lawprocess of law, in that he is prohibited ful and legitimate purposes. The case at thereby from visiting, innocently and for a bar is concerned with gambling, to suppress. lawful purpose, the house or room or place which is recognized as a proper exercise of mentioned in said ordinance." Granting, governmental authority, and one which would have no incentive in race or class | should be indulged in a case like this. There prejudice or administration in race or class should be certainty to every intent. Plaindiscrimination. In the Yick Wo Case there tiff in error seeks to set aside a criminal was not a mere allegation that the ordinance law of the state, not on the ground that it attacked was enforced against the Chinese is unconstitutional on its face, not that it only, but it was shown that not only the pe- is discriminatory in tendency and ultimate titioner in that case, but two hundred of his actual operation as the ordinance was which countrymen, applied for licenses, and were was passed on in the Yick Wo Case, but that refused; and that all the petitions of those it was made so by the manner of its adminnot Chinese, with one exception, were grant- istration. This is a matter of proof; and no ed. The averment in the case at bar is that fact should be omitted to make it out comthe ordinance is enforced "solely and ex- pletely, when the power of a Federal court clusively against persons of the Chinese is invoked to interfere with the course of race, and not otherwise.” There is no aver criminal justice of a state. ment that the conditions and practices to We think, therefore, the judgment of the which the ordinance was directed did not Superior Court should be and it is hereby exist exclusively among the Chinese, or that affirmed. there were other offenders against the ordinance than the Chinese, as to whom it was Mr. Justice Peckham dissents, not enforced. No latitude of intention

a

2. the ensurisdictione un blhe o seu premtem foartoon APPEAL from the Circuit Court of the

(199 U. S. 62)
FREDERICK A. HYDE, Appt.,

moval of the accused to another Federal dis

trict for trial, although a prisoner may have v.

the right, on habeas corpus, under the state JOHN H. SHINE.

practice, to have the state court consider that Criminal law-removal to another Federal

question, since the provision of U. S. Rev.

Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, district for trial—courts-jurisdiction of that the usual mode of process adopted in the District of Columbia supreme court over state shall be pursued, refers to the proceedconspiracy to defraud United States- ings in arrest and examination of the accused sufficiency of indictment on habeas corpus

before the commissioner ; and has no bearing

upon a subsequent independent proceeding on -probable cause — appeal — refusal to

habeas corpus. grant certiorari in aid of habeas corpus | 6. The refusal of a Federal circuit court to not reviewable.

grant certiorari as ancillary to a writ of

habeas corpus is within its discretion, and 1. A person indicted in the supreme court of the cannot be assigned as error.

District of Columbia for an offense against the United States may be removed to that

[No. 406.] district for trial, under U. S. Rev. Stat. § 1014, U. S. Comp. Stat. 1901, p. 716, authorizing the removal for trial of person

Argued February 21, 23, 1905. Decided May charged with such a crime to the Federal dis

29, 1905. trict where the trial is to be had. *

of
of Columbia over a criminal

United spiracy charged to have been entered into of California to review the denial of habeas in the city of Washington is not defeated because such offense was also triable in the corpus and certiorari to inquire into a destates of California and Oregon, on the tention to await the removal of a person theory that it was therefore "lawfully tri- charged with an offense against the United able in any other court,” within the meaning States to the District of Columbia, where of D. C. Comp. Stat. chap. 35, $ 23, excluding the trial is to be had. Affirmed. offenses so triable from the jurisdiction of that court over crimes and misdemeanors committed in the District, and which are, by

Statement by Mr. Justice Brown: law, to be prosecuted by indictment or in- This is an appeal from an order of the formation.

circuit court, denying the appellant's ap3. A conspiracy to obtain school lands from the plication for writs of habeas corpus and cer

states of California and Oregon in the names tiorari, and dismissing his petition therefor. of fictitious or disqualified persons by the use of forged affidavits, assignments, and other

The proceedings which culminated in the documents, and to relinquish them to the arrest and remanding of the appellant origUnited States under the act of June 4, 1897 inated in an indictment found in the su(30 Stat. at L. 36, chap. 2, U. S. Comp. Stat. preme court of the District of Columbia 1901, p. 1541), in exchange for other public lands, cannot escape condemnation under U. s. I against the appellant and John A. Benson, Rev. Stat. $ 5440, U. S. Comp. Stat. 1901, p. Henry P. Dimond, and Joost H. Schneider, 3676, forbidding conspiracies to defraud the charging them with a conspiracy, under United States, on the theory that the Rev. Stat. $ 5440, U. S. Comp. Stat. 1901, p. lands in lieu of the other lands patented, has 3676, “to defraud the United States out of lands in lieu of the other lands patented has the possession and use of, and the title to, not been defrauded, —even assuming that the United States stands in the position of a bona divers large tracts of the public lands of

fide purchaser in respect to the school lands. the United States." All of the defendants 4. The suficiency of an indictment charging a except Schneider are residents of San Fran

conspiracy under U. S. Rev. Stat. $ 5440, U. cisco, California. Upon a complaint made, S. Comp. Stat. 1901, p. 3676, “to defraud the United States out of the possession and use

based upon such indictment, before a United of, and the title to, divers large tracts of States commissioner for the northern dispublic lands of the United States," as against trict of California, Hyde was arrested under objections based on the lack of description of Rev. Stat. § 1014, U. S. Comp. Stat. 1901, the lands, the uncertainty of the allegations as to the means to be used to carry held to bail to answer the indictment in the

p. 716, taken before a commissioner, and out the alleged conspiracy, the failure to give the names of the fictitious or disqualified per- sum of $50,000, and in default thereof was sons through whom the fraud was effected, committed to the custody of the defendant, the indefiniteness and inconsistency of the al- Shine, to await the order of the district legations, and the improper conclusion, will not be determined on habeas corpus to in- / judge for his removal to the District of Coquire into a detention to await a warrant for lumbia, or until he should be discharged by the removal of the accused, under $ 1014, to due course of law. Upon such order of rethe Federal district where the trial is to be moval being issued (United States v. Hyde, had, but such objections are for the trial 132 Fed. 545), appellant presented his pecourt to determine.

tition to the circuit court for the northern 6. A Federal court is not required to weigh the district of California, praying for writs of

evidence of probable cause on habeas corpus to inquire into a detention to await the re- habeas corpus and certiorari, and for his discharge from imprisonment, which were | 204, 27 L. ed. 698, 700, 2 Sup. Ct. Rep. 531, denied, and this appeal taken.

that the offense consisted in the conspiracy,

and that the overt act afforded a locus peniMessrs. William B. Hornblower and tentiæ, so that, before the act done, either Charles C. Cole for appellant.

one or all of the parties may abandon their Solicitor General Hoyt and Messrs. design, and thus avoid the penalty preFrancis J. Heney and Arthur B. Pugh scribed by the statute. As the indictment for appellee.

in this case charges that the conspiracy was

entered into in the city of Washington, it Mr. Justice Brown delivered the opinion becomes unnecessary to consider whether an of the court:

indictment will lie within the jurisdiction The petitioner assigns as error

where the overt act was committed, though 1. That Rev. Stat. § 1014, does not au- there are many authorities to that effect. thorize a removal from a judicial district King v. Brisac, 4 East, 164; People v. in a state to the District of Columbia; Mather, 4 Wend. 229, 21 Am. Dec. 122;

2. That the supreme court of the District Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. of Columbia has no jurisdiction over the al. Dec. 475; Noyes v. State, 41 N. J. L. 418; leged offense charged in the indictment; Com. v. Corlies, 3 Brewst. 575.

3. That the indictment charges no offense We have ourselves decided that, if the against the United States;

conspiracy be entered into within the ju4. That the evidence introduced before risdiction of the trial court, the indictment the commissioner proved that there was no will lie there, though the overt act is shown probable cause for believing him guilty of to have been committed in another jurisdicthe offense, and that the writ of certiorarition, or even in a foreign country. Dealy should have been issued to bring the record v. United States, 152 U. S. 539, 38 L. ed. before the court, and upon its inspection the 545, 14 Sup. Ct. Rep. 680; Re Palliser (Palappellant should have been discharged. liser v. United States), 136 U. S. 257, 34

1. The first assignment is practically dis- L. ed. 514, 10 Sup. Ct. Rep. 1034; King v. posed of by the recent case of Benson v. Brisac, 4 East, 164; Rev. Stat. § 731, U. S. Henkel, 198 U. S. 1, 25 Sup. Ct. Rep. 569, 49 Comp. Stat. 1901, p. 585. L, ed. in which one of the codefendants In this connection it is also suggested of the petitioner in this case, who had been that, as the conspiracy is alleged in all the arrested in Brooklyn, was held to be prop- counts to have been entered into prior to erly removed to the District of Columbia January 1, 1902, as well as the overt act under Rev. Stat. § 1014. No additional charged in fifteen of the counts, the supreme considerations being presented, that case court of the District of Columbia cannot must be treated as controlling.

take cognizance of the case under the new 2. The second assignment, that the su-code which took effect upon that date, and preme court of the District of Columbia had that we must look to the law prior thereto no jurisdiction of the alleged offense, is to determine the jurisdiction of that court. based upon the proposition that the conspir- By § 23, chap. 35, of the Compiled Statutes acy, if any existed, was entered into either of the District of Columbia, it was enacted in the northern district of California or the that "the criminal court of the District of district of Oregon; and that nothing but Columbia shall have jurisdiction of all overt acts in pursuance of the conspiracy crimes and misdemeanors committed in said were done in the District of Columbia. district, not lawfully triable in any other Granting that the gravamen of the offense court, and which are required by law to be is the conspiracy, and that, at common law, prosecuted by indictment or information.” it was neither necessary to aver nor prove The argument is made that, as the conan overt act (Rex v. Gill, 2 Barn. & Ald. spiracy in this case was triable in Cali204; Bannon v. United States, 156 U. S. fornia or Oregon, as well as in the District 464-468, 39 L. ed. 494-496, 15 Sup. Ct. Rep. of Columbia, it was lawfully triable in an467), an overt act is necessary, under Rev. other court, and hence the supreme court of Stat. § 5440, to complete the offense. The the District of Columbia has no jurisdiclanguage of the section is, “if two or more tion. We are not impressed with the force persons conspire either to commit any of- of this contention. Chapter 35 provides for fense against the United States, or to de- the organization of the judiciary of the Disfraud the United States in any manner or trict of Columbia, and relates exclusively to for any purpose, and one or more of such the jurisdiction and powers of the several parties do any act to effect the object of the courts of the District, providing that one conspiracy, all the parties to such conspir- of the justices may hold a criminal court, acy shall be liable," etc.

and that such court shall have jurisdiction It was aptly said by Mr. Justice Woods of all crimes and misdemeanors committed in United States v. Britton, 108 U. S. 199,'in said District not lawfully triable in any other court, and which are required by law by and on behalf of the said Hyde and Bento be prosecuted by indictment or informa- son. A further element of the conspiracy tion. It is entirely clear that this has ref- is that defendants were, by bribery, to inerence only to other courts within the Dis- duce certain United States officials in the trict, and was not intended to change the General Land Office, at Washington, in the law with respect to the general jurisdiction District of Columbia, corruptly, and conof courts having jurisdiction of the same trary to their official duties, to aid defendoffense.

ants to secure the approval of their fraudAlthough it involves a seeming hardship ulent selections in advance of their regular to commit an accused person in San Fran order, and to inform defendants of any discisco for trial in the District of Columbia, covery or investigation by the government the terms of Rev. Stat. § 1014, are as ap- of their said fraudulent practices. plicable to such a case as they would be if To grasp the significance of these somethe arrest were made in Baltimore. The what complicated counts, and to appreciate section makes no discrimination based upon the details of the offense charged, it should distance, and requires the commitment to be borne in mind that the government had be made for trial before the court having granted to California and Oregon large cognizance of the offense, wherever that tracts of lands, many of which were covered court may sit. Where the statute contains with forests, known as school lands. Conno exception, the courts cannot create one. gress subsequently changed its intention Indeed, the Constitution itself requires that with regard to them, and desired to retain the trial of all crimes shall be held in the them as forest reserves, and to reacquire the state where the crimes have been commit- title thereto, and, for that purpose, enacted ted, and the power of Congress to order the a law approved June 4, 1897 (30 Stat. at L. surrender of accused persons from other 36, chap. 2, U. S. Comp. Stat. 1901, p. states is a necessary complement to the 1541), as follows: duty of trying offenses in the jurisdiction “That in cases in which a tract covered where the crime was committed. But we by an unperfected bona fide claim or by a do not wish to be understood as approving patent is included within the limits of a the practice of indicting citizens of distant public forest reservation, the settler or states in the courts of this District, where owner thereof may, if he desires to do so, an indictment will lie in the state of the relinquish the tract to the government, and domicil of such person, unless in excep- may select in lieu thereof a tract of vacant tional cases, where the circumstances seem land open to settlement, not exceeding in to demand that this course shall be taken. area the tract covered by his claim or patTo require a citizen to undertake a long ent, and no charge shall be made in such journey across the continent to face his ac- cases for making the entry of record, or cusers, and to incur the expense of taking issuing the patent to cover the tract sehis witnesses, and of employing counsel in lected." a distant city, involves a serious hardship, It seems that both of these states had to which he ought not to be subjected if the passed laws by which any citizen of the case can be tried in a court of his own United States resident in such state, or any jurisdiction.

person who had declared his intention to 3. The third assignment—that the indict- become a citizen, might acquire from such ment charges no offense against the United states a section or half section of such lands States—requires a statement of its sub- at $1.25 per acre. They were required to stance. As it contains forty-two different make application to the land offices of the counts and covers some ninety-four pages of state, and to make the necessary affidavits printed matter, a consideration of each to show that they were qualified to purcount would unnecessarily prolong this chase them, and that they were purchasing opinion. The conspiracy charged embraced them for their own use or benefit, and had certain false practices by the defendants, not sold or agreed to sell the same. Doubtwhereby school lands were to be obtained less the intention was that the sale should fraudulently from the states of California be made to persons who desired to settle and Oregon by Hyde and Benson, (1) in the upon the lands; but there was nothing to names of fictitious persons, and (2) in the prohibit such persons from afterwards disnames of persons not qualified to purchase posing of them by assigning the certificates the same, whereby the said Hyde and Ben- of purchase, and in this method the assignee son were to cause and require such school | might, by purchase from several patentees, lands to be relinquished by means of false acquire title to an unlimited amount of and forged relinquishments, assignments, such lands, and might thereafter exchange and conveyances to the United States, in ex- such lands under the act of June 4, 1897, change for public lands, to be selected, and with the United States, provided he had acfor titles thereto by patents to be obtained 'quired a valid title from the states, and