[210] [211] Colorado at the adoption of this Constitution Territory for that purpose by Henry C. Brown," On the 9th of May, 1879, the plaintiff took possession of the ten acre tract and constructed around it a substantial board fence. At the same time he executed and put on record a deed revoking and annulling his conveyance of 1868. The reason assigned in that deed for its execution is, that "neither the said Territory nor its successor, the State of Colorado, has ever accepted the said conveyance or located or erected a capitol or other public buildings on said tract of land as in and by said deed (of 1868) provided." The bill alleges that plaintiff has been in complete possession of said land ever since May 9, 1879; that, at the general election, in 1881, the seat of government was located, by a popular vote, at Denver; and that her officers of state and board of managers for the erection of state capitol buildings at Denver are about to take and, unless restrained, will take possession of said ten acre tract for the purpose of erecting said buildings thereon. He prays that they be enjoined from disturbing his possession of the premises until he shall receive just compensation therefor. A demurrer to the bill having been sustained, upon the ground that it did not set forth a cause of action, the suit was dismissed. As all the parties to this suit are cititzens of the State of Colorado the circuit court was without jurisdiction, unless the suit is one arising under the Constitution or laws of the United States. It is not clear upon what precise ground the plaintiff contends that the suit belongs to that class. We suppose his claim to be that when the Territory became a State, the property he had given to the former became his again, and that the provision in the Constitution | of the State, "that all property, real and personal, belonging to the Territory of Colorado" at the adoption of that instrument "shall be vested in and become the property of the State of Colorado," deprived him of his property without due process of law; that is, it was thereby taken from him, for public use, without just compensation being first made, or in some legal mode secured, to him. Assuming that the suit, upon that basis, arises under the Constitution of the United States, it is difficult to conceive of one in which the question has merit. is ample evidence of that fact. It is idle to say that the Territory never accepted the conveyance. Upon what legal ground, then, can the appellant defend his resumption of possession in 1879? His conveyance contained no condition under which he could demand the erection of a capitol building within any specified time, in default of which the property would revert to him. The Territorial Legislature wisely invested commissioners with authority to accept a conveyance of an absolute fee-simple title, and reserved to itself the determination of all questions concerning the time within which the proposed building should be erected. And it cannot be said, in view of the allegations of the bill, that the Territory did not move as rapidly in creating indebtedness for that purpose as the public necessities permitted or the public interests required. If it were conceded that the removal of the seat of government from Denver, or the abandonment of this land as the site of capitol buildings, would, under all the circumstances, entitle Brown to claim the property, or compensation therefor, it is sufficient to say that no such state of facts now exists. But the appellant contends that he made this gift upon the implied condition that the Ter ritory, not the State, should erect the public buildings in question. Apart from the fact that the terms of the deed are inconsistent with such a condition, the supposition cannot be indulged for a moment that the plaintiff did not look forward to the time when the Territory would become one of the States of the Union; an event which would necessarily tend to accomplish the very object that he had, as he avows, in making the donation, viz.: to increase the value of other lands owned by him, of which the ten acres in question formed a part. The reference in the deeds of 1868 and 1879 to the successors of the Territory is persuasive evidence of the fact that the plaintiff contemplated the organization of its people as a State. Now that the State proposes to construct capitol buildings on the land donated for that very purpose, the plaintiff asks the intervention of a court of equity to prevent her agents from entering upon the premises until he receives compensation for what was in law a donation to the public as an organized body, whether under a territorial government or as a State. He is not entitled to such aid. to every species of property owned by a Territory passes to the State upon its admission into the Union. The provision in the State Constitution to that effect was only declaratory of what was the law. The suggestion, that the clause of the ConBefore the execution of the deed of January stitution providing that the State is the owner 11, 1868, the Territorial Legislature had located of all the property which the Territory held the seat of government at Denver. It was there upon its becoming a State deprived him of his when the appellant's gift was made. The gift property, is not entitled to serious consideration. had direct reference to the Territorial enact-Unless otherwise declared by Congress, the title ment authorizing commissioners to accept a conveyance of not less than ten acres of land, without charge to the Territory, and so as to vest in it an absolute fee-simple title. The title was so conveyed by Brown to the Territory, "its successors and assigns forever," for "the purpose of erecting a capitol and other public buildings thereon only. The deed was duly accepted; for, if the Act under the authority of which the land was obtained, and the execution and registration of the deed, are not complete proof of such acceptance, surely the Act of 1872,requiring the capitol building to be erected "upon the ground (t)heretofore donated to the Judgment affirmed. James H. McKenney, Clerk, Sup. Court, U. 8. 47 JOSEPH A SMITH, Appt. and Plff. in Err., | the relative rank of Commodore," upon certain WILLIAM C. WHITNEY, Secretary of the (See 8. C. Reporter's ed. 167-186.) Writ of prohibition to naval court-martial jurisdiction of the Supreme Court of the District of Columbia-discretion-jurisdiction of this court-parties-practice-jurisdiction of natal court-martial, of naval officer serving as a chief of bureau and paymaster-general. $5.000 1. A final judgment of the Supreme Court of the District of Columbia on a petition for a writ of prohibition to the Secretary of the Navy, and a Court-martial convened by his order to try a public offer for offenses punishable with dismissal, may be reviewed by this Court, if the salary of which officer might thereby be deprived exceeds Whether the court below should grant or refuse writ of prohibition is not a matter of discretion where the court whose action is sought to be protired is clearly without jurisdiction, and the dedant objected to its jurisdiction at the outset is without other remedy; and a refusal to grant where all the proceedings appear of record, may be reviewed on errory this court. 3 If an officer of the navy, while serving by ap pointment of the President as chief of a bureau and Paymaster-general in the navy department, makes Contracts or payments in violation of law, to promote the interests of contractors, he may lawfully be tried and convicted of scandalous conduct tening to the destruction of good morals and to the dishonor of the naval service, by a court-marcomposed of naval officers; and a writ of protion will not issue to prevent such trial and Where a court-martial ha jurisdiction of the at ject matter of the principal charge, the addition of another charge, varying in form but for the - or similar acts, affords no ground for iscing art of prohibition. A naval court-martial may, at any time before eavened by him to reconsider its proceedings. re the purpose of a writ of error, or certiorari. 4. It seems a that proceedings upon a petition for APPEAL from and in error to the Supreme charges and specifications, a copy of which The first of those charges was for delivery had expired; and also in purchas ing more supplies than the current needs of the In the application for a writ of prohibition, s to issue a writ of prohibition to the part thereof; but the court-martial overruled wary of the Navy, and to a general court- all his objections to its jurisdiction, and pronaval officers convened by his order ceeded to hear evidence on the charges, and to 25,15, to try the petitioner, a pay try him thereon. He further alleged that none Lot, confirmed by the Senate of the arose out of or were involved in any case aristhe navy, and, by appointment of of the charges or specifications in any degree 4 June 27, 1882, "Chief of the Bureau ing in the land or naval forces of the United and Clothing and Paymaster States, or in the militia; but all, as appeared on 1:4 T. in the Department of the Navy, with their face, pertained exclusively to duties re [169] [170] quired of and performed by him in the exercise of a purely civil office and under a civil commission; that none of the specifications charged him with the violation of any law of the United States, or of any rule of procedure in the Navy Department, or of any order of the Secretary of the Navy; that each of the acts complained of had been approved by the late Secretary of the Navy in the lawful exercise of his discretionary power over the subject, and that the exercise of his discretion could not be reviewed by his successor or by a courtmartial; that throughout the trial the petitioner insisted on his objections to the jurisdiction; that after the conclusion of the testimony and arguments the court-martial went into secret session and excluded him and his counsel from its presence and, as he was informed and believed, rendered some judgment adverse to him and submitted it to the Secretary of the Navy for his approval, but it had not been approved; that all the proceedings at the trial, with the finding and judgment of the court, were made up and signed by the judge advocate, and returned to the exclusive custody of the Secretary of the Navy, and the court discontinued its sessions, and adjourned without day; that afterwards the Secretary of the Navy made an order, the terms of which were unknown to the petitioner, directing the courtmartial to reconvene on September 25, 1885, and to take additional action in the matter of the charges and specifications and evidence submitted to it as aforesaid; that it was about to reconvene accordingly and, without permitting the presence of the petitioner or his counsel, to reconsider the evidence and the principles of law involved in his trial, and to re-examine and readjudge his case; that the proceedings about to be taken by the court-martial were not only unauthorized for want of jurisdiction, but would deprive him of the right of trial by jury, and put him twice in jeopardy for the same offense, in violation of the Con[171] stitution of the United States; and that he was without remedy, except by the writ of prohi bition. On September 23, the petitioner moved for an order upon the defendants to show cause why a writ of prohibition should not issue as prayed for; and it was ordered that the petition be entertained and certified for hearing in the first instance to the court in General Term. On September 24 the Secretary of the Navy filed a plea, averring that the court ought not to hear or take further cognizance of the petition and proceedings, because their object and purpose were "to prohibit and restrain him from the exercise of powers and duties appertaining to his said office of Secretary of the Department of the Navy; whereas, it is beyond he jurisdiction of this court and the judicial power of the United States to restrain or other wise intermeddle with the exercise of the said powers and duties which belong to and form a part of the political powers and duties of the Government of the United States." On the same day, the members of the court martial filed a plea and answer, in which they "say that they are advised that this court has no jurisdiction to arrest by writ of prohibition any proceeding they may take in the courtmartial referred to in the said petition;" and "not waiving in anywise, but insisting on their jurisdictional exception or plea, answering" adı ted that the petitioner pleaded to the jurisdiction of the court-martial, and that his plea was overruled; but alleged that he was subject to its jurisdiction, and that there was nothing in the legislation of Congress, creat ing the office of Paymaster-General of the Navy, manifesting an intention to withdraw the incumbent of that position from amenability to a court-martial for offenses committed while exercising the same; that the first charge and the specifications pursuant thereto were found. ed on the twenty-second of the Articles for the Government of the Navy, contained in section 1624 of the Revised Statutes, and on section 127 of the Orders, Regulations and Instructions for the administration of Law and Justice in the United States Navy, which prescribes that "When the offense is a disorder or neglect not specially provided for, it should be charged as scandalous conduct tending to the destruction of good morals;" and the second charge and the specifications pursuant thereto were founded on the ninth paragraph of the eighth Article for the Government of the Navy; that the question whether the acts and omissions charged against the petitioner were offenses was a matter for the exclusive decision of the court-martial; and that the court-martial did not and could not adjourn itself without day, but, as appeared by orders, copies of which were produced, was by order of the Secretary of the Navy of August 11 "adjourned until further orders," and by his order of September 16 directed to reassemble on September 25; and concluded by praying to be dismissed with costs. On September 25 the petitioner filed a replication, in which he "joins issue with the defendants upon the return and answer filed to the petition for the writ of prohibition;" and upon a hearing in general term the court entered the following judgment: "The court being of opinion that it has not jurisdiction of the matter complained of, it is therefore considered that the petition be and it is hereby dismissed, with costs, to be taxed by the clerk.” The petitioner in open court prayed and was allowed an appeal from that judgment, and also sued out a writ of error to reverse it. The final judgment or decree of the Supreme Court of the District of Columbia in any case in which the matter in dispute, exclusive of costs, exceeds the sum of $5,000 may be reviewed and reversed or affirmed in this court upon writ of error, if the judgment is at law, or upon appeal, if the decree is in equity. R. S. §§ 691, 692, 705; R. S. D. C. §§ 846, 847; Act of March 3, 1885, chap. 355, 23 Stat. at L. 443. The objection, founded on Kurtz v. Moffitt, 115 U. S. 487 [ante 458], and cases there cited, that this court has no appellate jurisdiction of the present case, because there is nothing in dispute the value of which can be estimated in money, cannot be sustained. The matter in dispute is whether the petitioner is subject to a prosecution which may end in a sentence dismissing him from the service and depriving him of a salary as Paymaster-General during the residue of his term as such, and as Pay Inspector afterwards, which in less than two years would exceed the sum of $5,000. R. S. E $1556, 1565, 1624, arts. 8, 22, 48, 53. The ase cannot be distinguished in principle from hose in which it has been held that a judgment awarding a peremptory writ of mandamus to admit one to an office, or a judgment of ouster from an office, might be reviewed by this court spon writ of error, if the salary during the term of the office would exceed the sum named n the statute defining its appellate jurisdiction. Columbian Ins. Co. v. Wheelright, 7 Wheat. 384 [20 U. S bk. 5, L. ed. 516] United States v. Addison, 22 How. 174 [63 U. Š. bk. 16, L. ed. 904). out a writ of error, it is immaterial which is [175] It is often said that the granting or refusal of a writ of prohibition is discretionary, and Therefore not the subject of a writ of error. That may be true where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court whose action is sought to be prohibited is doubtful or epends on facts which are not made matter of record; or where a stranger, as he may in England, applies for the writ of prohibition. Es where that court has clearly no jurisdiction of the suit or prosecution instituted before it, and the defendant therein has objected to its urisdiction at the outset and has no other It is argued in behalf of the petitioner that remedy, he is entitled to a writ of prohibition the Supreme Court of the District of Columbia smatter of right; and a refusal to grant it, is authorized to issue writs of prohibition, on ere all the proceedings appear of record, the same grounds on which it was held in ay be reviewed on error. This is the clear United States v. Schurz, 102 U. S. 378 [Bk. 26, salt of the modern English decisions, in L. ed. 167], to be authorized to issue writs of which the law concerning writs of prohibition mandamus, namely: because by the Act of as been more fully discussed and explained February 27, 1877, chap. 69, § 2, 19 Stat. at L. fan in the older authorities. Re Forster, 4 B. 253, that court has cognizance of "all cases in & S. 187, 199: Mayor, etc. of London v. Cox, L. law and equity between parties, both or either R. 2 H. L. 239,280; Worthington v. Jeffries, L. of which shall be resident or be found withR. 10 C. P. 379, 380; Chambers v. Green, L. R. in said District;" as well as because it has all 3. Eq. 552, 555. See also Weston v. City Coun- the powers formerly exercised by the courts of Charleston, 2 Pet. 449 [27 U. S. bk. 7, L. of Maryland, which, as declared by the Court 481], reversing on error S. C., Harper, 340. of Appeals of that State in Price v. State, 8 The petitioner in the present case objected at Gill, 295, 310, included "all the powers exervery beginning of the proceedings before cised in England by the Court of King's rt-martial that it had no jurisdiction to Bench, so far as these powers are derived from him on the charges laid before it; and the rules and principles of the common law, and so sts upon which his objection to its jurisdic- far as the same are suited to the change in our are based, as well as the final judgment political institutions, and are not modified by asing his petition for a writ of prohibition, our constitutional or statutory enactments." The case is therefore with On the other side, it is contended that neither the appellate jurisdiction of this court. the Supreme Court of the District of ColumThe Supreme Court of the District of Co-bia nor any other court of the United States is is having both common-law and equity empowered to issue writs of prohibition to a wers, it would seem that the proceedings in court-martial. case must be considered as on the commonWhether the Supreme Court of the District de of that court, and that the proper of Columbia has power in any case to issue a de of invoking the appellate jurisdiction of writ of prohibition to a court-martial is a ques- court is by writ of error. Long before the Declaration of Independ judged by this court; and we are not inclined, In England, tion of great importance not heretofore adwrits of prohibition have usually issued in the present case, either to assert or to deny r the courts of common law, and do not the existence of the power, because upon setear to h have issued from a court of chancery tled principles, assuming the power to exist, no any case in which a court of law might is case is shown for the exercise of it. In decid... them, except during vacation, when the ing the case upon the facts before us, and exrts of common law were not open. 2 Hale, pressing no opinion upon the broader question, 147; Lord Holt, in Blackborough v. Davis, because the determination of the case does not P Wms 41, 43: Anon. 1 P. Wms. 476; Mont require it, we take the same course that has [176] V. Blair, 2 Sch. & Lef. 136; Re Foster, been followed by eminent English judges in 42; Re Bateman, L. R. 9 Eq. 660. disposing of applications for writs of prohibiin this country, so far as we are informed, tion under similar circumstances. Ex parte writs have never been issued but by a Smyth, Tyrwh. & Gr. 222, 225; 8. O. 2 Cr. M. t of common-law jurisdiction. But as the & R. 748, 753; 1 Gale, 274, 277; Re Foster, 4 B. tioner has both taken an appeal and sued & S. 187, 198. ar pear of record. [177] The object of a writ of prohibition is to pre-ing them at the same time to belong to the said vent a court of peculiar, limited or inferior regiment of foot guards." The sentence did not jurisdiction from assuming jurisdiction of a in terms find him guilty of having advised or matter beyond its legal cognizance. It can persuaded them to desert the King's service; only be issued to restrain the exercise of ju- but merely stated that the court-martial was of dicial functions. When the suit complained opinion that he was guilty of having proof is brought by a private person, he may be moted and having been instrumental towards joined as a defendant. But when it is a suit the enlisting of" the two soldiers "into the seror prosecution on behalf of the Government, vice of the East India Company, knowing them the writ of prohibition can go to the court at the said time to belong to the said regiment only. 3 Bl. Com. 112; Ex parte Braudlacht, 2 of foot guards; and deeming this crime to be Hill (N. Y.), 367; Thompson v. Tracy, 60 N. Y. precisely of the same nature with that which is 31; Connecticut River Railroad v. Franklin set forth in the charge, and to differ only in this: County Comrs. 127 Mass. 50, 59, 60. that it is rather inferior, but in a very slight deThe Secretary of the Navy being an execu- gree, in point of aggravation," adjudged him tive officer and not a member of the court-martial to be punished. It was argued for the petitioner sought to be prohibited, it is quite clear that that he had not been found guilty of advising or his acts concerning the petitioner cannot be the persuading to desert, which was the substance of subject of a writ of prohibition. The reasons the offense charged, but, at the utmost, of proagainst issuing a writ of prohibition to the court-moting and aiding in the enlistment into the martial require fuller statement. service of the East India Company, which of itself was no offense under the Articles of War or the Mutiny Act. But Lord Loughborough, delivering the judgment of the court of common pleas, discharging the rule for a writ of prohibition, said: " Taking the whole of the case together, it is clear that there is ground to suppose that they meant to convict him of the charge. But if, by the nicety which they used in penning the sentence, that sentence were to be invalidated, it could not be by a prohibition, whatever it might be by a review, or by an ap peal. The most that can be made of it is an error in the proceedings; but we cannot prohibit upon that account. The sentence in the case of an unfortunate admiral was certainly an inaccurate one. The question there was whether the court had not mistaken the law, yet a prohibition was not thought of. But it is unnecessary to discuss the sentence further; it would be extremely absurd to comment upon it as if it was a conviction before magistrates, which was to be discussed in a court where that conviction could be reviewed." 2 H. Bl. 107. A writ of prohibition is never to be issued unless it clearly appears that the inferior court is about to exceed its jurisdiction. It cannot be made to serve the purpose of a writ of error or certiorari, to correct mistakes of that court in deciding any question of law or fact within its jurisdiction. These rules have been always adhered to by this court, in the exercise of the power expressly conferred upon it by Congress to issue writs of prohibition to the district courts sitting as courts of admiralty; United States v. Peters, 3 Dall. 121 [3 U. S. bk. 1, L. ed. 535]; Ex parte Easton, 95 Ü. S. 68 [Bk. 24, L. ed. 373]; Ex parte Gordon and Ex parte Ferry Co. 104 U. S. 515, 519 [Bk. 26, L. ed. 814, 815]; Ex parte Pennsylvania, 109 U. S. 174 [Bk. 27, L. ed, 894], as well as by the courts of England and of the several States, in the exercise of their inherent jurisdiction to issue writs of prohibition to courts-martial Grant v. Gould, 2 H. Bl. 69; State v. Wakely, 2 Nott & McCord, 410; State v. Stevens, 2 McCord, 32; Washburn v. Phillips, 2 Met. 296. And this court, although the question of issuing a writ of prohibition to a court- Of questions, not depending upon the conmartial has not come before it for direct ad- struction of the statutes, but upon unwritten judication, has repeatedly recognized the gen- military law or usage within the jurisdiction of eral rule that the acts of a court-martial, within courts-martial, military or naval officers, from the scope of its jurisdiction and duty, cannot their training and experience in the service, are be controlled or reviewed in the civil courts, by more competent judges than the courts of com. writ of prohibition or otherwise. Dynes v. Hoor-mon law. This is nowhere better stated than er, 20 How. 65, 82, 83 [61 U. S. bk. 15, L. ed. 838, 845]; Ex parte Reed. 100 U. S. 13 [Bk. 25, L. ed. 538]; Ex parte Mason, 105 U. S. 696 [Bk. 26, L. ed. 1213]; Keys v. United States, 109 U. S. 336 [Bk. 27, L. ed. 954]; Wales v. Whitney, and Kurtz v. Moffitt, [ante, 277, 458.] See also Wise v. Withers, 3 Cranch, 331 [7 U. S. bk. 2, L. ed. 457]; Meade v. Deputy Marshal of Virginia, 1 Brock. 324; Re Bogart, 2 Sawyer, 396; Re White, 9 Sawyer, 49; Barrett v. Hopkins, 2 McCrary, 129. In the leading case of Grant v. Gould, 2 H. Bl. 69, under an article of war subjecting to punishment at the discretion of a court-martial any officer or soldier convicted of "having advised or persuaded any other officer or soldier to desert His Majesty's service," the petitioner for a writ of prohibition had been charged with "having advised and persuaded" two soldiers in the Coldstream Regiment of foot guards "to desert His Majesty's service, and to enlist into the service of the East India Company, know by Mr. Justice Perry in the Supreme Court of Bombay, saying: "And the principle of the noninterference of the courts of law with the procedure of courts-martial is clear and obvious. The groundwork of the jurisdiction and the extent of the powers of courts martial are to be found in the Mutiny Act and the Articles of War; and upon all questions arising upon these Her Majesty's judges are competent to decide; but the Mutiny Act and Articles of Wer do not alone constitute the Military Code, for they are, for the most part, silent upon all that relates to the procedure of the military tribunals to be erected under them. Now this procedure is founded upon the usages and customs of war, upon the regulations issued by the Sovereign, and upon old practice in the army, as to all which points common-law judges have no opportunity, either from their law don, 1757), 3, 4, 125-130; 1 McArthur on Courts-Mar* See Admiral Byng's Trial (official ed. fol. Lontial, 4th ed. 103, 328; 2 Id. 274, 387-398. [ |