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General within these statutes relative to fraud Unless the question may be reduced to one of fact, as distinguished from mere opinion, we think these statutes cannot be invoked for the purpose of stopping the delivery of mail matter.

that basis obtain their money by false pre-
tenses within the meaning of these statutes.
The opinions entertained cannot, like alle-
gations of fact, be proved to be false, and
therefore it cannot be proved, as matter of
fact, that those who maintain them obtain
their money by false pretenses or promises,
as that phrase is generally understood, and
as, in our opinion, it is used in these stat-
utes.
That the complainants had a hearing be

Vaccination is believed by many to be a preventive of smallpox, while others regard it as unavailing for that purpose. Under these statutes could the Postmaster General, upon evidence satisfactory to him, decide that it was not a preventive, and ex-fore the Postmaster General, and that his declude from the mails all letters to one who cision was made after such hearing, cannot practised it and advertised it as a method affect the case. The allegation in the bill of prevention, on the ground that the moneys as to the nature of the claim of complainhe received through the mails were procured ants and upon what it is founded is admitted by false pretenses? by the demurrer, and we therefore have undisputed and admitted facts, which show upon what basis the treatment by complainants rests, and what is the nature and character of their business. From these admitted facts, it is obvious that complainants, in conducting their business, so far as this record shows, do not violate the laws of Congress. The statutes do not, as matter of law, cover the facts herein.

Again, there are many persons who do not believe in the homeopathic school of medicine, and who think that such doctrine, if practised precisely upon the lines set forth by its originator, is absolutely inefficacious in the treatment of diseases. Are homeopathic physicians subject to be proceeded against under these statutes, and liable, at the discretion of the Postmaster General, upon evidence satisfactory to him, to be Second. Conceding, for the purpose of found guilty of obtaining money under false this case, that Congress has full and absopretenses, and their letters stamped as lute jurisdiction over the mails, and that it fraudulent and the money contained therein may provide who may and who may not as payment for their professional services use them, and that its action is not subject sent back to the writers of the letters? And, to review by the courts, and also conceding turning the question around, can physicians the conclusive character of the determination of what is called the "old school" be thus by the Postmaster General of any material proceeded against? Both of these different and relevant questions of fact arising in the schools of medicine have their followers, and administration of the statutes of Congress many who believe in the one will pronounce relating to his department, the question still g the other wholly devoid of merit. But there remains as to the power of the court to is no precise standard by which to measure grant relief where the Postmaster General the claims of either, for people do recover has assumed and exercised jurisdiction in a who are treated according to the one or the case not covered by the statutes, and where other school. And so, it is said, do people he has ordered the detention of mail matter, recover who are treated under this mental when the statutes have not granted him theory. By reason of it? That cannot be power so to order. Has Congress intrusted averred as matter of fact. Many think the administration of these statutes wholly they do. Others are of the contrary opin- to the discretion of the Postmaster General, ion. Is the Postmaster General to decide and to such an extent that his determinathe question under these statutes? tion is conclusive upon all questions arising Other instances might be adduced to illus-under those statutes, even though the evitrate the proposition that these statutes were not intended to cover any case of what the Postmaster General might think to be false opinions, but only cases of actual fraud in fact, in regard to which opinion formed no basis.

*It may, perhaps, be urged that the instances above cited by way of illustration do not fairly represent the case now before us, but the difference is one of degree only. It is a question of opinion in all the cases, and although we may think the opinion may be better founded and based upon a more intelligent and a longer experience in some cases than in others, yet after all, it is, in each case, opinion only, and not existing facts with which these cases deal. There are, as the bill herein shows, many believers in the truth of the claims set forth by complainants, and it is not possible to determine as a fact that those claims are so far unfounded as to justify a determination that those who maintain them and practise upon

dence which is adduced before him is wholly uncontradicted, and shows, beyond any room for dispute or doubt, that the case, in any view, is beyond the statutes, and not covered or provided for by them?

That the conduct of the post office is a part of the administrative department of the gov ernment is entirely true, but that does not necessarily and always oust the courts of jurisdiction to grant relief to a party ag grieved by any action by the head, or one of the subordinate officials, of that Department, which is unauthorized by the statute under which he assumes to act. The acts of all its officers must be justified by some law, and in case an official violates the law to the injury of an individual the courts gen erally have jurisdiction to grant relief.

The Land Department of the United States is administrative in its character. and it has been frequently held by this co that, in the administration of the public land system of the United States, questions of fact

*109

are for the consideration and judgment of those statutes. To authorize the interferthe Land Department, and its judgment ence of the Postmaster General, the facts thereon is final. Burfenning v. Chicago, St. stated must, in some aspect, be sufficient to P. M. & O. R. Co. 163 U. S. 321, 41 L. ed.permit him, under the statutes, to make the 175, 16 Sup. Ct. Rep. 1018; Johnson v. order. Drew, 171 U. S. 93, 99, 43 L. ed. 88, 91, 18 Sup. Ct. Rep. 800; Gardner v. Bonestell, 180 U. S. 362, 45 L. ed. 574, 21 Sup. Ct. Rep.

399.

While the analogy between the above-cited cases and the one now before us is not perfect, yet, even in them it is held that the decisions of the officers of the Department upon questions of law do not conclude the courts, and they have power to grant relief to an individual aggrieved by an erroneous de-erwise, the individual is left to the absocision of a legal question by Department officers.

thereof."

The facts, which are here admitted of record, show that the case is not one which, by any construction of those facts, is covered or provided for by the statutes under which➡ the Postmaster General has assumed to act,* and his determination that those admitted facts do authorize his action is a clear mistake of law as applied to the admitted facts, and the courts, therefore, must have power in a proper proceeding to grant relief. Othlutely uncontrolled and arbitrary action of a public and administrative officer, whose action is unauthorized by any law, and is in violation of the rights of the individual. Where the action of such an officer is thus unauthorized, he thereby violates the property rights of the person whose letters are withheld.

In

Thus in the Burfenning Case, 163 U. S. 321, 41 L. ed. 175, 16 Sup. Ct. Rep. 1018, a tract of land had been reserved from home stead and pre-emption, and had been included within the limits of an incorporated town, notwithstanding which the Land Department had decided that the land was open to entry, In our view of these statutes the complainand had granted a patent under the statute ants had the legal right, under the general relating to homesteads. The court said that acts of Congress relating to the mails, to "when, by act of Congress, a tract of land have their letters delivered at the postoffice has been reserved from homestead and pre-as directed. They had violated no law which emption, or dedicated to any special pur- Congress had passed, and their letters conpose, proceedings in the Land Department in tained checks, drafts, money orders, and defiance of such reservation or dedication, money itself, all of which were their propalthough culminating in a patent, transfer erty as soon as they were deposited in the no title, and may be challenged in an action various post offices for transmission by mail. at law. In other words, the action of the They allege, and it is not difficult to see that Land Department cannot override the ex- the allegation is true, that, if such action pressed will of Congress, or convey away be persisted in, these complainants will be public lands in disregard or defiance entirely cut off from all mail facilities, and their business will necessarily be greatly injured, if not wholly destroyed, such business being, so far as the laws of Congress are concerned, legitimate and lawful. other words, irreparable injury will be done to these complainants by the mistaken act of the Postmaster General in directing the defendant to retain and refuse to deliver let ters addressed to them. The Postmaster General's order, being the result of a mistaken view of the law, could not operate as a defense to this action on the part of the defendant, though it might justify his obedience thereto until some action of the court. In such a case as the one before us there is no adequate remedy at law, the injunction to prohibit the further withholding of the mail from complainants being the only remedy at all adequate to the full relief to which the complainants are entitled. Although the Postmaster General had jurisdiction over the subject-matter (assuming the validity of the acts), and therefore it was his duty, upon complaint being made, to decide the question of law whether the case stated was within the statute, yet such decision, being a legal error, does not bind the courts.

Here it is contended that the Postmaster General has, in a case not covered by the acts of Congress, excluded from the mails letters addressed to the complainants. His right to exclude letters, or to refuse to permit their delivery to persons addressed, must depend upon some law of Congress, and if no such law exists, then he cannot exclude or refuse to deliver them. Conceding, arguendo, that when a question of fact arises, which, if found in one way, would show a violation of the statutes in question in some particular, the decision of the Postmaster General that such violation had occurred, based upon some evidence to that effect, would be conclusive and final, and not the subject of review by any court, yet to that assumption must be added the statement that, if the evidence before the Postmaster General, in any view of the facts, failed to show a violation of any Federal law, the determination of that official that such violation existed would not be the determination of a question of fact, but a pure mistake of law on his part, because the facts, being conceded, whether they amounted to a violation of the statutes would be a legal question, and not a question of fact. Being a question of law simply, and the case stated in the bill being outside of the statutes, the result is that the Postmaster General has ordered the retention of letters directed to complainants in a case not authorized by

Without deciding, therefore, or expressing any opinion upon the various constitutional objections set out in the bill of complainants, but simply holding that the admitted facts show no violation of the statutes cited above, but an erroneous order given by the Postmaster General to defendant, which the

*112

courts have the power to grant relief | plaintiff's mortgage. A summons was isagainst, we are constrained to reverse the sued and returned not served, the sheriff judgment of the circuit court, with instruc- certifying that the defendants were not tions to overrule the defendant's demurrer found in Garfield county. On June 2, plainto the amended bill, with leave to answer, tiff filed an affidavit for publication, which and to grant a temporary injunction as ap- affidavit disclosed fully the nature of the plied for by complainants, and to take such action and the relief sought, and added: further proceedings as may be proper, and not inconsistent with this opinion. In over ruling the demurrer, we do not mean to preclude the defendant from showing on the trial, if he can, that the business of complainants, as in fact conducted, amounts to a violation of the statutes as herein construed.

Judgment reversed.

Mr. Justice White and Mr. Justice McKenna, believing the judgment should be affirmed, dissented from the foregoing opinion.

(187 U. S. 111)

"Afliant further says that he is unable, and that the plaintiff is unable by using due diligence, to obtain service of summons on the said defendants within the territory of Oklahoma.

"Afliant further states that on the - day of March, 1896, he caused a summons to be issued in said cause for said defendants, directed to the sheriff of Garfield county, Oklahoma territory. Sheriff made return, Defendants not found in my county.'

"Afliant further states upon information and belief that the said defendants Don A. Gillett and Myrtle Gillett are nonresidents of the territory of Oklahoma, and that service of summons cannot be made on the said defendants Don A. Gillett and Myrtle Gil

JOHN ROMIG and Daniel W. Harding, lett within the said territory of Oklahoma,

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Statement by Mr. Justice Brewer: On February 2, 1895, Don A. Gillett made and delivered to John Romig a note for $700, secured by a mortgage on 80 acres in Garfield county, Oklahoma. On February 6, 1895, the mortgagor sold and conveyed the real estate to Myrtle Gillett. On March 11, 1896, the mortgagee, Romig, commenced an action of foreclosure in the district court of that county against Don A. Gillett and Myrtle Gillett. In the petition, Myrtle Gillett was alleged to have some interest in the real estate, but junior and subsequent to

and that said plaintiff wishes to obtain service upon said defendants by publication; and further, affiant sayeth not."

Publication was made and proof thereof filed as required by the statutes. On December 18, 1896, a judgment of foreclosure was entered against both defendants, and a sale of the real estate ordered. An order of sale was issued on January 20, 1897. A sale was made to the plaintiff and confirmed by the court March 1, 1897, and an order entered directing the sheriff to execute a deed to the purchaser and put him in possession. A deed was accordingly made and the plaintiff put in possession on March 9, chased the property from the plaintiff Ro1897. Thereafter Daniel W. Harding purmig, received a deed therefor and entered into possession on March 10, 1897. He improved the property, which up to that time tion of three residences and other permanent was unimproved prairie land, by the erecstructures of the value of $2,000, paid taxes

to the amount of $200, and has ever since

resided thereon.

On May 11, 1898, Myrtle Gillett filed a motion to set aside the judgment, and all proceedings had thereunder, on the ground that the court had never acquired any jurisdiction; that she was, at all times during the pendency of the action, a resident of the territory of Oklahoma, living in an adjoining county and within 20 miles of the mortgaged real estate, and that she had no knowledge of the institution or prosecution of the cause until long after the sale of the land by the sheriff. Upon the hearing of this motion the court entered an order setting aside the judgment and all subsequent proceedings, and directing that she be put in immediate possession of the premises. This order and judgment of the trial court was affirmed by the supreme court of the territory on June 30, 1900 (10 Okla. 186, 62 Pac. 805), whereupon the case was brought here on appeal.

The statutes of Oklahoma of 1893, which

113

*114

were in force at the time of these proceed- receiving actual notice by the commenceings, required that actions for the foreclos- ment of suit on such adverse claim by which ure of a mortgage be brought in the county eviction may be effected." in which the real estate is situated. Section 3950 authorized service by publication in Messrs. A. A. Hoehling, Jr., Jeremiah such cases "where any or all of the defend-M. Wilson and Charles S. Wilson for appelants reside out of the territory, or where the plaintiff, with due diligence, is unable to make service of summons upon such defendant or defendants within the territory." Sections 3951, 3955, and 4498 read as follows:

lants.

Messrs. William M. Springer and George P. Rush for appellee.

Mr. Justice Brewer delivered the opin ion of the court:

within

"Sec. 3951. Before service can be made by publication an affidavit must be filed statThe supreme court of Oklahoma was of ing that the plaintiff, with due diligence, is opinion that the affidavit for service by pubunable to make service of the summons upon lication was wholly insufficient in that it the defendant or defendants to be served by alleged the nonresidence of defendants simpublication, and showing that the case is ply upon information and belief, and not one of those mentioned in the preceding sec- positively; that being so insufficient the tion. When such affidavit is filed, the party, into court, and the judgment and all subdefendant Myrtle Gillett was not brought may proceed to make service by publication.' "Sec. 3955. A party against whom a judg- sequent proceedings were, as to her, absoment or order has been rendered without lutely void. On the other hand, it is conother service than by publication in a news-tended by the appellants that a separate paper, may, at any time within three years ground for service by publication is "where after the date of the judgment or order, the plaintiff, with due diligence, is unable have the same opened, and be let in to de- to make service of summons fend. Before the judgment or order shall the territory;" that the affidavit for publibe opened, the applicant shall give notice to cation stated positively such inability; that, the adverse party of his intention to make therefore, it was strictly within the statute, such an application, and shall file a full and authorized the publication of notice; answer to the petition, pay all costs, if the that the publication was duly made, the court require them to be paid, and make it defendants were thereby brought into court, appear to the satisfaction of the court, by and the judgment and all subsequent proaffidavit, that during the pendency of the ceedings were regular and valid. action he had no actual notice thereof in well be doubted whether this contention of time to appear in court and make his de- appellants can be sustained, at least in fense; but the title to any property, the sub- cases like this of direct, and not collateral, ject of the judgment or order sought to be attack, even if the inability to obtain peropened, which by it, or in consequence of it, sonal service by the exercise of due dilishall have passed to a purchaser in good gence is a distinctive ground for service by faith, shall not be affected by any proceed- publication. It would seem that the facts ings under this section." tending to "show such diligence should be* disclosed, and that an affidavit merely allaw, and not of facts. McDonald v. Cooper, leging inability was one of a conclusion of 32 Fed. 745; Carleton v. Carleton, 85 N. Y. 313; McCracken v. Flanagan, 127 N. Y. 493, 28 N. E. 385; Ricketson v. Richardson, 26 Cal. 149; Braly v. Seaman, 30 Cal. 610; Little v. Chambers, 27 Iowa, 522; Thompson Kahn v. Matthai, 115 Cal. 689, 47 Pac. 698;

or

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"Sec. 4498. In all cases, any occupying claimant being in quiet possession of any lands or tenements for which such person can show a plain and connected title in law or equity, or being in quiet possession of and holding the same by deed from and under any person claiming title as aforesaid, or being in quiet possession of and holding the same under sale on execution or order of sale against any person claiming title as aforesaid, any person in quiet possession of any land, claiming title thereto and holding the same under a sale and conveyance made in pursuance of any order of court or decree in chancery, where lands are or have been directed to be sold, and the purchasers there of have obtained title to and possession of the same without any fraud or collusion on his, her, or their part, shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands, until said occupying claimant, his, her, or their heirs, shall be paid the full value of all lasting and valuable improvements made on said lands by such occupying claimant, or by the person or persons under whom he, she, or they may hold the same, previous to

V.

It may

Mich. 236, 19 N. W. 967; Alderson v. Mar-
Shiawassee County Circuit Judge, 54
shall, 7 Mont. 288, 16 Pac. 576. Nor is this
inability shown by the mere fact that a
summons issued to the sheriff of the county
in which the land is situated is returned
not served, for in cases of this kind, by
served in any county of the territory.
§ 3934, a summons can be issued to and

But while the affidavit for publication
may have been insufficient, we are unable to
concur with the supreme court of Oklahoma
in its conclusions. A publication of notice
was in fact made, and a publication based
upon an affidavit which, however defective
it may have been, was intended to be in
compliance with the statute.
It was ap-
proved by the court, which upon it rendered
a decree of foreclosure, which was executed
by the proper officers in the proper way.
By virtue of the proceedings the mortgagee

•115

was put into possession,-a possession which turbing the possession of Harding, will give he transferred to the appellant Harding. to the appellee the right to appear, plead, Under those circumstances, what right has and make such defense as, under the facts the appellee, a grantee from the mortgagor? of the case and the principles of equity, she The foreclosure was a proceeding in equity, is entitled to. although its various steps were prescribed by statute. Equitable principles must control the measure of relief. Even if the publication had been founded upon an affidavit perfect in form, and the decree and all proceedings had been in strict conformity to the statute, yet, by § 3955, the defendant would be let in to defend, upon compliance with certain conditions.

Assuming that that section is not fully applicable because of the defect in the affidavit, yet the appellee comes into a court of equity seeking relief against the foreclosure of a mortgage. In such a case there are almost always certain conditions of relief. If the mortgage be valid the rights of the mortgagee and those claiming under him are to be protected. Generally, such rights are protected by requiring payment of the mortgage debt, and granting a right of redemption. It is true that this right of redemption is a favored right. Russell v. Southard, 12 How. 139, 13 L. ed. 927; Villa v. Rodriguez, 12 Wall. 323, 20 L. ed. 406; Bigler v. Waller, 14 Wall. 297, 20 L. ed. 891; Noyes v. Hall, 97 U. S. 34, 24 L. ed. 909; Shillaber v. Robinson, 97 U. S. 68, 24 L. ed. 967. But it is only a right of redemption which in this case and under the facts disclosed the appellee is entitled to. She does not pretend in her affidavit that the mortgage was invalid, or that it had been paid. She claims by a deed subsequent to the mortgage, and simply insists that she has not had her day in court, and therefore her rights, which, so far as appears, are only the rights of redemption, have not been cut off. Harding, as the grantee of the purchaser at the foreclosure sale, stands in the shoes of the mortgagee. Bryan v. Brasius, 162 U. S. 415, 40 L. ed. 1022, 16 Sup. Ct. Rep. 803. As shown by the opinion in that case and cases cited therein, a mortgagee who enters into possession, not forcibly, but peacefully and under the authority of a foreclosure proceeding, cannot be dispossessed by the mortgagor, or one claiming under him, so long as the mortgage remains unpaid.

Under 4498 the appellant Harding has all the rights of an occupying claimant, for he was "in quiet possession, claiming title and holding under a sale and conveyance inade in pursuance of a decree in chancery, where lands have been directed to be sold, and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion." Of course, this section applies to proceedings which are defective, for, if not defective, by 3955 a purchaser in good faith has title, and cannot be evicted upon any terms.

The decree of the Supreme Court of Oklahoma will be reversed and the case remanded to that court, with instructions to set aside the order of the trial court, and to direct the entry of one which, without dis

(187 U. S. 118)

HOMER BIRD, Plff. in Err.,

v.

UNITED STATES.

jurisdiction

Courts
Alaska
inal cases
structions

1.

2.

3.

4.

5.

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district court of

murder

in

preservation of pending crimwitnesses accomplices.

A prosecution for murder, pending at the time of the passage of the act of March 3, 1899, establishing a criminal code and code of criminal procedure for Alaska, must, in view of the provision therein for the preservation of pending causes, be regarded as within the "general jurisdiction" in crimi nal cases conferred upon the district court for the district of Alaska by the act of June 6, 1900 (31 Stat. at L. 321, chap. 786), whether that court be one newly created by that act, which contains no provision for a transfer of pending causes, or be an existing tribunal continued thereby.

A woman who has been married and divorced is not incompetent as a witness In a capital cause because she is designated on the list of witnesses furnished to the defendant in compliance with U. S. Rev. Stat. § 1033,1 by her maiden name, under which she has gone since her divorce some ten or twelve years ago.

An Instruction that, in determining the is sue of self-defense, the jury must, under the evidence, consider the situation of the parties and the surrounding circumstances, "together with the testimony of witnesses for the prosecution as well as the evidence of the defendant," is not open to the objection that it authorized the consideration of the testimony of the witnesses for the prosecution even if untrue, and withdrew from the jury in passing on that issue all of the evidence for the defendant except his own testimony, when considered with other instructions giving the rule as to the credibility of witnesses, and enjoining the jury to consider the whole evidence and render a verdict in accordance with the facts proved. and to determine from the evidence the respective situations of the several parties.

The refusal of a requested instruction which singles out certain testimony as determinative of a reasonable doubt of guilt is not error, even if such instruction be a correct one, where the whole case is submitted to the jury.

An Instruction that an attempt to escape, made after many months of confinement, and comparatively without danger, tended, though only slightly, to prove guilt, was as favorable to the accused as he could demand where the only testimony on that subject related to an escape made In October following an arrest in June, and was objected to solely on the ground that the escape was too remote from the commission of the offense and the arrest and Imprisonment to be entitled to go to the jury.

6. A requested instruction, though expressing the law correctly, is properly refused where there are no facts in the case to justify it.

1 U. S. Comp. St. 1901, § 722.

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