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General within these statates relative to that basis obtain their money by false pre fraud Unless the question may be reduced tenses within the meaning of these statutes. to one of fact, as distinguished from mere The opinions entertained cannot, like alleopinion, we think these statutes cannot be in- gations of fact, be proved to be false, and voked for the purpose of stopping the deliv. therefore it cannot be proved, as matter of ery of mail matter.

fact, that those who maintain them obtain Vaccination is believed by many to be a their money by false pretenses or promises, preventive of smallpox, while others re- as that phrase is generally understood, and gard it as unavailing for that purpose. Un as, in our opinion, it is used in these stats der these statutes could the Postmaster Gen- utes. eral, upon evidence satisfactory to him, de That the complainants had a hearing be. cide 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 unAgain, there are many persons who do not disputed and admitted facts, which show believe in the homeopathic school of medi. upon what basis the treatment by complaincine, and who think that such doctrine, if ants rests, and what is the nature and char. practised precisely upon the lines set forth acter of their business. From these admitted by its originator, is absolutely inefficacious facts, it is obvious that complainants, in in the treatment of diseases. Are homeo- conducting their business, so far as this recpathic physicians subject to be proceeded ord shows, do not violate the laws of Conagainst under these statutes, and liable, at gress. The statutes do not, as matter of law, the discretion of the Postmaster General, cover the facts herein. 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 ? nd, 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 on 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 evi. trate the proposition that these statutes were dence which is adduced before him is wholly not intended to cover any case of what the uncontradicted, and shows, beyond any room Postmaster General might think to be false for dispute or doubt, that the case, in any opinions, but only cases of actual fraud in view, is beyond the statutes, and not covfact, in regard to which opinion formed no ered or provided for by them? basis.

That the conduct of the postoffice is a part *It may, perhaps, be urged that the in. of the administrative department of the govstances above cited by way of illustration ernment is entirely true, but that does not do not fairly represent the case now before necessarily and always oust the courts of us, but the difference is one of degree only. jurisdiction to grant relief to a party ag. It is a question of opinion in all the cases, grieved by any action by the head, or one and although we may think the opinion may of the subordinate oflicials, of that Departbe better founded and based upon a more in- ment, which is unauthorized by the statute telligent and a longer experience in some under which he assumes to acto The acts of cases than in others, yet after all, it is, in all its officers must be justified by some law, each case, opinion only, and not existing and in case an official violates the law to facts with which these cases deal. There the injury of an individual the courts gen. are, as the bill herein shows, many believers erally have jurisdiction to grant relief. in the truth of the claims set forth by com- The Land Department of the United States plainants, and it is not possible to deter is administrative in its character, and it has mine as a fact that those claims are so far been frequently held by this cor* that, in unfounded as to justify a determination that the administration of the public land systhose who maintain them and practise upon tem of the United States, questions of fact


are for the consideration and judgment of those statutes. To authorize the interfer the 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. &0. 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. lörder. Drew, 171 Ù. S. 93, 99, 43 L. ed. 88, 91, 18 The facts, which are here admitted of recSup. Ct. Rep. 800; Gardner v. Bonestell, ord, show that the case is not one which, by 180 U. S. 362, 45 L. ed. 574, 21 Sup. Ct. Rep. any construction of those facts, is covered 399.

or provided for by the statutes under which While the analogy between the above-cited the Postmaster*General has assumed to act, cases and the one now before us is not per- and his determination that those admitted fect, yet, even in them it is held that the de- facts do authorize his action is a clear mis. cisions of the oflicers of the Department upon take of law as applied to the admitted facts, questions of law do not conclude the courts, and the courts, therefore, must have power and they have power to grant relief to an in a proper proceeding to grant relief. Oth. individual aggrieved by an erroneous de- erwise, the individual is left to the abso cision of a legal question by Department lutely uncontrolled and arbitrary action of officers.

a public and administrative officer, whose Thus in the Burfenning Case, 163 U. S. action is unauthorized by any law, and is 321, 41 L. ed. 175, 16 Sup. Ct. Rep. 1018, a in violation of the rights of the individual. tract of land had been reserved from home Where the action of such an officer is thus stead and pre-emption, and had been includ- unauthorized, he thereby violates the proped within the limits of an incorporated town, erty rights of the person whose letters are notwithstanding which the Land Department withheld. 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 postoffices 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 defiance entirely cut off from all mail facilities, and thereof."

their business will necessarily be greatly in. Here it is contended that the Postmaster jured, if not wholly destroyed, such busiGeneral has, in a case not covered by the ness being, so far as the laws of Congress acts of Congress, excluded from the mails are concerned, legitimate and lawful. In letters addressed to the complainants. His other words, irreparable injury will be done right to exclude letters, or to refuse to per- to these complainants by the mistaken act mit their delivery to persons addressed, must of the Postmaster General in directing the depend upon some law of Congress, and if defendant to retain and refuse to deliver let no such law exists, then he cannot exclude ters addressed to them. The Postmaster or refuse to deliver them. Conceding, ar- General's order, being the result of a misguendo, that when a question of fact arises, taken view of the law, could not operate as which, if found in one way, would show a a defense to this action on the part of the violation of the statutes in question in some defendant, though it might justify his obeparticular, the decision of the Postmaster dience thereto until some action of the court. General that such violation had occurred, In such a case as the one before us there is based upon some evidence to that effect. no adequate remedy at law, the injunction would be conclusive and final, and not the to prohibit the further withholding of the subject of review by any court, yet to that mail from complainants being the only remassumption must be added the statement edy at all adequate to the full relief to which that, if the evidence before the Postmaster the complainants are entitled. Although the General, in any view of the facts, failed to Postmaster General had jurisdiction over the show a violation of any Federal law, the subject-matter (assuming the validity of the determination of that official that such vio-acts), and therefore it was his duty, upon lation existed would not be the determina- complaint being made, to decide the ques. tion of a question of fact, but a pure mistake tion of law whether the case stated was of law on his part, because the facts, being within the statute, yet such decision, being conceded, whether they amounted to a vio- a legal error, does not bind the courts. lation of the statutes would be a legal ques. Without deciding, therefore, or expressing tion, and not a question of fact. Being a any opinion upon the various constitutional question of law simply, and the case stated objections set out in the bill of complain. in the bill being outside of the statutes, the ants, but simply holding that the admitted result is that the Postmaster General has or facts show no violation of the statutes cited dered the retention of letters directed to above, but an erroneous order given by the complainants in a case not authorized by 'Postmaster General to defendant, which the


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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- aflidavit 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 “Alliant further says that he is unable, not inconsistent with this opinion. In over and that the plaintiff is unable by using ruling the demurrer, we do not mean to pre due diligence, to obtain service of summons clude the defendant from showing on the on the said defendants within the territory trial, if he can, that the business of com- of Oklahoma. plainants, as in fact conducted, amounts to “Atliant further states that on the day à violation of the statutes as herein con. of March, 1896, he caused a summons to be strued.

issued in said cause for said defendants, di. Judgment reversed.

rected to the sheriff of Garfield county, Ok

la homa territory. Sheriff made return, Mr. Justice White and Mr. Justice 'Defendants not found in my county.' McKenna, believing the judgment should "Afliant further states upon information be affirmed, dissented from the foregoing and belief that the said defendants Don A. opinion.

Gillett and Myrtle Gillett are nonresidents of the territory of Oklahoma, and that serv

ice of summons cannot be made on the said (187 U. S. 111)

defendants Don A. Gillett and Myrtle Gil. JOHN ROMIG and Daniel W. Harding, lett within the said territory of Oklahoma, Appts.,

and that said plaintiff wishes to obtain serv.

ice upon said defendants by publication; and MYRTLE GILLETT.

further, affiant sayeth not.'

• Publication was made and proof thereof Mortgages foreclosure

filed insufficient af.

as required by the statutes. On Defidavit for service by publication rights cember 18, 1896, a judgment of foreclosure of grantee of mortgagor.

was entered against both defendants, and a

sale of the real estate ordered. An order of 1. The grantee of a purchaser at a foreclos- sale was issued on January 20, 1897. A

ore sale cannot, because of the insufficiency sale was made to the plaintiff and confirmed of the atidavit for service by publication, by the court March I, 1897, and an order be dispossessed or the judgment set aside entered directing the sheriff to execute a by a court of equity at the instance of one deed to the purchaser and put him in pos. claiming under the mortgagor by a deed sub session. A deed was accordingly made and sequent to the mortgage, which remains un: the plaintiff put in possession on March 9, paid; but the latter is only entitled to be let 1897. Thereafter Daniel W. Harding puro in to make any egultable defense which he chased the property from the plaintiff Ro may have.

mig, received a deed therefor and entered (No. 52.)

into possession on March 10, 1897. He im.

proved the property, which up to that time Argued October 20, 21, 1902. Decided No-tion of three residences and other permanent

was unimproved prairie land, by the erecvember 17, 1902.

structures of the value of $2,000, paid taxes APPEAL. from the Supreme Court of the resided anerent. of $200, and has ever since

. of judgment affirming a judgment of the trial

On May 11, 1898, Myrtle Gillett filed a court which had set aside a judgment of motion to set aside the judgment, and all foreclosure and all subsequent proceedings, proceedings had thereunder, on the ground and directed that the grantee of the mort" that the court had never acquired any juris. gagor be put in immediate possession of the diction; that she was, at all times during mortgaged premises. Reversed.

the pendency of the action, a resident of the See same case below, 10 Okla. 186, 62 Pac. territory of Oklahoma, living in an adjoin805.

ing county and within 20 miles of the morte

gaged real estate, and that she had no Statement by Mr. Justice Brewer:

knowledge of the institution or prosecution On February 2, 1895, Don A. Gillett made of the cause until long after the sale of the and delivered to John Romig a note for land by the sheriff. Upon the hearing of $700, secured by a mortgage on 80 acres in this motion the court entered an order setGarfield county, Oklahoma. On February tir.g aside the judgment and all subsequent 6, 1895, the mortgagor sold and conveyed proceedings, and directing that she be put the real estate to Myrtle Gillette On March in immediate possession of the premises. 11, 1896, the mortgagee, Romig, commenced This order and judgment of the trial court an action of foreclosure in the district court was affirmed by the supreme court of the of that county against Don A. Gillett and territory on June 30, 1900 (10 Okla. 186, 62 Myrtle Gillett. In the petition, Myrtle Gil. Pac. 805), whereupon the case was brought lett was alleged to have some interest in the here on appeal. real estate, but junior and subsequent to The statutes of Oklahoma of 1893, which

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were in force at the time of these proceed. I receiving actual notice by the commence ings, 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 such cases “where any or all of the defend. M. Wilson and Charles S. Wilson for appel.

Messts. A. A. Hoebling, Jr., Jeremiah ants reside out of the territory, or where lants. the plaintiff, with due diligence, is unable

Messrs. William M. Springer and to make service of summons upon such de

fendantor defendants within the territory." George P. Rush for appellee.
Sections 3931, 3955, and 4498 read as

Mr. Justice Brewer delivered the opin. “Sec. 3951. Before service can be made by ion of the court: publication an aflidavit must be filed stat

The supreme court of Oklahoma was of ing that the plaintiff, with due diligence, is opinion that the aflidavit for service by pubunable to make service of the summons upon lication was wholly insuflicient in that it the defendant or defendants to be served by alleged the nonresidence of defendants sim. publication, 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 defendant Myrtle Gillett was not brought may proceed to make service by publication.” into court, and the judgment and all sub

“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 con. other service than by publication in a news tended by the appellants that a separate paper, may, at any time within three years the plaintiff, with due diligence, is unable

ground for service by publication is "where after the date of the judgment or order,

within 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 publi. be 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 th

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 per opened, which by it, or in consequence of it, sonal service by the exercise of due dili. shall have passed to a purchaser in good gence is a distinctive ground for service by 9 faith, shall not be affected by any proceed- publication. It would seem that the facts = ings under this section.”

iending to show such diligence should be *Sec. 4498. In all cases, any occupying leging inability was one of a conclusion of

disclosed, and that an affidavit merely al. claimant being in quiet possession of any law, and not of facts. McDonald v. Cooper, lands or tenements for which such person 32 Fed. 745; Carleton v. Carleton, 85 N. Y. can show a plain and connected title in law 313; McCracken v. Flanagan, 127 N. Y. 493, or equity,

or being in quiet posses. 28 N. E. 385; Ricketson v. Richardson, 26 sion of and holding the same by deed from and under any person claiming title as Kahn v. latthai, 115

Cal. 689, 47 Pac. 698;

Cal. 149; Braly v. Seaman, 30 Cal. 610; aforesaid,

or being in quiet posses. Little v. Chambers, 27 Iowa, 522; Thompson sion of and holding the same under sale on execution or order of sale against any per. Mich. 236, 19 N. W. 967; Alderson v. Mar.

v. Shiawassee County Circuit Judge, 54 Bon claiming title as aforesaid, any person in quiet possession of any land, shall, 7 Mont. 288, 16 Pac. 576. Nor is this claiming title thereto and holding the same

inability shown by the mere fact that a under a sale and conveyance made

summons issued to the sheriff of the county in pursuance of any order of court or decree in which the land is situated is returned in chancery, where lands are or have been not served, for in cases of this kind, by directed to be sold, and the purchasers there- $ 3934, a summons can be issued to and of have obtained title to and possession of

served in any county of the territory.

But while the affidavit for publication the same without any fraud or collusion on may have been insufficient, we are unable to his, her, or their part, shall not be evicted concur with the supreme court of Oklahoma or thrown out of possession by any person in its conclusions. A publication of notice or persons who shall set up and prove an was in fact made, and a publication based adverse and better title to said lands, until upon an affidavit which, however defective said occupying claimant, his, her, or their it may have been, was intended to be in heirs, shall be paid the full value of all compliance with the statute. It was ap

ing and valuable improvements made on proved by the court, which upon it rendered said lands by such occupying claimant, or a decree of foreclosure, which was executed by the person or persons under whom he, by the proper officers in the proper way. she, or they may hold the same, previous to 'By virtue of the proceedings the mortgages

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was put into possession,-a possession which turbing the possession of Harding, will givo 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

(187 U. S. 118) publication had been founded upon an affi. HOMER BIRD, Plff. in Ery., davit perfect in form, and the decree and

V. all proceedings had been in strict conform

UNITED STATES. ity to the statute, yet, by 8 3955, the defendant would be let in to defend, upon

Courts jurisdiction district court of compliance with certain conditions.

Alaska preservation of pending crimAssuming that that section is not fully

inal cases

witnesses murder in applicable because of the defect in the af

structions accomplices. fidavit, yet the appellee comes into a court

1. of equity seeking relief against the fore.

A prosecution for murder, pending at the closure of a mortgage. In such a case there

time of the passage of the act of March 3,

1899, establishing a criminal code and code are almost always certain conditions of re

of criminal procedure for Alaska, must, in lief. If the mortgage be valid the rights of view of the provision therein for tbe preserthe mortgagee and those claiming under vation of pending causes, be regarded as him are to be protected. Generally, such within the “general jurisdiction" in crimi. rights are protected by requiring payment

nal cases conferred upon the district court of the mortgage debt, and granting a right

for the district of Alaska by the act of June of redemption. It is true that this right

6, 1900 (31 Stat. at L. 321, chap. 786),

whether that court be one newly created by of redemption is a favored right. Russell

that act, which contains no provision for a v. Southard, 12 How. 139, 13 L. ed. 927;

transfer of pending causes, or be an existing Villa v. Rodriguez, 12 Wall. 323, 20 L. ed. tribunal continued thereby. 406; Bigler v. Waller, 14 Wall. 297, 20 L.

2. A woman who has been married and died. 891; Noyes v. Hall, 97 U. S. 34, 24 L. vorced is not incompetent as a witness in a ed. 909;Shillaber v. Robinson, 97 U. S. 68, capital cause because she is designated on 24 L. ed. 967. But it is only a right of re- the list of witnesses furpished to the dedemption which in this case and under the fendant in compliance with U. 8. Rev. Stat. facts disclosed the appellee is entitled to.

$ 1033,' by her maiden name, under which

she has gone since her divorce some ten or She does not pretend in her affidavit that

twelve years ago. the mortgage was invalid, or that it had

3. An Instruction that, in determining the 18been paid. She claims by a deed subsequent

sue of self-defense, the jury must, under the to thy mortgage, and simply insists that

evidence, consider the situation of tbe parshe has not had her day in court, and there- ties and the surrounding circumstances, “tofore her rights, which, so far as appears, gether with the testimony of witnesses for are only the rights of redemption, have not the prosecution as well as the evidence of been cut off. Harding, as the grantee of

the defendant," is not open to the objection the purchaser at the foreclosure sale, stands

that it authorized the consideration of the in the shoes of the mortgagee. Bryan v.

testimony of the witnesses for the prosecu

tion even if untrue, and withdrew from the Brasius, 162 U. S 415, 40 L. ed. 1022, 16

jury in passing on that issue all of the eviSup. Ct. Rep. 803. As shown by the opin

dence for the defendant except his own tesion in that case and cases cited therein, a

tlmony, when considered with other instrucmortgagee who enters into possession, not tions giving the rule as to the credibility of forcibly, but peacefully and under the au- witnesses, and enjolding the jury to conthority of a foreclosure proceeding, cannot

sider the whole evidence and render a verbe dispossessed by the mortgagor, or one

dict in accordance with the facts proved,

and to determine from the evidence the reclaiming under him, so long as the mort

spective situations of the several parties gage remains unpaid.

4. The refusal of requested instruction Under $ 4498 the appellant Harding has

which singles out certain testimony as deall the rights of an occupying claimant, for

terminative of a reasonable doubt of guilt he was "in quiet possession, claiming title is not error, even if such instruction be a and holding under a sale and conveyance

correct one, where the whole case is submade in pursuance of a decree in chancery,

mitted to the jury. where lands have been directed to be sold, 5.

An instruction that an attempt to escape,

made after many months of confinement, and the purchasers thereof have obtained

and comparatively without danger, tended, title to and possession of the same without

though only slightly, to prove guilt, was as any fraud or collusion.” Of course, this

favorable to the accused as he could demand section applies to proceedings which are de- where the only testimony on that subject refective, for, if not defective, by $ 3955 a lated to an escape made in October followpurchaser in good faith has title, and can. ing an arrest in June, and was objected to not be evicted upon any terms.

solely on the ground that the escape was too

remote from the commission of the offense The decree of the Supreme Court of Okla

and the arrest and imprisonment to be enti. homa will be reversed and the case remand

tled to go to the jury. ed to that court, with instructions to set

6. A requested instruction, though expressing aside the order of the trial court, and to

the law correctly, 18 properly refused where direct the entry of one which, without dis- there are no facts lo the case to justity it.

· U. S. Comp. St. 1901, § 722

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