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by a special act of the legislature of the state of Colorado, approved February 1, 1876, which may be found in the Laws of Colorado for that year, at page 175. This act empowered the mayor of the city of Central, with the consent of its council, to sell any unsold lots in the town site at private sale, under certain circumstances, and nowhere required the city authorities to give a preference in the purchase to those who entered upon the possession of the property subsequent to the issue of the patent. No violation or disregard of the terms or limitations of the trust imposed upon the city is therefore disclosed by the pleadings, and the deed to the defendant in error is not invalid.

Moreover, the questions whether or not the city authorities complied with the terms of the statutes prescribing the preliminaries, and declaring the method for a conveyance of the lots in the town site, and whether or not on that account its deed may be avoided, cannot be considered in this action of ejectment. Whether the deed was executed after compliance with the required preliminaries, and in strict accordance with the requirements of the statutes, or not, it conveyed the legal title to this property to the defendant in error. The statutes of Colorado intrusted to the authorities of the city the power to hear and determine the questions whether or not these preliminaries had been performed and these requirements had been fulfilled, and authorized them, upon that determination, to make the conveyance. The legal presumption is that they discharged these duties honestly and in accordance with the provisions of the law. That presumption might undoubtedly be overcome in a suit in equity by pleading and proof of gross mistake, fraud, or error in law. No such proceeding has been instituted. No suit to attack or avoid this deed has been brought. This is an action at law, and in this action the defendant in error had a right to rely upon his conveyance. It cannot be collaterally attacked in this action of ejectment. The deed of the city authorities authorized to convey lots in a town site is presumptively valid, and it cannot be collaterally assailed in an action at law for a failure of the authorities to require the preliminaries or perform the requirements antecedent to its execution. Chever v. Horner, 11 Colo. 68, 71, 79, 17 Pac. 21, 7 Am. St. Rep. 202; Smith v. Pipe, 3 Colo. 187, 199; Anderson v. Bartels, 7 Colo. 256, 263, 266, 267, 3 Pac. 225.

Finally it is contended that the defendant in error is estopped from claiming that he is the owner of this land under the patent of the town site, and that it was not subject to entry as a mining claim on June 7, 1897, because he has pleaded in his complaint that this suit is brought in support of an adverse claim filed in the land office against the entry of this land for patent by the plaintiff in error under section 2386 of the Revised Statutes. But there is nothing inconsistent in the adverse claim of Jenkins and this action of ejectinent. The statutes permit any one to file an adverse claim whenever application is made to enter a mining claim upon the public lands for patent. If an attempt is made to secure a patent to land which has already been conveyed by the government, the land department has no jurisdiction to consider or determine the questions it presents. An adverse claim presented to that department which discloses the fact that the adverse claimant holds it under a patent already issued is entirely consistent with an action of ejectment, based upon that patent, to turn the trespassing claimant out of possession. Not only this, but section 2326 of the Revised Statutes, under which the adverse claim is prosecuted, requires the claimant to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and to prosecute the same with reasonable diligence to final judgment. The averments of the complaint base the claim of the defendant in error upon the patent of the town site issued in 1876. That pleading contains no averment or intimation of any concession or claim that the disputed property was a portion of the public domain, and subject to the disposition of the land department, after che issue of the patent to the city of Central. The only unwarranted averment in that pleading is the allegation of the expenses of preparing and presenting the adverse claim, and the most that can be said of this is that it is immaterial. No relief was granted on account of it, and there is nothing in the pleadings, the proceedings, or the judgment inconsistent with the claim and recovery of possession by the defendant in error upon the patent of the town site in 1876. An action of ejectment based upon a patent issued prior to the initiation by the deiendant of a mining claim for which he has applied for a patent is not inconsistent with a claim adverse to that application, under section 2326 of the Revised Statutes, and such adverse claim does not estop the plaintiff from maintaining his action.

The result is that the patent of the town site conveyed the title to this land to the city of Central and its successor, the city of Blackhawk, and the conveyance of the latter vested it in the defendant in error. The deed of Lyman Cook conveyed no title or interest in this property, because he had none. The attempt of William Rogers to initiate a mining claim upon it in 1897 was futile, because all right, title, and interest in it had passed out of the government in 1876. His conveyance to the plaintiff in error, therefore, was ineffectual, and the judgment below must be affirmed. It is so ordered.

(113 Fed. 639.)
DEMING v. MCCLAUGHRY, Warden of U. S. Penitentiary. Ft. Leavenworth,

(Circuit Court of Appeals, Eighth Circuit. February 10, 1902.)

No. 1,656.)


Officers of the regular army are incompetent, under the seventyseventh article of war, to try the officers or soldiers of the volunteer forces raised under the acts of April 22, 1898, and March 2, 1899 (30

Stat. 361, c. 187; Id. 977, c. 352). 2. WRIT OF HABEAS CORPUS-FUNCTION.

The writ of habeas corpus is not available to review an erroneous judgment of a court having jurisdiction. But it is effective to challenge a judgment rendered by a court without jurisdiction, and to relieve the


A court-martial is a court of inferior and limited jurisdiction. Proof (1) that it was convened by an oflicer empowered by the statutes to call it; (2) that the officers whom he commanded to sit upon it were of those whom he was authorized to detail for that purpose; (3) that the court thus constituted was vested with power to try the person and the offense charged; and (4) that its sentence was in conformity to the statutes.is indispensable to its jurisdiction and to the validity of its judgment



No officer is authorized, but every officer is forbidden, to constitute of officers of the regular army a court-martial to try a volunteer, and the judgment of such a court-martial against a volunteer is without juris


The opinions of officers of other departments of the government relative to the construction and effect of statutes intrusted to them to enforce deserve serious consideration, and may well lead the way to decisions where the statutes are ambiguous and their meaning doubtful. But it is a duty of the courts, which they may not renounce, to interpret legislation by their own judgments; and where the words of a statute are clear, and its meaning plain, these must prevail, notwithstanding

the opposing opinions of officers of other departments of the government. (Syllabus by the Court.)

Appeal from the Circuit Court of the United States for the District of Kansas.

This is an appeal from an order of the circuit court, which denied the petition of Peter C. Deming for a writ of habeas corpus upon this state of facts: Deming was, on March 29, 1900, a captain in the subsistence department in the volunteer army of the United States. On that day William R. Shafter, a major general of the volunteer army, and a retired brigadier general of the regular army of the United States, ordered that a general courtmartial, composed entirely of officers of the regular army, should convene "for the trial of Captain Peter C. Deming, assistant commissary of subsistence, U. S. volunteers.” The court thus called sat, tried the appellant upon some charge, and sentenced him to dismissal from the service of the United States, and to confinement in the penitentiary for three years, and this sentence was approved by the secretary of war, and confirmed by the president of the United States. Deming is confined in the penitentiary at Leavenworth, Kan., under a mittimus based on this judgment. He avers that the sentence upon him is void, and that he is illegally deprived of his liberty, because Gen. Shafter, a retired officer of the regular army, had no authority to convene the court, and because the court-martial which condemned him was not regularly constituted or organized, in that it was composed entirely of officers of the regular army, who were expressly prohibited to hear or determine any charge against him, an officer of the volunteer army, under the seventy-seventh article of war (Rev. St. 8 1312), which reads: "Officers of the regular army shall not be competent to sit on courts-martial to try the officers and soldiers of other forces except as provided in article seventy-eight.”

John H. Atwood (William W. Hooper, on the brief), for appellant.

E. H. Crowder and Edward A. Rozier (George C. Hitchcock, on the brief), for appellee.

Before CALDWELL, SANBORX, and THAYER, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The petitioner, Deming, was an officer of the volunteer force raised under the act of congress of March 2, 1899 (30 Stat. 977, c. 352). He was tried and convicted by a court-martial composed of officers of the regular army. The seventy-seventh article of war declares that officers of the regular army are not competent to sit on courts-martial to try the officers and soldiers of other forces. The crucial question in this case is, was this volunteer army the same army as the regular army, or was it a different and supplemental army? Was this volunteer force raised under the act of 1899 the same force as the regular army, or was it one of the “other forces” of the United States within the intent and meaning of article 77? On a cursory reading of the article the question does not seem to be difficult, nor the true answer to it doubtful. And, were it not for the earnest and forceful presentation of their view by the learned counsel for the government, and for the fact that the general commanding the army under the advice of the judge advocate general has held that under the act of April 22, 1898 (30 Stat. 361, c. 187), and of March 2, 1899 (30 Stat. 977, c. 352), the volunteer force is the same force as the regular army, and that the officers of the latter may lawfully try the officers of the former (Circular 21, H. Q. A., June 30, 1898), that contention might not seem forceful. But the opinions of the officers of the executive department of a government relative to the construction of a statute whose execution has been intrusted to them justly command and should receive the careful consideration of the courts, and in doubtful cases they should be permitted to lead the way to their decisions. Their opinions ought not to be overruled or disregarded unless upon a deliberate and careful review of the decisions which they render it clearly appears that they are tainted with error. On the other hand, the decisions of these officers are not controlling or conclusive upon the courts. It is the function and duty of the judicial department of the government to construe its statutes and to declare their meaning. That duty the courts may not renounce or abandon to others, and in its discharge they must exercise their own independent judgments, guided only by the established principles of the law and the recognized canons of interpretation. While the opinions of the officers of the executive department of the government may be permitted to lead the way to the proper construction of ambiguous statutes intrusted to them to enforce, yet where the words of the acts are plain, and their meaning is clear, these must prevail. Hartman v. Warren, 76 Fed. 157, 162, 22 C. C. A. 30, 36, 40 U. S. App. 245, 254; Webster v. Luther, 163 U. S. 331, 342, 16 Sup. Ct. 963, 41 L. Ed. 179; U. S. v. Tanner, 147 U. S. 661, 663, 13 Sup. Ct. 436, 37 L. Ed. 321; Merritt v. Cameron, 137 U. S. 542, II Sup. Ct. 174, 34 L. Ed. 772; U. S. v. Graham, 110 U. S. 219, 3 Sup. Ct. 582, 28 L. Ed. 126; Swift, C. & B. Mig. Co. v. U. S., 105 U. S. 691, 26 L. Ed. 1108.

Guided by these familiar and indisputable rules of law, the question whether the volunteer force raised under the act of 1899 was the same force as the regular army, or one of the "other forces” of the United States, within the meaning of article 77, will be considered. That article reads:

"Officers of the regular army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces except as provided in article 78."

The exception in article 78 relates to the officers of the marine corps, and does not withdraw the appellant or the officers who tried him from the prohibition of the general rule announced in article 77. The provisions of the act of March 2, 1899, pertinent to the issue under consideration are these:

"That from and after the date of the approval of this act the army of the United States shall consist of

ten regiments of cavalry, seven regi. ments of artillery, twenty-five regiments of infantry," and appropriate officers, departments and corps. 30 Stat. 977, c. 332, $ 1.

"That to meet the present exigencies of the military service, the president is hereby authorized to maintain the regular army at a strength of not exceeding sixty-five thousand enlisted men to be distributed amongst the various branches of the service, including the signal corps, according to the needs of each, and raise a force of not more than thirty-five thousand volun. teers to be recruited as he may determine from the country at large, or from the localities where their services are needed, without restriction as to citi. zenship or educational qualitications, and to organize the same into no more than twenty-seven regiments organized as are infantry regiments of war strength in the regular army and three regiments to be composed of men of special qualifications in horsemanship and marksmanship to be organized as cavalry for service mounted or dismounted,

provided, further, that such increased regular and volunteer force shall continue in service only during the necessity therefor and not later than July 1st, 1901. All enlist. ments for the volunteer force herein authorized shall be for the term of two years and four months unless sooner discharged.” 30 Stat. 977, $ 12.

That the president shall have power to continue in service or to appoint by and with the advice and consent of the senate certain brigadier generals of volunteers and major generals of volunteers: "provided, that regular army officers continued or appointed as general officers or as field or staff officers of volunteers under the provisions of this act shall not vacate their regular army commissions." 30 Stat. 977, § 13.

That the president is authorized to appoint, with the advice and consent of the senate, officers of the volunteer staff, including 12 assistant commissaries of subsistence with the rank of captain. 977, §. 14.

That the officers and enlisted men of the volunteer army shall be mustered out of the military service of the United States and discharged as provided in the act of April 22, 1898, provided that enlisted men of volunteers who desire to remain in the military service may be transferred to and enlisted in the regular army. 30 Stat. 977, § 15.

It will not be unprofitable to briefly call to mind the course of the legislation, decision, and practice of the nation relative to the matter in hand prior to 1899 before entering upon the discussion of the question which that act and the seventy-seventh article of war present. The American articles of war of 1776 provided that "the officers and soldiers of any troops, whether minute men, militia, or others," should, when joined with the regular forces, be subject to be tried by courtsmartial in like manner with the officers and soldiers in the regular forces, "save only that such courts-martial shall be composed entirely of militia officers of the same provincial corps with the offender." Davis, Military Law, p. 617. Section 6 of the act of May 2, 1792, reads in this way: “And be it further enacted, that courts-martial . for the trial of militia shall be composed of militia officers only." I Stat. 264, c. 28. This provision was re-enacted in the act of Febru

30 Stat.

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