FEDERAL REPORTER ,
land-office, should be carried to a speedy determination. In the case of agricultural lands, controversiesJasto' tne ownership were settled in the land-office. But this practice was always unsatisfactory; and so, in the act now under conSideration, it was piovidedthat, iIi case of adverse claimants to the sRln(;l, tract of mineral land, the parties shall go into acon1.'tiOfeompetent jurisdiction, where, from the orderly course of esbetter, results may be expected. Promptness and diligence,uHJuch matters is of the greatest importance to all concerned; and that the'!adv.erse. claill,1ant in. the 'land-office must begin suit to settle the title within 80 days from the time offiling his adverse claim, and he must prosecute the suit reasonable diligence. There is no exception as to the claimahtwhomay be beyond seas, or under disability of any kind, or who mayfuiltoact from inadvertence or other cause. The suit must be brought . within the time specified, and it mnst be prosecuted with reasonable diligence. The act says: "And a failure so to do shall be a waiver of his adverse claim." ThiSadtadmits of no 'additiejD 6r'llIodificlttionfrom; the statute of the stale; 'andi where, as in this instance, .the claimant commences suit in due and is cast in his suit, he is without remedy, except such as may bEiobtained in the 'same suit on appeal or wtitof erior. The demurrerwill be sustainedyand judgment of dismissal will be entered.
OALDWDioL,. J .,concurs.
3893,_ amended by act of S"lltember 2(\; 1888,making it an of· tense.to for delivery"aDy"obacene, lewd. or laaciVfoulIbook, pamphlet, .paper, * * * Of 811 character, ** :.' ',whetber seMed as 'first-oiass matter 01" not, "inoludes 'a private letter, inclosed in'a sealed:envelope, alld, oontaillJlIg such
.A oom,p.IS.hit 'a. ,gainsta.perllon tor violation of such secti.ottris sufficient if it merewitl).:b/,ving deposited in .the mail On abscene, lewd, and las.' civious lett,el" without sllttillll'.OUt the 1Imll'uage used
SAME-:-SUIIFIOJENOY OF CW,o'LAIN'r. . .
Ret, StI. 'U.
MATTER TJlROUGH flIE ;J(.uLS-PIUVATlil LETTER&
. . . . o ' ....
Where thiS e:laminatil1lUofa person charA'ed With the Violation of a United states lsi trl'l1Sferred by tbeoommissioller before whom the,watrant is returnable . to 'another coIritrlissioner in tlle same district, the latter has ji.1rilldiotion to take the examination and commit defendant, if the' charge 1$ sUatlUned. '. . ·· '
NIllUlON,J. ,. A petitiQn.'signed by 'Bfu!ney A. Wahllwas presented to me on MIJ;y,'8. 1896. ,·'l'bepetitioner:t:eprp-sooted and that he, '
IN RE WAHLL.
,the said WahU; is unjustly and unlawfully detained arid imprisoned, and restrained of his liberty, by William' M. Campbell, mars,hal of the Winona, United States for the district of Minnesota, in the county and that the cause of the petitioner's confinement, restraiilt, and imprisonment is as follows: That on the4thdayof,April, ,1890, Eugene G. Hay, acting as United States district attorney for said district, made a com plaint before Ambrose Tighe, a commissioner of the circuit court of the, United States in said district, wherein and whereby he, the said EugeneG. Hay ,attempted to charge the petitioner with having committedan ·offense Rg&.inst 'section 3893' of the Revised' Statutes of the 'United ,States" and that the commissioner issued aWRl'rant directed to Ahesaid,CampbeU, as marshal, commanding him to forthwith arrest the petitioner, and/bring him before Frank Ives, a commissioner of the circuit court aforesaid, residing in Crookston,in saididistrict, there to be brought dealt with ,acoording to law; that the petitioner was before Commissioner Ives on April 22, 1890, and, upon motion of peti. ,tiQner's .counsel'andaffiilavit, the examination was .transferred to Commissionet George, .in said district, who proceeded to bear the case, after overrtl1ing a motion. todischal'ge on the ground that no 'offense was charged in the complaint and warrant, and heeommitted the petitioner. ., The warrant of commitment iaRS follows:
."U. S. OJ AlIJERIOA, OF "The PresIdent of the United States 01 4merica to, ,tMMarshal Q.f tMlJkJ·
triot, of Minnesota ,of Minneso'ta, Greeting:
Keepet:Qtthe Jail of in, the Stats ,..., "..,' . ',' " .. .
;Barney A. Wabil h811 beeri UpPll the ,oatbof EugeneG. Hay. United States districtattol'ney.· for having. on' or about the'19th day of April, 1889, in said distriet. in viOlation of sec. 3893 of tbe Revilled Statutes of · the United States, unIMvful'ly. wrongfully. and knowingly depoSited; and caused ,to be deposited. a certain letter in a post.office of.the BnitedStates, to-wit. the ,. of King. in Polk cou!lty, sti;l.tia ofM.innesota, in said Illstrict, and within the .jurisAiction of thisCQul't. for mailing and deli very to one ,Miss Eya.Johnson, ofOvetia P.O., in sl:\id Polk county,l\linnesota. whicbsaidletter Wall writ·ten ml four several sheets or pieces of paper. on each of which were illuDlinated comical 'pic1Jures commonly known as and called' comicvnlentines. ' and then and there containing and oonsisting of indecent. obscene. 'lewd. and lascivious delineations, epithets, terms. words, and writing. and which said letter Was then and there a lewd. obsc!!De, and lascivious letter,and was inc(osed"in a sealed envelope, and containing the following ·Miss Eva · Ovetia, Polk Co., MInn.;' ap.d the · King Minn .A.pI19/90;'and, after an examination being this day had by me, .it appearing to me that said offense had been committed, and probable cause being shown to believe said Barney A. Wahllcommittedsald offense. as charged, I have di· rected that .said Barney At Wahll be, held to bail, in the sum of $500. to appear at ,thEl first day of the term, of tM district the United States Minnesota, at Winona, and he haVing failed quired. bail: these are, therefore, in nalll.!! utld by tile aforesaid.dto command you, the said marsh'al, to comJDit the said Barney A. Wahll to the custody of the keeperof said jail of Minn ·· andio leave ;.with;said jaller certified copy ofthia· writ, and to commandyou.,the ·91. sl\i4 /m.jd cQunty.toreceive the saidBarney A. Wahllo. arthe
U.S·· ot America, into your custody in said jail, and him there safely to keep discharged by due course ofla w. until "In witness whereof, Ibave bereuntoset my hand and seal at my office in said district this 1st day of May, A. D. 1890., "EDWARD GEORGE, [8ea1.] "Commissioner of the Circuit Court of the U. S. for the District of Minnesota." ;
The petitioner alleges that his detention and imprisonment is by virtue of the complainti warrant, and commitment only, and that the same are wholly 'Void, for the reason that they, and enchof them, fail to contain : or allege facts sufficient to constitute an offense against the laws of the United,States,and that:said commissioner, George, had no jurisdiction to issue the warrant of commitment, and no evidence was produced in support of .said prerehdedcharge. A writ of habeas COrpU8 is prayed for, and a writ of certiorari to bring the evidence taken by the commissioner 'before the court. The.petition being sworn to, a writ of habeas carpus, returnable forthwith, was issued and deliv.ered to Marshal Campbell, who made a return certifying that he held the petitioner,Wahll, in 'custody by virtue ofthe warranli'lofcommitment of Commissi(jner George, whioh isa.ttached,and madeplltft. of the return, being the same as set forth, accompanying the petition; and the body of the petitioner is also produced in court. . The order for a .writ of certiorari is.'Yaived by petitioner's counsel, and ainTotion to disc'ba'rge is made upon the petition and return wHh the warrantof·commitment. ' It is urged (1) that the commissioner had uo (2) that the facts in the complaint are too indefi,nite to inform Wahll of the charge against hiin;(3) that n6 offellse is,charged. . It is sufficient to say, in reference to the. first reason urged, that Com· missionerGeorge, who,.heard the case, was a duly-appointed commis· sioner of the circuit court, and fully empowered to examine the charge made againstWahll, and commit bim, Win his opinion the charge was sustained. The. transfet' from Commissioner Ives,under the circumstances,wasproper, and is the usual mode of procedure where, for any reason, one may not be able to sit. as an examining magistrate. the tranl3fer was made at the request of Wahll's counsel, and on his behalf. There is little force in the second reason presented. The accused was . clearly and faMy informed of the charge against bim; sufficiently sO,at least, to enaqle.hiOl to make his defense, and that is all that can he required. .',rhe obScene and lascivious language used in the letter, the does not to be set forth in hll3C verba. The third reason' assigned for the petitioner's discharge is the only one presented about·whichthere might be an honest difference of opinion. The charge is 'that Wahll, about April 19., 1890, in violll,tion of section 8893 of the. VIlited States .Revised Statutes, unlawfully" l;\Jl,d knowingly ,deposited., to be dePosited, in a pOBt-offi.ceofthe United StIltes,·tQ:-wit, tbe,post-offioeof King, PolkcountYi Minn., in said district, and withinthejurisdiction oHhis court, .for mailing anddeliv·
IN RE. .w AHLL.
ery to Miss Eva Johnson, at Ovetia P.O., Polk county, Minn., whicr. said letter was written on several sheets or pieces of paper, on each of which were illuminated comic pictures, commonly called "valentines," containing and consisting of indecent, obscene, and las9ivious delineations, epithets, terms, and words, and which said letter 'was then and there an obscene and lascivious letter, and waS inclosed in a sealed en· velope, and contained the following superscription: "Miss Eva Johnson, Ovetia,Polk Co., Minn." On September 26, 1888, section 3893 was amended so as to read as follows: "Every obscene, leWd, or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and everyarti. cIe or thing designed or intended for the prevention ,of conception or procur· ing of abortion, and every article or thing intended or adapted for any inde· cent or iUlmoral use, and every written or printed' card, leLter, circular, book, advertisement, or notice of any kind giVing information, directly <>r indirectly, where or how, or of whom, or by what means, any of the hereinbefore mentioned matters, articles, or things may be obtained or made, whether sealed as first-class' matter or not, are hereby declared to be non-mailable,matter, and shaH not be conveyed in the mails, nor delivered from any post-office nor by any letter-carrier; and any person who shall knowingly de-posit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non·mailablematter, or any person who shall knowingly take the same, or cause the sametobe taken, from the matIs, for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of, the same, shall for each and every offense be fined, upon conviction thereof, not more than $5,000, or imprisoned at hard labor not more ,than five or both,at the discretion of the conrt. And a.ll offenses committed under the section of which this is amendatory, prior to the approval of this act, may be prosecnted and punished under the same in the same mauner, and with the same effect, as if this act had not been passed: provided, that noth. ing in this act shall authorize any person to open any letter or sealed matter of the first class not addressed to himself." It is urged that knowingly depositing'in a post':office, for and delivery, a private letter ina sealed envelope, although containing scene and lascivious and indecent messages and epithets, is not an of· fense, or in violation of section 3893, even as amended September 26, 1888jand the reason urged is that, no matter how grossly obf'cene may be the character of the letter, its form protects it, and; being sealed, it is mail matter entitled to be transported, and cannot be excluded from the mail. It must be admitted that congress has the power to prescribe regulations as to what shall constitute mail matter, but it is urged that the sanctity thrown around the private correspondence of the citizen by law;' and the difficulty of enforcing a regulation excluding from the mail an obscene sealed letter, has in the past deterred congress from including . sealed letters within the express terms of section 3893; and the present amendment, which specifies and excludes obscene letters from the mails, must be limited to unsealed letters. The legislation on this subject is first found in the act of June 8, 1872, which provides"That no obscene book, pamphlet, picture, print, or other publication of a VUlgar or indecent character, or any letter upon the envelope of which, or
pl!istalcamnpon, whicb, scurrilous ePithets may have beenwot:itten6r printed. ... .... be carried in the /,,'
The statute,amended from time to time, became section 3893, Rev. St., and in 1876 was'again amended by adding the word "writing" before "print," and substituted this provision: "And every letter, upon the velope ofwhich, or postal-card upon which, indecent,lewd,obscene, orlascinoue delineations; epithets, terms, or language maybe written or printed," is declared to be non-mailable matter. The decisions upon this section, as it stood iri 1,876, wereoonflicting. Some courts ivigorously insisted that theword" writing" was socomprehensive as to includea private, sealed letter. OtheJ,'s IUlsertedthtlt, by the amendment oftheword ing;"Cl)bgress intendedithat ihhduld be a publication,and be so Jimited, and; sel!-lea'letter through themail to another perthe mailin,g the letter, and to whom it apout it, was not a "pu1jlica?qil." within themea.ning of the stAtute; and.t1}en, again, the in speak. ingofletters, excluded only those upon the envelope of which indecent andbbseene i ete., were written or printed. Which view of the we find it'lifter the amendment. inserting the 'word "writing," is In my opinion, since the amendment of Septelp1;ler26, can be' reasonable congress c1earlY'j6xpressed its intention to exclude obscene letters,.w1}ether private alld'sealedor unstlaled.It in terms included an obscene letter, without anylimitatioli, and struek out of section 3893 the'formerclause in referertce'to}etters upon the envelopes of which obscene epithets. etc., were or ·." It provided for the. S!1nctity and seprivate b-y. a provision that no sealed letter should be Qpened by any person except the one to whom addressed, but in no doubtful language declares an obscene letter non-mailable. It is urged that the rule of n08citur a 80ciiB would still limit the word an unsealed publication. While ordinarily.this rule of interpretationis recognized, still, when the intention of congress is apparent frottlthe history of the legislation on the subject, and its clearly-expressed language, courts will not enforce the rule. !think lio one canfollo'W: the legislation from 1872 up to September 26, 1888,w'ithout being conwinced that congress intended finally to purge the United States mail, and as far as possible prevent. it from becoming a vehicle for thetransmill8ion of obscene, indecent,and lascivious messages.The writ of habeas C07pU8 is dismissed, and the prisoner remanded
IN, BE ESMOND.
(.z:>i8trict Oourt, D. South Dq1wta. June, 1890.)
CBIMnUL LAw-TBRIUTORUL CoURTS-COMULATtV'B BUTBNCBL
Rev. st. Idal;10t § 7281, providing that cumulative sentencell may be Imposed 011. person convicwa of two or more applies to o1fensesllgainst the: UDite4 States tried in the territorial courts. '
t. SiKH.' Cumulative sentences are valid, If they arede1lnite and certalD.
Petitiop for Writ of (Jo,ptl8. Winsor & Kittredge, for petitioner. Wm. B. Sterling, for the States.
FOSTEB,J". This is an application made by Henry Esmond. 8 pris, oner trieliand sentenced in the district court of the territory of Idahoexercising United States jurisdiction for certain purposes, on four cons victions for offenses connected with,the robbery of the United Statemail. 'The prisoner was sentenced to four oonsecutive terms of imprisonment,of three Ylilltrs each; the judgmeQ,t of the court providing in each of the sentences after the first that, the additional term of three years was "to (lommence at the expiration of the term of three years to be served by said defendantthis day adjudged against him in the case of the United States, criminal number three, against Henry Esmond, or whenever his term of imprisonment after the judgment in said case shall cease and be ended for any reason, except by the death of the said no United States prison in the territory of defendant." There Idaho, the said Esmond was confined by order of the attorney general in the United States penitentiar;r at Sioux Falls, in the territory of Dakota. The sentence was rendered on the 30th day of September, 1886, and the first term expired, after giving credits for good behavior, on the 30th day of May, 1889. The question presented for our decision is whether the said consecutive sentences are legal and valid. It is claimed by the petitioner that the said sentence beyond the first im· prisonment is illegal and void because it is indefinite and uncertain, and the court had no power to impose a cumulative sentence. The stat' ute of Idaho contained the following provision:
"When any person is convicted of two or more crimes, before sentence has been pronounced upon him for either, the imprisonment to which he is sentenced upon the second or other subsequent conviction must commence 'at the termination of the first term of imprisonment to which he shall be adjUdged, or at the termination of the second or other subsequent term of imprisonment, as the case may be." Rev. St. Idaho, § 7237. It is contended for the petitioner that this provision does not apply to offenses against the laws of the United States tried in the territorial
courts. Touching this question, there are two cases decided by the supreme court to which we will refer. Reynolds v. U. S., 98 U. S. 145, a prqsecution in the territorial courf:8 of Utah for bigamy under the