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United States, 228 U. S. 457, 57 L. ed. surrender the papers under such circum. 919, 47 L.R.A.(N.S.) 263, 33 Sup. Ct. stances. Had it learned that such inRep. 572; Perlman v. United States, 247 criminatory papers, tending to show a U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Rep. violation of Federal law, were in the 417; Silverthorne Lumber Co. v. United hands of a person other than the acStates, 251 U. S. 385, 64 L. ed. 319, 40 cused, it having had no part in wrongSup. Ct. Rep. 182; and Gouled v. United fully obtaining them, we know of no States, decided February 28th, this term reason why a subpæna might not issue [255 U. S. 298, ante, 647, 41 Sup. Ct. for the production of the papers as Rep. 261].

evidence. Such production would reThe 4th Amendment gives protection quire no unreasonable search or seizure, against unlawful searches and seizures, nor would it amount to compelling the and, as shown in the previous cases, its accused to testify against himself. protection applies to governmental ac- The papers having come into the postion. Its origin and history clearly show session of the government without a vithat it was intended as a restraint upon olation of petitioner's rights by governthe activities of sovereign authority, mental authority, we see no reason why and was not intended to be a limitation the fact that individuals, unconnected upon other than governmental agencies; with the government, may have wrongas against such authority it was the pur- fully taken them, should prevent them pose of the 4th Amendment to secure the from being held for use in prosecuting citizen in the right of unmolested occu- an offense where the documents are of pation of his dwelling and the posses. an incriminatory character. sion of his property, subject to the right It follows that the District Court erred of seizure by process duly issued. in making the order appealed from, and

In the present case the record clearly the same is reversed. shows that no official of the Federal government had anything to do with the Mr. Justice Brandeis dissenting, with wrongful seizure of the petitioner's whom Mr. Justice Holmes concurs: property, or any knowledge thereof un- Plaintiff's private papers were stolen. til several months after the property The thief, to further his own ends, dehad been taken from him and was in the livered them to the law officer of the possession of the Cities Service Com- United States. He, knowing them to pany. It is manifest that there was no have been stolen, retains them for use invasion of the security afforded by the against the plaintiff. Should the court 4th Amendment against unreasonable permit him to do so? search and seizure, as whatever wrong [477] That the court would restore was done was the act of individuals in the papers to plaintiff if they were still taking the property of another. A por- in the thief's possession is not question of the property so taken and held tioned. That it has power to control the was turned over to the prosecuting of- disposition of these stolen papers, alficers of the Federal government. We though they have passed into the possesassume that petitioner has an unques- sion of the law officer, is also not questionable right of redress against those tioned. But it is said that no provision who illegally and wrongfully took his of the Constitution requires their surrenprivate property under the circum-i der, and that the papers could have been stances herein disclosed, but with such subpænaed. This may be true. Still I remedies we are not now concerned. cannot believe that action of a public

The 5th Amendment, as its terms im- official is necessarily lawful because it port, is intended to secure the citizen does not violate constitutional prohibifrom compulsory testimony against him- tions, and because the same result might self. It protects from extorted confes have been attained by other and proper sions, or examinations in court proceed- means. At the foundation of our civil ings by compulsory methods.

liberty lies the principle which denies The exact question to be decided here to government officials an exceptional is: May the [476] government retain position before the law, and which subincriminating papers, coming to it in the jects them to the same rules of conduct manner described, with a view to their that are commands to the citizen. And use in a subsequent investigation by a in the development of our liberty insistgrand jury, where such papers will be ence upon procedural regularity has part of the evidence against the accused, been a large factor. Respect for law and may be used against him upon trial will not be advanced by resort, in its should an indictment be returned ? enforcement, to means which shock the

We know of no constitutional princi- common man's sense of decency and fair ple which requires the government to play.


ARCHIE J. McLAREN, Administrator, ing out of conflicting applications to enetc., Petitioner,

ter a quarter section of land under the

Homestead Law. While the land was L. G. FLEISCHER.

public and unappropriated one Rider (See S. C. Reporter's ed. 477-482.)

made a homestead entry of it, and later

it was included, with other lands, in a Statutes departmental construction first-form reclamation withdrawal. The

public lands entry after cancel- withdrawal did not extinguish Rider's ation.

1. The long-continued, practical con entry, but, while in force, prevented the struction by the Land Department of the initiation of other claims. It was largeprovision of the Act of May 14, 1880, that ly provisional, and whenever, in the "in all cases where any person has contest. judgment of the Secretary of the Interied, paid the land office fees, and procured or, any of the lands were not required the cancelation of any pre-emption, home for the purpose for which the withstead, or timber-culture entry, he shall be drawal was made, they were to be re. notified by the register of the land office of stored to public entry. While the withthe district in which such land is situated drawal [479] was in force, one Fleischof such cancelation, and shall be allowed

er instituted a contest against Rider's thirty days from date of such notice to enter said lands," as giving a successful con

entry, at his own cost collected and pretestant, when, at the date of the notice, the sented evidence establishing its invalid. land, by reason of an existing withdrawal, ity, and procured its cancelation. Rider is not open to entry, thirty days after the acquiesced in that decision, and is not land is restored to entry within which to concerned in the present controversy. exercise his preferred right of entry,—will Fleischer had no claim to the land prior not be disturbed by the courts.

to the contest, and in instituting and (For other cases, see Statutes, II. e. 2, in Digest Sup. Ct. 1908.)

carrying it through acted as a common Courts rules of decision obiter informer, which was admissible under dicta.

the Public Land Laws. To encourage 2. Observations in the opinion of a the elimination of unlawful entries by court as to rights on which no claim was such contests Congress had declared in based in that case, the decision rendered the Act of May 14, 1880, chap. 89, 21 being affirmed on other grounds, are neither authoritative nor persuasive.

Stat. at L. 140; Comp. Stat. § 4536, S [For other cases, see Courts, VII. b, in Digest Fed. Stat. Anno. 2d ed. p. 597: Sup. Ct. 1908. ]

"In all cases where any person has [No. 291.]

contested, paid the land office fees, and

procured the cancelation of any preArgued April 26 and 27, 1921. Decided emption, homestead, or timber-culture June 1, 1921.

entry, he shall be notified by the register

of the land office of the district in which ON WRIT of Certiorari to the

such land is situated of such cancelation, Supreme Court of the State of Cal- and shall be allowed thirty days from ifornia to review a judgment which af- date of such notice to enter said lands." firmed a judgment of the Superior Court

When Rider's entry was canceled the of Riverside County, in that state, dis-register sent to Fleischer a written nomissing the bill in a suit to establish a tice informing him thereof, anå stating trust in land patented under the Home- that he would be allowed thirty days stead Laws. Affirmed.

after the tract was restored to public See same case below, 181 Cal. 607, entry within which to enter it in the 185 Pac. 967.

exercise of his preferred right as a sucThe facts are stated in the opinion.

cessful contestant. The notice was dated Mr. Samuel Herrick argued the cause, February 11, 1909. Afterwards the and, with Mr. Henry M. Willis, filed a Secretary of the Interior issued an order brief for petitioner.

whereby the lands included in the withMr. Patrick H. Loughran argued the drawal were restored to settlement on cause and filed a brief for respondent. April 18, 1910, and to public entry on

May 18 following. On the earlier date Mr. Justice Van Devanter delivered one McLaren made homestead settlement the opinion of the court:

on this tract, and on the later date both This case presents a controversy aris-Fleischer and MeLaren applied at the

Note.-On conclusiveness of decisions 1 The withdrawal was made under the or findings of the Land Department-see provision embodied in the first six lines of note to Whitehill v. Victorio Land & 32 Stat. at L. 388, Comp. Stat. $ 4702, 9

§ 3 of the Act of June 17, 1902, chap. 1093, Cattle Co. L.R.A.1918D, 597.

Fed. Stat. Anno. 2d ed. p. 1366.

local land office to make homestead en- tion issues, the application to be made try thereof,-Fleischer in the exercise of the act is not so obvious, and it beof his preferred right, and McLaren in comes necessary to inquire what is invirtue of his settlement. Fleischer's ap-tended. Does the act mean that the preplication was allowed and McLaren's ferred right to enter the land is lost if rejected, the local officers being of opin- not exercised within thirty days after ion that Fleischer had the prior and bet- the notice issues, even though the land ter right. McLaren appealed and the ac- is not open to entry during that period ? tion of the local [480] officers was sus- Or does it mean that the contestant tained by the Commissioner of the Gen- shall have thirty days during which the eral Land Office and by the Secretary of land is open to entry within which to the Interior. In due course Fleischer re- exercise his preferred right, and thereceived a patent for the land, and Mc-fore that if the land is not open to enLaren then brought this suit to have try at the date of the notice, the time Fleischer declared a trustee for him of during which that situation continues the title, and to compel a conveyance in shall be eliminated in computing the execution of the trust. During the thirty-day period? In the practical adpendency of the suit McLaren died, and ministration of the act the officers of it was revived in the name of his per- the Land Department have adopted and sonal representative. Fleischer pre- given effect to [481] the latter view. vailed in the court of first instance and They adopted it before the present conagain in the supreme court of the state. troversy arose or was thought of; and, 181 Cal. 607, 185 Pac. 967. A writ of except for a departure soon reconsidered certiorari brings the case here. 253 U. and corrected, they have adhered to and S. 479, 64 L. ed. 1023, 40 Sup. Ct. Rep. followed it ever since.2

. Many outstand482.

ing titles are based upon it and much The sole question for decision is can be said in support of it. If not whether the officers of the Land Depart- the only reasonable construction of the ment erred in matter of law in holding act, it is at least an admissible one. It that, under the Act of May 14, 1880, therefore comes within the rule that the Fleischer was entitled to thirty days practical construction given to an act after the land was restored to entry of Congress fairly susceptible of differwithin which to exercise his preferred ent constructions, by those charged with right of entry. The words of the act the duty of executing it, is entitled to are: “Shall be allowed thirty days from great respect, and, if acted upon for a the date of such notice to enter said number of years, will not be disturbed lands.” Generally when an existing en- except for cogent reasons.3 try is canceled the land becomes at once The case of Edwards v. Bodkin, 161 open to entry and the act is easily ap- C. C. A. 488, 249 Fed. 562, and C. C. plied. But where, as here, an existing A. –, 265 [482] Fed. 621, in which withdrawal prevents the land from be- there was a decree of affirmance by coming open to entry for more than this court, 255 U. S. 221, ante, 595, thirty days after the notice of cancela- | 41 Sup. Ct. Rep. 268, is cited as up

2 The instructions of June 6, 1905, 33, the contest the preferred right may prove Land. Dec. 607, contained the following: futile, for it cannot be exercised as long

“Seventh. When any entry for lands em- as the land remains so withdrawn, but braced within a withdrawal under the first should the lands involved be restored to the form is canceled by reason of contest, or public domain or a farm-unit plat be apfor any other reason, such lands become proved for the lands and announcement subject immediately to such withdrawal made that water is ready to be delivered, and cannot, thereafter, so long as they re- the preference right may be exercised at main so withdrawn, be entered or other any time within thirty days from notice wise appropriated, either by a successful of the restoration or the establishment of contestant or any other person; but any farm units.” And see Wells v. Fisher, 47 contestant who gains a preferred right to Land Dec. 288, for a statement and disenter any such lands may exercise that cussion of the departmental rulings. right at any time within thirty days from 3 Brown v. United States, 113 U. S. 568, notice that the lands involved have been 571, 28 L. ed. 1079, 1080, 5 Sup. Ct. Rep. released from such withdrawal and made 648; Webster v. Luther, 163 U. S. 331, 342, subject to entry.”

41 L. ed. 179, 182, 16 Sup. Ct. Rep. 963; The regulations of May 18, 1916, § 29, United States v. Hammers, 221 U. S. 220, 45 Land Dec. 385, 391, contained the follow- 228, 55 L. ed. 710, 715, 31 Sup. Ct. Rep. ing:

593; Logan v. Davis, 233 U. S. 613, 627, “Should the land embraced in the con- 58 L. ed. 1121, 1128, 34 Sup. Ct. Rep. 685; tested entry be within a first-form with | LeRoque v. United States, 239 U. S. 62, 64, drawal at time of successful termination of l 60 L. ed. 147, 150, 36 Sup. Ct. Rep. 22.



holding a different view of the act. Argued April 26 and 27, 1921. Decided The opinions rendered by the circuit

June 1, 1921. court of appeals do indicate that it was disposed to think the words "thirty ON WRIT of Certiorari to the Su

preme Court of the State of Calidays from the date of such notice" fornia to review a judgment which af. should be taken literally and strictly, firmed a judgment of the Superior Court but a careful reading of the opinion of Riverside County, in that state, disdiscloses that the decision was not put missing the bill in a suit to establish a on that ground. As was rightly said trust in land patented under the Homeby the supreme court of the state stead Laws. Affirmed. in the present

“The decision

See same case below, 181 Cal. 788, 185 there was not to the effect that the con- Pac. 971. testant was by mistake of law given the The facts are stated in the opinion. preference right.” Indeed, that case did not call for any expression of opinion on

Mr. Samuel Herrick argued the cause, the subject. The plaintiff there was the and, with Mr. Henry M. Willis, filed a original homestead entryman, and was brief for petitioner. insisting that his entry had been un- Mr. Patrick H. Loughran argued the lawfully canceled. If that claim was cause and filed a brief for respondent. well taken, as was held, the cancelation did not give rise to any preferred right. Mr. Justice Van Devanter delivered Besides, the defendant there was not the opinion of the court: claiming under an entry based on This case is in all material respects preferred right, but under entries made like McLaren v. Fleischer, 256 U. S. 477, after he had relinquished the entry ante, 1052, 41 Sup. Ct. Rep. 577. It was which he claimed was based thereon. decided in the same way by the state Thus, the observations of the circuit courts and was argued with that case court of appeals respecting preferred here. Therefore the opinion in that will rights were obiter dicta, and, as the de- suffice to dispose of this. cree of affirmance in this court was put Judgment affirmed. on other grounds, those observations are neither authoritative nor persuasive.

Here it is not questioned that the [484] UNITED STATES, Piff. in Err., original or first entry—that of Riderwas lawfully canceled. McLaren rec

GEORGE E. BOWLING et al. ognized that that entry had been lawfully eliminated when he sought to ini

(See S. C. Reporter's ed. 484-490.) tiate a claim to the land. He should

Indians heirs of deceased allottee also have recognized that Fleischer, by determination by Secretary of Inhis conte had brought about its elimi- terior

or restricted allotnation, and was entitled, as a reward, ments. to enter the land at any time within Restricted as well as trust allotthirty days after it was restored to ments must be held to be comprehended by entry.

the provisions of the Act of June 25, 1910, We conclude that the 'state courts $1; that “when any Indian to whom an

allotment of land has been made, or may rightly refused to disturb the construc- hereafter be made, dies before the expiration which the officers of the Land De- tion of the trust period and before the ispartment had put on the act.

suance of a fee-simple patent, without hav. Judgment affirmed.

ing made a will disposing of said allotment as hereinafter provided, the Secretary of

the Interior, upon notice and hearing, un. [483] ROBERT L. CU'LPEPPER, Peti- der such rules as he may prescribe, shall tioner,

ascertain the legal heirs of such decedent, and his decision thereon shall be final and

conclusive,” in view of the legislative and JAMES M. OCHELTREE,

departmental construction of that section (See S. C. Reporter's ed. 483.) as authorizing a determination of the heirs

of both classes of deceased allottees. This case is governed by the decision in [For other cases, see Indians, vill. in Digest McLaren v. Fleischer, ante, 1052.

Sup. Ct. 1908.) [No. 292.]

[No. 295.] Note.-On conclusiveness of decisions Note.-On Federal control over Indior findings of the Land Department--ans-see note to Worcester v. Georgia, 8 see note to Whitehill v. Victorio Land L. ed. U. S. 484. & Cattle Co. L.R.A.1918D, 597.




Argued April 27, 1921. Decided June 1, | the supervision and guardianship of the 1921.

United States. The defendants, by IN N ERROR to the United States Cir- their answer, admitted that the land had

cuit Court of Appeals for the Eighth been allotted and patented to Wea and Circuit to review a judgment which af- that they were in possession; denied all firmed a judgment of the District Court the other allegations in the petition, inof the United States for the Eastern cluding the heirship [486] of those in District of Oklahoma in favor of de and alleged that, at the time of answer

whose interest the action was brought, fendants in an action by the United States to recover possession of land, ing, the defendants were rightfully in with damages for its detention and use.

possession under conveyances executed Reversed and remanded for a new trial. by the real heirs after the restriction upSee same case below,

- C. C. A. —,

on alienation expired. 261 Fed. 657.

At the trial the United States, to esThe facts are stated in the opinion.

tablish the heirship of those in whose

interest the action was brought, offered Special Assistant to the Attorney in evidence an exemplified copy of a deGeneral Garnett argued the cause and cision by the Secretary of the Interior, filed a brief for plaintiff in error. dated October 21, 1914, during the peri

Mr. Halbert H. McCluer argued the od of restriction, finding and holding cause, and, with Mr. Vern E. Thompson, that they were the heirs, and the sole filed a brief for defendants in error.

heirs, of Wea, and stating their respec

tive shares. To this the defendants obMr. Justice Van Devanter delivered jected upon the ground that the law of the opinion of the court:

Congress under which the decision was This was

an action by the United given applied only where the deceased States to recover the possession of a allottee held under a trust patent. The tract of land in Oklahoma, with dam-court sustained the objection and no ages for its detention and use by the other evidence on the subject was predefendants for several years. The trial sented by either side. Whether the resulted in a judgment for the defend court erred in excluding the Secretary's ants, which the circuit court of appeals determination is the only question reaffirmed. - C. C. A. –, 261 Fed. 657. served at the trial and now presented

The land was allotted and patented for decision. It was not claimed that under the Act of March 2, 1889, chap. the Secretary proceeded without notice, 422, 25 Stat. at L. 1013, Comp. Stat. $ or without according all who were in4207, 3 Fed. Stat. Anno. 2d ed. p. 836, terested a full hearing, but only that he to Pe-te-lon-o-zah, or William Wea, á had not been empowered to determine member of the confederated Wea, Peo- who were the heirs where the deceased ria, Kaskaskia, and Piankeshaw Tribes allottee held, as did Wea, under a patof Indians, as his distributive share of ent in fee, even though the land was the tribal lands. The patent was dated subject to a restriction upon alienation. April 8, 1890, conveyed a fee-simple Before coming to the acts under which title, and imposed a restriction upon the Secretary of the Interior proceeded, alienation for a period of twenty-five it will be helpful to refer to the modes, years from its date. Wea died intestate long in use, by which Indians are preand seised of the land January 23, 1894. vented from improvidently disposing of Shortly after his death persons claiming allotted lands. One is to issue to the to be his heirs executed a conveyance of allottee a written instrument or the land, and on May 4, 1914, this court tificate, called a trust patent, declaring affirmed a decree against two of the that the United States will hold the land present defendants, canceling that con- for a designated period, usually twentyveyance as made in violation of the re- five years, in trust for the sole use and striction. Bowling v. United States, benefit of the allottee, or, in case of his 233 U. S. 528, 58 L. ed. 1080, 34 Sup. Ct. death, of his heirs, and at the expiration Rep. 659.

of that period will convey the same to This action was commenced January him, or [487] his heirs, in fee, dis20, 1915, during the period of restriction, charged of the trust and free of all and, according to the petition, was charge or encumbrance. The other is brought in the interest of designated In- to issue at

to the allottee dians who were alleged to be the heirs patent conveying to him the land in at law of Wea, to be entitled to the fee, and imposing a restriction upon possession, and to be members of the its alienation for twenty-five years or confederated tribes, and still under some other stated period. While aliena65 L. ed.





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