"86
FEDERAL REPORTER.'
tory evidence that the mark was intended by the testator as his signahire, or Mfa substitute for it. As already stated, to make a will valid t{) pass the title to real estate, under the laws of this state, it must be in writing.and signed by the testator, or by some other person in his presence, and by his special direction. This paper writing was not signed by any other person. I am satisfied that the proof exhibited with th(} paper writing as the proof upon which it was admitted to probate by the clerk of .the chancery court, fails to show that the testator intended the marks made by him to beasubstitute for his signature, if indeed he knew that he had made them at all. I am satisfied, looking at the face of the paper propounded as the last will of said M. and the proofof'the subscribing witnesseS exhibited IVith it, that this paper cannot be held a valid will, so as to vest the defendant with thE: title to the lands described in the bill. But if the defendant defiires so to do, he can ansIVer the bill, when an issue will be made up to be tried by a jury upon the evidence produced by both parties; and upou E1uch trial what is here said will have no influence with either court or jury, but the cause will be determined as though these remarks had never been made, or even conceived. .
UNITED STATES
t1.
B.ATEMAN.
':".(Oircuit OQurt·.N.D. Oalifornia. :March 5.1888,)
1.
COURTS-...FEDERAL-JURISDICTION"-HoMICIDE-WiTHIN PRESIDIO MILITARY RESERVATION.
The Presidiomilitary reservation, in the city and county of San Francisco, is not a prace "'Qnder the exclusive jurisdiction of the United States;" and a homicide'committed within the reservation is not an offense against the United States, within the meaning of section 5339. Rev. St. '. .· . ' . .
S. .
.A homicide committed within said PreSidio lDilitarfreservation is not an offense (lvel'wliich the courts of the United Stll.teshave jurisdiction. (Syllabllsby 11&8 Oourt.)
SAME;
Indictment of Thomas N. Bateman for the murder of Samuel M. Soper, first sergeant of troop A, Second cavalry, U.S. A., .stationed at the Presidio military reservation. J. T; Carey, U. S. Atty., for. the United States. Mitchell & DcmneUy, for defendant. Before ,sAWYER, Circuit Judge, and HOFFMAN, District Judge. SA\V'YER,J., (HOFFMAN. J'., concurring.) The defendant is indicted for the murder of Samuel M. Soper, alleged to have been committed on July 5,1887, within the limits oithe military reservation situate within the city and county of San Francisco, and known' as the "Presidio. 1t The indictment' is found under section 5339; Rev. St., which pmvides for pnnishillga: murder committed "within any fort,. arsenal, dock-yard,
UNITED STATES'll. BATEMAN.
87
magazine, or in any other place, or district of country, under the exclusive jurisdiction of the United States." The defendant pleads that the place where the murder is alleged to have been committed, is not within the exclusive jurisdiction of the United States; or within the jurisdiction of the United States; and that the offense charged is not an offense against the laws of the United States, within the meaning of the statute; or an offense over which the circuit court has jurisdiction. The admitted facts upon which the decision must depend are as follows: The place where the offense is alleged to have been committed, is within the limits ofa military reservation of the United States,situate within the city and county of San Francisco, known as the "Presidio," as it was at the time _ ofthe commission of the offense, bounded, surveyed, and established, and actuallyoctiupied, by the United States for military purposes, having upon it garrisons, officers' and soldiers' quarters,forts, fortifications, etc., in actual use and occupation for military purposes by officers and soldiers of the regular army of the United States. For 35 years prior to the treaty between Mexico and the United States, by which California, including the land in question, was ceded to the United States, and up to the titne oftheiroccupation by the United States, the lands within this reservation had been occupied by Mexico asa military reserve, having upon it forts, garrisons, and appurtenances,' occupied by Mexi:can troops for military purposes; and, continuously, from the surrenderofthese p'remises "by the Mexican forces to the United Stntes down to the present time, theY'have in like manner been o<;cupied for like purposes by the military forces of the United States. These lands, with all ·other lanns: ofthe state of California, were ceded to the United States by -Mexico by the treaty ofGuadaloupe Hidalgo, ofFebruary 2, 1848. On June 23, 1848, prior to the organization of the state government of California.and while under the exclusive sovereignty and jurisdiction of the ,United States, Capt. J.L. Folsom, assistant quartermasterU. S. A., in compliance with instructiorts given by B. Riley, brigadier S. A., and military governor of California, dated March 29, 1848, estab,lisped the bOtlndaries of the said military reservation, which boundaries included the point where the homicide is alleged to have been committed. , Afterwards, on November 30, 1848, on the recommendation of the president, a joint commission of navy and engineer officers was appointed for the purpose of examining the coast, with a view,to selecting military reservations. Said commissioners, on March 31, 1850, recommended the reservation of the Presidio, with boundaries including the point where the homicide is alleged to have been committed. 'rhereafter, on Novem,ber 6, 1850, Millard Fillmore, president of the United States, by an exeeutive order, exempted and reserved from sale, for public sef\Tices, the las1f.mentioned tract. Afterwards, by an exectltive order issued by Millard Fillmore, president of the United States, dated December 31, 1851, "which ord Was confirmed by an act of congress approved May 9,1876, r "the boundaries of said reservation were somewhatinodified, but they . still, and at all times, included the point at which said homicide is alleged to have been committed. On September9i 1850, Californiaw3s,
88
FEDERAL' REPORTER.
by act of Congress, admitted as a' atate into the Union, "on an equal footing with the original stateS iuall respects whatever." There was no reservation ofsovereignty over any part of the public lands. The only condition .was that there should be 'no" interferences with the primary disposal of the public lands withinlita limits," and that the state "shall pass no law and do no act whereby the 'title o£the United States to, and rightto dispose of, the same shaUbe ·impaired or questioned; and that they shall neveday any. tax or assessment. of any description whatsoever upon the public domain of the United States." 9 St. 452. The only act of the legisla.ture'Qi CaUfol'llia brougnt to the attention of the court, that can possIbly regarded as afIe6ting the questionis the act of April 27 , 1852., whichprtNiil.es "that the COD;Sent Qf the legislature of California beand the8ame is ,hereby given to,the purchase by the government of the Unite<i States, or under the authority .of thel3ame, of any tract, piece, or parcel of laud from any individual or individuals,bodies politic or corporate, ,within the boundaries or limits ofthis state, for the purpose of erecting therli1011 armories, arsenals, forts; fortifications, or dock-yards, magazines, <lustom-bouses, and other needful public buildings or establishmeot5whatsoever; and aUdeeds, conveyances, or title papers for thellarhe shall be recorded asin other cases, upon the land records of the oOhnty in which the land so conveyed may lie; and in like manner may berecol'ded a sufficientdescription , by metes and bounds, courses and distances, oLany tract or tra<:ts, Jegal divisions or subdivisions,of any public land belonging to theJJnited States, which may be set apart by the general governtnent, for any or either of the purposes before mentioned,byan order, patent, or other official document or paper so. describing sUj:lh land. The consent herein and hereby given being in .accordance with the seventeenth clause .of the eighth section of the first article of the constituthm of the United States, and with the acts of congress in such"Oases made and proVided." p.149. 1 Hitt. Code, § 4215. At the time the homicide is alleged tQhave been committed, no description: by metes and bounds, or othe\'wise, had been recorded upon the land. records of the city and county of San Francisco, as provided for in the latter part ofthl;\ section quoted. Thedeceased, Samuel M.Soper, was,at the time of his death, and he had been for someLi me priorthereto j first sergeant of troop A, Second cavalry, U. S. A., stationed at the Presidio. rhe'defendant WllS at the same time a private in the same troop"stationed at the same place. Upon t1].e foregoing state of facts, is the point where the homicide is alleged to ,have been committEld ."a place * * * under the exclusive jUl'lsdiction ohhe United ,States?" . We do not think it andn()t , being so, the: act is not an ofltnilSe against the United States, meaning of.section 5339, Rev. St., or an offense over which the United States courts have jurisdiction.. This point is authoritatively determined . by the supreme court of the United States in the late case of Railroad 00. v. Lowe, 1l4R S. 525, 5 Sup. Ct. Rep. 995. In that case the reservation at Fort Leavenworth was situate precisely likethat at the Presidio, at the time· of the a.dmission of Kansas into the Union. Says the court:
UNITE1) $'l'ATES V. BATEMAN.
89'
"The land constituting the reservation was part bf the territory acquired. in 1803 by cession from France, and, until the formation of the state of Kansas, and her admission into th.e Union, the United States possessed the rights of a proprietor, and had political dominion and sovereignty over it. For many years before that admission it had been reserved from sale by the proper authorities of the rJnited States, for military purposes, and occupied by them as a military post. The jurisdiction of the United States over it during this time was necessarily paramount. But in 1861 Kansas was admitted into the Union upon an equal footing with the original states; that is, with the same rights of political domimon and sovereignty, subject like them only to the constitution of the United States. Congress might undoubtedly, upon slIch admission, have stipulated for the retention of the political authority, dominion, and legislative power of the United States over the reservation, so long as it should be used for military purposes by the government; that is, it could have excepted the place from the jurisdiction of KansR3, as one needed for the uses of the general government. But from some cause,-inadvertence perhaps or over confidence that a recession of sllch jurisdiction could. be had whenever desired,-no such stipulation or exception was made. The United States therefore retained, after t.he admission of the state, only the rights of an ordinary proprietor." These observations are as applicable to the Presidio as to the Leavenworth reservation, as will be seen by reference to the act admitting. Califqrnia. The only reservation relating to the public land affected the proprietary interest of the United in the lands. That interest was to be in no way interfered with. There was no reservation whatever as to sovereignty: or governmental powers or jurisdiction. There was no distinction made in the act of admission between these lands and other lands constituting the public domain in California. There being no reservation of governmental powers or jurisdiction over the Presidio lands in the'act admitting California into the Union, in the languageo[ the supreme court in the case cited, "the United States, therefore, rethe admission of the state, only the rights of an ordinary proprietor." And again, says the court: "The consent of the states to the purchase of lands within them for the special purposes named is, however, essential, under the constitntion, to the transfer to the general governmellt, with the title, of politidtl jurisdiction and dominion. Where lands are acquired Without such consent, the possession of the United.States, unless political jnrisdiction be ceded to them in Bome otber way, is simply that of an ordinary proprietor." The United States were both proprietors and sovereigns of the Presidio lands till the admission of the state of California into the Union. By the act of admission, reserving only their proprietary right over these lands, they relinquished to the state their governmental or local sovereign right, and jurisdiction, and were thenceforth only proprietors in the sense that any natural person owning land is a proprietor. Having so relinquished their sovereign rights, that condition remains to this day, unless the state has in some way, either directly or by implication, ra<leded to the United Slates its sovereign jurisdiction. This could be done by direct cession, or by consenting through its legislature to the purchase of land for such governmental purposes, and a purchase for such purposes in pursuance of such consent. Neither has been done in this in-
stance.: Thete is no act directly ceding the jurisdiction. By. the act or 18.52, as'W& have seen, the legislature in the proper fotmconsented that. the UnitedSfates might purchase'lands for certain speciflcpurposes, including" military purposes. Bu(these lands were not so purchased. They W.ereowned by the Vniti3dStates before California became a state, and by ber admission intotheUp,ion the sovereignty was relinquished. That sovel'(Jignty was not receded by the consent of the state to the purchase of other landsfol' similar purposes., The cession of exclusive risdiction OVtlr these lands is' not within the purview ofthe act. The· act, it Is true, in another provision', authorizes therecordingof a description by metes arid bounds, or other definite description in the land rec-' ords ofthecounty "of any public lands belonging to the United States, which may beset apart by the general government, for any or either of the purpqsesbefore mentioned, by an ,order, patent, or other official doedescribingsucn land." But the purpose or effect of' such not prescribed.. 'It may have been intended only for the purpose of affording record evidence of title, as in the case of records oftitlejn partjes.There is no, statement of a purpose, direct or by implication,tO divest the state qf. its sovereignty bver the landS so described and by such record. doubtful,at least, whether such's. record under this act would have that effect. Such effect should not be given th,e'record, unless that be clearly the purpose of the legislature. But it isunllecessary to determine the effect of such a record now, as none been made at the time of the alleged commission of the hom,icide cbarged. ,Nqthipg had then been done under any provision of this, ac,t... A subseque#t record, could not have the effect to now make an offense against the United States which was not an offense at thEitimethe act was performed. We know'of no other act of the state of California, through its legislature or otherwise, by 'which a retrocessiun of its sovereigil jurisdiction' over the military reservation has been made' to the United States. is, the reservation is not within the sive 'of the UnIted States, and the acts charged do not stitute an offense against the United States under section 5339, Rev. St., or of which this court has jurisdiction. The indictment must, therefore, be quashed on that ground, and it is so ordered.
ROLI:.INS:",. OHAFFEE COUNTY· . ROLLINS 11.
91
CHAFFEE COUNTY·. CuSTER COUr;TY. March 26,1888.)
BARNUM
11.
(Oi'1'lJuit (JOU'1't, D. (Jolo'1'ado.
COURTS-FEriERAL JURISDICTION-AcTIONS ON COUNTY WARRANTS.
Under actCong. 1887. (24 St. 553.) § 1, providing that the federal courts shall not have jurisdiction of any action on any promissory note or chose in action. except on negotiable securities payable to bearer. and made bya corp()l·atjon. by an assignee. or a subsequent holder. if the instrument be payable to bearer. unless such suit might have been brought in such court if no assignment or transfer had been made. the circuit court has no jurisdiction of an action by an assignee ,on a county wa!.'rant payable to the order of a person nam,E!d therein. and passing only by indorsement. in the absence of averment that the assignor wasqualitied to sue in this court, but has jurisdiction of an action by the holder on one payable to bearer, Buch being a negotiable security made by a corporation. ,, ,
At Law. On demurrer to complaint. Teller & Orahood, for plaintiffs. G. H. Hartinstim, for' Chaffee county. , Hugh Butler, for Custer county. , , HALLl1:TT. J. A questio!l of jurisdiction under the act of 1887 arises on demurrer to the complaint in each of these actions. The warrants on which plaintiffs seek to recover are in the usual form of such instruments, signed by the chairman of the board of commissioners, attested by the clerk, and directed to the treasurer of the county. In the Chaffee County they are payable to a person named therein or to his order, and in the other case they are payable to a person named or to bearer. The names of the payees are not given, nor is anything alleged as to their citizenship; and the question is whether the action can be maintained without showing that they, as well as the plaintiffs, w:e,re qualified to sUe ia this court. The meaning of that clause of the first section of the act of 1887, (24 St. 553,) which relates to suits by assignees of promissory notes and other chases in action, is not very clear, but it seems to be well stated in Newgass v. Oity of New Orleans, 33 Fed. Rep. 196. . When it came from the house of representatives the clause referred to was as follows: ."Nor shall any circuit or district court have cognizance of any suit founded ,on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assig!lment had been made, except in cases of bills of exchange." 18 Congo H.ec. 646. The senate amendment was probably intended to retain jurisdiction over n large dass of securities made by corporations, railroad companies, . and the li.:re, which are sold in open market and negotiable by delivery. Certl\iinly it was not intended to give jurisdiction in all actions by assignees on promissory notes and otber contracts excepting those last mentioned, and that seems to be the alternative if we reject the proposed construction. Accordingly, I am constrained to follow the interpreta-
azu
