)llX
l"ARTE EMMA.
211
the. United money due upon such bond, surety, his, eX,ecutor or administrator, shall have the same priority of right debtor,which the United States would have had. Debts, due the United ,States are tbesources of revenue needful for t,he maintenance and successful operation of the government. Every essen· tialright, of procedurll, remedy, and preference is accorded to it upon the highest considerations of public policy. The motion is sustained, and the order of revivor is directed.
& parte Ie 111m'11D
EMMA.
(l)IItrIee, ,COUf'C, Do AZmka. July
ss. 18OL)
t.he' organio act of Aluka,United States commissioners have jurilldlct.ion, in the flllt .nlltance, s11bject. to the supervision of the district. judge, In all test... mentary and probate matters. In accordance with t.he laws of Oregon, appUcable to that.t!li'lritory, and are vested with the jurisdiction of tbecount,courtof Oregon pertainJ!1w to probate C«1urt&. HINOBB.
&rA'l'lI1! COlOUUIOnR8-JURISDICTlON IX AL.UJlU-P:ao1I4'I'B PBoonDIX'"
..
, 'If tbe power to bind minors as apprentices pertain to probate oourts, it should be exeroisedb1.theUnited States commissioner. If it doN not, it belongs to "ooont, busine8ll' II and can only be exercised by the county judge and county commissioners;'sitting together. There are no oountiN nor count, commissioners in Alaska. In either case, the district. court is without jurisdiction to bind mino1"ll as apprenticea-
Application for Writ of Habeaa <:bIpuI. F. H. BlW"I'f,ngton, for petitioner. O. 8. JohntKm, for respondent. BUGBgg, J. The petition in behalf of Emma, an Indian girl, alleges that she' is 'detained and restrained of her liberty by one William A,.. Kelly, superintendent of the Indian mission school at Sitka, without warrantor authority in law. The return of said Kelly alleges that he is the superirirendent of the board of home missions of the Church, and also of the Indian Industrial and Training School at Sitka, which hM for its object ann mission the maintenance and education of native Indian children of Alaska territory, and ai5such sQperintendenthe has certain control and custody ofsaid Emma, who is, and for more than three years has been, an inmate of and attendant at such school, by vir· t\1e'-JilirBt;ofa written agreement made by her mother; 8econd, of a con· tract between respondent, as such superintendent,and a former judge of this tltird, of the order of this court. The facts are that the child is theiesue of Shawet Kunab, a native and an Indian chief, 1\'ithwhotti she consorted without legal marriage, but according to the customs'of'her race; that,after'separatinK from him, she was married:, undei1',the'sanction of the laws governing' this territory, to one Bop;de; that 'atter luch marriage the mother· plil.ced the child, in the' Indian school' 1
-J
Ii'
.
'
FEDERAtREPORTER,
vol. 48.
at JuneaUjconducted by the Presbyterian mission, and,by 11 writing, signed by herself alone, gave the child into the charge of the Presbyterian mission,at Juneau, to be placed in the Sitka Industrial and Training School, promising, if it can be deemed a promise, to make no effort to retnoveher till she reached the age of 18; she being then of about the age of 8 years. The agreement bears no date. A copy of it was annexedt&the return, but it was neither put in evidence, nor relied upon by respondent. Thereafter, on the 28th day of September, 1889, an oruer was made by this court, which, after reciting that some 50 destitute and orphan children, whose ranged from 5 to 17 years, had a residence and settlement in Alaska and were chargeable upon the district, "decreed that all of the said children Le apprenticed to the Presbyterian to be signed by the judge board of home missions by q,gntl'Mt in of this court in. duplicate, and by the superintendent of the mission and training school at said board :of home missionsatSitkw, until the females rea,cp the age of eighteen hI each the age oftwenty-one years,", etc." ,Nothmg, except the Bome of the I}othingmqieates that any of the"children,:pr their parEHits;Qi guardiims, had notice of or consented to the proceedings.. The girl Emnlais I111.med as one Ort9f35Qsubjects of, th.e prder. On the order' was made m'yptedecessor irr office, and signed brhiiilllsjudge of this the Matter of Emma, a child,"
br
,;'f.',;, "
"Emma, an orphan, a minor child of the age of eighteen years, is a poor person, haVing a residence and settlement in dJ,aslm, andJs upon the district, and without mate or female parentclq)s'61eOffurnlslllngsaid support, SUbsistence, and means of eJueation.' And"wh'ereas, the district attorney being present in court, and the superinteqdentlof,themission and training school of the board of home missions of the Presbyterhm Church of willing,toacpept said minor chUdasan liPprelltlCe"acthe cording to tbe prov:isions chapter 18 of Title 4, as embodied4n · Hill's A.nnotated Lawstif' Oregon. page 1334.'''. ,. . .
0'
Emma, an be bound. as an appren.tiee.tp said mission and training bywritten contrapt until sh El sp.,al,lreach the age of eighteen years." made special I?rovisious. cont.ract and qther matters, not l)ecessary to be !-,ecited the same day a contract was eXecuted, ,in accordance wi.t.h t.h.,el'.f?r.R-!rf.".Ry.thej.udge of .t he court in be4aljf of the child, an<;l the .... .., hoard missions oftbe Presbyterian through the 11$ its .superintendent;and under tbi#qqntraQt"aljld the chil<lis claimed to.be held. , " ..,. !, From, thl'l it appears t,hat the child shean. fathel"lUother, and ,her mother's )e{Ytlhusband were mother and thenanli and the mother hUl!bandWf;lre now to provide, for aP,4.. ad :M:0rEl()ver thechUd was Ilot trict, nor likely to become so. The state of the mother's health de-
EX PARTE EMMA.
213.
mands the services of her child, and the child, who seems intelligent and affectionate, df'sires to return to her mother. Under this state of facts, it would seem that the child ought, in simple justice, to be rtr. leased at once; but without going beyond the judgment of the court to even if the court were in these proceedinquire into ings permitted to do so, I am convinced that the jurisdiction oJ the court has been exceeded,and that the orders were and are void; and, if that be so, they DJay be set aside by this court, notwithstanding the length of time that has elapsed and the number of terms that have intervened. since they were made. Ladd v.Mason, 1001'. 308. Under the ,act of, congress entitled" An act providing a civil government for. Alaslm/'! passed May 17. 1884,and generally known as the "Organic AGt," it i8. provided "that the general laws of the state of Oregon now [May 17,1884], in force are hereby declared to be the law in said district. so far as the same may be applicable, and not in conflict withth, provisions of this act, or the laws of the United States." The act also provided for appointment of four ,commissioners for the :district, who have the jurisdiction and powers of commissioners of the United Statescircuit":co.urt3, and who havealsoj'ilrisdiction, subject to the supervision ofthe distriQt judge, in all testamentary and probate matters. Organic 'Act,§5., Section·J,2ofarticle.7 .of the constitution of Oregon county courts of that statEr-:" "Shall have the jurisdiction pertaining to probate courts and boards of county commissioners·. and ,such powers and duties. aJ,ld tion. not exceeding tl1e amount of;value of (i vehundred dollars,·;* * .... ,as may be by law. But the legislative assembly may provide fo;rthe election ot two commissioners tlit with the county jUdge Whilst transacting .county . , Following tpis, proyision, the legislature the court should, beheld by the county J1,1dge except when busi-, ness was being transacted therein, and then it was to be held, judge a.nd two commissioners by law, or a majority MS\lch' person!!; Civil Ccide Or. § 867; Gen. Laws,p. 282. It defiiled ·itsjurisdiction of actions at law, (section 868,) and its exclusive jUrisdiction in the instance, 'to il. court of probate, (section ,also its authority and powers pertaining to county commissioiif:l's to trap.sact county business, (section 870.) It prescribed that' 'its' be docketed and disposed of in the following order: (1) Cases at law; (2) the business pertaining to a court of probate; (3) county business,and that its proceedings and records concerning these three classifications of business should be kept in separate books. Section 876. The legislature also provided for the election of two commissioners of the county court. Gen. Laws Or. p. 694. In Monaste8 v. Catlin, 6 Or. 119, it is said: .. The phrase [the jurisdiction pertaining to probate courts] has no legal .definition. Courts of probate had no existence at common law. * ... * Under the provisional government of Oregon, up to the time of the adoption .of the constitution. the appointment of guardians for minors and for insane persons was a part of the jurisdiction pertaining to probate courts."
214
FEDERAL REPORTER,
. revoking letters bfguardianship; and the directing and. contr.olling· the iilonduct and settling the accounts of guardians Of minors and of ll\'natil',st,are especially defined as functions of the! county court pertainingtoa court of probate.· Oivil Code Or. § 8f}9. of the court to bind minors as apprentices or servants'is ,not,' in ·terms, placed in .the::same category. Neither is its authority to authorize the adoption ofchildrell; but it would be difficult to finel a reason why such powers do not pertain to a court of probate quite as mnch as the power to appoint guardians. INhey lie within the probate jurisdiction of the Oregon county court, they'lie within the exclusive jurisdiction, in the first instance, ()f the United States commissioners for the district of Alaska, subject to the supervision of the district judge; and for this court or its judge to assume original probate jurisdiction would be an unwarranted usurpation of power. If the: binding of minorS as apprentices or servants under, tie laws of Oregon is not a power pertaining to a court ofprobate;tbel'E! is but one other ,classification of the business of the county court of Oregon·td which it can be assigned, and that is "county business,» which is not tranSacted by. the county judge alone, but by the judge and county commissioners sittiI1g together. To them, as "county business," is granted tbepower to provide for the maintenance and em, ployment of the county or transient paupers in the manner provided by law. This territory has no counties and no county COMmissioners, nor has it any, court, tribunal, or officer corresponding to the county court of sitting' as countyeommissionel's for the transaction of county business. Hin the c&sebHhischild,Emma, the. power to bind her p,ertAined to it should have, b\len exercised by the United Statescommissioriert and not by this court, nor by its judge. lithe power to.a county,tlpl,lrt having the auth()rity and powerspertaining to.·county commissi,oners to transact county business, it c(lUld not have been riglitfu11y exercislold in this territory, becaul;le no court or has beeu vested with sUch power. It follows, therefore, jurisdiction of court and of the judge in making the orders th,at ,this has been exceeded ; that the orders as well as the contract of apprenticeship were and ,are void; and .that the child custody. of the respondent. must be, discpargedfrom . Let an order be entered
:
I .·
maTED STATES tl. REYNOLDS.
215
UNITED STATll:8 'l1. (DiBtrl.ct· Court. D. South CaroUna. November 17, 1891.)
1.
PENSIONS-!t.I.,E&AL FEES-INDICTMENT. . .
t.
U nqer Rev. St. U. S. § 5485, proviiling that any agent· or attorney" or other person. instrumental in prosecutlllg any claim for pension," who charges or receives for his serviues more than the fees allowed by law, shall be guilty of a high meanor, an indictment charging simplY that defendant was instrumental in prosectiting a· cetltain .pension claim is su1Uoient, to bring him within the act, without specifying in what way or capacity be was instrumental.
BAME.
1D
I.
claim :and retained a 'i,t'eat:er compensation "than is the title pertaining to pensions .. . .. to-wit, the sum of $53. " Held that, as this8umwas greater than allow;d in ·any case by the pellslon laws, it was unneee88!Lryto or not the arrears were procured after the allowance original .... The only testimony as to the retention of the moaey being that oUhe person enti.tIed .t,ll.ereto, thl't. did not pay it to her, and. that of be dui, tbe 'verdict of the JUry -cannot be disturbed. .. . .
An indtctmentcharged that defendant'was instrumental in prosecuting a
,
S,{ME-CONFLIOTI'liG EVIDENOE.
At Law. Indictment-of ThomasJ.,Reynolds{or receiving excesSive feesforprocuringa·pension. On motions in arrest of judgment and for a'new triaL Ovel'xuled. Abial Lathrcp, U. S. Atty. Lee, for defendant. Sndl'NTON, J. The defendant was indIcted for the violation ofsection 5485 Of the Revised Stl1tutes of the United Statell; and convicted; :'l'he 'section under which he was indicted is in these words: . "sec. 5485. Any agent or attorney Or "any other person, instrumental 'in proseeuting any claim for pension or bounty land, who shall directly or Indirectly·ccmtract for, or receive or retain, any greater inst.ruIQent!'lity in proseclltinga cillim for pension or bol1nty is provided m the tItle pertaining to pensions, or who shall wrongfullY-Withhold froID il. peqsiqner or claimant the whule or any part olthe pension"or c!aiIQ allowed and due such pensioner or claimant, or the land,;warrant· fssuedto any such· claimant. shall be deemed guilty of a high tnisdemeanor.,and, upon conviction thereof,shall, for every such 011'en8e,OO fined not exceeding five hundred dollars.,. 01' hnprisonmentllt hard labor not exceeding two years, or both, at the discretion "of the
'. The indictment oontained three counts. The first two charge, in effect, that, being instrumental in the prosecution of a claim for pension for one Sina Green, the widow of a soldier in the war of 1861, the defendant did then arid there unlawfully contract for, demand, receive, and retain from said"Sina Green, to whom a pension was granted under the act of congreFls4th July, 1862, and an act of congress 7th June, 1888, a greater sum' than is provided in the ti tlepertainingto pensions. The first count chatged that his saId· compensation' fixed. by him was greater than the eum'of $25. The second, count, that it was greater than $10. The thiro coul'lt.charges that he was instrumental in prosecuting a claim fOl'arrears of pension forSina Green, widow, Ofasoldiert,etc.,and "did then, ,and