Ex parte Charley Webb, Petitioner. riginal

• Decision Date: 10 June 1912
• Docket Number: O,No. 11,11
• Parties: EX PARTE CHARLEY WEBB, Petitioner. riginal
• Court: U.S. Supreme Court

225 U.S. 663

32 S.Ct. 769

56 L.Ed. 1248

EX PARTE CHARLEY WEBB, Petitioner.

No. 11, Original.

Argued May 13, 1912.

Decided June 10, 1912.

This is an original application for a writ of habeas corpus to inquire into the arrest and detention of the petitioner, who is held in custody by the United States marshal for the eastern district of Oklahoma, under a capias or bench warrant issued out of the United States district court, upon an indictment of which the following is a copy:

United States of America,

Eastern District of Oklahoma, ss:

In the District Court of the United States in and for the Eastern District aforesaid, at the March Term thereof, A. D. 1912, at Vinita, Oklahoma.

The grand jurors of the United States, impaneled, sworn, and charged at the term aforesaid of the court aforesaid on their oath present, that Otis Tittle and Charley Webb, and each of them, on the 23d day of January, in the year 1912, in the said division of said district, and within the jurisdiction of said court in Craig county, in the state of Oklahoma, the same then and there being and constituting a portion of the Indian country of the said United States, did at the time and place aforesaid unlawfully, knowingly, wilfully, and feloniously introduce, and attempt to so introduce and carry into the said Indian country, from without the said Indian country, 17 gallons of spirituous, ardent, and intoxicating liquor, to wit: alcohol, which said alcohol was by the said Otis Tittle and Charley Webb and each of them so introduced and carried into that portion of said eastern district of Oklahoma, so being then and there Indian country, as above set forth and described, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

Petitioner also applies for a writ of certiorari to review the action of the district court in refusing, on habeas corpus, to discharge him from custody under the bench warrant.

For present purposes it is admitted that petitioner is a white man, not of Indian blood; that the intoxicating liquors described in the indictment were shipped on his order from the city of Joplin, in the state of Missouri, by way of a railway that is a common carrier of interstate shipments, consigned to petitioner at the city of Vinita, in the state of Oklahoma; that the same reached the latter city over said railway line in the course of ordinary transportation at the time of the alleged offense set forth in the indictment, to wit, January 23, 1912; that said intoxicating liquors were delivered by the transportation company to the petitioner within the city of Vinita, and he received them upon a public street and highway, and not upon restricted land, for the purpose and with the intent of carrying and transporting the liquors along the streets and highways to another point within the same city, and that while he was in the act of so receiving the same he was arrested. That the city of Vinita is situate in Craig county, Oklahoma, which county constitutes a part of what was formerly the Cherokee Nation; that all the lands of the Cherokee Nation have been either allotted to individual citizens of the Cherokee Tribe under the terms of the Cherokee Agreement and the several acts of Congress providing for the allotment of said lands, or sold by the United States for the benefit of the citizens of the Cherokee Nation, either as town sites or otherwise, under the authority of the several acts of Congress providing therefor; that the city of Vinita, including the place where the intoxicating liquor was delivered to and received by the petitioner, is a part of the original town site of Vinita, Indian territory; and that the status of the lands and of the enrolled members of the Cherokee Tribe of Indians are such as are fixed by law.

The petitioner contends that the district court is without jurisdiction, because there is no existing law under which the offense alleged against him is punishable in the Federal courts. He claims that he is obliged to resort to this court for relief because the United States circuit court of appeals for the eighth circuit has decided the questions involved, adversely to his contention, in the case of United States Exp. Co. v. Friedman, 191 Fed. 673.

Messrs. Joseph C. Stone, Lawrence Maxwell, James S. Davenport, Thomas H. Owen, and Joseph S. Graydon for petitioner.

Solicitor General Lehmann, Assistant Attorney General Denison, and Mr. Louis G. Bissell for respondent.

[Argument of Counsel from pages 668-670 intentionally omitted] Mr. Justice Pitney, after making the foregoing statement, delivered the opinion of the court:

The draftsman of the indictment evidently intended to charge the offense known as 'introducing liquor into the Indian country,' made punishable by § 2139, Rev. Stat. as amended by act of July 23, 1892 (27 Stat. at L. 260, chap. 234), and by the 'Act to Prohibit the Sale of Intoxicating Drinks to Indians,' etc., approved January 30, 1897 (29 Stat. at L. 506, chap. 109).

The circuit court of appeals in United States Exp. Co. v. Friedman, 191 Fed. 673, dealt with the question whether that portion of Oklahoma formerly known as the Indian territory ceased to be 'Indian country' upon the admission of Oklahoma as a state, so that these acts were no longer applicable, and with the question whether the admission of Oklahoma as a state had the effect of repealing them so far as pertained to the introduction of liquors into the territory. Petitioner's application to this court for a habeas corpus was intended to bring that decision under review, and the agreed statement of facts was designedly so framed as to show the grounds of his contention that the locus in quo is no longer 'Indian country.'

The government, however, in resisting the application, relied for support of the jurisdiction of the district court not only upon the acts just referred to, but also upon § 8 of 'An Act to Provide for the Appointment of Additional Judges of the United States Court in the Indian Territory, and for Other Purposes,' approved March 1, 1895 (28 Stat. at L. 693, chap. 145).

The three enactments in question are set forth in chronological order in the margin.¹

¹ Act of July 23, 1892 (27 Stat. at L. 260).

'Chap. 234.—An Act to Amend Sections Twenty-one Hundred and Thirty-nine, Twenty-one Hundred and Forty, and Twenty-one Hundred and Forty-one of the Revised Statutes Touching the Sale of Intoxicants in the Indian Country, and for Other Purposes.

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress Assembled, That section twenty-one hun- At the time of the passage of the act of 1895, the territory known as the Indian territory was that which was described by metes and bounds in the act of May 2, 1890 (26 Stat. at L. 81, 93, chap. 182, § 29). It included the lands of the Cherokee Nation and the city of Vinita, where the petitioner's alleged offense was committed. It is now, of course, a part of the state of Oklahoma.

It is not open to serious dispute that if the prohibition of the act of 1895 against 'carrying into said territory any such liquors or drinks' remains operative so far as pertains to the carrying of intoxicating liquors from another state into that part of Oklahoma which was the Indian territory, the acts admittedly done by the petitioner constitute an offense thereunder, of which the United States district court has jurisdiction. Whether the offense is sufficiently alleged in the indictment is another question, which, on familiar grounds, is not a proper subject-matter for inquiry on habeas corpus. Ex Parte Parks, 93 U. S. 18, 23 L. ed. 787; Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676, 3 Am. Crim. Rep. 547; Ex parte Carll, 106 U. S. 521, 27 L. ed. 288, 1 Sup. Ct. Rep. 535, 4 Am. Crim. Rep. 253; Re Belt, 159 U. S. 95, 4o L. ed. 88, 15 Sup. Ct. Rep. 987; Ornelas v. Ruiz, 161 U. S. 502, 40 L. ed. 787, 16 Sup. Ct. Rep. 689. Recognizing this, counsel for the petitioner, upon the oral argument and in a supplemental brief, modified his original contentions so as to deal with the act of 1895. As thus modified, the grounds upon which he relies are the following:

First, that the act of 1895, being a special act applicable to the Indian territory, had the effect of superseding, as to that territory, the existing general statute against the introduction and sale of intoxicating liquors in the Indian country.

Secondly, that the act of 1897, being amendatory of the general statute against the introduction and sale of intoxicating liquors in the Indian country, did not apply to the Indian territory, because that territory was covered by the special act of 1895.

Thirdly, that the jurisdiction cannot be rested upon the act of 1897, because the place where the alleged offense was committed was not Indian country within the meaning of that act, since there was no Indian title remaining in the town site of Vinita; the insistence being that where there is no Indian title, no inalienable land, and no allotted land held in trust, there can be no 'Indian country.'

Fourthly, that, whether the act of 1895 or the act of 1897 would otherwise be applicable, these acts were both repealed, as to that part of Oklahoma which was formerly the Indian territory, by the force of the Oklahoma enabling act of June 16, 1906, chap. 3335, 34 Stat. at L. 267, under the authority of which the Constitution of Oklahoma was adopted and a state government established, covering the territory previously known as Oklahoma and the Indian territory; and pursuant to which certain statutes were afterwards enacted by the state legislature, viz., an act of March 24, 1908, known as the Billups law, being §§ 4156-4209 of the Compiled Laws of Oklahoma of 1909, and an act passed March 11, 1911, Session Laws of Oklahoma, 1910-1911, pp. 154-156.

The contentions of the government, on the other hand, are:

First, that the act of 1895...