In re Mills

• Decision Date: 28 April 1890
• Citation: 135 U.S. 263,34 L.Ed. 107,10 S.Ct. 762
• Parties: In re MILLS
• Court: U.S. Supreme Court

135 U.S. 263

10 S.Ct. 762

34 L.Ed. 107

In re MILLS.

April 28, 1890.

Van H. Manning, for petitioner.

Asst. Atty. Gen. Maury, for respondent.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This is an original application to this court for a writ of habeas corpus. Leave to file the petition having been given, a rule was granted against the warden of the state penitentiary at Columbus, Ohio, in which the petitioner was imprisoned, requiring him to show cause why the writ should not be issued. The return to that rule shows that the petitioner was received by the respondent, August 1, 1889, from the marshal of the United States for the western district of Arkansas, pursuant to a judgment of the district court of the United States for that district, sentencing the prisoner to confinementin that penitentiary.

It appears that the prisoner was charged by indictment in the district court of the United States for the western district of Arkansas with the offense of having, on the 7th day of July, 1889, 'at the Creek Nation, in the Indian country,' within that district, unlawfully engaged in and carried on the business of a retail liquor dealer without having first paid the special tax required by law. The indictment was based upon section 3242 of the Revised Statutes, providing that 'every person who carries on the business of a * * * retail liquor dealer, * * * without having paid the special tax as required by law, shall, for every such offense, be fined not less than one thousand dollars, nor more than five thousand dollars, and be imprisoned not less than six months, nor more than two years.' Upon a plea of guilty, the court adjudged that the accused be imprisoned in the Ohio state penitentiary, at Columbus, for the term and period of one year, and pay to the United States a fine of $100, and its costs in the prosecution expended.

It also appears that the petitioner was charged by indictment in the same court with the offense of having on the 7th of July, 1889, 'at the Creek Nation, in the Indian country,' unlawfully introduced into that country, in said district, spirituous liquors, to-wit, one gallon of whisky. That indictment was based upon section 2139 of the Revised Statutes, providing: 'No ardent spirits shall be introduced, under any pretense, into the Indian country. Every person * * * who sells, exchanges, gives, barters, or disposes of any spirituous liquor or wine to any Indian under the charge of any Indian superintendent or agent, or introduces or attempts to introduce any spirituous liquor or wine into the Indian country, shall be punishable by imprisonment for not more than two years, and by a fine of not more than three hundred dollars.' 19 St. p. 244, c. 69; Supp. Rev. St. 269, par. 48. Upon a plea of guilty, it was adjudged that the accused by imprisoned in the same penitentiary for the period of six months, and pay to the government a fine of $50, together with its costs; also that this term of imprisonment commence and date from the expiration of the term of one year for which he was sentenced in the other case.

The petition for the writ of habeas corpus proceeds upon the ground that the court which passed the above sentences was without jurisdiction of the offenses charged, and that sole and exclusive jurisdiction thereof was in the court established by the act of congress, passed March 1, 1889, entitled, 'An act to establish a United States court in the Indian Territory, and for other purposes.' 25 St. p. 783, c. 333. This question will be first examined.

As the country lying west of Missouri and Arkansas, known as the 'Indian Territory,' was within the western district of Arkansas when the above act of March 1, 1889, was passed, and as the district courts have jurisdiction of all crimes and offenses cognizable under the authority of the United States, and committed within their respective districts, (Rev. St. §§ 533, 563,) it cannot be disputed that the court below had jurisdiction of the offenses charged against the petitioner, unless its jurisdiction was taken away by the act establishing a court in the Indian Territory. That act establishes 'a United States court,' with jurisdiction extending over the Indian Territory, bounded on the north by Kansas, on the east by Missouri and Arkansas, on the south by Texas, and on the west by Texas and the territory of New Mexico. Its criminal jurisdiction is thus declared in the fifth section of the act: 'That the court hereby established shall have exclusive original jurisdiction over all offenses against the laws of the United States committed within the Indian Territory as in this act defined, not punishable by death or by imprisonment at hard labor.' As the offenses charged against the petitioner were offenses against the United States, and were committed in the Indian Territory, the question as to the jurisdiction of the court established by this act depends upon the meaning that may be given to the words, 'punishable * * * by imprisonment at hard labor.' There are offenses against the United States for which the statute, in terms, prescribes punishment by imprisonment at hard labor. There are others the punishment of which is 'imprisonment' simply. But, in cases of the latter class, the sentence of imprisonment—if imprisonment be for a longer period than one year, (section 5541)—may be executed in a state-prison or penitentiary, the rules of which prescribe hard labor. These statutory provisions were referred to in Ex parte Karstendick, 93 U. S. 396, 399, where Chief Justice WAITE, delivering the opinion of the court, said: 'In cases where the statute makes hard labor a part of the punishment, it is imperative upon the court to include that in its sentence. But, where the statute requires imprisonment alone, the several provisions which have just been referred to place it within the power of the court, at its discretion, to order execution of its sentence at a place where labor is exacted as part of the discipline and treatment of the institution or not, as it pleases. Thus, a wider range of punishment is given, and the courts are left at liberty to graduate their sentences so as to meet the ever-varying circumstances of the cases which come before them.'

In view of this condition of the law at the time of the passage of the act creating a United States court in the Indian Territory, there is fair ground for disputed as to the true interpretation of the words, 'punishable * * * by imprisonment at hard labor.' An offense which the statute imperatively requires to be punished by imprisonment 'at hard labor,' and one that must be punished by 'imprisonment,' but the sentence to which imprisonment the court may, in certain cases, and in its discretion, require to be executed in a penitentiary where hard labor is prescribed for convicts, are each 'punishable' by imprisonment at hard labor. The fore r offense certainly must be thus punished; and as the latter may, in the discretion of the court, be so punished, it may also, and not unreasonably, be held to be 'punishable' by imprisonment at hard labor. Shall the act of congress be so interpreted as to exclude from the jurisdiction of the court established in the Indian Territory an offense which the statute imperatively requires to be punished by imprisonment at hard labor, and include within its jurisdiction offenses for which the court, in its discretion, may sentence the accused to imprisonment in a penitentiary whose rules require hard labor upon the part of...