the pre-emption act nor the land act has anything to do, since there is nothing in either to prevent any person having sufficient means acquiring acres by the million under the policy of free disposition so greatly favored by the United States courts. The homestead act of 1862 simply continued the policy of the pre-emption law by including its provisions encouraging fair play, prohibiting speculation, in addition to giving a free home, with the same right of free disposal after certificate issued. The same policy was continued, though perhaps misapplied, in the stone and timber law of 1878. The administration of this act, which I cannot help thinking an unfortunate exercise of congressional power, has, I think, done more to create what is called the "land conscience" than all other land laws combined. When the government offers lands worth thousands or tens of thousands for a small percentage of their actual value, it is hardly to be expected that fraud can be prevented. A glittering temptation is held up, and it is not strange that weak human nature has yielded to it. In the coal land purchase act of 1873 a single one of the policies disclosed by the former acts has been retained. The policy of fair play, equal opportunity to acquire the land, most clearly appears, but without anything to discourage speculation or prior contract. It is most natural that the Interior Department, during an administration of 30 years, should have expressly encouraged sales or transfers of the right of entry. It is true that Mr. Justice Harlan, in the Trinidad Coal Company Case, 137 U. S. 160, 169, 11 Sup. Ct. 57, 34 L. Ed. 640, says that the object of the restrictions as to quantity was manifestly to prevent monopolies in these coal lands. But in this he means nothing more than that the policy of fair play and the initial creation of small estates was continued. Any other construction of his language, in view of the right of free disposal, and the express encouragement of the sale of rights of entry by the department, seems impossible.

No criminal conspiracy appearing either in the indictment or evidence, and no probable cause for believing petitioners guilty, all of the petitioning defendants should be discharged from imprisonment.

Two other questions are presented, and have been fully argued: Venue or jurisdiction, and the statute of limitations. The commissioner decided that the alleged conspiracy was formed in Wisconsin, and this conclusion is fully approved. No other is possible from the evidence. But the commissioner further held that overt acts in Colorado transferred the locus of the conspiracy to Colorado, so that the allegation of the indictment that the conspiracy was formed in Colorado could thus be proved. He thus held that there was evidence upon which a jury might convict in that state, assuming, as he did, that a crime had been actually committed.

As to the statute of limitations the commissioner decided in conformity to the rule of Ware v. U. S. (C. C. A.) 154 Fed. 577, that overt acts occurred within three years before the finding of the indictment, and were done with the conscious participation of defendants; and his conclusion was that the prosecution is not barred by the statute of limitations.

In view of the conclusion reached in this case it is unnecessary to decide either of these questions. The first one is disposed of in Arnold v. Weil, decided herewith.

An order will be entered discharging the defendants.

ARNOLD v. WEIL, U. S. Marshal.

(District Court, E. D. Wisconsin. November 15, 1907.)

1 CONSPIRACY-CONSPIRACY to Defraud UNITED STATES-SUFFICIENCY OF IN

DICTMENT.

An indictment under Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676], for conspiracy to defraud the United States, charges an offense where it avers the purpose of the conspiracy to be to acquire coal lands of the United States by means of false, fictitious, and fraudulent entries and applications, and to induce and hire others to make like entries, at the cost and for the benefit of defendants to whom such entrymen were to convey the lands so entered, and where it fully sets out such means and overt acts committed for the purpose of effecting the object of such conspiracy.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Conspiracy, § 97.] 2 CRIMINAL LAW-CONSPIRACY-VENUE OF PROSECUTION-RENEWAL OF OVERT ACTS.

Where a conspiracy to defraud the United States of public lands was originally formed in one federal district, but was carried out by means of false and fraudulent entries of such lands in another district, made with the knowledge and consent of all the conspirators, each of such overt acts constituted a renewal of the conspiracy in the latter district, and the offense may be prosecuted in either district.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, $232.]

Habeas Corpus.

Hugh Ryan and W. J. Turner, for petitioner.

E. J. Henning, Asst. U. S. Atty., for the Government.

SANBORN, District Judge. This is a habeas corpus proceeding similar to that of Pereles v. Weil (decided herewith) 157 Fed. 419. The indictment covers 108 pages of typewriting, and contains 4 counts. It is of an entirely different character from that in the Pereles Case. The first count charges a willful and corrupt conspiracy to make false, fictitious, feigned, illegal, forged, and fraudulent entries and filings, to induce, persuade, and hire other persons to make like entries; to make false, fictitious, feigned, forged and fraudulent papers, statements, and affidavits; and to make false statements to the land officers, knowing them to be false, fraudulent, forged, and untrue, in order to induce them to act otherwise than they would if they had known of such falsity, fraud, etc. It is further charged that defendants were to furnish the money to make such entries, and take conveyances from such persons to defendants, or to a corporation to be thereafter formed. The means by which the conspiracy was to be effected are fully and explicitly stated, as well as a large number of overt acts done to effect its object. The second count charges a similar conspiracy entered into at a different place. The third count charges a similar conspiracy made by defendants with other and different persons, and relating to other coal lands. The fourth count charges a conspiracy to make and present

false, forged, and fraudulent filings, declarations, affidavits, and other papers to the land officers at Glenwood Springs, Colo., relating to coal land entries, and to hire entrymen, cause dummy entries to be made, etc. The means are fully set out, and the respects in which the papers were false are fully stated, the papers being copied in full in this

count.

This indictment is complete in form, supplying with the greatest particularity and detail the facts showing an intentional and deliberate fraud, knowingly perpetrated. Considerable testimony was taken by the commissioner, who decided that probable cause existed. On all the testimony it is clear that the prima facie force of the indictment against the petitioner was not overcome.

No question of the statute of limitations arises in this case, the conspiracy being charged to have been made within three years. The commissioner found, however, and the proofs showed, that the conspiracy was entered into in Milwaukee, Wis., but that it was renewed by overt acts in Colorado, so that the allegation that it was formed in Colorado is capable of proof. This finding raises the question of venue, and of the jurisdiction of the District Court of Colorado, and whether the petitioner Arnold has the constitutional right to be tried in this district, where the conspiracy was formed, or whether the crime is deemed to have been committed in Colorado, where the overt acts occurred.

The sixth amendment provides that the accused shall have the right to a trial by a jury within the state or district where the crime was committed, which district shall have been previously ascertained by law. All the overt acts charged were done in Colorado, and the question thus raised whether the conspiracy was formed both in Wisconsin and Colorado, and may be prosecuted either in this district or the District of Colorado, at the option of the United States. Here the crime was first committed in Wisconsin, and would have been indictable there, at any time after the first act done in Colorado to effect its object. Is each such act a conspiracy in such sense that it may be said that defendants have, at the place where the overt act is done, conspired to defraud the government? Having conspired in Milwaukee to defraud the government through coal land entries, three of the defendants, as charged in the statement of overt act No. 1, filed in the land office at Glenwood Springs several papers connected with two entries. This act, it is said, was a conspiring in Colorado by renewing or continuing the Wisconsin agreement. The act done in Colorado being done to carry out the prior agreement made in Wisconsin, and thus with the continuing consent and approval of all, is the act of all, through their agent and co-conspirator, and evidence against all. Surely it does not require any great stretch of logical principle to say that the conspirators have agreed again, have renewed the conspiracy, or continued it, whenever and wherever one or more act for and with the approval of and under the direction of all.

This question is referred to but not decided in Hyde v. Shine, 199 U. S. 62, 25 Sup. Ct. 760, 50 L. Ed. 90. The court says:

"As the indictment in this case charges that the conspiracy was entered into in the city of Washington, it becomes unnecessary to consider whether an indictment will lie within the jurisdiction where the overt act was committed.

although there are many authorities to that effect. King v. Brisac, 4 East, 164; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; Commonwealth v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475; Noyes v. State, 41 N. J. Law, 418; Commonwealth v. Corlies, 3 Brewst. (Pa.) 575. We have ourselves decided that, if the conspiracy be entered into within the jurisdiction of the trial court, the indictment will lie there, though the overt act is shown to have been committed in another jurisdiction, or even in a foreign country. Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Palliser v. United States, 136 U. S. 257, 10 Sup. Ct. 1034, 34 L. Ed. 514; King v. Brisac, 4 East, Rep. 164; Rev. St. § 731 [U. S. Comp. St. 1901, p. 585]."

Many other reported cases hold that an overt act renews or continues the original offense so as to take the case out of the statute of limitations, and these cases seem to be in point on this question also. Commonwealth v. Bartilson, 85 Pa. 482; Ochs v. People, 124 Ill. 399, 16 N. E. 662; People v. Willis, 23 Misc. Rep. 568, 52 N. Y. Supp. 808; U. S. v. Greene (D. C.) 100 Fed. 941; U. S. v. Greene (D. C.) 115 Fed. 343; U. S. v. Greene (D. C.) 146 Fed. 888; Insurance Co. v. State, 75 Miss. 24, 22 South. 99; McKee v. State, 111 Ind. 378, 12 N. E. 510; Raleigh v. Cook, 60 Tex. 438; U. S. v. McAndrews (C. C.) 149 Fed. 823; Swift v. U. S., 196 U. S. 400, 25 Sup. Ct. 276, 49 L. Ed. 518; U. S. v. Howell (D. C.) 56 Fed. 21-34; U. S. v. Babcock, 3 Dill. 581, Fed. Cas. No. 14,487; U. S. v. Brace (D. C.) 149 Fed. 874; U. S. v. Bradford (C. C.) 148 Fed. 413; Id. (C. C. A.) 152 Fed. 617; U. S. v. Noblan, Fed. Cas. No. 15,896; Ware v. U. S. (C. C. A.) 154 Fed. 577; Lorenz v. U. S., 24 App. D. C. 337.

It is true that there are many federal cases deciding that the offense does not consist of both the conspiracy and the acts done to effect its object, but of the conspiracy alone. U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698; Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545. As Judge Dyer said in U. S. v. Goldberg, 7 Biss. 183, Fed. Cas. No. 15,223, the overt act must not be one which is part of the conspiracy, nor one of a series of acts constituting the agreement or conspiring together, but must be a subsequent independent act, following a complete conspiracy. This follows the decision of Judge Benedict in U. S. v. Donau, 11 Blatchf. 168, Fed. Cas. No. 14,983. It is not necessary that an indictment should show how the overt act would tend to effect the object of the conspiracy. U. S. v. Sanche (C. C.) 7 Fed. 715; U. S. v. Boyden, 1 Lowell, 266, Fed. Cas. No. 14,632. It is urged that this uniform course of decision as to the nature of a conspiracy, showing that the overt act is no part of it, but a distinct and independent act, indicates that such an act cannot make, or renew, or continue the conspiracy, but simply operates to make the offense subject to prosecution, cut off the locus poenitentiæ, and operate as evidence of the offense, and is a demonstration that the decisions referred to are not correctly decided. This is a vexed question, and will in the end, I believe, be determined by the Supreme Court more with a view of promoting substantial justice under the sixth amendment, than from any consideration of logical or theoretical principles. Until it is settled by that court these decisions should be followed, although such a rule may operate unjustly by compelling the removal of the accused to distant states for trial.

The petition is dismissed.

INTERSTATE COMMERCE COMMISSION v. HARRIMAN et al.

(Circuit Court, S. D. New York. January 15, 1908.)

1. COMMERCE-INTERSTATE COMMERCE-POWERS OF INTERSTATE COMMERCE COM

MISSION.

One purpose of the interstate commerce legislation is to compel interstate carriers to perform their commercial functions adequately, and, under the power specifically given the Interstate Commerce Commission, to ascertain the "cost and value of the carriers,property," and, as affecting the ability of a carrier to perform such adequate service, the commission has authority to inquire into purchases of property made by it, the prices paid, and the lawfulness and propriety of its acquisition.

2. SAME-INVESTIGATION-SCOPE OF RESOLUTION.

A resolution of the Interstate Commerce Commission ordering an investigation and inquiry into consolidations and combinations of carriers subject to the interstate commerce act and the relations existing between them, "including community of interests therein and the practices and methods of such carriers affecting the movement of interstate commerce," to ascertain whether the same "result in violation of said act or tend to defeat its purposes," is broad enough to include an inquiry into a purchase by such a carrier of stock in other connecting or competing car riers from its own officers or directors, the price paid for the same, and what, if any, profit such officers or directors made thereon; but it does not authorize an inquiry as to whether the action of the directors of a railroad company in withholding public announcement of the declaration by them of an increased dividend was for the purpose of private speculation in the stock.

3. SAME-POWERS OF COMMISSION-INSTITUTING INVESTIGATION.

The Interstate Commerce Commission has plenary power to institute an investigation into any matter within its jurisdiction, as well as to proceed on complaints filed before it.

4. UNITED STATES-POWERS OF CONGRESS-INVESTIGATIONS.

The powers of Congress in respect to investigation and legislation are not absolutely identical; but the power of investigation is the wider and extends to matters on which it could not constitutionally legislate directly, if they are reasonably calculated to afford information useful and material in the framing of constitutional legislation.

5. SAME-REGULATION OF INTERSTATE COMMERCE-POWERs of CongRESS.

While Congress has no power under the interstate commerce clause of the Constitution to legislate directly with respect to a purchase by a state corporation engaged in interstate commerce of property from its directors, even though such purchase should be at a price so excessive as to be illegal or fraudulent as between the parties, yet having power to regulate the operations of such corporations as interstate carriers, as well with respect to their finances as other instrumentalities, it may lawfully require a disclosure as to such transactions.

6. WITNESSES CONFIDENTIAL RELATIONS-PERSON ENTITLED TO ASSERT PRIV*ILEGE.

A banker is not privileged to withhold information as to the identity of a person depositing securities with his bank when such information is material in a lawful investigation, judicial or legislative.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, § 744.]

On Application for Order Requiring Respondents to Answer Certain Questions Propounded by Petitioner.