against by information, for the reason that, being "punishable" by imprisonment in a state-prison or penitentiary, he could not be required to make answer thereto except on the presentment or indictment of a grand jury.

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These considerations justify us in holding, as we do, that the words, "punishable by imprisonment at hard labor," in the act of March 1, 1889, embrace offenses which, although not imperatively required by statute to be so punished, may, in the discretion of the court, be punished by imprisonment in a penitentiary. This interpretation will best effectuate the intention of congress. A different interpretation would impute to congress a purpose to invest the court, established by that act for the Indian Territory, with jurisdiction of offenses which it could not punish for the want of authority to impanel a grand jury to return presentments or indictments against the offenders.

It results that the jurisdiction of the court below of the offenses charged against the petitioner was not affected by the act of March 1, 1889, creating a United States court in the Indian Territory.

If the application for the writ depended upon the question of the jurisdiction of the district court of the United States for the western district of Arkansas of the offenses with which the petitioner was charged, it would be denied. But the petition alleges that his detention in the penitentiary, under the above sentence, is contrary to the laws of the United States. It is our duty to inquire whether or not that point be well taken. If it appears on the face of the papers that, apart from any question as to whether the court below, or the United States court established in the Indian Territory by the act of March 1. 1889, had exclusive original jurisdiction of the offenses with which the petitioner was charged, his detention in à penitentiary is in violation of the laws of the United States, he is entitled to be discharged from the custody of the warden of that institution. Ex parte Royall, 117 | U. S. 241, 248, 6 Sup. Ct. Rep. 734.

It is provided by section 5541 of the Revised Statutes that, "in every case where any person convicted of any offense against the United States is sentenced to imprisonment for a period longer than one year, the court by which the sentence is passed may order the same to be executed in any state jail or penitentiary within the district or state where such court is held, the use of which jail or penitentiary is allowed by the legislature of the state for that purpose;" by section 5546, that "all persons who have been, or who may hereafter be, convicted of crime by any court of the United States whose punishment is imprisonment in a district or territory where, at the time of conviction, or at any time during the term of imprisonment, there may be no penitentiary or jail suitable for the confinement of convicts, or available therefor, shall be confined during the term for which they may have been or may be sentenced, or during the residue of said term, in some suitable jail or penitentiary in a convenient state or territury, to be designated by the attorney

Assuming that the penitentiary at Columbus, Ohio, has been designated as one in which a judgment of the court below. sentencing to imprisonment a person found guilty of an offense against the United States, may be executed, whenever the sentence is one that may be ordered to be executed in a state-prison or penitentiary, we are of opinion that the sentences under which the petitioner was committed to that institution are not of that class. A sentence simply of "imprisonment," in the case of a person convicted of an offense against the United States.-where the statute prescribing the punishment does not require that the accused shall be confined in a penitentiary,-cannot be executed by confinement in a penitentiary, except in cases in which the sentence is "for a period longer than one year." In neither of the cases against the accused was he sentenced to imprisonment for a period longer than one year. In one case, the imprisonment was "for the term and period of one year;" in the other, "for the term and period of six months." There is, consequently, no escape from the conclusion that the judgment of the court sentencing the petitioner to imprisonment in a penitentiary, in one case for a year and in the other for six months, was in violation of the statutes of the United States. The court below was without jurisdiction to pass any such sentences, and the orders directing the sentences of imprisonment to be executed in a penitentiary are void. This is not a case of mere error, but one in which the court below transcended its powers. Ex parte Lange, 18 Wall. 163, 176; Ex parte Parks, 93 U. S. 18, 23; Ex parte Virginia, 100 U. S. 339, 343; Ex parte Rowland, 104 U. S. 604, 612; Ex parte Coy, 127 U. S. 731, 738, 8 Sup. Ct. Rep. 1263; Ex parte Nielsen, 131 U. S. 176, 182, 9 Sup. Ct. Rep. 672.

Such is the effect of section 5541, which is, in part, and without substantial change. a reproduction of the third section of the act of March 3, 1865, entitled "An act reg ulating proceedings in criminal cases, and for other purposes." 13 St. p. 500, c. 86. That section provides "that, in every case where any person convicted of any offense against the United States shall be sentenced to imprisonment for a period longer than one year, it shall be lawful for the court by which the sentence is passed to order the same to be executed in any stateprison or penitentiary within the district, or state where such court is held. the user of which prison or penitentiary is allowed? by the legislature of such state for such purposes; and the expenses attendant upon the execution of such sentence shall be paid by the United States." The words "state jail," in section 5541, and “stateprison," in the act of 1865, mean the same thing.

conveyed by the said lode patent is excepted out of the grant of the land described in and conveyed by the said placer patent. And the court finds that the plaintiffs were at the time of the commencement of this action, and still are, the owners and seised of said tract of land described in said complaint, and called the 'Sierra Nevada Lode Mining Claim;' that the said defendant company wrongfully withheld, and still does wrongfully withhold, the possession thereof from the said plaintiffs. It is therefore ordered and adjudged that the plaintiffs have judgment against said defendant company for possession of the mining ground in dispute, as described in the complaint herein, with costs to be taxed. And, forasinuch as the matters and things above herein set forth do not appear of record, and the said defendant tenders this its bill of exceptions, and prays that the same may be signed and sealed by the judge of this court, and pursuant to the statutes in such case made and provided, which is accordingly done this eighth day of July, 1885, being one of the judicial days of the May term of the said court, A. D. 1885, at the city of Denver, in said district. [Signed] MOSES HALLETT, Dis't Judge. This finding of facts and conclusions of law is embodied in, and made a part of, a bill of exceptions. We think the correct practice in cases submitted to a court without a jury, is for the court to make its finding of facts and its conclusions of law a separate paper from pleadings or bills of exceptions.

The only thing of any consequence in the bill of exceptions, containing a considerable amount of oral testimony, almost every word of which is objected to by one party or the other, is the two patents under which the adverse parties claim title. From this and the finding of facts it appears that the patent under which the Iron Silver Mining Company claims was issued to William Moyer on his application, made in the proper land-office, on the 13th of November, 1878, and bears date January 30, 1880, and that the one under which plaintiffs below claim bears date March 15, 1883. It is conceded that both patents cover the land in controversy. The Moyer patent, being the elder, is for 56 acres of placer mining land. The plaintiffs' patent, though of a later date, is for a vein or lode of mineral deposit which runs under the surface of the ground covered by defendant's patent. The conclusion of law which controlled the judgment of the circuit court in the present case is that "it is conclusively presumed and found, from the face of the said Sierra Nevada lode patent, that the said Sierra Nevada lode claim had been duly discovered, located, and recorded, and owned by the said patentees in the said Sierra Nevada lode patent, and their predecessors in interest, the said paintiffs, within the exterior boundaries of said tract of land described in said William Moyer placer patent, before the time of the said application for the said placer patent; and the mining ground described in the said complaint, and conveyed by the said lode patent, is excepted out of the grant of the land described in and conveyed by the said placer patent." It is the soundness

of this conclusion of law from the facts found which we are called upon to review.

The real principle on which the plaintiffs relied to establish the superiority of their claim for the lode in controversy is that it was a known lode, within the meaning of the act of congress on that subject1 at the time of the application for the Moyer patent, and therefore, by the act of congress on that subject, the title to it did not pass to the grantee in that patent. If the fact were proved that the Sierra Nevada lode was a known lode, within the limits of the placer patent obtained by Moyer, at the time of his application, the contention of the plaintiffs is sound. But notwithstanding nearly all the testimony, particularly all the oral testimony found in the bill of exceptions, was introduced for the purpose of proving the existence of this lode, and that it was known to Moyer or his grantor; and in refutation of that proposition the court in its finding of facts makes no finding on that subject. It was obviously the opinion of the court, and it is the ground on which defendants in error support its judgment here, that the patent issued by the government is conclusive evidence that such vein was known so as to authorize the land department to issue a patent for it as being reserved out of the grant in Moyer's patent. It is very singular that the patent to Campbell and others for the Sierra Nevada claim makes no reference to this reservation in Moyer's patent, and no statement that the existence of the lode was known to anybody at the time the Moyer patent was applied for, or when it was granted. There is nothing on the face of this patent to show that there was any contest before the land department on this question of the existence of the vein, and the knowledge of it, on which the validity of the patent is now supposed to rest. We have, therefore, the junior patent, which is held to defeat the prior patent, with no reference to any contest between the different claimants before the land-office; and we have the court, in deciding the present case, while hearing the testimony which would defeat or sustain that patent, utterly ignoring it, and making no finding upon the subject which the defendants in error believe to be involved in the issue. The reason of this action by the court is very plain. It proceeds upon the idea that it is conclusively presumed and found, from the face of the Sierra Nevada lode patent, that the said lode claim had been duly discov ered, located, and recorded within the exterior boundaries of the land described in the said Moyer placer patent before the application for the said Moyer patent. there is not a word said on the face of the Sierra Nevada lode patent on this subject, we must look for some inference of law, rather than to the statement of facts, upon which this presumption conclusively arises. That presumption of law, as explained by counsel, is that, since the law under which the Moyer patent issued reserved from its operation any known vein or lode within the exterior boundaries, it is presumed that, when the officers of the land depart

'Rev. St. U. S. § 2333.

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ment issued the patent for the Sierra Nevada lode, they made such inquiries into the question of the existence of this lode, and its being known to the grantee in the Moyer patent, as authorized it to decide that question, and that that decision is binding and conclusive forever upon all parties. We are not able to agree with this statement of the law. The proceedings in the land department for securing title to government lands are usually ex parte. There is no general provision of law which requires a party who can make the necessary proofs, which on their face entitle him to purchase land from the government, to call any individual as a contestant, or to notify other parties interested in the matter that he is about to proceed. Each one proceeds in his own manner, and establishes his own claim; and the officers of the government, frequently, do not know that there is any other party claiming the same land, while there may be such a party who has also taken proper steps, and whose rights are superior to those of the party presenting himself before the officers of the government. It is this ex parte proceeding which is supposed to bind the claimants under the Moyer patent conclusively and forever in regard to their knowledge of the existence of this Sierra Nevada lode at the time they made application for their patent within its limits. We are not ignorant of the many decisions by which it has been held that the rulings of the land-officers in regard to the facts on which patents for land are issued are decisive in actions at law, and that such patents can only be impeached in regard to those facts by a suit in chancery brought to set the grant aside. But those are cases in which no prior patent had been issued for the same land, and where the party contesting the patent had no evidence of a superior legal title, but was compelled to rely on the equity growing out of frauds and mistakes in issuing the patent to his opponent. Where each party has a patent from the government, and the question is as to the superiority of the title under those patents, if this depends upon extrinsic facts not shown by the patents themselves, we think it is competent, in any judicial proceeding where this question of superiority of title arises, to establish it by proof of these facts. We do not believe that the government of the United States, having issued a patent, can by the authority of its own officers invalidate that patent by the issuing of a second one for the same property. If it be said that the question of the reservation of this vein as a known lode under the law on that subject makes a difference in this respect, and that the land-office has a right to inquire whether such lode existed, and whether its existence was known to the patentee of the first patent, we answer that a patent issued under such circumstances to the claimant of the lode claim may possibly be such prima facie evidence of the facts named as will place the parties in a condition to contest the question in a court. But we are of opinion that it is always and ultimately a question of judicial cognizance. The first patent conferred upon Moyer the right to this vein, and to

all other veins within the limits of his 50 acres of placer claim. There is excepted from that grant any lode existing and known at the time application was made for his patent. Whether such a lode did exist, and whether it was known to him, is a question which he has a right to have tried by a court of justice, and from which he cannot be excluded by the subsequent action of the officers of the land department. It is not necessary to consider whether there may not be reservations of a character which could be thus disposed of by the proper land-offices; for instance, a reservation of any land heretofore patented or granted to other parties. There is nothing there to decide, but to look at the records of the land-office, and see whether any land within that boundary ever had been granted. A reservation of a specific boundary, laid down so as to be identified, in the first patent, needs no judicial action to determine what it is that is reserved.

But, in the present case, two facts, requiring judgment, discretion, knowledge of the law, and the balancing of testimony, are essential to the exercise of the right to grant the property to some other party. One of these, the existence of such a vein, is a question often of great conflict of evidence, requiring the weighing of testimony. The other-the most important of all, the most difficult to decide, the least likely to be decided correctly by ex parte testimony or in ex parte proceedings-is the question whether, if such mine existed, it was known to the party who applied for the patent at the time the application was made. And, while we are not prepared to say at this time that the land-officers cannot, on a prima facie case, decide the right of the applicant to such vein, and give him a patent for it, we are satisfied that, in any conflict between the title conferred by two patents, whether it be in law or in equity, the holder of the title under the elder patent has a right to require that the existence of the lode, and the knowledge of its existence on the part of the grantee of the elder patent, should be established. Here we have a remarkable fact, the absence of any evidence of a contest before the land department on that subject, and of any hearing on the part of the owner of the elder title. We have no finding or assertion of the existence of such fact in the junior patent, or that it was established even by ex parte proceedings before the officers of the government; and the introduction of evidence, on the trial in this case, on that subject, was ignored as any part of the case on which the judgment of the court was based. It rests solely, and, as the court says, conclusively, on the presumption that the officers of the government did their duty in the matter, and that what they decided is incapable of contradiction.

The case in this court bearing the nearest analogy to the one before us is that of Railroad Co. v. Smith, 9 Wall. 95. By the act of September 28, 1850, all the swamp and overflowed lands belonging to the United States were given to the states within which they laid. The secretary of the interior was directed by the statute to

ascertain and distinguish these lands, and certify them to the several states; and it has been repeatedly held by this court that the act itself was a present grant of all such lands. Congress subsequently, by the act of June 10, 1852, granted the right of way, and a portion of the public lands, to the state of Missouri, in aid of the construction of railroads. This grant was accepted by the legislature of Missouri, which, by a statute, vested the land granted in the Hannibal & St. Joseph Railroad Company, the company having located its road, whereby the even numbered section and quarter sections granted to the state for the use of said road were ascertained. The railroad company, finding Smith, the defendant, residing upon and claiming one of these quarter sections, brought an action of ejectment to recover possession. Smith defended on the ground that the land was swampland, and the title passed from the United States by the act of 1850, and could not be granted to the state of Missouri, or to the railroad company, by the act of 1852. The latter act contained a reservation from the grant for the railroad of all lands theretofore conveyed or disposed of by the United States. Here, then, were two grants of the same lands by the United States; these grants operating as effectually as patents to convey title to the property described in them. It became necessary in the suit to ascertain which of these was the superior title. The elder grant, prima facie, to-wit, the grant of the swamp lands to the states, which we have said was a grant in præsenti, was the better title. But the question arose as to how it could be shown that this was swamp land, within the meaning of the act of 1850, and therefore passed by that statute, and could not afterwards be transferred by the act of 1852. The act of congress granting these swamp lands had made it the duty of the secretary of the treasury-a duty afterwards transferred to the secretary of the interior-to ascertain what were swamp lands, and to make certificate of the fact to the states that were entitled to them. This duty had not been performed by either the secretary of the treasury or the secretary of the interior. There was no record or documentary evidence, therefore, by which the state claiming those swamp lands, or its grantee claiming under it, could establish the fact that the land which he was occupying was swamp land under the grant of 1850. The case was brought in a state court of Missouri, and that court permitted Smith to show by parol evidence-the evidence of parties familiar with the land -that it was swamp and overflowed land at the time the grant of 1850 was made by congress, and had been ever since; and on this testimony a judgment was rendered for the defendant Smith, which was *affirmed by the supreme court of the state. From that court it was brought to this court by a writ of error. This court said that, "by the second section of the act of 1850, it was made the duty of the secretary of the interior to ascertain this fact, [namely, whether it was swamp land or not,] and furnish the state with the evidence of it. Must the state lose the land, though

clearly swamp land, because that officer had neglected to do this? The right of the state did not depend on his action, but on the act of congress; and, though the states might be embarrassed in the assertion of this right by the delay or failure of the secretary to ascertain and make out lists of these lands, the right of the states to them could not be defeated by that delay. As that officer had no satisfactory evidence under his control to enable him to make out these lists, as is abundantly shown by the correspondence of the land department with the state officers, he must, if he had attempted it, rely, as he did in many cases, on witnesses whose personal knowledge enabled them to report as to the character of the tracts claimed to be swamp and overflowed. Why should not the same kind of testimony, subjected to cross-examination, be competent, when the issue is made in a court of justice, to show that they are swamp and overflowed, and so excluded from the grant under which plaintiff claims, -a grant which was also a gratuity? The matter to be shown is one of observation and examination; and, whether arising before the secretary, whose duty it was, primarily, to decide it, or before the court, whose duty it became because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.' The subsequent case of French v. Fyan, 93 U. S. 169, as shown by a careful reading of it, is not in conflict with this decision, because in that case, the secretary having acted upon the matter, and certified that the lands then in controversy were swamp and overflowed lands, it was not permitted, in a trial before a jury, to contradict this certificate by oral testimony. And in the still later case of Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985, the principle we are stating is clearly laid down in a ase almost identical with the present one.

It is urged upon us, in answer to this view of the subject, that, by sections 2325 and 2326 of the Revised Statutes, it is made the duty of a person seeking to avail himself of the discovery of a mineral lode, and obtain a patent for the same, previous to making the application for a patent, to file the survey and field-notes of the grant which he claims, and do certain other things showing him to be entitled to purchase the mineral land which he claims, all of which is to be under oath. The statute then declares that the register, upon the filing of such application, field-notes, etc., shall publish a notice that such application has been made, for the period of 60 days, in a newspaper to be by him designated as published nearest to said claim, and at the end of this 60-days publication, "if no adverse claim shall have been filed with the register and the receiver" of the land-office, "it shall be assumed that the applicant is entitled to a patent upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter in objection from third parties to the issuance of a patent shall be heard except it is shown that the applicant has failed to comply with the terms of this chapter." Section