Ormsby v. U. P. Railway Company.

HALLETT, District Judge, in passing upon a demurrer to the petition, said: In the case against the railroad company, the plaintiff alleges that he shipped certain horses over its line and that they were detained on the way, at a place called Brookville, for a space of twenty-four hours, in consequence of which they were sick and two of them died; that he was put to expense in taking care of all of them, and that some of them depreciated in value-those that were not wholly lost. To this the defendant sets up that there was a special contract in relation to the shipment of these horses; but the special contract does not in any way provide for the detention of the stock on the way. It says nothing on that subject, so that, as far as the first defense alleged here is concerned, the contract is not at all pertinent to anything that is alleged in the declaration. The plaintiff, in demurring to it, says that he demurs to so much of the answer as sets up the special contract. We do not receive a demurrer on such a specification as that. The clerk would not know, nor would anybody, what is meant by saying, "we sustain the demurrer to so much of the answer as sets up the special contract."

There are in the answer, however, some things which are in denial of the complaint: as that there was any detention. of the horses on the way, that the horses were of the value alleged, and there is a charge of new matter, that the horses were sick before they were taken upon the railroad at all, and that they died in consequence of such sickness. All that is properly in answer to the complaint; and as to what is irrelevant and has nothing to do with the matters alleged in the complaint, if the demurrer could be sustained upon that ground at all, it would have to point out by line and word certain parts, so that we should know where we began, and when we came to the end.

As to the last clause of the answer, which may be taken to be an independent answer in itself, that sets up a provision in the contract, that for injuries to the animals shipped over the line of the road the owner should make a demand in writing

United States v. Berry.

of the agent of the company before removing them from the place of destination or from the place of delivery. It may be that for some injuries this clause in the agreement would be effectual; but here, according to the charge of the complaint, the injury was illness of the animals, which could hardly be discovered until they should be removed from the car; and this clause in the contract would require the parties to hold them there at the depot ground, I suppose, until they could ascertain whether they were in good condition or not. That would be very unreasonable indeed. As to such matters as are charged in the complaint - an illness occurring to animals, the extent of which could not be known until they should be removed from the car, and probably not for some little time after their arrival here-it may be said that this clause in the agreement is of no effect; that the railroad company could not make any such provision in respect to stock shipped over their line. The demurrer will be sustained to the last clause or paragraph, or whatever it may be called, of the answer, and overruled as to the other.

THE UNITED STATES v. BERRY et al.

(District of Colorado. November, 1880.)

1. A COMMISSIONER OF A COURT IS NOT A SEPARATE TRIBUNAL - HIS FUNCTIONS AS AN EXAMINING MAGISTRATE ARE ONLY MINISTERIAL, NOT JUDICIAL. A commissioner is but the officer of the court, to whom are committed duties which must otherwise be performed by the court itself. In all he does he is not a seperate tribunal, but an arm of the court to execute preliminary work. As an examining magistrate his functions are ministerial, not judicial.

2. WRIT OF PROHIBITION is never employed to control the conduct of a mere officer of the court; but the court may, whenever justice requires it, assume control of proceedings before its commissioner.

3. QUESTION OF JURISDICTION - HOW RAISED ON PRELIMINARY EXAMINATION. The defendants being before the commissioner of the United States court charged with crime, and the attorney general of the state

United States v. Berry.

having filed his suggestion denying the jurisdiction of the federal government, it is proper for the court to take charge of the investigation, and to this end will direct the commissioner to certify the proceedings.

4. INDIAN TREATIES HAVE FORCE OF LAW-TREATIES WITH INDIANS have the force of law, and when entered into while the reservation is embraced in a territory are not repealed by implication, by the passage of an act authorizing the formation of a state government.

5. JURISDICTION TO PUNISH CRIME COMMITTED IN INDIAN RESERVATION.Where a district of country has been, by competent authority, set apart as an Indian reservation, and by treaty stipulation the United States have assumed exclusive jurisdiction over it, such district remains an Indian reservation, the federal jurisdiction over it continues until it is changed by act of congress or by treaty, or until the Indian title is extinguished; and this notwithstanding it may be embraced within the limits of a state. This exclusive jurisdiction extends to and embraces the enforcement of the criminal laws.

6. UTE RESERVATION

CONFLICT OF JURISDICTION THE UTE RESERVATION, though within the state of Colorado, having been set aside as such by treaty, and the exclusive jurisdiction to punish crime therein being by the terms of the treaty vested in the United States, and this treaty not being, in terms, repealed by act of congress, the treaty remains in force as the law; and the United States district court has jurisdiction to try and punish offenders for crimes committed within the reservation.

7. REPEAL BY IMPLICATION.-An express statute conferring special rights and privileges is held never to be repealed by implication unless the intent to effect such repeal is clear.

The defendants being in the custody of the United States marshal, under a warrant issued by a commissioner of the United States circuit court, upon a charge of murder alleged to have been committed on an Indian reservation, the attorney general of the state filed a written suggestion, setting forth that the offense charged, if committed, was within the state of Colorado, and that warrants for the arrest of the accused, on the same charge, had been issued by an officer of the state, which could not be executed because the accused parties were held by the United States authorities for examination before a commissioner of the district court. Claiming for the court exclusive jurisdiction, he moved the court to award a writ of prohibition to prevent the commissioner from proceeding with the examination.

United States v. Berry.

C. W. Wright, Attorney General, for the state.

E. L. Johnson, U. S. District Attorney, for the government.

B. M. Hughes, S. E. Browne, T. M. Patterson, T. Macon, for defendants.

HALLETT, District Judge.- Three persons, charged with homicide committed on an Indian reservation, are held by the marshal under a warrant issued by a circuit court commissioner to answer for that crime. It seems that the commissioner assumes jurisdiction to act in the premises on the ground that the place of the alleged crime is within the sole and exclusive jurisdiction of the United States. Denying that proposition and affirming that the place where the crime is said to have been committed is within the criminal jurisdiction of the state, the attorney general of the state suggests to the court that the proceedings of the commissioner are without authority, and he prays that prohibition may issue to arrest them in order that the state may proceed against the offenders. In support of the application it is assumed that in making inquiry as to violations of the laws of the United States, a commissioner may be regarded as holding an inferior court, over which this court, having cognizance of the crimes themselves, may have supervisory jurisdiction. But this appears to be founded on an erroneous view of the relations of those officers to this court. For it is plain that commissioners are but officers of the court to whom are committed some of the duties which must otherwise be performed by the court itself, or the judge thereof. The exigencies of the public service demand that speedy inquiry shall be made into all criminal charges, in order that offenders may be brought to justice. And as from the press of business or remoteness from the place where the crime may be committed, or other cause, the court cannot always, or ordinarily, perform that service, commissioners are appointed to facilitate the business. In all that they do they are not separate and independent tribunals,

United States v. Berry.

but the arms of the court to execute the preliminary work of securing the presence of offenders at the time appointed for arraignment and trial. Indeed they are not, and under the constitution they cannot be clothed with judicial power to hear and finally determine any matter whatsoever. Their duties relate only to the detention of the accused, until the charge against him may be formally presented to the court and constitutionally tried. In that they are not bound to hear more than the evidence of the government, and they do not finally determine any question touching the guilt or innocence of the accused. Accordingly, it is said in the books that the function of an examining magistrate is ministerial and not judicial. 1 Bishop's Crim. Proc. sec. 237. And upon this consideration alone the writ of prohibition to control the conduct of a commissioner must be denied. High's Remedies, sec. 769.

But in a broader view of the nature and extent of his office, it will be apparent that a commissioner is an officer of the court merely, as to whom the writ of prohibition is never employed.

It does not, however, follow from this course of reasoning, that the court has no control over the proceedings of a commissioner when acting as an examining magistrate; on the contrary, if in the discharge of such duty a commissioner is an officer of the court, it would seem to be proper in the court to assume control of the proceedings whenever justice may require that it should be done. In important cases it is familiar practice for the judges of superior courts having cognizance of criminal offenses to sit as examining magistrates; and after commitment the proceedings of magistrates are often reviewed on habeas corpus and certiorari, in the court having cognizance of the crime.

In that way the courts do but assume control in the preliminary stages of matters of which they have the final decision under the law, and no argument can be necessary to support them in a practice which so clearly tends to further the ends