sphere of their delegated powers. But, when not used as such instrumentalities, the legislative power of the state over the places acquired will be as full and complete as over any other places within her limits."

It is, indeed, most essential for many public purposes (as it was in the case of the District of Columbia) that the United States shall have and own numerous places upon which to conduct the vast business of the government, and it would be folly to expect the best results if any other power could exercise a conflicting and possibly an annoying and interfering authority over those places. Luckily, this was demonstrated to be the case at a period just before the completion of the draft of the Constitution of the United States, when a mob of mutineers from the Continental Army assembled around the place where the Congress sat in Philadelphia at the time, and consequently clause 17 of section 8 was at once framed and inserted in the draft of the Constitution before its final adoption by the convention. The exclusive power to legislate over places where the great affairs of the government are conducted was therefore most wisely committed to the Congress. The interests involved are national, and all legislation affecting them should be by national, and not by mere local, authority.

It may not be amiss to observe that although the act of August 16, 1892 (now section 2376 of the Kentucky Statutes of 1899), was not passed until some years after the United States had acquired the land described in the indictment, still the consent of the state to the purchase was thereby and then in fact given, and was at least sufficient as to all offenses committed on such place after such consent, and was therefore sufficient for the purposes of this case, if nothing else appeared.

3. While there might possibly be some difficulty (under the rule ejusdem generis) if the question were res integra, as to the strictly proper construction and applicability to the case of locks and dams of the words, "for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings," used in the clause of the Constitution above quoted, the cases seem to leave no doubt that the broadest construction has been wisely put upon that language-one which makes it cover all structures and all places necessary for carrying on the business of the national government.

4. If we have established the proposition that either the purchase of the "place" with the consent of the legislature of the state or the express cession by the state to the United States of jurisdiction is sufficient to give Congress the power of "exclusive legislation" over it, then the provisions of section 5391 of the Revised Statutes [U. S. Comp. St. 1901, p. 3651], which is an attempt to exercise that power, will be enforceable in this instance. That section is as follows:

"If any offense be committed in any place which has been or may hereafter be, ceded to and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for, by any law of the United States, such offense shall be liable to, and receive, the same punishment as the laws of the state in which such place is situated, now in force, provide for the like offense when committed within the jurisdiction of such state; and no subsequent repeal of any such state law shall affect any prosecution for such offense in any court of the United States."

It is insisted, however, that those provisions are merely the act of 1825, and that the words "now in force" must lead to sustaining the demurrer, because it is insisted that at the time of passing the act of 1825 no law of Kentucky was in force which made such acts punishable as are alleged to have been committed by the accused. It seems to the court that this contention involves the overlooking of the provisions of sections 5595 and 5596 of the Revised Statutes [U. S. Comp. St. 1901, p. 3751], which are as follows:

"Sec. 5595. The foregoing seventy-three titles embrace the statutes of the United States general and permanent in their nature, in force on the 1st day of December one thousand eight hundred and seventy-three, as revised and consolidated by commissioners appointed under an act of Congress, and the same shall be designated and cited, as The Revised Statutes of the United States.

"Sec. 5596. All acts of Congress passed prior to said first day of December one thousand eight hundred and seventy-three, any portion of which is embraced in any section of said revision, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof; all parts of such acts not contained in such revision, having been repealed or superseded by subsequent acts, or not being general and permanent in their nature: provided, that the incorporation into said revision of any general and permanent provision, taken from an act making appropriations, or from an act containing other provisions of a private, local, or temporary character, shall not repeal, or in any way affect any appropriation, or any provision of a private, local or temporary character, contained in any of said acts, but the same shall remain in force; and all acts of Congress passed prior to said last-named day no part of which are embraced in said revision, shall not be affected or changed by its enactment."

These provisions would seem to re-enact the act of 1825, and to enact section 5391 in 1878, when the Revised Statutes were adopted by Congress. But, independently of those two sections, the law as embodied in section 5391, Rev. St., would not necessarily or properly reach back to 1825, for by the second section of the act of April 5, 1866 (14 Stat. 13), it is provided—

"That if any offense shall be committed in any place which has been, or shall hereafter be, ceded to, and under the jurisdiction of the United States, which offense is not prohibited, or the punishment thereof is not specially provided for by any law of the United States, such offense shall, upon conviction in any court of the United States having cognizance thereof, be liable to, and receive the same punishment as the laws of the state in which such place is, or may be situated, now in force, provided for the like offense when committed within the jurisdiction of such state; and no subsequent repeal of any such state law shall affect any prosecution for such offense in any of the courts of the United States."

It would thus appear that the enactment of section 5391 need not be referred to an earlier date than April 5, 1866, if, indeed, we should go back further than 1878 for the date as to which we should construe the words "now in force," used in section 5391.

Certainly in 1866, and in 1873 and 1878, and, indeed, possibly in 1825, there were statutes in force in Kentucky which amply provided for the punishment, by prescribed penalties, of either of the offenses charged in the indictment.

Considering the offense charged in the first count, viz., that the accused "did unlawfully, willfully and feloniously, and with malice aforethought, cut, strike and stab one John L. Ewing with a knife with

intention to kill him, the said Ewing, but from the wound so inflicted the said Ewing did not die," we find that the following statutes of Kentucky were in full force on April 5, 1866, and have been ever since, and they, in practically the same language, describe the offense as it is described in this count: I Stanton's Rev. St. Ky. p. 382, art. 6, § 2; 3 Littell's Laws Ky. p. 67, c. 34, § 13; 2 Morehead & Brown, p. 1281, § 13; Ky. St. 1899, § 1166; Gen. St. Ky. p. 412, c. 29, art. 6, § 2.

The sufficiency of the form of the first count in this respect is upheld by the opinion of the Court of Appeals in the case of Gratz v. The Commonwealth, 96 Ky. 162, 28 S. W. 159.

Considering in the same way the offense charged in the second count of the indictment, viz., that the accused "did willfully and unlawfully, in sudden heat and passion, and not in self-defense, cut, stab and wound one John L. Ewing without killing him," we need only refer to the following statutes of Kentucky, which were also in force on April 5, 1866, and in 1873 and 1878, and ever since, and which define the offense charged in language similar to that used in this count: Ky. St. 1899, § 1242; 2 Morehead & Brown, p. 1301; I Stanton's Rev. St. Ky. p. 397; Gen. St. p. 435, c. 29, art. 17, § 1.

For reasons thus sufficiently indicated the demurrer to the indictment would seem to be unavailing, and it is therefore overruled.

JOY v. CITY OF ST. LOUIS et al.

(Circuit Court, E. D. Missouri, E. D. March 25, 1903.)

1. JURISDICTION OF FEDERAL COURTS-CONSTRUCTION OF STATUTE.

It was the purpose of Congress by the judiciary act of 1887, corrected by act of 1888, 25 Stat. 433 [U. S. Comp. St. 1901, p. 507], to contract the jurisdiction of the national courts, and all doubtful questions should be resolved against jurisdiction.

2. SAME-FEDERAL QUESTION-JURISDICTIONAL ALLEGATIONS.

Jurisdiction cannot be conferred on a federal court by allegations that defendant intends to assert a defense based on the Constitution or laws of the United States, or by any other allegation anticipating a defense, but it must be shown that plaintiff's claim or right is one arising under such Constitution or laws.

8. SAME-ACTION TO RECOVER LANDS CLAIMED UNDER SPANISH GRANT.

An action in ejectment to recover land claimed under a Spanish grant, protected by the Louisiana purchase treaty and subsequent confirmatory acts of Congress, does not involve the effect or validity of a treaty or law of the United States to confer jurisdiction on a federal court on that ground, where it appears from the petition that plaintiff's rights depend solely upon questions of fact as to whether the land in suit was within the boundaries of the original grant, or was occupied by his grantors at the time necessary to bring it within the provisions of the confirmatory acts.

At Law.

On demurrer to jurisdiction.

E. P. Johnson and G. A. Finkelnburg, for plaintiff.

Chas. Claflin Allen, Chas. W. Bates, and Wm. F. Woerner, for City of St. Louis.

12. See Courts, vol. 13, Cent. Dig. § 841.

TRIEBER, District Judge. This is an action of ejectment for the recovery of certain lands in the city of St. Louis, claimed by plaintiff by mesne conveyances from one La Beaume, who it was claimed was the owner in fee simple of the premises by virtue of a Spanish concession, dated February 15, 1799, and certain confirmations thereof by various acts of Congress hereinafter referred to. The jurisdiction of this court is invoked solely upon the ground that the cause of action is one arising under the laws of the United States, there being no diversity of citizenship alleged in the petition.

It is the settled law that the act of March 3, 1887, as corrected by the act of August 13, 1888, 25 Stat. 433 [U. S. Comp. St. 1901, p. 507], was intended by Congress to contract the jurisdiction of the national courts, and that all doubts must be resolved against jurisdiction. It is equally well settled that jurisdiction cannot be conferred by allegations that the defendant intends to assert a defense based on the national Constitution or laws of the United States, or by any other allegation, anticipating the defense. Tennessee v. Bank, 152 U. S. 554, 14 Sup. Ct. 654, 38 L. Ed. 511; Chappell v. Waterworth, 155 U. S. 102, 15 Sup. Ct. 34, 39 L. Ed. 85; Walker v. Collins, 167 U. S. 57, 17 Sup. Ct. 738, 42 L. Ed. 76; Sawyer v. Kochersperger, 170 U. S. 303, 18 Sup. Ct. 946, 42 L. Ed. 1046; Railway Company v. Bell, 176 U. S. 321, 20 Sup. Ct. 399, 44 L. Ed. 486; Arkansas v. Coal Company, 183 U. S. 185, 22 Sup. Ct. 47, 46 L. Ed. 144; Fergus Falls v. Water Company, 19 C. C. A. 212, 72 Fed. 873; Montana Company v. Boston, etc., Mining Company, 35 C. C. A. 1, 93 Fed. 274; Filhiol v. Torney (C. C.) 119 Fed. 974.

The allegation in the petition "that said claim of plaintiff as to the proper construction and legal effect of said confirmation acts of Congress approved June 13, 1812 (2 Stat. 748, c. 99), and June 6, 1874 (18 Stat. 62, c. 223 [U. S. Comp. St. 1901, p. 1512]), respectively, is disputed by defendants and contested by them in regard to the title to the land hereinafter described," must therefore be disregarded for the purpose of determining the question of jurisdiction, and the issue determined by the allegations in the petition, stating that plaintiff's claim or right is one arising under the laws of the United States. Does every claim in which an act of Congress is claimed as a basis of the right confer jurisdiction on the national courts?

In Romie v. Casanova, 91 U. S. 379, 23 L. Ed. 374, the question was which of the parties had actually obtained the grant of the premises in controversy, both of them claiming title from the city of San Jose, and it was held: "Even if it depended upon the treaty of Guadaloupe Hidalgo and the several acts of Congress to ascertain and settle private land claims in California, there would be no jurisdiction. Both parties admitted that title, and their litigation extends only to the determination of the rights which they have severally acquired under it." So, in the case at bar, leaving out the allegations in the petition anticipating the defense, there is nothing to show that the validity or construction of any act of Congress is involved in this case. No one questions the validity of these acts of Congress under which plaintiff claims, and no one disputes that La Beaume, under

whom plaintiff now claims title, is, under his concession and the act of confirmation of Congress of June 13, 1812, entitled to all lots or outlots in his possession prior to the 20th day of December, 1803, or that under the act of 1874 they would be the legal owners of all lands of which theretofore they had been, either by Spanish grants or concessions, or by the acts of Congress confirming these claims, the equitable owners.

In Gold Washing Water Co. v. Keyes, 96 U. S. 199, 24 L. Ed. 656, an action instituted in the state court was sought to be removed to a national court upon the allegation "that they claimed the right to thus use [the channels of the river and its tributaries] under the provisions of certain specified acts of Congress; that the action. arose under and that its determination will necessarily involve and require the construction of the laws of the United States specifically enumerated, as well as the pre-emption laws." The court denied jurisdiction; Chief Justice Waite, who delivered the opinion of the court, saying:

"Before, therefore, a Circuit Court can be required to retain a cause under this jurisdiction, it must in some form appear upon the record, by a statement of facts in legal and logical form, such as is required in good pleading, that the suit is one which really and substantially involves a dispute or controversy as to the right which depends upon the construction or effect of the Constitution or some law or treaty of the United States."

So far as La Beaume or those claiming under him are affected by the acts of Congress relied upon by plaintiff in his petition (the acts of June 13, 1812, 2 Stat. 748, and of June 6, 1874, 18 Stat. 62 [U. S. Comp. St. 1901, p. 1512]), nothing was granted to him which he did not possess before the passage of these acts. His rights which he acquired by grant or concession from the Spanish government, while Louisiana territory belonged to Spain, were protected by the treaty of Paris, usually spoken of as the Louisiana Purchase Treaty, and Congress merely confirmed these rights.

Section 1 of the act of June 13, 1812, confirms "the rights, titles and claims to town or village lots, out-lots," etc., "which lots have been inhabited, cultivated or possessed prior to the 20th day of December, 1803, to the inhabitants of the respective town or village," etc., "who were in possession of the land claimed"; but what the metes and bounds are of the land claimed to have been in possession of La Beaume are questions of fact, to be determined as any other facts, without requiring any construction of the act of Congress.

The act of June 6, 1874, 18 Stat. 62 [U. S. Comp. St. 1901, p. 1512], "relinquishes all right, title, and interest of the United States in and to all lands in the state of Missouri which have at any time heretofore been confirmed to any person or persons * * * in fee simple to the respective owners of the equitable titles thereto." Who these equitable owners are, and what premises have theretofore been confirmed to any person, are also questions of fact, for the determination of which no act of Congress requires construction.

In Sweringen v. St. Louis, 185 U. S. 38, 22 Sup. Ct. 569, 46 L. Ed. 795, a part of this identical grant was in controversy in an action