prior settlement, and the application was duly accepted. It is said in the brief in his behalf that after the trial in the district court his homestead claim was carried to completion and a patent was issued to him; but as this is not shown on the record, it may be passed without other notice. As it is manifest that the island, if in existence at the time of the survey in 1868, was then public land of the United States, and also that, if it continued to be public land in 1904, Scott initiated and acquired a valid claim to it under the homestead law, we will come at once to the reasons advanced for holding, as did the state court, that it ceased to be public land before 1904; viz., its omission from the survey of 1868, the admission of Idaho as a state in 1890, and the disposal of the lands on the east bank of the river in 1894 and 1895. there is an important difference between navigable and non-navigable waters in such a connection. Thus, Rev. Stat. § 2470, U. S. Comp. Stat. 1901, p. 1567, which is but a continuation of early statutes on the subject (Acts May 18, 1796, 1 Stat. at L. 464, chap. 29, § 9, U. S. Comp. Stat. 1901, p. 1567; March 3, 1803, 2 Stat. at L. 229, chap. 27, § 17), declares: "All navigable rivers within the territory occupied by the public lands shall remain and be deemed public highways; and, in all cases where the opposite banks of any streams not navigable belong to different persons, the stream and the bed thereof shall become common to both;" and of this provision it was said in St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 272, 288, 19 L. ed. 74, 78, "the court does not hesitate to decide that Congress, in making a distinction between streams navigable and those not navigable, intended to provide that the common-law In making the survey of 1868 it was the rules of riparian ownership should apply duty of the surveyor, if the island was to lands bordering on the latter, but that there at the time, to ascertain its exact the title to lands bordering on navigable location, to meander its exterior boundary, streams should stop at the stream, and and to enter both in the field notes (Man-that all such streams should be deemed ual of Surveying Instructions of 1855, pp. to be and remain public highways." Be12-14; act of May 30, 1862, 12 Stat. at sides, it was settled long ago by this court, L. 409, chap. 86); and therefore the ab- upon a consideration of the relative rights sence of such an entry, as also of any rep- and powers of the Federal and state govresentation of the island on the plat con-ernments under the Constitution, that lands structed from the field notes, naturally underlying navigable waters within the sevsuggests that the island may not then have been in existence. But this suggestion is effectually refuted by the size, elevation, and appearance of the island, the character and extent of the vegetation thereon, and the conceded fact that in 1880, only twelve years after the survey, it was in the same condition as now. That it was there at the time of the survey seems certain, although that is not so important as its existence when Idaho became a state. Of course, the error in omitting it from the survey did not devest the United States of the title, or interpose any obstacle to 242] surveying *it at a later time. Neither was the error calculated to induce purchas-nois C. R. Co. v. Illinois, 146 U. S. 387, ers of the fractional subdivisions on the east bank to believe that by paying for the 73.30 and 98.75 acres in those tracts they would get, respectively, 54.75 and 83.40 acres more on the island on the other side of the 300-foot channel. Horne v. Smith, 159 U. S. 40, 40 L. ed. 68, 15 Sup. Ct. Rep. 988; Niles v. Cedar Point Club, 175 U. S. 300, 306, 44 L. ed. 171, 173, 20 Sup. Ct. Rep.1 124. Coming to the effect to be given to the admission of Idaho as a state and to the disposal of the fractional subdivisions on the east bank, it is well to repeat that Snake river is a navigable stream, for eral states belong to the respective states in virtue of their sovereignty, and may be used and disposed of as they may direct, subject always to the rights of the [243 public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the states and with foreign nations, and that each new state, upon its admission to the Union, becomes endowed with the same rights and powers in this regard as the older ones. St. Clair County v. Lovingston, 23 Wall. 46, 68, 23 L. ed. 59, 63; Barney v. Keokuk, 94 U. S. 324, 338, 24 L. ed. 224, 228; Illi 434-437, 36 L. ed. 1018, 1035–1037, 13 Sup. Ct. Rep. 110; Shively v. Bowlby, 152 U. S. 1, 48-50, 58, 38 L. ed. 331, 349, 350, 352, 14 Sup. Ct. Rep. 548; McGilvra v. Ross, 215 U. S. 70, 54 L. ed. 95, 30 Sup. Ct. Rep. 27. Bearing in mind, then, that Snake river is a navigable stream, it is apparent, first, that on the admission of Idaho to statehood the ownership of the bed of the river on the Idaho side of the thread of the stream-the thread being the true boundary of the state-passed from the United States to the state, subject to the limitations just indicated, and, second, that the subsequent disposal by the former of the | of the survey as naturally induced the surfractional subdivisions on the east bank veyor to decline to survey this particular carried with it no right to the bed of the spot as an island. There is nothing to river, save as the law of Idaho may have indicate mistake or fraud." United States attached such a right to private riparian v. Chandler-Dunbar Water Power Co. 209 ownership. This is illustrated by the state- U. S. 447, 52 L. ed. 881, 28 Sup. Ct. Rep. ment in Hardin v. Shedd, 190 U. S. 508, 579, is sufficiently distinguished by the 519, 47 L. ed. 1156, 1157, 23 Sup. Ct. Rep. following excerpt from the opinion: "The 685. "When land is conveyed by the Unit- islands are little more than rocks rising ed States, bounded on a non-navigable lake very slightly above the level of the water, belonging to it, the grounds for the deci- and contain respectively a small fraction sion must be quite different from the con- of an acre and a little more than an acre. siderations affecting a conveyance of land They were unsurveyed and of no apparent bounded on navigable water. In the lat-value. We cannot think that these proviter case the land under the water does not sions excepted such islands from the adbelong to the United States, but has passed mitted transfer to the state of the bed of to the state by its admission to the Union. the streams surrounding them." And When land under navigable water Whitaker v. McBride, 197 U. S. 510, 49 L. ed. 857, 25 Sup. Ct. Rep. 530, which related to a small island, in a non-[245 navigable river, which the Land Department of the United States had expressly refused to survey, requires no other notice than to quote the following from the opinion: "It must also be noticed that the government passes to the riparian proprietor, along ing we have said is to be construed as a 244] *But the island, which we have seen We think the cases relied upon by the defendants in error do not make for a contrary conclusion. St. Paul & P. R. Co. v. Schurmeir, 7 Wall. 288, 19 L. ed. 78, expressly recognizes "that proprietors of lands bordering on navigable rivers, under titles derived from the United States, hold only to the stream." In Grand Rapids & I. R. Co. v. Butler, 159 U. S. 87, 40 L. ed. 85, 15 Sup. Ct. Rep. 991, the evidence left it uncertain whether the so-called island was more than "a low sand bar, covered a good part of the year with water," at the time of the survey of the adjacent lands, which was in the year of the state's admission to the Union, and the court said: “We have no doubt upon the evidence that the circumstances were such at the time refuses, when its attention is called to the For the reasons given the decree is re- 4 able to test in advance of trial the con- | stitutionality of a statute under which the petitioner was indicted, but the orderly course of the trial should be pursued and the usual remedies exhausted. [For other cases, see Habeas Corpus, I. b, 3, in Digest Sup. Ct. 1908.] Appeal review in habeas corpus proceeding changed conditions. gow v. Moyer, 225 U. S. 420, 56 L. ed. 1147, 32 Sup. Ct. Rep. 753. The case at bar upon the record recites exceptional circumstances which demand the interposition by this court upon the question by the constitutionality of the act. The fact that the appellant has since been 2. A requirement of excessive bail on pro- having been raised by plea of release of eradmitted to bail and is now at liberty, not hibitive conditions cannot be urged as a reason for according the accused a hearrors by the Solicitor General, nor by motion ing as to the constitutionality of the stat- to dismiss cannot be raised by copy of afute under which he was indicted on an ap-fidavit printed in the appendix. peal from an order denying relief by habeas corpus in advance of trial, where, since the appeal, he has given bond and has been released from arrest under the warrant issued on the indictment. 1 Chitty, Pl. pp. 659, 737. Solicitor General Bullitt submitted the cause for appellee: Habeas corpus is never available except [For other cases, see Appeal and Error, 3887-where the court is without jurisdiction. 3920, 4226-4228, in Digest Sup. Ct. 1908.] [No. 842.] Riggins v. United States, 199 U. S. 547, 548, 50 L. ed. 303, 304, 26 Sup. Ct. Rep. 147. Where a man is indicted in a Federal Argued and submitted January 7 and 8, court for the violation of an act of Congress, 1913. Decided February 3, 1913. A PPEAL from the District Court of the United States for the Northern District of Illinois to review an order denying a writ of habeas corpus. Dismissed for want of jurisdiction. The facts are stated in the opinion. Mr. Benjamin C. Bachrach argued the cause and filed a brief for appellant: It is unquestionably within the power of the Supreme Court of the United States to discharge a person imprisoned under an unconstitutional Federal statute upon an appeal from an order by a district judge, denying a writ of habeas corpus. Ex parte Royall, 117 U. S. 241, 246, 29 L ed. 868, 869, 6 Sup. Ct. Rep. 734, 742. The Supreme Court of the United States has discretion whether it will discharge the person who claims he is restrained of his liberty in violation of the Constitution of the United States upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. Ex parte Royall, 117 U. S. 250, 29 L. ed. 871, 6 Sup. Ct. Rep. 734, 742; Riggins v. United States, 199 U. S. 547, 50 L. ed. 303, 26 Sup. Ct. Rep. 147; Minnesota v. Brundage, 180 U. S. 499, 45 L. ed. 639, 21 Sup. Ct. Rep. 455; Re Chapman, 156 U. S. 211, 39 L. ed. 401, 15 Sup. Ct. Rep. 331; Glas NOTE.-On habeas corpus in the Federal courts see notes to Re Reinitz, 4 L.R.A. 236; State ex rel. Cochran v. Winters, 10 L.R.A. 616; Re Huse, 25 C. C. A. 4, and Tinsley v. Anderson, 43 L. ed. U. S. 91. As to habeas corpus to test constitutionality of statute-see note to Hovey v. Elliott, 39 L.R.A. 449. which he attacks as unconstitutional, a writ of habeas corpus will not be granted before trial, but he must rely upon a writ of error after trial. Re Chapman, 156 U. S. 211, 215, 217, 39 L. ed. 401, 402, 403, 15 Sup. Ct. Rep. 331; Riggins v. United States, 199 U. S. 547, 551, 50 L. ed. 303, 305, 26 Sup. Ct. Rep. 147; Re Lancaster, 137 U. S. 393, 34 L. ed. 713, 11 Sup. Ct. Rep. 117; Glasgow v. Moyer, 225 U. S. 420, 427-429, 56 L. ed. 1147, 1149, 1150, 32 Sup. Ct. Rep. 753. Even after trial habeas corpus will not lie. Re Lincoln, 202 U. S. 178, 182, 50 L. ed. 984, 986, 26 Sup. Ct. Rep. 602. So, too, in the case of an indictment or conviction in a state court where the statute is claimed to be in conflict with the Federal constitution, the remedy is by writ of error to the state court, and not by habeas corpus. Minnesota v. Brundage, 180 U. S. 499, 45 L. ed. 639, 21 Sup. Ct. Rep. 455; Bailey v. Alabama, 211 U. S. 452, 53 L. ed. 278, 29 Sup. Ct. Rep. 141; Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734, 742. Mr. Justice Lamar delivered the opiD. ion of the court: On November 7, 1912, Johnson was indicted for a violation of the white slave traffic act (36 Stat. at L. 825, chap. 395, U. S. Comp. Stat. Supp. 1911, p. 1343). As to questions reviewable by habeas corpus-see notes to State v. Jackson, 1 L.R.A. 373; Bion's Appeal, 11 L.R.A. 694; United States v. Hamilton, 1 L. ed. U. S. 490; Glass v. The Betsey, 1 L. ed. U. S. 489; Ex parte Carll, 27 L. ed. U. S. 288; Oteiza y Cortes v. Jacobus, 34 L. ed. U. S. 464, and Pearce v. Texas, 39 L. ed. U. S. 164. He was arrested, and the court fixed his bail at $30,000, but declined to accept as surety anyone who was indemnified against loss, or to permit the defendant to deposit cash in lieu of bond. The defendant thereupon applied for a writ of habeas corpus on the ground (1) that excessive bail was required, on terms onerous and prohibitive, and (2) that the act under which he had been indicted was unconstitutional and void. After a hearing the petition was denied and he appealed to this court, where a motion was made that he be admitted to bail pending the hearing. This was resisted by the Solicitor General, and, before a decision thereon, was abandoned. On appellant's motion the case was advanced, to be heard with others involving the constitutionality of the same act. The defendant's counsel took part in the argument of that question, January 6, 1913. From an affidavit attached to the brief of the government, submitted at that time, it appears 247] *that, on November 15, 1912, Johnson had given bond, which had been approved by the district judge, and had been released from arrest under the indictment. The petitioner insists that the release on bail was known to the government when the motion to advance was made, and not then having been urged, he is now entitled to a decision on the constitutional question argued, so that, if in his favor, he would avoid re-arrest and trial. The writ of habeas corpus is not intended to serve the office of a writ of error even after verdict; and, for still stronger reasons, it is not available to a defendant before trial, except in rare and exceptional cases, as pointed out in Ex parte Royall, 117 U. S. 241, 29 L. ed. 868, 6 Sup. Ct. Rep. 734. This is an effort to nullify that rule, and to depart from the regular course of criminal proceedings by securing from this court, in advance, a decision on an issue of law which the defendant can raise in the district court, with the right, if convicted, to a writ of error on any ruling adverse to his contention. That the orderly course of a trial must be pursued and the usual remedies exhausted, even where the petitioner attacks on habeas corpus the constitutionality of the statute under which he was indicted, was decided in Glasgow v. Moyer, 225 U. S. 420, 56 L. ed. 1147, 32 Sup. Ct. Rep. 753. That and other similar decisions have so definitely established the general principle as to leave no room for further discussion. Rig. gins v. United States, 199 U. S. 547, 50 L. ed. 303, 26 Sup. Ct. Rep. 147. It is claimed, however, that the defendant was required to give excessive bail, on prohibitive conditions, and that this fact, in connection with the attack on the validity of the statute, takes the case out of the general rule and brings it within the exceptional cases referred to in Ex parte Royall, supra, so as to give petitioner the right to this hearing in advance of a trial. But even if it could be claimed that the facts relied on presented any reason for allowing him a hearing on the constitutionality of the act at this time, the defendant would not be entitled to the bene-[248 fit of the writ, because, since the appeal, he has given bond in the district court, and has been released from arrest under the warrant issued on the indictment. He is no longer in the custody of the marshal to whom the writ is addressed, and from whose custody he seeks to be discharged. The defendant is now at liberty, and having secured the very relief which the writ of habeas corpus was intended to afford to those held under warrants issued on indictments, the appeal must be dismissed. Commerce conflicting state and Federal regulation interstate ferriage. The inclusion of railroad ferries in the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154), § 1, as to § 1, as one of the subjects regulated by that statute, is such an extension of the railway company of a ferry upon a navigaFederal authority over the operation by a NOTE. On state regulation of interstate or foreign commerce-see notes to Norfolk & W. R. Co. v. Com. 13 L.R.A. 107; McCanna & F. Co. v. Citizens' Trust & Surety Co. 24 C. C. A. 13; and Gloucester Ferry Co. v. Pennsylvania, 29 L. ed. U. S. 158. On the power of Congress to regulate commerce-see notes to State ex rel. Corwin v. Indiana & O. Oil, Gas & Min. Co. 6 L.R.A. 579; Bullard v. Northern P. R. Co. 11 L.R.A. 246; Re Wilson, 12 L.R.A. 624; Gibbons v. Ogden, 6 L. ed. U. S. 23; Brown v. Maryland, 6 L. ed. U. S. 678; Gloucester Ferry Co. v. Pennsylvania, 29 L. ed. U. S. 158; Ratterman v. Western U. Teleg. Co. 32 L. ed. U. S. 229; Harmon v. Chicago, 37 L. ed. U. S. 216; and Cleveland, C. C. & St. L. R. Co. v. Backus, 38 L. ed. U. S. 1041. On the establishment, regulation, and protection of ferries-see note to Sistersville Ferry Co. v. Russell, 59 L.R.A. 513. On legislative power to fix tolls, rates, or prices-see note to Winchester & L Turnp. Co. v. Croxton. 33 L.R.A. 177. ble river forming the boundary between, 12 Inters. Com. Rep. 422; Armour Packing two states as to invalidate any regulation Co. v. United States, 209 U. S. 56, 80, 81, under state authority of the rates to be 52 L. ed. 681, 694, 28 Sup. Ct. Rep. 428. charged by such company for the interstate ferriage of persons, although such regulation relates only to persons other than railroad passengers. [For other cases, see Commerce, I. c; III. c, in Digest Sup. Ct. 1908.] [No. 50.] Argued November 13, 1912. Decided February 24, 1913. IN IN ERROR to the Supreme Court of the State of New Jersey to review a decree entered pursuant to the mandate of the Court of Errors and Appeals of that state, which had reversed a decree of the Supreme Court, enjoining the enforcement of ordinances fixing the rates for foot passengers upon an interstate railway ferry. Reversed and remanded for further proceedings. See same case below in supreme court, 74 N. J. L. 367, 65 Atl. 860; in court of errors and appeals, 76 N. J. L. 664, 74 Atl. 954, 16 Ann. Cas. 858. The facts are stated in the opinion. Mr. Albert C. Wall argued the cause, and, with Messrs. James B. Vredenburgh and Thomas Emery, filed a brief for plaintiff in error: The regulation of the rates and fares for transportation viz these ferries is inoperative because it conflicts with the commerce clause of the Constitution of the United States The exercise of the power which the board of chosen freeholders here asserts is in conflict with the exclusive power of regulation of the same subject-matter by Federal authority. Sinnot v. Davenport, 22 How. 227, 16 L ed. 243. The ferryboats are subjects of admiralty jurisdiction. The St. Louis, 48 Fed. 312; Dubuque & 8. C. R. Co. v. Richmond, 19 Wall. 584, 22 L. ed. 173; Bowman v. Chicago & N. W. R. Co. 125 U. S. 465, 484, 31 L. ed. 700, 706, 1 Inters. Com. Rep. 823, 8 Sup. Ct. Rep. 689, 1062; Illinois C. R. Co. v. Illinois, 163 U. S. 142, 41 L. ed. 107, 16 Sup. Ct. Rep. 1096. Mr. Frank Bergen also argued the cause and filed a brief for plaintiff in error: The business of carrying passengers and vehicles by a ferry from one state to another, for hire, is interstate commerce. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826. The power directly to regulate commerce among the states, including whatever power the states previously had to prescribe rates for interstate commerce, whether by virtue of their police power or otherwise, was transferred to the United States by the adoption of the commerce clause of the Con stitution, and can only be exercised by or with the authority of Congress. Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087; St. Clair County v. Interstate Sand & Car Transfer Co. 192 U. S. 454, 48 L. ed. 518, 24 Sup. Ct. Rep. 300; Gibbons v. Ogden, 9 Wheat. 1, 6 L. ed. 23; Story, Const. § 1065; Crutcher v. Kentucky, 141 U. S. 47, 57, 58, 35 L. ed. 649, 652, 11 Sup. Ct. Rep. 851; Western U. Teleg. Co. v. Kansas, 216 U. S. 1, 54 L. ed. 355, 30 Sup. Ct. Rep. 190; Brown v. Maryland, 12 Wheat. 419, 445, 6 L. ed. 678, 687; Robbins v. Taxing Dist. 120 U. S. 489, 30 L. ed. 694, Covington & C. Bridge Co. v. Kentucky, 154 U. S. 204, 38 L. ed. 962, 4 Inters. Com. Rep. 649, 14 Sup. Ct. Rep. 1087; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4; Lottery Case (Champion v. Ames) 189 U. S. 352, 47 L. ed. 499, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Hanley v. Kansas City Southern R. Co. 187 U. S. 617, 47 L. ed. 333, 23 Sup. Ct. Rep. 214; St. Clair Coun-1 Inters. Com. Rep. 45, 7 Sup. Ct. Rep. 592; ty v. Interstate Sand & Car Transfer Co. 192 U. S. 454, 48 L. ed. 518, 24 Sup. Ct. Rep. 300; International Transit Co. v. Sault Ste. Marie, 194 Fed. 522. Congress has legislated concerning ferries operated in connection with railroads. Wabash, St. L. & P. R. Co. v. Illinois, 118 Congress, by direct legislation, and by extending the jurisdiction of the Interstate Commerce Commission, has regulated interstate ferries to the extent that regulation, in the judgment of Congress, is necessary or Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 39 L. ed. 910, 15 Sup. Ct. Rep. 802; Texas & P. R. Co. v. Mugg, 202 U. S. 242, 50 I. ed. 1011, 26 Sup. Ct. Rep. 628; Mis-desirable at present. The states have no souri P. R. Co. v. Larabee Flour Mills Co. 211 U. S. 612, 623, 53 L. ed. 352, 29 Sup. Ct. Rep. 214; Poor v, Chicago, B. & Q. R, Co. power to supplement those regulations, it be ing presumed conclusively that in the particulars in which Congress has omitted to |