Opinion of the Court.

by him above said amount shall be paid into the Treasury of the United States." We do not perceive that this section changes the law as it then existed, in the particular in question. There is no express repeal of the provision of the act of 1855, nor anything inconsistent with it. The act of 1853, that is, the entire act, is extended over and made to apply to "the fees of like officers in said Territory of Utah," that is, to "the fees and costs to be allowed clerks, marshals and attorneys" in the District Courts in Utah, subject to the special provision of § 7 as to the compensation of the district attor ney. The allowance of fees covers the allowance of compensation to be retained out of fees, in the settlement of accounts by the accounting officers of the Treasury. At the most, this legislation was redundant, so far as the compensation of the clerks of the District Courts in Utah was concerned.

It remains only to notice § 1883 of the Revised Statutes, which provides as follows: "The fees and costs to be allowed to the United States attorneys and marshals, to the clerks of the Supreme and District Courts, and to jurors, witnesses, commissioners and printers, in the Territories of the United States, shall be the same for similar services by such persons as prescribed in chapter sixteen, title "The Judiciary,' and no other compensation shall be taxed or allowed." Reference is made in the margin of § 1883, both in the first and the second editions of the Revised Statutes, to the organic and other acts relating to nine Territories, including Utah, and to § 12 of the act of March 3d, 1855, herein before recited, showing that § 1883 was compiled from the statutory provisions thus referred to. This § 1883 must have the same construction above given to §§ 1 and 3 of the act of 1853, as modified by the act of 1855, and to $$ 823 and 839 of the Revised Statutes, as enacted. The fees mentioned in $1883 as "to be allowed" to clerks of the District Courts in the Territories, cover the fees to be retained by them for compensation for services. Sections 823 and 839 are in chapter 16 of the title mentioned. They prescribe the fees to be allowed to, and retained by, clerks of District Courts; "and no other compensation" can, under § 1883, be allowed

Statement of the Case.

to be retained by clerks of the District Courts in Utah, for personal compensation, than is by the provisions of chapter 16 of the title mentioned prescribed to be allowed to be retained by the clerks of the District Courts named in g 839, for personal compensation. Section 1883 is in the same language in both editions of the Revised Statutes, but, in the 2d edition, a marginal reference is made to 7 of the act of June 23d, 1874, herein before quoted, passed after the Revised Statutes were enacted.

The judgment of the Supreme Court of the Territory of Utah is reversed, and the case is remanded to that court, with a direction to reverse the judgment of the Third Judicial District Court of the Territory of Utah, dismissing the complaint, and to take such further proceedings as may be conformable to law and not inconsistent with the opinion of this court.

MR. CHIEF JUSTICE FULLER was not a member of the court when this case was argued, and took no part in its decision.

BROCK v. NORTHWESTERN FUEL COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA.

No. 210. Argued and submitted March 19, 1889. Decided April 8, 1889.

When it does not appear, affirmatively, from the record that the Circuit Court had jurisdiction, the judgment below will be reversed and the cause remanded for further proceedings in accordance with law.

THE Northwestern Fuel Company, a Minnesota corporation, brought this action, February 18, 1882, to recover from the plaintiffs in error, citizens of Iowa, the sum of $1309.50, alleged 'to be due under a written contract, made July 21, 1881, between the latter and the What Cheer Land and Coal, Company, a corporation alleged to be "doing business in the State of

Opinion of the Court.

Iowa;" the benefits of which contract were assigned by that company to the plaintiff. The contract related to coal to be mined by the What Cheer Land and Coal Company at its mine in Iowa, and which Brock & Co. agreed to receive and pay for at certain specified rates. The defendants, Brock and McKenzie, in their answer, asserted a counter claim of $20,000 against the plaintiff. There was a verdict against the defendants for $1402.47. The case was brought here for review in respect to numerous errors of law alleged to have been committed by the court below, to the prejudice of the defendants.

Mr. Charles A. Clark for plaintiffs in error.

Mr. C. D. O'Brien submitted for defendant in error.

MR. JUSTICE HARLAN stated the case as above reported and delivered the opinion of the court.

The act of 1875 declares that no Circuit or District Court shall have "cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange." 18 Stat. 470. It does not appear that the What Cheer Land and Coal Company, the plaintiffs' assignor, could have brought suit on the contract in question, if no assignment had been made. The record does not show of what State it is a corporation. The allegation that it was "doing business in the State of Iowa" does not necessarily import that it was created by the laws of that State. But if that allegation were held sufficient to show it was an Iowa corporation, the result would be the same, because, in that case, it would appear that the parties to the original contract were all citizens of Iowa, and consequently that the assignor could not have sued the defendants in the Circuit Court of the United States.

The judgment is reversed upon the ground that it does not

Opinion of the Court.

appear, affirmatively, from the record that the Circuit Court had jurisdiction, Metcalf v. Watertown, 128 U. S. 588, and the cause is remanded for further proceedings in accordance with law.

Reversed.

GON-SHAY-EE, Petitioner.

ORIGINAL.

No. 7. Original. Argued March 18, 1889.- Decided April 15, 1889.

The act of March 3, 1885, 23 Stat. 385, c. 341, § 9, was enacted to transfer to Territorial Courts, established by the United States, the jurisdiction to try the crimes described in it (including the crime of murder), under territorial laws, when sitting as and exercising the functions of a Territorial Court; and not when sitting as or exercising the functions of a Circuit or District Court of the United States under Rev. Stat. § 1910.

PETITION for a writ of habeas corpus.

the opinion of the court.

The case is stated in

Mr. W. H. Lamar for the petitioner. Mr. Samuel Field Phillips and Mr. J. G. Zachry were with him on the brief.

Mr. Solicitor General opposing.

MR. JUSTICE MILLER delivered the opinion of the court..

This is a petition for a writ of habeas corpus to be directed to the marshal of the United States for the Territory of Arizona, who, it is alleged, holds the petitioner under a judgment of the District Court of the United States for the Second Judicial District of that Territory, which condemned him to death for the crime of murder. This crime is alleged in the indictment to have been committed by the defendant, an Apache Indian, within said district, naming no county or other location.

The allegation of the petitioner is that the court which tried him had not at that time, and in the mode of trial which was pursued, any jurisdiction of the case against him. It is argued

Opinion of the Court.

by counsel and alleged in the petition that the District Courts of the United States in the Territory of Arizona, as in all other Territories, have two distinct jurisdictions: that in the one they sit to exercise the powers and to try the same class of cases that the Circuit Courts of the United States do within the States and in the same manner, while in the other they sit as courts having jurisdiction of the ordinary contests between private parties and of criminal offences arising under the territorial laws.

The controversy in this case seems to turn upon the question whether the offence for which Gon-shay-ee was tried was an offence against the laws of the United States, and was of that character which ought to have been tried by the court sitting to try such cases, or whether it was an offence against the laws of the Territory, and should have been tried under those laws and by the court sitting to administer justice under them. The petitioner alleges that the offence with which he was charged was of the latter class, but that he was tried by the court while it was exercising its functions under the former.

The record of the case commences with the following statement of the finding of the indictment:

"IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, COUNTY OF MARICOPA, TERRITORY OF ARIZONA.

"May Term, A.D. 1888, sitting for the trial of all cases arising under the Constitution and laws of the United States, and having and exercising the same jurisdiction in all cases arising under the Constitution and laws of the United States, as is vested in the Circuit and District Courts of the United States, at a term thereof held at the city of Phoenix, in the county of Maricopa, in said district and Territory, on the 29th day of May, A.D. one thousand eight hundred and eighty-eight.

"THE UNITED STATES OF AMERICA

"SECOND JUDICIAL DISTRICT, Territory of Arizona.

"The grand jurors of the United States of America, within and for the Second Judicial District, Territory of Arizona,