648
FEDERAL REPORTER,
vol. 43.
BALKHAM
et al. v.
WOODSTOCK IRON
CO. et al.
(Oircuit Oourt, N. D. Alabama, S. D. 1890.) 1. ADVERSE POSSESSION,....cOLOR Oll' TITLE.
estate of a te9tatorwas sold by thE! administrator by order of court in 1800, the widow becoming the purchaser, and thereafter holding the land under sl1ch 'salfl until she sold the same to other parties. that though the order of sale may. nav.e been void, the deed in pursuance thereof,lor which the widow paid a valuable cohsideration, is sufficient color of title to make her possesaion; and that of those claiming under her, adverse to the heirs. Where the heirs bring suit to recover such land in 1889, their recovery, under the laws. of Alabama, is Darred by the lapse of more than 20 years from the date of the aale by the administrllotor.
2,
LIMITATIONS-AcTION 1I'0R LAND.
At Law. In!lGcordnnce with the instruction of the court, the jury returned a verdict ·for. defendant. ,Jarn.e.s H. Savage, Kelley &- Smith, and Smith & Lowe, for plaintiffs. Knox« Bowie, Caldwell &. Johnson, D. O. Blackwell, and Brother8, Wil. lett & Willett, for defendants. BRUCE, J. This suit is in ejectment. There is an in writ. ing as to the facts in the case. The plaintiffs are the only heirs at law ofoneSaJnuelP. Hudson, who died: intestate on the -.-day oiAugust, 1863. ,He was at the time of his death seised and possessed of the land in controversy , together with, other adjoining lands, and left surviving him a widow,KeziahA. Hudson, who rlied 26, 1879. Prior to 1866, one J. F. Grant was the regularly appointed administratOl: of the estate ,of Samuel P. Hudson, and took possession of the estate as such administrator,' including the land in question. On the 20th day of Mltrch, 1866, James F .. Grant, as administrator, under the order of the probate COilrt of' Calhoun oounty, Ala., sold· the land in controversy, sub· ject to the widow\s right ofdower, and at such sale KezilJ,h A. Hudson., widow of Samuel P. Hudson, became the purchaser of the land in suit for the sum of $450, which amount she paid to the administrator in cash, and he executed a deed of conveyance to her of the property. That she, Keziah A.Hu.dson, was in possession of the land, at the time, and continued to hold possession of the same until the 28th of October, 1869, when 'she conveyed it to Sherman and Boynton, by deed in the USu.al form, and surrendered possession to the grantees Sherman and Boynton, who afterwards conveyed to Hill Jeffers, who in turn, in 1874, conveyed to the Woodstock Iron Company, defendant inthissuit,who afterwards Comsold and conveyed the land to the Anniston Lanli & pany, who in turn sold and conveyed it to the Anniston City Land Company. All these conveyances were in the usual form of deeds of warranty in fee-simple, and were duly recorded. James F. Grant, the administrator, died in the year 1878, and Alexander Woods, who was probate judge during the administration of the estate of Hudson, de-
BALKHAM V. WOODSTOCK IRON CO.
649
ceased, died in the year 1878. This suit was commenced June 8, 1889, and is the second suit for the property between the same parties. The plaintiffs contend that they have the right to recover the land in suit upon the facts stated; that they had no right or capacity to sue until the termination of the life-estate of Keziah A. Hudson, who dien June 26, 1879, and the suit was brought within the 10 years under the statute of limitation of Alabama, which would not operate a bar until June 26, 1889. It is not claimecl by the defend8.nts that the plaintiffs are barred by the statute of limitation of 10 years, but it is claimed by the de1Emdants that the plaintiffs are barred by the lapse of more than 20 years from the date of the administrator's sale of the land in question to Keziah A. Hudson, under whom they claim by a continuous, open, anduDchallenged actual possession of the lands under claim of title from March, 1866. There are :other j:)uestiol1s in the case, but it will be necessary to refer to them only so far as they are connected with the question of the effect of the lapse of more than 20 years from the date of the administrator's sale to the curnmencement of the suit, coupled with possession. under claim of title on the part of defendants, and those under whom they claim, which is the decisive question in the case. The contention of the plaintiffs is that the sale by the administrator of the la:ndsin question under the proceedings of the probate court, and the deed of conveyance by the administrator to Keziah A. Hudson, are void, and cannot operate to divest their title to the land as the heirs of Samuel P. Hudson. Two objections to the probate court proceedings are mainly relied upon: Fir8t, that the order of sale which was granted by the probate court was not supported by testimony taken by deposition as in chancery cases, as provided by the statute of Alabama in such cases; and, 8econd, that there was no order authorizing the administrator to make the cbn\'eyance of the property which he did make to the purchaser, Keziah A. Hudson. It is claimed by the defendants that in a collateral attack of· this kind the probate court proceedings are not assailable; but, without discussing these questions, even if .the contention of the plaintiffs can be maintained, still the proceedil1\gs in the probate court are competent to show the character of the possession of Keziah A. Hudson, of the land in question, from the time of her purchase at the sale by the administrator. In the agreed statement of facts in the case it is said "that Keziah A. Hudson held possession of the land in controversy from the date of said deed by said administmtor claiming to hold same under said purchase, and conveyance of said lands by said administrator, and in her own right, until she sold the same to Sherman and Boynton," etc. She was the life-tenant,but she was more than that, and held possession .under the deed of the administrator to the property, for which she had paid the consideration of $450. Under such a state of facts, the deed of the administrator to her was at least color of title, and, however vulnerable the probate court proceedings may.have been, she was in possession, with fln equitable right to the property, and that possession, and the possession of those claiming
unchallElQged"llDtil' the ;commenceD1;ent /ilfthe. .litiga" pl:t.tt of tht:l, heirs of; H \l,dson, w,hich,is more than 20 years. 'fJile pontend, however" that this possession ,tb:U,8 maintained to them, except from the !Q.ate of life"teij.ant, which occu,rredJ\lne, to the that the pos,that it is, tb,e'right Qf entry of tl;1e remainderupjJ.I AII!-. other authorities. Concede the ,8,8 t9 its' full extent, ,that the statute of 10 years qapoperate no par qntil the from,the date of the qeath of the lifeitfollow. that the 2()..ye.arrule 'QOuldonly from the dateofJhedeath of the W'e have l<eziahA, WllS"I;UOI,'e than a life-tenant. ,and we :flot' dealing"with c::ase)n::which the life-temlDt , rig4t aull ,by peed in the property. :,Ido even in this .Qf.,U:IllitationsQf.10 year!,! to the: q,eath I of. the Still,qoes. it fQllow, that in a. lHr.e:thili J;'uleof pr,escription does J10t bl;lgipto operate ofthelife-WJ;lllnt? ·::'l'he in cases ,lil f Qf, ,U>;years;co.ull1, not" pegiQ, to run by reason of the fact that the right of entry had not accrued to. the heirs, jI,llanner.. pot: pegiJ11 operate·. If. that ,ge it, w:o:uJd· tQtWQ statutes HJ ,aJ1d.. other 20 years,-anq; wha.tev(;)r would q.efeatthe 20-yearstatu,tejllothat there to th:e,20-;ye!lr ,for case ill 2()..year rule could Qperate a the bar. The of 10 be rele of :rflPose," aredi.frereHQp .tneir andOPel1ation.:fhes.tatuteof limitation is avoided 1>,1. i,nfanqyapd .coverture jbut.the 20-year rule may even ,where ;diM-pili-ties exi!\t. : ThE! : v. JIeffin, i)4 , Ala., 563,was" case. of ,the pur;0[, f3la,vesfro.m a.t privllte slUe,forbid<!en by the 11I1q. where, after qf 20 yellr,s,at suit of an adde bonis non, say::!" i ' ::, I" Until hll appointment was no party capable of Bni rig, and the poswas, not oy the limitations.· It th!J; not qe co\?-rt,reIJlP., . ral.in., i. ts oper."at. iQn . ... the of the. want of. a proper party to suE!, would not overturn It." tipn oq., ). J . ' ' ',;, . ,' , '.: I I- ! J J ' ,
,.
',
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...'
l
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; In ·the Il!alI)erJ}pinion ,the, .it that :,In
of ';if! i"r;:; .
v.
."
,
",
.'
BO'lle.40Ala. 533, is .wouldnot avail to re,Ala. 389,2 South. 'k' '.
,"'.
651) "The rule is one of presnmptiotl, based on the .broad doctrine of preSedlJ-i tion. and is not to be rebutted. .It. has in view p!lacl! llnd securitY<1lf, SPr Ciety, and is applicable,8s often beld. to all hum,an .transactions which open to judicial 'The doctrine is'broader and more comprehensive than a mere statute of limitations, 'upon analogous pI'in, ciples." These cases were not suits in ejectment, like the one at bar, but they show the difference between the application of the statute of limitations and the 20-year rule of repose. It is argued that incases of this kind the life-estate might continue' during the whole Pf'riod of 20 years, and that in such case at no time could the heir bring his 81:1it, and therefore could no laches be imp)lted to him. The answer to that proposition is found iJ? the case of Iron: Co. v.Fullenwider,87 Ala. 587,6 South. Rep. 197, where the suprem" court of Alabama say:. . . . "The plaintiffs in the present case, as reversionl'rs, had no right, as we, bavesaid, to sue at law, but they had a right to a court of equitytA>; remove t/:1e cloud from their title ,created by the probate court ", , PI.ahltiffs' counsel· strenuously attack this proposition .as unsound in pi; law, and an, ,elaborate brief on that subject is presented; citing AlabaJlUl.' and other authorities. Without discussing or passing upon this QllesQon 1 prefer. to rest my opinion: upon il. different groutid,al.;' ready,indi¢ated,in part, !lUenat, by what has been said; It is said that all:statutea, ,of limitations are. based upon :the theory of. laches, and 'no' laches can be. imputlldto one while be has no remedy or of acti()ti> And this pro.position,aa applicable to statutes of limitations, is 'con-' ceQed. But i.s it equally 'applicable to tbe20-year rule of repose in A}aQam/l.? We have alreadysaid.that Keziah. A; Hudson was llot'only the life-tenant, but she ,was more than that, she was the purchasel"llt the: admillistratQrls sale, paid 'the purchase price, and dn the agreed"$tauh nlent of factti it ,is said that she held possession of the land in controversy l ' * claiming to hold .the same 'tmdel'i said' purllhase, and conveyan.ce of said lands hysRid administrator, and> in her own right; i It issqid that Keziah,A. Hudson took nothing bytbe in ,the probate court. But ,she at least parted with her mQriey, the pUr.' oCthe property"and it is certainly true that she had a right to the property, or.to ha....e iher money refunded; audtosay thatherl possesshm will be limited under 'such circu,mstances to<her life-tenant, and. will be conclusively presumed to be: friendly to the title· and right of the heirs. is 'a proposition which cannot be I: Ti, h,er possessioI;l was not' strictly and technically adverse to the it was itscbaracter, and had in Uno element ,of Ild.ll}issioll QUhe title of ,theheiJ's. It is said ,that KeziahA.Hudsoil had' therjghUo resort to a court, of equity to compel the heirs to elect t:eacissionof. thecontrnctof the 'purchase of the· property'; TherE,d$ ;in. concession that laches am chargeable' U>' otle . oJ',the other :Qfthe patties,.to this IIDit" the :idea tllUsfbe ,tt> !shift' the .the'uty beComing
*
I
FEDERA.LREPQRTER,
to the lana'in Controversy. It cannot be maintained, however, that one whoholdsilands under a badordefective legal title, but who has an equitable #,ght to the property , must, under the penalty of the imputation of laches, go into a court of equity to perfect his title. In the case of Ruckman v. Cory, 129 U. S. 387, 9 Sup. Ct. Rep. 316, the court say: . ". Laches,' the supreme court of Illinois has well said, ·cannot be imputed to one in the peacealJle possession of land, fOl" delay in to a court of equity to correct a mistake in the description of the premises in one of the COIl veyances through which the title must be ded ueed. The possession is notice ,to all of the possessor's equitable rights. and he need ,to assert them only w hen he may find occasion to do 80.'" Citing authorities.
; 'rhis.case and others might be cited to show the force ar:td effect which courts are disposed to give the fact of open, notorious, adverse possession Of propei'ty, (real estate,) maintained for so long it period of time under color and claim of right. It may be said, and is'said in substance, that the logioof this proposition is that, even in a caSe llkethe one: supposed, then .the life-tenant should. hold the entire period of ,20 years, that the p6ssesSor of the 'property would have a good title against the heir. But whether the courtS would go to this extent we need not say here, for thht is a case like the one supposed. The adn1inistrator's sale under defendants claim title was made March, 1866; and 20 years would carry tM time to March, 1886. The life-tenant died in June, 1879; so thll.t:from that time to the time the 20 years expired, a period of about Tyears., there was nothing to prevent these plaintiffs from bringing th"lir'sntt. / And it would seem the clearresult from the authorities that in, suoh a case laches will be presumed as a conclusion of law against and in favor'of actual possessors of the property. There is in tl,11scase the lapse of a period of neat 24 years, during all of which time the defendants and those under whom they claim have maintained actual possession of the land in question under claim of title entirely inconsistent with the claim of these plaihtiffs to the property. And it would seem, to be the clear result of the rulings of 'the supreme court of Alahama, in numerous cases covering the entire period of its history as a :tbat in such a case the court will presume almost anythirig in fayor ofdefeltdant's title; that it will presume regularity in the probate court proceedings under which title is claimed; that it .willsupply missing links,in the defendant's paper,' title, and will allow nothing to overturn the presumption in its favor, except evidence in the nature of admissions of title, which ill not claimed here. The following authorities, others which might be noted, are in support of the proposition. with above stated: McArthur v. Oa1"1'ie, 32 Ala. 76; Matthew8 v. McDade, 72 Ala. 377; Kelly,v.·Ha,ncock, 75 Ala. 229; G0880n v. £add, 77 Ala. 223j Iron QQ:. V" Fu,llenwider,87 Ala. 584; 6 South. Rep. 197.' The Alabama cases 'to have established the 20-yeal'rule of repose as applicable to' the one at bar in such a way as that it has become a rule of e/.'ty, in this,state; and that being so, the federal courts sitting in this state are :houllc;L,to ,follow it, under the principles settled by the supreme court of States in many cases, among which may be cited, BurgeB8v.
IN RE SPICKLER.
653
Seligman, 107 U. S. 21, 2 Sup. Ct; Rep. 10. The cases cited ond reliedon by the plaintiffs' attorneys are mainly cases from other states, and, however pursuasive they may be in such states, they cannot be held to be controlling here, and they are, some of them at least, distinguishable from the case at bar in this: that the life-tenant had no other or greater interest or claim to the property than the bare life-estate, and undertook by the terms of his conveyance to convey an absolute title in fee to the property. That is not this case, unless it can be maintained, as argued, that Keziah A. Hudson took nothing by the purchase at the administrator's sale,-a proposition which we have clearly considered. If the rule of which we are speaking was less firmly settled by the decision of the court of last resort in this state, and the door was wide open, inviting entrance upon the invef'tigation of the question as it has been decided in the federal courts, still it is believed that the plaintiffs here would meet with no great encouragement. The supreme court of the United States has in many reported cases, though perhaps none like the case at bar; given little favor to stale demands, or to parties chargeable with laches in the assertion of their rights. The jury is instructed that, if they believe the evidence, they will find for the defendant.
I'll. re
SPICKLER.
(CCrcuit Oourt, S. D. Iowa, O. D. October 211, 1890.) 1. CONSTITUTIONAL LAW-INTERSTATE COMMERCE-DELEGATION OP POWBB TO RBGl1LATE.
Act Congo 1890, known as the "Wilson, Bill," which declares that intoxicating liquors shall, on arrival in a state, be subject to the operation of the police powers of the state, simply defines the time when imported intoxicating liquors shall become subject'to state control, and is therefore not unconstitutional as being a dele' Kation to the states of the power to regulate interstate commerce.
INTOXICATING LIQUORS-SALE IN ORIGINAL PACIUGES APTER PASSAGB OP WILSON
Bn.L.
Let8y v. Hardin, 10 Sup. Ct. Rep. 681; did not declare the prohibitory liquor law of Iowa (Code, § 1523 et seq.) void under all circumstances, but only that imported liquors remaining unsold in the original packages in the hands cf the importer are not subject to the jurisdiction of the state by reason of the commerce clause of the federal constitution. Therefore, on the passage by congress of the Wilson bill, which subjects to state police laws all imported liquors as soon as they pass within the boundaries of the state, it became unlawful to sell such liquors in Iowa without 'l!o re-enactment of the prohibitory liquor law. . Where it is a debatable question whether a state court deprived a person of his Uberty contrary to the provisions of the federal constitution" and the' point presented by such action of the state court has not been finally decided by the:supreme court of the United States, the federal circuit court will not release the pri8Qner on writ of habeas corpus, but will leave him to present the federal question' to the suprellle court bv writ of error.
.8.
HABEAS CORP,US-WIIEN ISSUBS-DEBATABLE FEDERAL QUESTION.
'p'.
Habeas Corpm. A. ·. for
654l paving !l uly fUed ,itJ:t:biscollrt py E,,' Ei, that he was unjuatly and illegally ,restrained. and de.., pl'ivQd( by the .shedff pfCarrollcounty; Iowa, a writ of har in obedien.qe to the mandate Carroll coJ.:JQtq; brings the; petitioner before this cOurt,. returns, as theelMla of his detention, he, the said Spickleti .was. 1;ly the; district cQUrt of ,carroll oounty:, adjudged' guilty of a in an injunction issued by that court re-strainillg from sellingiQtoxicatingJiquors contrary tp the provisions Qfthe pr.Qbibitory law or the, st4te, ,ll.n.dfor such contempt he was fined and E"iqenceop!;lehalfofpetitioner has been introduced, showing Jhat the liquor sold the original packages in which it w!1s.irnpottA4 from Nebraska; the defendant doing bnsiness at Coon Rapids, CarruU. eounty, IOWai for parties residing in Omaha,-in other saloon at Co.<>n. ,B,apids, in which. as in. se,11s intoxicating liquors ·in the same which the !iame pgiup in Omaha., Thesnles, for the making ,he,JVl:lS fined were made in September ofthia year; and alter the kn0l"..u l\lItbe "Wilson Bill." The con tentioil ,of petitioner is that the prohibItory law of Iowa, as applied to imported liquors remaining in the original packages, had been declared unconstitntional-awl-¥Q.id.by the supreme court of the United States in the case of Lei$Y v. Ha.rdin, 135 U. S. 100, 10 Sup. Ct. Rep. 681, before the passage of the act of congress just cited; and that the passage of that act did n.Qt,:lla.ve the.effect of re-enacting that statute, and that the state law is in fact no law, and can have no force or effect unless re-enacted bytbf>'legislatur.e,of Iowa. :In ,my Judgment this is a misconception of the construction to be Kiven to the ruling of the supreme'cotnlt,ilk ',LeiSYiV. lIatdin.';c H'Cal\not: hequestionedthatthestaMof Iowa.· ofits.. pn,!er,., to enact a stiltute 'sale within. its ,borders.of liquors to be used, asa beverage.. 'l!qrl4ii}iJ'pk'v. IoWa,1 8 Wtdk129;llee-rCo. v.1Ifn88flchtu<ett8, 97. U. S. 25; Foster viKamas,3112U.·,lik201, 58up. Ct, ,Rep. 8; Mugler v. 8 Sup, Ct;; Rep.2i3. The gist. of the Iowa is tre of thechapterof section 1523 of the Code, and'it "No' person shall arisen, by himself. his'clel'k, isteward, Qr agentt directly or indil'eotly, any intoxicating 'The followipg portiolls of the chapter provide'the means for [enforcing this enactm'ent, for punishing E,or.ceitairtsne?ified pur;; };loses., Qf, no supreme court of the Uluted Stotes which holds thattih;eenaotmeilt'abov6 \Vas beyond the powerofthe tha.,t' it prQvision of the,federal constitution. '" In BOW1lUtn v. RaiJ.way Co., 125 U. S. 465, 8 Sup. Ct. Rep. 6R9, 1062, the question was presented whethersection 1553, ofthe CodeofIowa,'which in iorbade any common carrier from.knowingl;y:bringlng'withiJithe
rtl. h: A,
<
c.
:state any1nto!x:icating having first ,the county ,auditor that the same were imported to be sold for a legal pur'}!lOse, was sustainable as an exercise of the police powers ,of the state; and it was held that the effector the section was to interfere with the freedom of interstate comtperce, and it vvas therefore void.. In Leisy v. iHard'ln."thlffactswere that Leisy & Co. were'shown to be erigaged in the of beer in the state of Illinois; that they jmported quati'titythereofiI1to the state ofIowa for the purpose ofse1lillg the same'in :tHe originillpackall:esj that while in theirpossession'ullsoid itWRS seized the order of the state court, in a proceeding brought to enforce the 'state, :law; 'thatLeisy' & Co: thereupon replevied the beer; and' thus tlie qUestiol1 was presented whether the beer was or not, in its then condtti6'il;,lHlble to seizutealld cOrifiscationlinder theprqhibioory lnw of the ,stilite."This questionwils'ca:rried to the'aupreme:courtjund it was by 'tHat':.cdurt'held thatthe heerwas not liable to seizure under the statute 'Mi!owa;" tliiinhe proteetion:; ofthe ciatiseof the federal tionstitutibrigiving :'cotigress'power to regulate foreign: arid .interstate 'commerCe was "thrown around the tMimportei'ahould have sdld Hie thereby cansed the importation to beclhmea }'>art o( thec6ritrilon 'masS Of the' property within the state; and "tllait i 1vl'ten:,lhis Was' :doM, then, and not-till theil, would the property liable to be'd-ealt with under. the provisIons onhe state statute. ·;JiJfthe'facts'ofthafcasehad,beenthat the seizure had not been made t1ntil ft'ftet':a.:sale dftheJ>ackages' by' theirnporter,isit ndtclear'thatthe :suprerna,couttwouid'haveheId thatthe same were then'subjecttoth,e 'OPEitationof;the state law:YThe three that case are: :(1) Thatitheoommercial the federal constitution prevents the stares irom forbidding the importation of any article conurionly recog';Mzed ,a:g:ptoperty, and not harmful ordangerou8 in the condition in. I :which, it is' 'imported. (2) That the right of importation' thus,sectired "protects the property from the operationofState'laws until the impo'i'ter ':has caused the same to becoineinterrningledwith the common niass\jf : the I propetty in the state, which ordinarily is effected by'a sale 'in the ·origiriaFpackages.(3}That it is for the' congress of the Unit'ea'States , 'to de'teirmine whether such imported property should Or' should riot be ·reildered subject to the police laws of the' statant and from any time pl'iO't toaisale by the importerin the original packages.' . aue the supreme court was, called upon todeeide the validity 'of a particular section of the statute, and, for the retisoDsstated, , " , held itv6id.' , Tll, the.ieisy Case there wAs not presented forcomiideration the valid, ity b'flone or more sections ofthe statute.,' 'The real p6intfb1' decision was' whether the statute,as a whble,"":'thnt is, the ptobibif6ry';pribmbe made appli9abletobeer' or other' liquors imported ;fr()rn "nbofh'et state; and it was' held " ' ", ' ; ,,) ,.<','", ,;, ""'Uotlei\jin" decision 1I1'BolDinan v;'1ta m'vay Go: ,8upriJ" tlley to import this beer into the state; and, in the view which we have expressed, they had the right to sell it, by which act alone it would become mingled
in
656
common mass of property within tbe state. Up to that point of time, we hold that, in the absence of congressional permission to do so, the state had no power to interfere by seb,ure, or any other action, in prohibition 01 iimportation and sale by the foreign or non-resident importer. ... ... ... The legislation in question is, to the extent indicated. repugnant to the third clause of section 8 of article 1 of the constitution of the United States, and therefore the jUdgment of the supreme court of .Iowa is reversed," etc. The decision in the Ld8y Case .therefore does not declare any section or particular portion of the Iowa statute to be wholly void, nor does it declare the whole statute to be void under all circuDlstances. What it did declare was, that the effort to the prohibitory purpose of the statute applicable to imported liquors remaining in the original packages unsold ill. the hands of the importer was repugnant to the commercial clause,of the constitution, and this for the reason that, until such importations had become intermingled with the common mass of property in the state, .such liquors were not subject to the jurisdiction of the state. ·Neither in terms nor by fair inference, does this decision declare that the 19,wa statute, in whole or in part, is void or ullconstitutional, as applied to liquors subject to the jurisdiction of the state. In the Bowman and the:Leisy. Oase8 alike, the power of the state to regulate or forbid the sale of intoxicating liquors within its jurisdiction is fully recognized, and the effect of these decisions is simply to define the limitations of that jurisdiction. The language of the state statute is general in its terms, but the legislature in enacting it must be presumed to hav:e intended H to apply to peraona and property within the jurisdiction of the state. It is doubtless true that it was the belief of the legislature that the statute would be applicable to all liquors within the boundaries of the state, but that belief grew out of a mistake as to the time when imported property passes · under thejurisdiction of the state in the exercise of its police and taxing power. It was not the; intent of the legislature to pass an act to affect liquors before the same came under the jurisdiction of the state, but to control all within the jurisdiction of the state. When the conclusion · reached in LeiBy was announced, the extent of the jurisdiction ·of the state was made plain, and thus it was found that the statute of Iowa · was lilllited in its operation and control to an extent greater than was anticipated by the legislature. The ascertainment of the fact that broad ,and gt::neral terms useliin a statute are subject to the limitation conJl\ined in a constitutional provision in the state or federal constitution does not show that the statute is void, but only demonstrates that, in ,the .construction of the language found therein, regard must be had to ·the constitutional limitation. It is a fundamental rule that legislative acts shall not be declared voil} by the courts, if by any reasonable con· struction thereof such result can be avoided. If,by limitation upon its general terms,the same can be fairly construed and so applied as to bring the statute within the constitution, and thus save.it from being in conflict therewith, such limited construction should be adopted. It is entirely clear that the purpose sought to be achieved in the adoption of the prohibitory law of the state, g-ndthe amendments thereto, was the regu-
IN BE SPICKLER.
657
lntion of the traffic in intoxicating liquors, and to prohibit the sale thereof in the state for use asa beverage. There Wl1S no purpose on purt of the state to undertake the regulation of foreign or interstate commerce as such. It has been determined, however, that, in the adoption of the amendments to the statute, the legislature has, in effect, attempted to make the prohibitory law applicable, not only to property within the jurisdiction of the state, but also to importations before the same became subject to. state jurisdiction. To this extent the law is void, and has been so held; but this does not mean that, as applied to property within the jurisdiction of the state, the statute is void in whole or in part. The true conclusion is that the statute of Iowa remains in full force as to all property within the jurisdiction of the state. This construction gives full force to the statute as applied to property within the jurisdiction of the state, and at the same time gives to the importer the full benefit of the protection afforded him by the commercial clause of the federal con·stitution. If the slUes made by the petitioner had been made before the adoption of the act of congress known as the" Wilson Bill," it might well be claimed that the provisions of the state statute could not be made applicable thereto, and that the petitioner would, of right, be entitled to .his discharge. In fact, however, the sales were made after the Wilson bill bad become a law, and it is necessary to consider the effect thereof on the rights of the petitioner. It is !3aid that this act of congress is itself void, for the reason that it assumes to confer upon the states the power to regulate interstate commerce. Such is not the purpose or effect of the act. It does not declare that. the states shall, in general or in any particular, have the power to regulate. interstate commerce. It confers no power upon the states to legislate upon that subject. The act declares that intoxicating liquors shall, upon arrival in the state or territory, be subject to the operation of the police powers of the state. In the exercise of the constitutional power to regulate foreign and interstate commerce, congress has declared whenlluch imported property shall become subject to the state laws. The states are not authorized to declare when such importations shall become subject to state control, nor can the states in any manner change or affect the enactment made by congress upon that subject. Congress can at any time abrogate or change the enactment in question, and it is clearly a constitutional exercise of the power conferred on congress. It is apparent to every \lne that at some time, or upon the happening of some event, imported property loses that character, and becomes s\lbject to the laws of the state; and it is for congress, which the power to regulate commerce, to define the time or event which shall have the effect of subjecting importations to state control, and. this is what. is done by the Wilson bill in regard to intoxicating liquors, It is also earnestly contended that, granting the validity of the Wilson bill, the statute of Iowa cannot be held to be in force, because it has not been re-enacted since the decision of the supreme courtin Leisyv. Hardin. , The thought is that the statute was then declared wholly void, and that the act of congress does not impart life and validity to it. If it be v.43F.no.l0-42
··tl'tle'tJilit the :stlltuM was declared:wholIy void', thea; it'fi.>lloWs that congress cannot give it life·.· Noolls'claimsthlit congress can adopt a prohibitory liqul0l' (la.w for the state of. Iowa. The error lies id" the assumption that the'statUoo'dfi[owa has been declarEld, wholly void. I , . " »ha,ve'iattempted totnaintain; in proposition that, 'aftel';thifdecision in the Leisy (hse; the statuteofIowa. .remained in full fortle'in·relation to all liquors within the police jurisdiotion Of the state. The 18.tlguage of thestlitute is brOlid and cOmprehElnsive, but is nevertheleSSi subjeot'to'tbe limitation imposed upon the pollce power of the state 'by oitha federal constitution, and must ,always so remain. A1l' the; can ever do in this particular is to 'declare the will oftl1e state th6sale' of intoxicating liquors when the same CODle the state. ··That it has already 'done in the stat utEl ''I1o\V in force. The state, tinder the Wilson bill, does not possess 'when ittlpol'ted liquofsshall berreed from the pro, the teetiori' ,'of the comlll'el'cial clause of, the.' federal' constitution, and pass UI1tledhte bpEltaHon of the 'pblioe pOwe:rsofthe state. Congress Cannot that 'confer thatl ))'Ower upon ·the state. It 'JIUs;for the: state to say'what the police regulatlons'ofthe ,state! shlill be as' icrliq UbrS within' the jurisdiction of the· state, and for tCj; 'defihl& when (;ir' now imported liquors .shallbooomesubject to state control. Whether 'the legislation oCttle state atifedates'theaction ,; Wholly ·inHnaterial. iCongrefi;sdetermitieswheil'impotted 'properity'shallbeconie subject to thestlite laws, and'Can at' any time ·tlhangeJtheena'c'tment::: :'l1he'stateg'tegulate the· s!ill;j 'Of 'property ·withih time luodify' :or,ehfinge .these' polic'e ,theii'Jll1isdic'tioD, 8:1'ld, can; at any · 'regulatiut1sJ I'ft' oannotbeituejb'ecause congress' to"day passes 'an lict declating thtlt:importatiohs shall'becbitJEHnlbject to state police or revenue ·lttws'sosooh"llsl theYl?aSs,tbe 'b'ourtdntiesofthe state,tlhattne'state must,' in 'orliel' f,<:HtlaKeisuch laws I applicable tberetd;'at' onCe re-enact 'such l"ws; i 'Tbat· oouid only be reqUited ;upon the theory that theaiction 'Qf COJigI',esSW-8i'l 'pern'lissiwe:in its efl'eHt;lU:id wasinterided to' enable the ·statetb' tletel'ni.ine when 'it I WOuld ,subject impol'tedliquors to state 'contro1i' but':it'isoleartha't: the purpose of the Wilson bill. !That bill., upon; its adoption; made sUbject to state police lawsallimported ;liquorslls i SOohatl they should pass within the bt>undaries of the · It :is notdeclarEl'd 'tha.tE;uch liquors shall be subject to tM police to be passoo;:but the deell1rati'on is that such liquors shall ,"be subjecttotlleope'tationand effector the laws of 'suohstate or territory ena:cted'in, the exercise of its police powers," etc. . It seems to me that thisenacttnent is so plain that it needs no construction other than to read it '1lB 'ir is written" 'and itmusttharefore be the fact that, llpon the adb'ptiQn oNhe WilB011' bill, imported liquors, upon, their arrival in :[owa', b'ecltmesubject'to 'the then e!lti1ilting poIice laws bfthe state, just itb13'same sucbliquors had been'.mlinufactured in Iowa·.. Thus ·we lire bro.ug&t,back' to"the· qllestioti whether, when the petitioner sold theliquOl'$iwhtchi rj.t11bradnlittedhe did sell, there was then in force in :Iowa:" la# whi<d\ made it iHegaJ.!to sell liquors' 'produced' in Iowa :fQf liS'e . !
l:Ul Thereis;spph alaw :upGuthestatute books of the state. If that wItS as to domestiC,liqu()rs. it wa.s in force as toimported Uquors..Thereis no middle groJ.1nd in this matter., it. be helq qeeision oLthe supreme court in Leisy v. Hardin is to effect that the prohibitory law of Iowa is wholly void, and cannot be enforced as.against domestic liquors, then it must be held that.afte,rthe adoption of tpe Wilson bill, imported liquors became subject to its provisions. After the enactment of the Wilson bill, the matter of sale in originalpacknges ceased to be of any moment. When the imported liquors: pass ,the boundary of the state, they then become subject to the law of the state. without regard to the character of the packages in which they are contained. . It is in argument that it is necessary to legislative action on theatate in order render ilJegalthe sale of imported liquors, beCl,luse it held in the Ji-ei1Yy Case that the importer had a right to sell the saD:\ein the original packages, and that, as there has been no change in or,aqqition to. the statute of Iowa since the date of that decision. such rightwust;Btillcontinue:. If the stat\1te of Iowa in tenns excepted from. its operati<mimported liquors, as it once did, there would be, force in the aJ;gument; but suchjs not now the fact. The language in thestatute and comprehensive as it is possible to make it.. It can-:not. that, in th El adoption of section 1523. of the Co<4l, it waa the the l:egislature,to absolutely forbid the manufacture or saleo{,(\t\Y: jI;ltoxicntingliquors for usp as ,a beverage. This section was ,ltnq does apply to all liquors; regardless the queation are domestic or imported; and the supreme court of the l]nii,f;ld,Statea> has, in several cases, upheld the valiuity of the lawlls applied tol!quorswHhin jurisdicti<)n of the state, but further held becorp.eapl'licable to imported liquors until the same had been, by' thC3 sold I and thus made part of the,commnn mass Of stltte thUS the statute wlj.s limited ill this decisions, !lowever, also de(llare iSI;lQt ,sUite to declare by legislation whftn importe<lproperty ,becomes. subject to, state control, ,nor .to subject importl¥l prqPerty .to the operation of the state revenue and poliye statutes untiljt bag peased,to pe an The ,state possesst's no, more power in this re-gard to:-day, than it did when these rulings were malle. H should ;now convene and undertake to dealwitq. subjel;lt,w,l:Iat it that is not now in force upon tile statute book ()f JhEl sta¥J?, i CQqld it, legally adopt an act declaring that i.he Sllle of impoTteQ.ljquors tile importer thereorin the ,original paGkagesis ,>,when the stllteattempte4 to SO enact,thesupreme court l;ield federal exercise I()f such a ""hll! hlJ.silillce (fhanged"theforQe ,constitutiQna,lresitdcMon? hi(1) prevented the state. fr()ill legislating 0Il th,!l of is inequlli AU call (dQ: ,todeclaf;e wi!hin j uT,isdictiou Qf tll ! qr.. estJ<:,shl}ll .· .. . ..... "' · '. 4-
bev,eragei and it is for congress to declare when imported liquors shall bl:icotDesubject to the jurisdiction of the state in this particular. Under the division of powers created by our dual system of government, it is necessary, in order to control the sale of imported liqnors,that there should be legislation on part of both the state and federal governments. It 'Is the province of the former to regulate or forbid the sale of all liquors within the jurisdiction of the state, and of the latter to determine the point of time when imported liquors become subject to the jurisdiction of the state. The state has long since declared its purpose touching liquors within its jurisdiction, and no additional legislation or re-enactment'is needed to make plain the law of the state in that particular. If the legislature, as suggested, now undertake to legislate on this sU,l,>ject, with a view to preventing the sale of iinported liquors as a beverage while in the hands of the importer, all it could do would be to deClare'tl'iat no liquors could be legally sold for use as a beverage by any omiwithin the jurisdiction of the state; and that is the exact purport of thestatl1te now in force, and which is as broad as it is-within the power of the state to make it. The case is simply this: The petitioner is a of Iowa, and therefore subject to the police laws of the state. Those.laws declare it to be a penal offense to sell intoxicating liquor'S for use' Its, a beverage. In Septembel' last, and after the adoption of the Wils6h)bili, the petitioner sold intoxicating liquors for use as a beverage;' and for so doing, in violation of an injunction issued' from the district court of Carroll county, he was brought before that court and fined anditnprisoned. He now asks the court, by use of a writ 'of habeas corto free him from imprisonment, on the ground that the1liquors he sold ware imported from Nebraska, and sold in the original packages. The answer is that since the passage of the Wilson bill imported liquors, upon their arrival in Iowa, become subject to the prohibitory law of Iowa, thesartie as though they had been produced in Iowa. The district court of Carroll county, as it had right to do, npon a petition duly presented to it,enjoined the petitioner from selling intoxicating liquors in violation of the statute of Iowa. Disregarding such injunction, the petitioner made sales of liquors for use as a beverage, arid thereupon was cited before the district court to answer for contempt 'of court in violating the injunction, and, failing to excUSe himself, was fined and impris.,., I entirely concur with the state court in holding that, as the saMs of the imported liquors were Il.lade after the enactment of the Wilson bill, the provlsidns of the Iowa statute are ,applicable thereto, and that in making such sales the petitioner viola.ted the statute Of Iowa. more, if doubt upon the principal question,' or was in my own miQd' satisfied that the state court had8l'red' in its construction of the law,lshi.mld not feel justified in releasing thepetitionel"from the effect judgment of that court. Tbeway·is open to the petitioner to present the question to the supreme court of the United States >by a writ oferrorto the state court. He hltsthus a'meansofcorrectingany error eommitted to his preju{lice iritheistllteeourt, byadirect cAppenH6
EX PARTE ULRICH.
661
the tribunal which we all recognize a.s the paramount and final arbiter of all questions arising under the federal constitution and laws. I do not question the existence of the power in the United States circuit courts to grant writs of habeaB corpu.swhen it is alleged that a person is deprived of his liberty by state action, contrary to the provisions of the federal constitution; but it is a power to be sparingly exercised. When it appears that the petitioner is held under the judgment of a state court of -competent jurisdiction, before this court should grant him a discharge, it should be made to appear that the illegality of his detention is beyond. fair question; and in all cases wherein the pivotal point has not been .finally decided by the supreme court, but still remains a debatable question. the circuit court should not discharge the petitioner, for this would be simply converting the writ of habeas corpus into a writ of error, by means of whicb this court would be asked to review the judgment of the state court upon a debatable question of law arising under the federal constitution, but which it was the duty of that court to investigate and decide, In such cases, the federal question can be readily presented to' the supreme court, and, as there exists this plain and proper remedy, it should be followed. When the question has been finally settled by the supreme court. if the state courts should refuse to follow the construeby the supreme court to the federal constitution, and, disregarding such construction. should sentence a person to .imprisonment, then the duty of the circuit court to grant relief by means of a writ of lw.beas corpus would be plain; but, until that improbl!-ble oontingency arises. the writ should not be executed incases like that now before the court. . For the teasons stated, the writ is discharged, and the petitioner is continued in, custody of the sheriff.
Ex parle CQ'ltrt,
ULRICH. September 80, 1890.)
w. D. Missouri, W. D.
1.
HABEAS CQRPl;TS-JUlUSDICTION. OF FEDERAL COURTS.
The district. court of the United States has no jurisdiction by writ of· habeas. corpus to declare a judgment of a state criminal court a nullity, and discharge the from· imprisonment imposed by it, where such court had plenary jUrisdiction over the person, the place; the oaense, and the cause, and everything con. nected witli it. . . .
'2.
In such a case, it is th3 right and duty of the state coul'f,s to decide questions arising under the constitution and laws of the United and, if it errs in its .: rulings to tb,e prejudice of the defendant, his remedy is by appeal to the supreme court of th,e state; and, if that court denies him any right, privilege, .or hnmunity which he claims'under the cODstitution of the United States, he can have his writ of error to. the supreme court of the United States.; ..
SAMIl-REMEDY BY APPEAL. .
Habeas :port, seC' 42.
On appeal from· the' districtconrt, Rep.5ljl7.
For former ra-
66'2'
J'EDERAIl::REPOl!.[1ERj
43.
. On the 13tn"da1;jof June,: 189(},there was presented to the 'district for a :writ of court oLthis diB:tricnhe: petitiom of Oscar habea&:C0f'pu8. The.petitioner!a1l:eged,in w:bstanee, that ,at the January term, 189Q,:of.th;e'criminalconit of Jackson county, Mo., the petiby the grand jury.for .the cl'imeof bigamy. That tioner his trialonisaid Indictmen!! forsajdallegedoffepsewas set down {or the 21st of April, 1:890, on. which day.the cause was called for trial and a jury duly impaneled and sworn and the trilll proceeded with, by the examination of, witnesses for t.b.cstate,until noonpL the following day, when the, Judglujf the court, without the consent: ofthedefendant, ad. journedthecause until9:30o'dl(!)Ck the next morning, and ('.aused the petitionerto,be,coUlmitted to jaiUorsafe-,keeping. ,. That after the noon adjournment aLthe petitioner's ease. on the 22d, the judge of the court petitionerwuibeingtried, permitted a special judKe, W ha had been previously appointed to try another crimin/il case pend.to impanel aIi.oth:er jury, and proceed with. the trill1 of ing said secolld. C'.aufie, and! to continue the trial thereof from day to day April,when. itwas:concluded.On the morning: of3tbe.28d>of April t the. prosecuting attorney announced that the jury, and, witl'leBses in. the petitioner?s case would be excused until 2 o'clock at which.honrtheregularjudge came upon that the jury 'and. witriesseSin the case would the, b(lllCb; bEl disI))itij3ed !Until the next.rlayiat "1 :30P.M. That the .next day the ,unti13:30·p.,M.', and :that he then announced the ease woUld not be calleki untill :30 pt"i following day; That at 2:30 o'clock P. M. the following day the judge announced that untikthenext morn'illjl;:at< 10" o'clock. Tbat the next morning, which was Apv.l 26th,the jUdge' came on the bench, and announced be was feeling ill and not able to go on with the court, and the jury impaneled to try the petitioner, and set the case down for trial the 26th of May, 1890. That the several adjournments of trial the 22d to the 26th of April were made and orderedqWhis"abserice, and without his knowlor o/?,test . an<l that the Jury were Ins protest. That on the 26th day of May, the day to which his case had been,adjourned, it was again calledfqt:trial, r);1oti()nfof'O: lD, bar of.1l11 JUdher proceedlDgs,,basedupon.· and· bJrooson of the hereinbef6l'e:setout,":whichmoti'Oif and 'jUtl'ge lilld, against the petitioner's protests and objections,.ordered, another jury; to be alleged offense, thl'l:pet,itioi)er .· wRs:convicted,R new 'trial ,sen i' h1 the denied:hi;O'"llnd . ·. penitentiary: ,: "The ' ponpr:eaented. to': the,diatrichourt his petition for a writ of habeaB C01pU8, alleging his imprisonment was.in viQ.kItioD'. tMr fifth1and ioUKeentHt a:IDtmdtfJents' Wthe·eoBstitiitio'[{t>f the United States, and praying to be dischargM::Uiereirol:n:for(that rea,<[
; EX.;PARTE ULRICH.
!fion.The! marshal of ·JacksQo!co'untY,'who had the petitioner 'in" his and upon whom the ,writ 1ft habeaa WI'p'1i8 was served, made return. to the :writ, showing: petitioner had. be'en regularlyindieted by the grand jury of thecrim.inal court for Jll.cksoncountyfor the erinie of bigamy:cdmmitted in said 'county, and that he had·. been duly tried on saidindictmentJorsaid'offeose, and found guilty by the verdict of the jury,: and sentenced Joi'said offense by the court to two years' imprisoomentm the' penitentiary of the state of Mis$ouri, and that the respobdeiJt: had. the defendant. in his custody to convey him to tbepenitentiar.y in execution of that sentence. UpOl1 hearing the case, ·thedistrietcourt discharged the petitioner; from which jUdgment therospoIid,ent: appealed ".,to 'this courL:' :The opinion 'of the district oourt dis.charging the (Ex parte 'Url,rich;,) 42 Fed. Rep. 587.
A·.FB·. GriUtmden, Stiles: · ,"': '",. ,
'"JJ: ;
r
..
,,""',
(
'.
miJ)g. . allegations;in,th. s'petition, qlles.tio:o, ,tq; QE) is· whether, :the' district comthad ju!"Ls!liction,J>J'(1J, writ,-o{ habms C01j)UB, to declare ;-the, iudgment of the ./l.tai!e, JI.. -Pi$Pl;I;arge tbe petitioner from the;-imprisonment .,impo,sed;by . it..n+; rrhe of' the· lIniW! Stat6sdo· not .p08p,py,AlJlP!'!JVl{jOry i9l. overirthe, criminaL courts NAt' to"perform,the 9fli!Je 9r tbe trid: court in, a,ca.use .:within,its,jurisdic"tio,o)) qnlYJ>erevieWlilqbY::8Ipp,eal or writoLerrordn ,the,:cdllrtexer',cisj,ng,l;\upervisqry, prappe11lilotejl.U'isclictioD,over the; trialooud iIi the J£ the, trial.eourt is, :without jurisdietion ;oftlle. a; party isaubjected,to: illegal impristheo;yrit ofMbeas :(101lJus,may be.invoked, the partyd,is.c4argeQ" {/ibm the illegnJ: rdlnprisonmentl, :&:parte o/J!tkins,3. 7 Ex parteJLangt, ,'18 .Wall. 163;' &:parte ,.farkB,93U. 8.18; 100 U. 8.87h & pam OurtiB,l06 lJ'J" S.:l371.,1e:Uep, Ct.. £hrU,:106U. S.52:1,'J. Sup· .Ct; It.ep. E.!: partee D.. 8. 651, 4 Sup. ,Ct. Rep. 152; parte Or()'lMh, 112 U(,Sd78, 5· Sup. Ck Rep.i96;ExjJart8 BigeloW, HaU.8, 328,5 SQP. at; Rep. '542; Ex'parteWilson,114 417;,5 Sqp. CkR,ep.9q5; Expa.rte Harding, 120 U·· S. 782, 7 Sup. Ct. Rep. Wight, 134 . 780;:1'n re La'/1;e,:135U. 8.443, 10 Sup. Ct. Rep. V.,S. 136, I,O'Sup. Ct. Rep. 487; Haw Nielsen, 131 U. S. 176,9 Sup. ..672; In re Coy, 1:27 U. S. 781 j 'page .756, 8 Sup., Ct. Rep. ':';:"C . . ".>.
.J.·.... .
'J,...
1
.
: atbarj the criminal court of Jackson countyhad'JIllenary j1.'!riwWtionof the person, th:eplace, the offense, and the cause, and jt.. 'The petitioner: was!mdicted f()il' violating a. of thestQ.te.j . The defining and .punishing the J :W!lS;1j. v/;ijiJIAW. J. Tb.e:lndictmcntsufW:ieritly--eharged:tbe;offense,
664
and the coprt trying the petitioner had jurisdiction of his person, and exclusive original jurisdiction to try him on the indictment for the offense therein charged. Having such plenary jurisdiction, it was the right and duty of the state court to decide every question that arose in the case, from,the beginning to the .end of it. Possessed of unquestioned jurisdiction oCthe case, the COUl't had the same jurisdiction and right to decide quel;tions arising under the constitution and laws of the United States that it ,had to decide questions arising under and laws oUhe !ltate. The state court is under the same high obligations to support, construe, and give effect to the constitution of the United States that this court is, and un erroneoos interpretation of the constitution of .tbe United States no more affects the jurisdiction of the court than an errOl)eous ruling on any other question of law arising in the. case. Whether the first jury was discharged without sufficient legal excuse was a mixed question of law and fact, to be determined by the coort, or by the court and a jury, if the facts were disputed. It is unJeniable that the court had jurisdiction to detemline that issue. .It wasihe only court that had jurisdiction todetel'mine it in the first instance; and, if it be conceded that the court-decided the question erroneously, its jurisdiction over the caust' was not thereby lost or in any degree impaired, and its judgment,was not void, and is not open to collateral attack. If the state court erred in its rulings on this or any other question, to the prejudice of the petitioner, he has his remedy to correctthe elTor. He can appeal to the supreme court of the state, and, if that court denies him any right, privilege, or immunity which he claims under the constitution of the .United States, he can have his writ of error to the supreme court of the United . This is the regular legal and orderly mode of reviewing and revising the judgments of courts in criminal, as well as in civil, cases. The cases in which a United States court has jurisdiction, by a writ of habeas corpus, to discharge a party imprisoned under the process or judgment of a state court rest on special grounds, which have no existence in this case. Among the cases in which such jurisdiction is exercised are casesw'bere the state' court is proceeding against an officer'of the United States, for an act done in pursuance of his official duty, un'der the constitution of the United States or an act of congress, (In re Neagle, 135 V. S.l,10 Sup. Ct. Rep. 658, and 39 Fed. Rep. 833;) and cases Where the state court, assuming to act by authority of a state statute which is in confliet with theconstitlltion of the United States, arid void for that reason, imprisons a citizen for exercising a right guarantied to him by the constitution of the United States, (In re Barber, 39 Fed. Rep. 641, !:Ind 136 U. S. 313,10 Sup. Ct. Rep. 862; Ex parte Kieffer, 40 Fed. Rep. 399; In re Beine, 42 Fed. Rep. 545.) But any extended , or critical.an:tlysis and classification of the cases iu which this jurisdiction exists is rendered unnecessary, in this case, by the decision of the supreme 'court of the United States in Ex parte Bigelaw,1l3 U. S. 328. . 5 Sup. Ct. Rep. 542. In principle that case is on all fours with the petitioner's, and is dec.isive of it. The essential point is the same jn both
665
cases. In that case, as in this, a jury was impaneled and sworn to trJ" the prisoner, and the jury was afterwards discharged by the court, against the prisoner's protest, before the cause was tried and submitted to The prisoner, against his protest, was again put upon his trial and convicted, and sentenced to imprisonment for five years. He thereupon made an application to the supreme court for a writ of habea8 COrpU8 to release him from that imprisonment, on the ground that he had been twice put ill jeopardy for the same offense, in violation of the fifth amendment to the constitution of the United States. That amendment applied to his case, because he was tried in a federal court of the District of Columbia; but it has no application to the petitioner's case. The supreme court refused to grant the writ. Mr. Justice MILLER, who delivered the unanimous opinion of the court, said: "But that court had jurisdiction of tbe offense described in the indictment on which .the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It bad jurisdiction to hear the charge and the evidence against the prisoner. It bad jurisdiction to hear and to decide upon the defenses offered by him. The matter now presented was one of thosedefense·s. Whether it was a sufficient defense was a matter of law on whi.ch tllat court must pass, so far as it was purely a question of law. and on which the jury, under the instructions of the court, must pass, ifwe can suppose any of the facts were such as reqUired submission to tbe jury. If the question had been one of former acquittal,-a much stronger case than this,the court would have had jurisdiction to decide upon the record whether there bad been a fonner acqUittal for the same offense; and, if the identity of the offense were in dispute, it might be necessary on such a plea to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of a former conviction. Clearly, in these cases, the court not only had jurisdiction to try and decide tbe question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial, it is error which may be corrected by the usual modes of correcting such errors; but that the court had jurisdiction to decide upon the matter raised by the plea, both as matter of law and of fact, cannot be doubted. This article I) of the amendments, and articles 6 and 7. contain other provisions concerning trials in the courts of the United States, designed as safeguards to the rights of parties. Do all of these go to the jurisdiction of the courts? And are all jUdgments void Where they have bepn disregarded in the progress of the trial? Is a judgment of conviction void when a deposition has been read against a person on trial for crime because he was not confronted with the witness, or because the indictment did not inform him with sufficient clearness of the nature and cause of the accusation?"
To the same effect is Ex parte Harding, 120 U. S. 782, 7 Sup. Ct, Rep. 780, where it is held that the fact that an alien sat on the grand jury that found the indictment, and that the petitioner was denied bis right to have compulsory process for obtaining witnesses in his favor, did not render the judgment void, and did not, therefore, give the court authority or jurisdiction to discharge the petitioner on a writ of corpus. The criminal court of Jackson county having plenary jurisdiction of the petitioner's case, neither the district court nor this court has any jurisdiction to inquire into the regularity of the proceedings in that court.
FEDERAl< :REPQR'l)Ea:,
v_w. 43.
Upon' thutrElubject, as well ,as the,qt!estion, W tnentis,tolJeconstruooasaprohibitiolil on the, ,state court& fl'om:t>]ltcing apers011, ;00: trial twice for thesarrie. cQurt ex,,: pressesJno..dpinwll. . . . ,:, The'julfgriiimt. of diStrict CQurtiIHieversed,. ancl tbe I.ietitiooe.r is, reniandedtothe'custcidy of: thestate;authQritiea, in /3xecution ofthe Sl;llh tence bf;:thestate There is nothing in the record to show \Vhat order; any (the distriCt .court made! ;under section 3 Qf rule 34 of the su ;court,,regulating, appeals inr :ha.bcaacorpU8 pases j , jb»t there, seems w;apprehehd thaitthe'pej;itiQnerwill J)ot;be forthcoming to answer .the judgment of the stn.teconrt.'
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667, BIlUMENTlU'L 11. BURRELL (Cfrcqit OQ1I/1't,
et oZ.
fr. D. New
Yor1£. October 10, 1890.)
PATEN'1'!l FQR INVENTIONs':"Ninv MANUFAOTURE.
Patent ·No. 844,483; grailted to Moritz Blumenthal, June 29, 1886, is for new manufactures,-the two chemical products, chymosin and pepsin, \lncombined wit1;l each other and practically free from foreign substances. Chymosin and pepsin are ferager.t, found in the rene ments, the former a curdling agent, the latter a nets of calves and hogs; which had, on account of their· curdling properties, been used in. the form of a liquid in .the manufacture of cheese, but the liquid cOntained Ob.i6C.ti.onab1e matter, au·d its curdlins powers v.a.ried accor.ding.. to the predominahce. of chymoslilin the stomachs treate¢ At the time of the patent chymosin had not been produced in a pure state. Held, that the chymosindescribed in the patent was a new and patentable product. ' T1;le article actually produced being merely the in a powder form, differing from previous extracts Only in containing more of the curdling princip1e,·and less,of t.he useless or deleterious matter, is not a patentable product, though it con· an insignificant proportion of pepsin and other forelgD matter.
2.
SAME.
In Equity. On bill for injunction. Steele &7 Kna'Uth, (A. 11. Brieaen, of couui;el,) for complainant. E. S. Jenney, for defendants. W J. The patent in suit (No. 344,433) granted to Moritz Blumepthal, of Prussia, June 29, 1886, is for new manufactures,-the two chemical products,chymosin and pepsin, uncombined with each other, and practically free from foreign substanc6&. The first claim is for chymosin "uncombined with pepsin," as described; the second is for pepsin "uncombined with chymosin," as described; and the third is for "chymosin or pepsin uncom1;>ined with each other, in combination with an indifferent preservative," as described. Chyinosin and pepsin are ferments found in the rennets or stomachs of calves and hogs, the former predominating in calf rennet and the latter in bog rennet; but they are unlike in their properties, chymosin being a coagulating agent, and pepsin a digestive agent. On aQcount of its coagulating properties calf rennet has long been in extensive use for curdling milk by cheese makers in the form of a liquid obtained by cutting up the stomachs and macerating them in a salt solution containing from 5 to 10 per cent. of salt. Such a liquid contains collected gastric juices of the stomach, incl uding, belMes chymosin and pepsin, more or less of the objectionable mucous and albuminous matters of these juices; and its curdling power varies to the predominance of chymosin in the stomachs treated. The patentee states in his specification that before his invention neither chymosin nor pepsin had ever been obtained in all absolutely pure state, and that each, as theretofore obtained, contained a compound of both, besides mucous, albuminQus, and other impurities, which impart an offensive smell and taste to the products. The questions in the case are the chymosin of the claim was at the,time of the alleged innew product in sense, whether the d.efend.ha;v:e jnfringed The pepsin claim is not in controversy;