text:
Ex Parte Rowland

PETITION for a writ of habeas corpus.

This is an application for a writ of habeas corpus to procure the discharge of Peter M. Rowland, D. C. Shultze, and R. C. Germany from the custody of the marshal of the United States for the Middle District of Alabama. The facts, as shown by the return to a rule to show cause heretofore made, may be stated as follows: -

On the 31st of December, 1868, the General Assembly of Alabama passed an act to authorize counties, towns, and cities to subscribe to the capital stock of railroad companies. The sections of the act material to the present case are the seventh, eighth, ninth, and twelfth. These are as follows:--

'SECT. 7. Be it further enacted, that the court of county commissioners of said counties in which the electors shall have voted in favor of said subscription, are hereby authorized and required to levy and assess in the same manner as is now required by law for the collection of State and county taxes, such tax as may be necessary to meet the interest falling due semi-annually on said bonds, and such other reasonable amount, to be determined by said court, as will pay the expenses of assessing and collecting said tax and for issuing said bonds: Provided, that in no case shall such tax exceed one per cent per annum upon the value of the real and personal property in said county, as yearly assessed and returned to the proper officers.

'SECT. 8. Be it further enacted, that the courts of county commissioners in the various counties in which such subscriptions shall have been made, as hereinbefore provided, are hereby authorized and required to require the tax-assessors and tax-collectors to assess and collect said tax. Then said courts of county commissioners shall be, and they are hereby, invested with all the powers, privileges, and rights, and bound by the same duty of proceeding against said tax-collectors and tax-assessors, and their sureties, as are vested in, granted to, and imposed upon the auditor of public accounts by law, for the amount of said taxes not assessed, collected, and paid over, or misapplied.

'SECT. 9. Be it further enacted, that the tax assessors and collectors in the various counties which shall have voted for subscription, as hereinbefore provided, are hereby invested and empowered with all the rights and remedies for collecting said tax as are now provided by law for the collection of State and county taxes, and be bound by the same duties, and that the same pains and penalties as are now prescribed by law shall attach to all persons for failing to render a tax-list or for rendering a false list.'

'SECT. 12. Be it further enacted, that the courts of county commissioners of the various counties are hereby vested with power to do any n d all acts to carry out all the provisions of this act, which are not inconsistent with the act itself, and the laws of the State and the United States.' Pamph. Laws, 1868, pp. 516, 517.

Under the authority of this act the county of Chambers issued a series of coupon bonds to the Eufaula, Opelika, Oxford, & Guntersville Railroad Company. On the 25th of May, 1875, Dix & Co., subjects of Spain, recovered a judgment against the county in the Circuit Court of the United States for the Middle District of Alabama, for $2,040.50 and costs on account of unpaid coupons cut from these bonds. Execution was issued on this judgment, and returned 'no property found,' Aug. 6, 1875. On the 19th of November, 1875, an alternative writ of mandamus was issued from the Circuit Court on the petition of Dix & Co., directed 'to P. M. Rowland, judge of probate of Chambers County, Alabama, and ex-officio judge of the court of county commissioners of said county, and J. H. Forman, R. C. Germany, W. J. Grady, and D. C. Shultze, members of said court of county commissioners,' commanding them 'to levy and assess, in accordance with the provisions of said act of the General Assembly,. . . such a tax upon the real and personal property in said county of Chambers as will satisfy the said judgment, with interest and costs, and that they continue to levy and assess said tax as aforesaid, from time to time, until said judgment is fully satisfied, with interest and costs,' or show cause on the 3d of December why they ought not to be required to do so. No cause being shown against the writ, the court, on the 17th December, issued a peremptory writ with the following command:--

'Now, therefore, you, the said P. M. Rowland, judge as aforesaid, and R. C. Germany, J. H. Forman, W. J. Grady, and D. C. Shultze, members of and composing the court of county commissioners of said county, are hereby commanded forthwith and without delay to levy and assess, and cause the collection of, in accordance with the provisions of said act of the General Assembly of said State of Alabama, such a tax upon the real and personal property in said county of Chambers as will be sufficient to satisfy said judgment, with interest and costs, and that you continue to levy and assess said tax and cause the same to be collected, as aforesaid, from time to time, until said judgment is wholly satisfied, with interest and costs of suit, and how you shall have executed this writ make known to us, to the judge of this court, at the next term of said court, on the first day of said term, to wit, on the first day of May, A. D. 1876.'

On the 24th of April, 1876, the court of county commissioners, at a regular adjourned term, made the following order, which was duly recorded:--

'On the seventeenth day of December, 1875, a peremptory mandamus was issued out of the Circuit Court of the United States at Montgomery, Ala., and executed on the commissioners of said county on the 14th of February, 1876, at the suit of Dix & Co., commanding the commissioners' court of Chambers County to levy a tax for the purpose of paying a judgment in said court in favor of said Dix & Co. against said county, rendered at the May Term, 1875, for the sum of two thousand and forty and 50/100 dollars, and fifty-one dollars costs, and that they report their action in the premises to the May Term, 1876, of said court. Now, as required by said order, it is ordered that a tax of one-fourth of one per cent, on the value of the real and personal property of Chambers County, be levied for the purpose above set forth, and that the tax-collector proceed to collect said tax as required by law.'

In obedience to, the command of the peremptory writ, the commissioners, on the 3d of May, made return that they had levied the tax as required and accompanied their return with a copy of the order entered to that effect. Nothing more was done in the suit until May 23, 1881, when, on motion of Dix & Co., the return to the peremptory writ was quashed, and a rule entered on the court of county commissioners, 'as wella § the members thereof, to wit, P. M. Rowland, judge of probate and ex-officio judge of the said court of county commissioners, and to J. H. Forman, R. C. Germany, W. J. Grady, and D. C. Shultze, who were members of and together constituted said court of county commissioners' when the peremptory writ of mandamus was served, to appear forthwith and show cause why an attachment shoul not issue against them and each of them for not obeying the command of the writ. This rule was served on Rowland, Shultze, and Germany on the 29th of May. Forman and Grady had died before the rule was entered. The surviving members of the court of county commissioners made return to the rule on the 16th of July, as follows:--

'In this case a rule nisi having, on the twenty-fifth day of May, 1881, issued out of said court, commanding P. M. Rowland, as probate judge of Chambers Co., Ala., and ex officio a member of the court of county commissioners in and for said county, and J. N. Forman, R. C. Germany, W. J. Grady, and D. C. Shultze, members of said court of county commissioners, to appear instanter, or as soon as duly served with said rule nisi, show cause why an attachment should not issue against them and each of them for violating and disregarding the peremptory writ of mandamus heretofore issued and served upon them at the suit of said Dix & Co., the said P. M. Rowland, judge of probate and ex officio a member of said court as aforesaid, begs leave to make the following return, and to show cause under oath as follows why he should not be attached for contempt of the said Circuit Court of the United States:

'He respectfully states that he was at the service of said peremptory writ of mandamus, has ever since been, and is now, judge of the court of probate in and for said county of Chambers, and as such ex officio a member of the court of county commissioners in and for said county, and that on the twenty-fourth day of April, 1876, the court of county commissioners of said county of Chambers, at a regular term of said court, levied a tax of one-fourth of one per cent on the assessed value of the real and personal property of the taxpayers of said county of Chambers, to pay off and discharge the judgment mentioned in the peremptory writ of mandamus issued and served on him and the members of said court, as aforesaid, which said levy is sufficient to pay off and discharge said judgment, together with all interest and costs of suit-the assessed value of the taxable property of said county for said year 1876 being one million six hundred and thirty-one thousand five hundred and sixty-six dollars, and the levy of one-fourth of one per cent thereon is more than sufficient to pay off and discharge the judgment, together with all interest and costs. A copy of said levy is hereto attached, marked 'Exhibit A,' and made part of this return. Affiant, said P. M. Rowland, gave notice of J. G. Weaver, the then tax-collector of said county, and requested him to collect the said one-fourth of one per cent, levied as aforesaid for the purpose aforesaid. Said J. G. Weaver, tax-collector, as aforesaid, refused to collect said taxes upon the ground that he had previously qualified under the act of the legislature of Alabama, approved on the fourth day of March, 1876, by giving a bond for the collection of the State and county taxes, for general and not for special purposes; and his successor, J. M. Driver, who is the present tax-collector of said county, executed his official bond in the same manner, and has upon the same ground refused to collect said special taxes, so levied by said court as aforesaid; and that the said P. M. Rowland notified the governor of Alabama, in the manner and within the time provided by law, of the failure of each of said tax-collectors to make a bond for the collection of secial taxes. The said P. M. Rowland has done all that the law authorized him to do in relation to the levy and collection of said taxes. Under the laws of Alabama, the said P. M. Rowland, as judge of probate of Chambr § County and ex officio a member of the court of county commissioners of said county, is simply the presiding officer of the said court of county commissioners, and has no authority to vote as a member of said court, except in cases of a tie, a thing that has not occurred in any matter growing out of the assessment or collection of the said special taxes to pay said judgment, as aforesaid. If in anything affiant has been mistaken in his duties in the premises, he is willing to correct his mistakes, and do whatever this honorable court may require. At no time has said P. M. Rowland been actuated by any intention to disobey the mandate of this honorable court, and if he has omitted any duty, it has been through mistake of his official duties, and not from any attempt to evade or oppose the authority of this honorable court. All of which is respectfully submitted.

'PETER M. ROWLAND.

'Sworn to and subscribed before me, this ___ day of June, 1881.

'J. W. DIMMICK,

'''U.S.C.om'r Mid. Dist. of Ala.'''

'R. C. Germany and D. C. Shultze show cause as follows why they should not be attached for contempt of said Circuit Court for disobedience to the peremptory writ of mandamus mentioned in the above return of P. M. Rowland: Wm. J. Grady and James H. Forman were members of the court of county commissioners of said county of Chambers on the twenty-fourth day of April, 1876, and on that day, in obedience to the peremptory writ of mandamus, mentioned in the above return of P. M. Rowland, the said Germany, Shultze, Forman, and Grady, who constituted said court of county commissioners, on said day, at a regular term of said court, levied one-fourth of one per cent upon the assessed value of the real and personal property of the taxpayers of said county of Chambers, to pay off and discharge the judgment mentioned and described in the peremptory writ of mandamus served on them, together with all the interest due on said judgments, and the costs of suit, and instructed the then tax-collector to collect the same. Said levy was sufficient to pay off said judgment, as shown by the return of said P. M. Rowland; and the then tax-collector, and his successor in office, the present tax-collector of said county, have refused to collect the same, for the reasons set forth in the return of Judge P. M. Rowland, above set forth.

'Some time in the year 1878 J. H. Forman, and some time in the year 1880 Wm. J. Grady, died, and John J. Seroyer and John H. Higgins have been elected as their successors in office, and are now members of the court of county commissioners of said county.

'Affiants further state that they are plain men, not learned in the law; that they never knew that there was any other duty devolving on them in relation to the collection of said tax than the levy of a sufficient tax to pay said judgment, with interest and costs of suit, until the service of the rule nisi in the present case.

'Affiants honestly believed that when they had levied said tax and ordered the tax-collector t collect the same, they had done all they were required to do, and until the service of the rule nisi they did not know they were required to do anything more; and whatever duty they may have omitted to perform, was omitted through innocent or ignorant mistake of their duties; that they are willing and now offer to perform any and every duty required of them in relation to causing said taxes to be collected. All of which is respectfully submitted.

'D. C. SHULTZE.

'R. C. GERMANY.

'Sworn to and subscribed before me, this fourteenth day of June, 1881.

'J. W. DIMMICK,

'''U.S.C.om'r for said Mid. Dist. of Ala.'''

On the same day the return was filed the court made the following order:--

'The respondents then filed their respective answers to said rule, which were considered and held in all respects to be insufficient, and to furnish no excuse or exoneration for their failure to obey said writ. Said respondents, P. M. Rowland, D. C. Shultze, and R. C. Germany, are therefore adjudged to be guit y of contempt of this court in relation to said writ, but sentence is hereby suspended, and this cause continued until the next term of the court, in order that said respondents may have an opportunity by that time to pay said judgment, with interest and costs; and said respondents are each required to be and appear before this court upon the first day of the next term of this court, to wit, upon Monday, the seventh day of November, A. D. 1881, at 12 o'clock, M., to certify obedience to this order, and to receive such sentence as the court may deem meet to pronounce in the premises.'

And on the 21st of November the following:--

'In this proceeding by attachment for contempt, all the parties this day appeared in this court, and were further heard by this court touching the matters of contempt involved in this proceeding. And it appearing to the court that at the last term of this court, to wit, on July 16, 1881, the respondents, the said Rowland, Shultze, and Germany, were fully heard as to the said matters of contempt in disobeying the said peremptory writ of mandamus duly issued out of this court theretofore to them and duly served on them, and that upon said hearing the said respondents were duly and properly adjudged and found by this court to be guilty of contempt of this court in relation to said peremptory writ of mandamus mentioned in this proceeding for contempt and in disobeying said last-mentioned writ, but that said respondents were required to appear in this court on the first day of this term to receive such sentence as this court may deem meet to pronounce in the premises; and it is now made further to appear to this court that said respondents have not obeyed said peremptory writ of mandamus, nor certified any such obedience, but still continue to disobey said writ of peremptory mandamus, and that said respondents are guilty of said contempt in disobeying said peremptory writ of mandamus, and that the judgment of said Dix & Company mentioned in that writ, and in respect to which that writ was issued, remains wholly unpaid and unsatisfied and of full force, and that the amount due upon said last-mentioned judgment, including the principal and lawful interest thereon and the costs up to this day, is thirty-one hundred and fifty-two dollars:

'It is, therefore, considered, ordered, and adjudged, by this court, that the said respondents, the said P. M. Rowland, D. C. Shultze, and R. C. Germany, are guilty of said contempt in disobeying as well as in continuing to disobey the said peremptory writ of mandamus, and the order and command of this court therein, and that for said contempt each of said respondents is here and now sentenced by this court to pay to the United States, as a fine for his said contempt, the sum of one thousand and eighty-eight dollars, and to be and to stand imprisoned in the common jail of Montgomery County, in the State of Alabama, until the said fine hereby imposed upon him, and all the costs of this proceeding for contempt, are paid; that, in addition to said fines hereby imposed upon each of said respondents respectively, the sentence of this court also is, that said respondents pay all the costs of this proceeding, and stand imprisoned, as aforesaid, until the whole of said costs shall be paid. But the court further orders and adjudges, that if the said judgment of said Dix & Co., under and in respect to which said peremptory writ of mandamus issued, and also all the costs of this proceeding and of the proceedings in which said peremptory mandamus issued, shall hereafter be paid and satisfied in full, and such satisfaction be entered on the execution docket or minutes of this court before the said fines are paid, then and in that event all further proceedings under said sentence of this court shall thereupon cease, and the said respondents shall thence be discharged from imprisonment under said sentence.'

The marshal shows this order as the cause of his imprisonment of the parties named therein who are the petitioners here.

The case was argued by Mr. John T. Morgan and Mr. James L. Pugh in support of the petition, and by Mr. Samuel F. Rice in opposition thereto.

MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.

title: Ex Parte Rowland


text: Talk:Ex Parte Rowland

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Ex Parte Rowland


text:
Ex Parte Rowland/Opinion of the Court

The single question we have to consider on this application is, whether the order of the Circuit Court, made on the 21st of November, is sufficient authority to the marshal for the detention of the persons he holds under it; and that question, as is conceded on both sides, depends entirely on the power of that court to require the court of county commissioners to do what its members have been held to be in contempt for not doing. If the command of the peremptory writ of mandamus was in all respects such as the Circuit Court had jurisdiction to make, the proceedings for the contempt are not reviewable here. But if the command was in whole or in part beyond the power of the court, the writ, or so much as was in excess of jurisdiction, was void, and the court had no right in law to punish for any contempt of its unauthorized requirements. Such is the settled rule of decision in this court. Ex parte Lange, 18 Wall. 163; Ex parte Parks, 93 U.S. 18; Ex parte Siebold, 100 id. 371; Ex parte Virginia, id. 339.

It is also settled that more cannot be required of a public officer by mandamus than the law has made it his duty to do. The object of the writ is to enforce the performance of an existing duty, not to create a new one. In the present case the law made it the duty of the court of county commissioners to levy the tax required to pay the judgment rendered by the Circuit Court. This levy was to be made in the same manner as was required by law for the collection of State and county taxes. Whatever, therefore, the court of county commissioners was bound to do to secure the collection of State and county taxes, the Circuit Court had jurisdiction to require it to do in respect to this special tax. Sect. 8 also made it the duty of the county commissioners to require the tax-collector to collect the tax; and for that purpose they were invested with all the powers, privileges, and rights, and bound by the same duty of proceeding against tax-collectors and their sureties as were vested in, granted to, or imposed upon the auditor of public accounts, for the amount of taxes not assessed, collected, and paid over, or misapplied. The commissioners had no authority to collect the tax. That duty was, by sect. 9, put on the tax-collector, who was invested with all the rights and remedies and bound by all the duties he had by law for the collection of State and county taxes.

The court of county commissioners, while called a 'court,' is in fact the board of officers through whom the affairs of the county are managed. The duties of this board, at least so far as this case is concerned, are administrative, not judicial. The county is a body corporate, and the court its governing body. The judge of probate is, ex officio, a member of this body. In performing his duties in that capacity he acts not as a judge of probate, but as county commissioner. The mandamus went against him in this case as commissioner, not as judge. No question arises here as to the power of the courts of the United States to imprison a judge of a State court for what he does, or omits to do, in his judicial capacity. As commissioner, this probate judge was amenable to the authorized process of the courts of the United States in the same manner and to the same extent that his associates were.

The laws of Alabama provide for a tax-assessor, a court of county commissioners, a tax-collector, and a county treasurer. The services of all these officers are required in the levy, collection, and disbursement of taxes. The assessor lists the taxable property in the county, and values it for taxation. His list, when made out, constitutes the assessment; and he enters it in a book, called the assessment-book, which, when completed, he delivers to the probate judge. It is then examined by thep robate judge, the county commissioners, county treasurer, and clerk of the Circuit Court, who constitute a board of equalization, of which the probate judge is, ex efficio, chairman. This board equalizes the assessment, and corrects any errors that may be discovered. When the equalization has been perfected and all the necessary corrections made, the chairman certifies to that effect on the assessor's book, and the assessment thus becomes the basis of taxation in the county for the current year. The court of county commissioners then levy the amount of county taxes required. The taxes thus levied are to be collected by the tax-collector, who is an independent officer, and makes his settlements with the county treasurer and not with the court of county commissioners. He is chargeable with all the taxes levied; but upon his report the commissioners may allow him credit for such as he had been unable to collect and for erroneous assessments.

The peremptory writ of mandamus was served on the 14th of February, 1876. The first regular meeting of the commissioners thereafter was on the second Monday in April, and at an adjourned day in that meeting the order levying the tax was made. On the 4th of March before, an act was passed by the General Assembly of Alabama (Pamph. Laws 1875-76, 93) to the effect that whenever any county of the State should be authorized by law, or required by the judgment of any court, to levy any tax for any special purpose, otherwise than the taxes authorized by the general revenue laws of the State, the tax-collector might execute separate bonds,-one for the collection of the taxes levied under the general laws, and one for the collection of taxes levied for special purposes, or in obedience to the requirements of the judgment of a court. If he should give one of the bonds and fail or refuse to give the other, it was made his duty to proceed to collect the taxes for which he gave the bond, and of the probate judge to notify the governor of his failure to give the other. The governor was then to appoint a special tax-collector for the collection of the taxes for which the regular tax-collector had failed to give bond.

The performance of the duty of the court of county commissioners in respect to the levy of taxes was complete when a valid levy had been made, and all had been done which was necessary to enable the collector to proceed with the collection. The duty to collect rested entirely on the collector. He accounted for his collections to the treasurer, who alone was the custodian of the moneys of the county, and paid them out to the parties entitled thereto, on proper vouchers. If the collector failed to perform his duty, he could be compelled by mandamus to do what was required of him by law; but it is nowhere made the duty of the court of county commissioners to institute any such proceeding. As the duty of collection was one the tax-collector owed to the judgment creditor as well as the commissioners, we see no reason why the creditor could not himself apply for the necessary writ. If the collector made collections which he failed to pay over, he and his sureties could be proceeded against summarily for the moneys in his hands. So, too, if he failed by his own fault or neglect to make his collections, he and his sureties would undoubtedly be liable to an action on that account; but we have been referred to no statute which made it the official duty of the court of county commissioners or the auditor of public accounts to bring such an action. Under the law as it stood when the bonds sued on were issued, the auditor could obtain a summary judgment for certain penalties imposed by law upon a tax-collector for the non-performance of his duties, but it was not made his absolute duty to institute the necessary proceedings for that purpose. And, besides, the writ in this case does not require the commissioners to do any such thing.

We proceed now to the consideration of the return of the commissioners to the rule upon them to show cause why they should not be attace d for disregarding the writ. Their statements in the return have not been controverted, and are consequently to be taken as true. While the return to the mandamus itself was quashed, the return to the rule stands in the place of a return to the writ for all the purposes of this proceeding. The command of the writ was that the commissioners levy, assess, and cause to be collected the necessary tax. They return that they did levy the tax and order its collection by the tax-collector. It is true that while the writ ordered the tax to be levied on the real and parsonal property in the county, the levy as ordered was on the real and personal property of the county. Clearly there can be no difference between what was done and what was ordered to be done. A tax was levied, and that implies a levy on property which was in law taxable. The property belonging to the county was exempt. It was so expressly provided by law. Pamph. Laws 1868, p. 298, sect. 3; id. 1875-76, p. 44, sect. 2, par. 2. Consequently the return that a tax had been levied, which the tax-collector was directed to collect, necessarily implied that the levy was made on the taxable property in the county, and the Circuit Court could not have understood otherwise. It is, then, to be taken as a fact that the levy which was commanded was actually made, and on the proper assessment. It follows, therefore, that the fine, for the non-payment of which the commissioners are now held in custody, must have been imposed because they failed to cause the tax which was levied to be collected. The orders themselves indicate as much on their face, for in the first the sentence was delayed after the commissioners were adjudged to be in contempt, to give them time to pay the judgment; and in the second, the fine is to be remitted and the contempt purged if the judgment shall be paid.

The case, then, clearly presents itself to us a proceeding against the commissioners for contempt in not causing the tax to be collected after they had done all they were required to do to charge the tax-collector with the duty of making the collection. This we cannot but think was beyond the jurisdiction of the Circuit Court. The duty of the commissioners in respect to the collection of the tax is performed when they have done all that is necessary to authorize a qualified tax-collector to enter upon his work under the law. The original act of 1868 made it the duty of the collector of general taxes to collect the special tax as he did the others. If the act of 1876, which permitted the regularly elected collector to disqualify himself from collecting the special tax by not giving the new bond, was unconstitutional as to Dix & Co.'s coupons, which the Supreme Court of the State is reported to have decided recently in the case of Edwards v. Williamson, the judgment creditors might, by proceedings in mandamus against him, have required that he make the collection, notwithstanding the change in the law; but we are referred to no statute which makes it the duty of the court of county commissioners to test that question in that way or any other. As the law stood on its face the commissioners and the probate judge had performed their duty when the governor was informed, in the proper way, of the failure of the tax-collector to give his bond for the collection of the special tax. Whatever it is within the power of the creditor to compel the tax-collector to do without the intervention of the court of commissioners, the commissioners are not required by the writ against them to do. Their whole duty in respect to the collection of the tax is performed when they have so far set the machinery of collection in motion that others are required to keep it going. Their obligations in this respect end where those of another public officer begin. They cannot be required by mandamus to compel another officer to do his duty, if, without their intervention, the moving party can himself accomplish the same result. It is true that, under sect. 12, general powers ar conferred on the commissioners to carry out the provisions of the bonding act; but this does not change the rule of their liability to the bondholder in the particular now under consideration. The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary remedy, may not be done with it. It only lies when there is practically no other remedy. As a necessary consequence the writ must issue directly against him whose duty it is to do the thing which the parties seek to have done; for, as was said in Reg. v. Mayor of Derby (2 Salk. 436), 'it is absurd that the writ should be directed to one person to command another.' The question here is, whether it was the duty of the tax-collector under the law to collect the special tax which the commissioners had levied. That question the creditor could have had determined in a direct proceeding against the collector, without the help of the commissioners. It follows, that if the command of the writ against the commissioners was what the Circuit Court has construed it to be, it was in excess of the jurisdiction of the court, and consequently void. If the command of the writ was in excess of jurisdiction, so necessarily were the proceedings for contempt in not obeying. We are led, therefore, to the conclusion that the order of the court under which the marshal holds the petitioners in custody was a nullity, and that a writ of habeas corpus should issue as prayed for, unless the parties are willing that an order of discharge shall be entered without further proceedings.

So ordered.

NOTE.-Ex parte Alabama was argued at the same time and by the same counsel a the preceding case, and the writ of habeas corpus prayed for was refused, as the relief thereby sought could be had under that case.

title: Ex Parte Rowland/Opinion of the Court


text: Talk:Ex Parte Rowland/Opinion of the Court


text:
Davis v. Fredericks

APPEAL from the Supreme Court of the Territory of Montana.

The facts are stated in the opinion of the court.

Mr. Richard T. Merrick and Mr. Martin F. Morris for the appellant.

Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Davis v. Fredericks


text: Talk:Davis v. Fredericks

title: Talk:Davis v. Fredericks


text:
Davis v. Fredericks/Opinion of the Court

Section 2 of the act of April 7, 1874, c. 27 (18 Stat., pt. 3, p. 27), 'concerning the practice in territorial courts and appeals therefrom,' is as follows:--

'That the appellate jurisdiction of the Supreme Court of the     United States over the judgments and decrees of said      territorial courts in cases of trial by jury shall be      exercised by writ of error, and in all other cases by appeal      according to such rules and regulations as to form and modes      of proceeding as the said Supreme Court have prescribed or      may hereafter prescribe: Provided, that on appeal, instead of the evidence at large, a statement of      the facts of the case in the nature of a special verdict, and      also the rulings of the court on the admission or rejection      of evidence when excepted to, shall be made and certified by      the court below, and transmitted to the Supreme Court      together with the transcript of the proceedings and judgment      or decree; but no appellant proceedings in said Supreme      Court, heretofore taken upon any such judgment or decree,      shall be invalidated by reason of being instituted by writ of      error or by appeal.'

As such appeals lie to this court only from the Supreme Court of a Territory (Rev. Stat., sect. 702), it follows that the statement, both as to facts and rulings on which we are to act, must be made directly or indirectly by that court. In String-fellow v. Cain (99 U.S. 610), we said that where, under the practice in a Territory, as case went from the District Court to the Supreme Court on a statement, of facts, and there was a general judgment of affirmance, the statement of facts made by the District Court, thus approved and enforced by the Supreme Court, would be accepted here as a 'statement of facts' made by the Supreme Courtu nder the requirements of this act. And so, too, if there was a reversal of the decree of the District Court and a different decree entered in the Supreme Court upon the facts as stated. In the present case there was no statement of facts made by the District Court. The only questions presented to the Supreme Court were those which arose on the rulings of the District Court in the admission or the rejection of evidence, and in its charge to the jury impanelled to try certain questions prepared and submitted to them. The judgment having been affirmed, Davis, the appellant, asked that a statement of facts be made by the Supreme Court and certified up with the transcript of the proceedings on an appeal. This request was complied with, and from the statement made it appears that prior to July 1, 1871, he held the title to a certain saw-mill, which on that day he conveyed by deed, with covenants of warranty, to the appellee, Sarah J. Fredericks, and William H. Drew. Afterwards, in 1872, Davis and Drew built a flouring-mill on another piece of land, which they continued to own in common until March 30, 1874, when Drew sold his half to Mrs. Fredericks for $2,000; which she paid him in cash from her own separate funds. On the same day she sold and conveyed to Drew her half of the saw-mill, receiving in payment certain notes and securities. She subsequently began this suit against Davis to obtain a partition of the flouring-mill property. As the property was indivisible, a sale was necessary to effect the partition.

In March, 1875, Davis sued the husband of Mrs. Fredericks, and attached as his property the half of the flouring-mill standing in her name. In the partition suit, Davis insisted that she held the property in fraud of his rights as an attaching creditor of her husband, and he attempted to make proof of that fact so that he might reach by his attachment the part of the proceeds of the sale that would otherwise be set off to her. For this purpose he offered to prove that his own conveyance to her of the one-half of the saw-mill was in fraud of his own rights as a creditor of her husband. This, as appears from the statement, the Supreme Court ruled he was estopped by his deed to her from doing.

The assignments of error relate principally to the questions arising on this ruling, but we deem it unnecessary to consider them, as we agree with the court below that, in view of the other facts which have been directly found, it is wholly immaterial whether there was fraud in the saw-mill transaction or not. It is expressly stated that Mrs. Fredericks paid for the flouring-mill in cash from her own separate funds, and with this found there is nothing whatever in the case to inpeach or in any manner invalidate the conveyance from Drew to her.

Decree affirmed.


text: Talk:Davis v. Fredericks/Opinion of the Court


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United States v. McBratney

CERTIFICATE of division of opinion from the Circuit Court of the United States for the District of Colorado.

The facts are stated in the opinion of the court.

The Solicitor-General for the United States.

Mr. Thomas G. Putnam, contra.

MR. JUSTICE GRAY delivered the opinion of the court.

title: United States v. McBratney


text: Talk:United States v. McBratney

title: Talk:United States v. McBratney


text:
United States v. McBratney/Opinion of the Court

The defendant, having been indicted and convicted, in the Circuit Court of the United States for the District of Colorado, of the murder of Thomas Casey, within the boundaries of the Ute Reservation in that district, moved in arrest of judgment for want of jurisdiction of the court. The indictment does not allege that either the accused or the deceased was an Indian. The certificate of division, upon which the case has been brought to this court, states that at the trial it appeared that both were white men, and that the murder was committed in the district of Colorado, within the Ute Reservation, the said Ute Reservation lying wholly within the exterior limits of the State of Colorado; and that, upon the motion in arrest of judgment coming on to be heard before Mr. Justice Miller and Judge Hallett, their opinions were opposed upon this question: 'Whether the Circuit Court of the United States sitting in and for the district of Colorado has jurisdiction of the crime of murder, committed by a white man upon a white man, within the Ute Reservation in said district, and within the geographical limits of the State of Colorado.'

The Circuit Courts of the United States have jurisdiction of the crime of murder committed in any 'place or district of country under the exclusive jurisdiction of the United States;' and, except where special provision is made, 'the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country.' Rev. Stat., sect. 629, cl. 20, sect. 2145, sect. 5339, cl. 1.

By the second article of the treaty between the United States and the Ute Indians, of March 2, 1868, the United States agreed that a certain district of country therein described should be set apart for the absolute and undisturbed use and occupation of the Indians therein named, and of such other friendly tribes or individual Indians as from time to time they might be willing, with the consent of the United States, to admit among them; and that no persons, except those therein authorized so to do, and except such officers, agents, and employees of the government as might be authorized to enter upon Indian reservations in discharge of duties enjoined by law, should ever be permitted to pass over, settle upon, or reside in the territory so described, except as otherwise provided in the treaty. The sixth article provided that, 'if bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians,' the United States, upon proof made to the agent, and forwarded to the Commissioner of Indian Affairs, would proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and 'if bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indian, subject to the authority of the United States and at peace therewith, the tribes herein named solemnly agree that they will, on proof made to their agent, and notice to him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws.' By the seventh article, 'the President may at any time order a survey of the reservation, and, when so surveyed, Congress shall provide for protecting the rights of such Indian settlers in their improvements, and may fix the character of the title held by each;' and 'the United States may pass such laws on the subject of alienation and descent of property, and on all subjects connected with the government of the Indians on said reservation and the internal police thereof, as may be thought proper.' 15 Stat. 619-621.

By the first section of the act of Congress of Feb. 28, 1861, c. 59, to provide a temporary government for the Territory of Colorado, all territory which, by treaty with any Indian tribe, was not, without its consent, to be included within the territorial limits or jurisdiction of any State of Territory, was excepted out of the boundaries and constituted no part of the Territory of Colorado; and by the sixteenth section, 'the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within the said Territory of Colorado as elsewhere within the United States.' 12 Stat. 172, 176. If this provision of the First section had remained in force after Colorado became a State, this indictment might doubtless have been maintained in the Circuit Court of the United States. United States v. Rogers, 4 How. 567; Bates v. Clark, 95 U.S. 204; United States v. Ward, 1 Woolw. 17, 21.

But the act of Congress of March 3, 1875, c. 139, for the admission of Colorado into the Union, authorized the inhabitants of the Territory 'to o rm for themselves out of said Territory a State government, with the name of the State of Colorado; which State, when formed, shall be admitted into the Union upon an equal footing with the original States in all respects whatsoever;' and the act contains no exception of the Ute Reservation, or of jurisdiction over it. 18 Stat., pt. 3, p. 474. The provision of section one of the subsequent act of June 26, 1876, c. 147 (19 Stat. 61), that upon the admission of the State of Colorado into the Union 'the laws of the United States, not locally inapplicable, shall have the same force and effect within the State as elsewhere within the United States,' does not create any such exception. Such a provision has a less extensive effect within the limits of one of the States of the Union than in one of the Territories of which the United States have sole and exclusive jurisdiction.

The act of March 3, 1875, necessarily repeals the provisions of any prior statute, or of any existing treaty, which are clearly inconsistent therewith. The Cherokee Tobacco, 11 Wall. 616. Whenever, upon the admission of a State into the Union, Congress has intended to except out of it an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it has done so by express words. The Kansas Indians, 5 Wall. 737; United States v. Ward, supra. The State of Colorado, by its admission into the Union by Congress, upon an equal footing with the original States in all respects whatever, without any such exception as had been made in the treaty with the Ute Indians and in the act establishing a territorial government, has acquired criminal jurisdiction over its own citizens and other white persons throughout the whole of the territory within its limits, including the Ute Reservation, and that reservation is no longer within the sole and exclusive jurisdiction of the United States. The courts of the United States have, therefore, no jurisdiction to punish crimes within that reservation, unless so far as may be necessary to carry out such provisions of the treaty with the Ute Indians as remain in force. But that treaty contains no stipulation for the punishment of offences committed by white men against white men. It follows that the Circuit Court of the United States for the District of Colorado has no jurisdiction of this indictment, but, according to the practice heretofore adopted in like cases, should deliver up the prisoner to the authorities of the State of Colorado to be dealt with according to law. United States v. Cisna, 1 McLean, 254, 265; Coleman v. Tennessee, 97 U.S. 509, 519.

The record before us presents no question under the provisions of the treaty as to the punishment of crimes committed by or against Indians, the protection of the Indians in their improvements, or the regulation by Congress of the alienation and descent of property and the government and internal police of the Indians. The single question that we do or can decide in this case is that stated in the certificate of division of opinion, namely, whether the Circuit Court of the United States for the District of Colorado has jurisdiction of the crime of murder committed by a white man upon a white man within the Ute Reservation, and within the limits of the State of Colorado; and, for the reasons above given, that question must be

Answered in the negative.


text: Talk:United States v. McBratney/Opinion of the Court


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Moores v. National Bank

RROR to the Circuit Court of the United States for the Southern District of Ohio.

The action was brought by Caroline A. Moores against the Citizens' National Bank of Piqua, in March, 1873. The amended petition, filed on the 11th of February, 1874, and subsequently amended by leave of court in some particulars, after a motion of the defendant to require the plaintiff to make it more specific, alleged that the defendant was a banking corporation duly incorporated under the laws of the United States in 1864, with a capital stock of one thousand shae § of one hundred dollars each, of which the whole was paid in, and certificates issued to the stockholders; that on the 15th of July, 1867, G. Volney Dorsey was president and Robert B. Moores was cashier, and they were charged with the keeping of its transfer books and the issue of certificates of stock; that on that day Robert B. Moores represented himself to the plaintiff, and appeared on the books of the bank, to be the owner of more than ninety-one shares, and she purchased of him ninety-one shares, and paid him therefor the sum of $9,100 in money, and he, as cashier and stockholder, falsely and fraudulently represented to her that he had, in consideration of such purchase and payment by her, assigned and transferred the ninety-one shares to her on the books of the bank, and thereupon Dorsey as president, and Robert B. Moores as cashier, signed and issued to her a certificate therefor in the usual form, that the plaintiff believed and relied upon the representations of Robert B. Moores, as cashier and stockholder, that the stock had been duly transferred by him to her on the books of the bank, and what the certificate was duly issued and was valid; that she was recognized as a stockholder for that amount of stock until on or after the 1st of January, 1873, when she first learned that the defendant disputed the validity of the certificate, denied that any transfer had been made to her upon its books, and refused to recognize her as a stockholder; that after the issue of the certificate to her the defendant fraudulently permitted and procured Robert B. Moores to make on its books transfers of all the stock owned by him, or standing in his name, to Dorsey, its president, for its benefit, and refused, and still refuses, to recognize the plaintiff as owner of the stock, or to recognize the validity of the certificate; that the facts that no transfer had been made to the plaintiff on the books of the bank at the time of the issue and delivery of the certificate to her, that the certificate was not authorized by the bank or recognized by its as valid, and that the stock standing in the name of Robert B. Moores had been transferred on the books to its president, was fraudulently concealed by the defendant, through its cashier, Robert B. Moores, and she was aware of no circumstances calling for inquiry on her part until after the 1st of January, 1873; that, by reason of the fraudulent conduct and acts aforesaid of the defendant, the certificate was invalid and worthless in her hands, and she had lost the sum of $9,100 paid by her therefor; and that the defendant had been requested by the plaintiff to repay or reimburse that sum to her, or to recognize the validity of the certificate, and had refused so to do.

The defendant filed an answer, setting up three grounds of defence: 1st, Averring that the plaintiff's alleged cause of action did not accrue within four years next preceding the commencement of the action; and denying that the plaintiff was ignorant of the facts set forth in her petition, if they existed, or of facts which called upon her to inquire as to the validity of the certificate, until the 1st of January, 1873, or any other date after the 15th of July, 1867. 2d, Averring that, pursuant to an agreement made by the plaintiff and her husband with Robert B. Moores and William B. Moores on the 15th of July, 1867, which the defendant had no knowledge of, interest in, or connection with, the sum of $9,100 had been repaid to the plaintiff by William for the paper purporting to be a certificate of stock, and Robert had thereby become entitled to take up the same. 3d, Averring that the paper purporting to be a certificate of stock was executed and delivered by Robert to the plaintiff, in violation of his duty, and without the knowledge or consent of Dorsey or any other officer of the defendant; that, according to the defendant's rules and usages, no one could procure a certificate of stock without the contemporaneous surrender of a certificate for an equal amount for cancellation; and that before the 15th of July, 16 7, all the shares previously held by Robert had been transferred by him, and on the books of the bank, to other persons.

The plaintiff replied, alleging, as to the first ground of defence, first, that at and before the 15th of July, 1867, and ever since, she was a married woman; and, second, that the cause of action did accrue within four years; and, as to the second ground of defence, denying the agreement and payment therein alleged; and demurred to the third ground of defence. And the defendant demurred to both the replies, for the reason that they did not constitute good replies to the first ground of defence.

The court ordered that the defendant's demurrer to the plaintiff's first reply to the first ground of defence be sustained, to which the plaintiff excepted; ordered that the defendant's demurrer to the plaintiff's second reply to the first ground of defence be overruled, to which the defendant excepted; ordered that the plaintiff's demurrer to the third ground of defence be sustained, to which the defendant also excepted; and gave the parties leave to plead within thirty days, which did not appear to have been availed of.

The defendant afterwards, by leave of court, in lieu of the third ground of defence, filed an amendment of the answer, denying that Dorsey had any connection with the transaction alleged in the petition, or that he issued to the plaintiff the certificate therein set forth, or that Robert B. Moores, as its cashier, or in his official capacity, issued the certificate to her, or that he held any certificate of stock in the bank on the 15th of July, 1867, or at any time thereafter; alleging that, according to its rules and usages, no one was entitled to receive a certificate of ownership of shame without the surrender of a certificate of corresponding amount for cancellation, all of which was well known to the plaintiff; and denying generally all allegations of fraud or negligence contained in the petition. And it was ordered by the court that 'the default herein' (of which there was no previous mention in the record) be set aside, and the plaintiff have leave to reply; and she did reply, joining issue on the denials and denying the allegations of the amended answer.

The record stated that the parties afterwards, by their attorneys, filed a written stipulation waiving a jury, and 'submitted the case to the court upon the issue joined. On consideration whereof the court find the issues to be in favor of the defendant, to which finding the plaintiff by her attorneys excepts.' The bill of exceptions presented by the plaintiff, and allowed by the judge presiding at the trial, stated that the case was submitted to the court upon all the evidence (which was in writing and annexed to the bill), and 'thereupon the court found for the defendant, to which the plaintiff excepted.'

The Civil Code of Ohio of 1853, in the chapter concerning the limitation of personal actions, provided that the following actions should be brought within four years next after the cause of action shall have accrued, namely, 'an action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated;' and 'an action for relief on the ground of fraud; the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud' (sects. 12, 15); and that 'if a person entitled to bring any action mentioned in this chapter, except for a penalty or forfeiture, be, at the time the cause of action accrued, within the age of twenty-one years, a married woman, insane or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter, after such disability shall be removed' (sect. 19); and, in the chapter concerning parties to civil actions, provided that 'where a married woman is a party, her husband must be joined with her; except, when the action concerns her separate property, she may sue without her husband, by her next friend; when the action is between herself and her husband, she may sue or b sued alone; but in every such action other than for a divorce or alimony, she shall prosecute and defend by her next friend.' Sect. 28. 2 Rev. Stat. of Ohio (Swan & Critchfield's ed.), 947, 949, 953. The section last cited has been amended by the act of April 15, 1870, sect. 1, by providing that in actions concerning her separate property she may sue and be sued alone, and shall in no case be required to promote or defend by her next friend. 67 Ohio Laws, 111.

The case was argued by Mr. Edward W. Kittredge and Mr. Alonzo Taft for the plaintiff in error, and by Mr. William M. Ramsey for the defendant in error.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

title: Moores v. National Bank


text: Talk:Moores v. National Bank

title: Talk:Moores v. National Bank


text:
Moores v. National Bank/Opinion of the Court

The principal embarrassment in this case arises from the difficulty of ascertaining from the prolix and obscure record what was actually decided in the court below.

The decision of that court sustaining the demurrer to the plaintiff's first reply to the first ground of defence was based upon the position that the exception in the statute of limitations of Ohio in favor of a married woman was repealed by the statute of 1870, by which it was enacted that a married woman might sue alone in actions concerning her separate property. That decision was in accordance with an opinion of the majority of the Superior Court of Cincinnati in Ong v. Sumner, 1 Cincinnati Superior Court, 424, which appears to have been the only decision upon the question in the courts of Ohio at the time of the trial of the present case in the Circuit Court. But in Lawrence Railroad v. Cobb (35 Ohio St. 94), the Supreme Court of Ohio has since adjudged that, even if the statute of 1870 withdrew the protection of coverture (a point which it did not decide), yet the action of a married woman was not barred until four years after the passage of this statute; and the construction thus given to the statute by the highest court of the State should be followed by this court. Tioga Railroad v. Blossburg & Corning Railroad, 20 Wall. 137; Kibbe v. Ditto, 93 U.S. 674; Fairfield v. County of Gallatin, 100 id. 47.

It follows that the order sustaining the demurrer to the plaintiff's first reply was erroneous, and that the judgment below in favor of the defendant must be reversed, unless it clearly appears that the plaintiff was not prejudiced by the error. Deery v. Cray, 5 Wall. 795; Knox County Bank v. Lloyd, 18 Ohio St. 353.

To the first ground of defence stated in the answer, namely, that the cause of action did not accrue within four years, the plaintiff had made two replies: the first, in the nature of confession and avoidance, that she was a married woman; the second, in the nature of a traverse, that the action did accrue within four years. This allegation of fact in the second reply cannot affect the issue of law raised by the defendant's demurrer to the first reply. After that demurrer had been sustained, the case, as was assumed and contended by the learned counsel for the defendant at the argument, presented three issues: First, Whether the cause of action accrued within four years. Second, Whether there had been a payment, as alleged in the second ground of offence. Third, Upon the third ground of defence, which included a general denial of all the material allegations in the petition.

A verdict of a jury, or, where a trial by jury is waived, a finding by the court, upon any one of these issues, would be sufficient to sustain a general finding for the defendant, and would render the other issues of fact immaterial. The bill of exceptions merely states generally that 'the court found for the defendant;' and the statement in the record, that under a submission 'upon the issue joined' the court found 'the issues' to be in favor of the defendant, is too ambiguous to enlarge the effect of the general finding as stated in the bill of exceptions.

The sustaining of the demurrer to the plaintiff's first reply deprived her of the right to insist upon the ground of at ion, which was open under the petition, that the defendant, more than four years before the action was brought, permitted and procured the transfer upon its books to other persons of shares of which the plaintiff held the certificate (Bank v. Lanier 11 Wall. 369; Telegraph Company v. Davenport, 97 U.S. 369); and limited her, so far as regarded the first ground of defence, to proof of a cause of action accruing within the four years. The general finding in favor of the defendant may have proceeded solely upon that ground of defence, without touching the second and third grounds.

The defendant therefore fails to show that the error in sustaining its demurrer did not prejudice the plaintiff, and consequently the judgment must be reversed and a

New trial ordered.

MR. JUSTICE MATTHEWS did not sit in this case.


text: Talk:Moores v. National Bank/Opinion of the Court


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Hopt v. People (104 U.S. 631)

ERROR to the Supreme Court of the Territory of Utah.

The facts are stated in the opinion of the court.

Mr. John R. McBride and Mr. J. G. Sutherland for the plaintiff in error.

The Solicitor-General, contra.

MR. JUSTICE GRAY delivered the opinion of the court.

title: Hopt v. People (104 U.S. 631)


text: Talk:Hopt v. People (104 U.S. 631)

title: Talk:Hopt v. People (104 U.S. 631)


text:
Hopt v. People (104 U.S. 631)/Opinion of the Court

The plaintiff in error was indicted, convicted, and sentenced for the crime of murder in the first degree in the District Court of the Third Judicial District of the Territory of Utah, and presented a bill of exceptions, which was allowed by the presiding judge, and from his judgment and sentence appealed to the Supreme Court of the Territory, and that court having affirmed and judgment and sentence, he sued out a writ of error from this court. Of the various errors assigned, we have found it necessary to consider two only.

The Penal Code of Utah contains the following provisions: 'Every murder perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any other human being, other thah him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life,-is murder in the first degree; and any other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree.' Sect. 89. 'Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the penitentiary for life, at the discretion of the court; and every person guilty of murder in the second degree shall be imprisoned at hard labor in the penitentiary for not less than five nor more than fifteen years.' Sect. 90. Compiled Laws of Utah of 1876, pp. 585, 586.

By the Utah Code of Criminal Procedure, the charge of the judge to the jury at the trial 'must be reduced to writing before it is given, unless by the mutual consent of the parties it is given orally' (sect. 257, cl. 7); the jury, upon retiring for deliberation, may take with them the written instructions given (sect. 289); and 'when written charges have been presented, given, or refused, the questions presented in such charges need not be excepted to or embodied in a bill of exceptions, but the written charges or the report, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions.' Sect. 315. Laws of Utah of 1878, pp. 115, 121, 126.

It appears by the bill of exceptions that evidence was introduced at the trial tending to show that the defendant was intoxicated at the time of the alleged homicide.

The defendant's fifth request for instructions, which was indorsed 'refused' by the judge, was as follows: 'Drunkenness is not an excuse for crime; but as n all cases where a jury find a defendant guilty of murder they have to determine the degree of crime, it becomes necessary for them to inquire as to the state of mind under which he acted, and in the prosecution of such an inquiry his condition as drunk of sober is proper to be considered, where the homicide is not committed by means of poison, lying in wait, or torture, or in the perpetration of or attempt to perpetrate arson, rape, robbery, or burglary. The degree of the offence depends entirely upon the question whether the killing was wilful, deliberate, and premediated; and upon that question it is proper for the jury to consider evidence of intoxication, if such there be; not upon the ground that drunkenness renders a criminal act less criminal, or can be received in extenuation or excuse, but upon the ground that the condition of the defendant's mind at the time the act was committed must be inquired after, in order to justly determine the question as to whether his mind was capable of that deliberation or premediation which, according as they are absent or present, determine the degree of the crime.'

Upon this subject the judge gave only the following written instruction; 'A man who voluntarily puts himself in a condition to have no control of his actions must be held to intend the consequences. The safety of the community requires this rule. Intoxication is so easily counterfeited, and when real is so often resorted to as a means of nerving a person up to the commission of some desperate act, and is withal so inexcusable in itself, that law has never recognized it as an excuse for crime.'

The instruction requested and refused, and the instruction given, being matter of record and subjects of appeal under the provision of the Utah Code of Criminal Procedure, sect. 315, above quoted, their correctness is clearly open to consideration in this court. Young v. Martin, 8 Wall. 354.

At common law, indeed, as a general rule, voluntary intoxication affords no excuse, justification, or extenuation of a crime committed under its influence. United States v. Drew, 5 Mas. 28; United States v. McGlue, 1 Curt. 1; Commonwealth v. Hawkins, 3 Gray (Mass.), 463; People v. Rogers, 18 N. Y. 9. But when a statute establishing different degrees of murder requires deliberate premeditation in order to constitute murder in the first degree, the question whether the accused is in such a condition of mind, by reason of drunkenness or otherwise, as to be capable of deliberate premeditation, necessarily becomes a material subject of consideration by the jury. The law has been repeatedly so ruled in the Supreme Judicial Court of Massachusetts in cases tried before a full court, one of which is reported upon other points (Commonwealth v. Dorsey, 103 Mass. 412); and in well-considered cases in courts of other States. Pirtle v. State, 9 Humph. (Tenn.) 663; Haile v. State, 11 id. 154; Kelly v. Commonwealth, 1 Grant (Pa.), Cas. 484; Keenan v. Commonwealth, 44 Pa. St. 55; Jones v. Commonwealth, 75 id. 403; People v. Belencia, 21 Cal. 544; People v. Williams, 43 id. 344; State v. Johnson, 40 Conn. 136, and 41 id. 584; Pigman v. State of Ohio, 14 Ohio, 555, 557. And the same rule is expressly enacted in the Penal Code of Utah, sect. 20: 'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive, or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive, or intent with which he committed the act.' Compiled Laws of Utah of 1876, pp. 568, 569.

The instruction requested by the defendant clearly and accurately stated the law applicable to the case; and the refusal to give that instruction, taken in connection wt h the unqualified instruction actually given, necessarily prejudiced him with the jury.

One other error assigned presents a question of practice of such importance that it is proper to express an opinion upon it, in order to prevent a repetition of the error upon another trial.

By the provisions of the Utah Code of Criminal Procedure, already referred to, the charge of the judge to the jury at the trial must be reduced to writing before it is given, unless the parties consent to its being given orally; and the written charges or instructions form part of the record, may be taken by the jury on retiring for deliberation, and are subjects of appeal. The object of these provisions is to require all the instructions given by the judge to the jury to be reduced to writing and recorded, so that neither the jury, in deliberating upon the case, nor a court of error, upon exceptions or appeal, can have any doubt what those instructions were; and the giving, without the defendant's consent, of charges or instructions to the jury, which are not so reduced to writing and recorded, is error. Feriter v. State, 33 Ind. 283; State of Missouri v. Cooper, 45 Mo. 64; People v. Sanford, 43 Cal. 29; Gile v. People, 1 Col. 60; State v. Potter, 15 Kan. 302.

The bill of exceptions shows that the presiding judge, after giving to the jury an instruction requested in writing by the defendant upon the general burden of proof, proceeded of his own motion, and without the defendant's consent, to read from a printed book an instruction which was not reduced to writing, nor filed with the other instructions in the case, but was referred to in writing in these words only: 'Follow this from Magazine American Law Register, July, 1868, page 559;' and that to the instruction so given an exception was taken and allowed.

This was a clear disregard of the provisions of the statute. The instruction was not reduced to writing, filed, and made part of the record, as the statute required. If the book was not given to the jury when they retired for deliberation, they did not have with them the whole of the instructions of the judge, as the state contemplated. If they were permitted to take the book with them without the defendant's consent, that would of itself be ground of exception. Merrill v. Nary, 10 Allen (Mass.), 416.

For these reasons, the judgment must be reversed, and the case remanded with instructions to set aside the verdict and order a

New trial.


text: Talk:Hopt v. People (104 U.S. 631)/Opinion of the Court


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St.louis Smelting and Refining Company v. Kemp

Error to the Circuit Court of the United States for the

District of Colorado.

This was an action at law brought in one of the courts of Colorado by the St. Louis Smelting and Refining Company, a corporation created under the laws of Missouri, for the possession of a parcel of land in the city of Leadville. On application of the defendants it was removed to the Circuit Court of the United States. The complaint is in the usual form of actions for the possession of real property under the practice obtaining in Colorado. It alleges that the plaintiff was duly incorporated, with power to purchase and hold real estate; that it was the owner in fee and entitled to the possession of the premises mentioned, describing them, and that the defendants wrongfully withheld them, to the damage of the plaintiff of $5,000.

The defendants filed an answer admitting that the plaintiff was incorporated as averred, but denying that it was the owner in fee of the demanded premises, or that they were wrongfully detained from its possession, or that it had sustained any damage. The answer also alleged that the plaintiff, as a foreign corporation, was incompetent to acquire title to any real estate in Colorado, except such as might be necessary for the transaction of its business as a smelting and refining company, and that the premises in controversy were not necessary for that purpose, but were acquired for speculation.

The plaintiff i led a replication, denying its incompetency to hold real estate as alleged, and averring that it was authorized, under the laws of Missouri, to buy, sell, and deal in real estate for any purpose whatever; that the property in controversy was acquired as a site for smelting and reduction works, and that such works were afterwards erected upon it and used for reducing and smelting silver ones.

The case was tried in November, 1879. To maintain the issues on its part the plaintiff offered in evidence a patent of the United States to Thomas Starr, dated March 29, 1879, for mining ground, which, it was admitted, included the premises in controversy. The patent recited that pursuant to provisions of chapter six of title thirty-two of the Revised Statutes, there had been deposited in the General Land-Office the plat and field-notes of the placer mining claim of Thomas Starr, the patentee, accompanied by a certificate of the register of the land-office at Fairplay, Colorado, within which district the premises are situated; that Starr had, on the 6th of March, 1879, entered an application for the said claim, which contained one hundred and sixty-four acres of land and sixty-one hundredths of an acre, more or less. The patent also specified the boundaries of the tract according to the field-notes, and contained the recitals and words of grant and transfer usually inserted in patents for place mining land. To the introduction of this patent the defendants objected; but the record does not state on what grounds the objection was founded, and it was overruled. The patent was accordingly admitted in evidence. The plaintiff traced title to the land by sundry mesne conveyances from the patentee. It also introduced the certificate of the register of the same land-office, showing that the application of Starr at that office to enter and pay for his claim was made on the 18th of March, 1878; also a copy of the articles of incorporation of the plaintiff, and of the laws of Missouri under which the incorporation was had;  and proved that, in 1877, prior to the existence of the town of Leadville, the company purchased of the claimant the tract embraced in the patent, for the purpose of erecting reduction works thereon, and that at the time of the purchase and when it commenced the construction of the works the land was unoccupied by other parties.

The plaintiff having rested its case, the defendants offered in evidence a certified copy of the record of proceedings in the General Land-Office at Washington, upon which Starr obtained his patent; to the introduction of which the plaintiff objected, on the ground that it could only show or tend to show the regularity or irregularity of the proceedings before the executive department in obtaining the patent, or the validity or invalidity of the possessory title or pre-emption right upon which the patent was founded, and that no evidence could be introduced to impeach the patent or attack it collaterally, or in any way affect it in this action. But the court overruled the objection and admitted the record. To this ruling an exception was taken.

The case being closed, the court instructed the jury substantially as follows: That a patent for a mining claim, since the passage of the act of Congress of 1870, could not embrace more than one hundred and sixty acres;  that individuals and associations were, by that act, put upon the same footing, and that either might take that amount, but that by the mining act of Congress of 1872 an individual claimant was limited to twenty acres, whilst an association of persons could still take one hundred and sixty, as before;  that the proceedings in the land-office were allowed in evidence, in order to show whether the patent was issued upon locations made prior to 1870, and that they showed that the claim of Starr was based upon twelve or fifteen locations, some of which were prior to 1870, and some since then; and added, that "if Mr. Starr was the owner of these claims, if he had obtained them by purchase, and they were valid and regula locations, he would, under the act, be required, if he desired to obtain a patent for them, to make application for each one of them, to post the notice, as required by the statute, and give the publication, and file his plan and survey, and do all these things which are required in the several claims upon each one of them.

If he had done so, and his right had been supported as to all of them, and the patent had been issued for all of these claims, and each of them described in the patent, there would have been no objection to the patent; but it was not competent for him to consolidate these claims and put them all in as one claim, and upon notice given as one claim, and publication as one claim, and proceeding throughout as one claim embracing 164 acres," and that the officers of the Land Department had no authority, in law, to proceed in that way and, therefore, the patent upon which the plaintiff relied was void and its title failed.

To the instructions given, exceptions were taken. The jury thereupon found for the defendants, and judgment in their favor was accordingly entered. To review this judgment the plaintiff has brought the case to this court on writ of error.

Messrs, A.T. Britton and Walter H. Smith, G.G. Symes and J.H. McGowan, for plaintiff in error.

Mr. A.G. Thurman, appeared for others interested, in support of the plaintiff in error.

Messrs. William Drummond, Robert H. Bradford, Fletcher P. Cuppy, Edward C. Ingersoll, T.A. Green, T.M. Patterson and Robert G. Ingersoll, for defendants in error.

Mr. Justice Field, after stating the case as above, delivered the opinion of the court, as follows:


text: Talk:St.louis Smelting and Refining Company v. Kemp