PRIOR HISTORY:
APPEAL FROM THE CIRCUIT
COURT OF THE
UNITED STATES FOR THE DISTRICT OF IDAHO.
This is an appeal from
a judgment of
the Circuit Court of the United States for the District of Idaho
refusing,
upon habeas corpus, to discharge appellant who alleged that he was held
in custody by the Sheriff of Canyon County, in that State, in violation
of the Constitution and laws of the United States.
It appears that on the
twelfth day
of February, 1906 a criminal complaint verified by the oath of the
Prosecuting
Attorney of that county, and charging Pettibone with having murdered
Frank
Steunenberg at Caldwell, Idaho, on the thirtieth day of December, 1905,
was filed in the office of the Probate Judge. Thereupon, a warrant of
arrest
based upon that complaint having been issued application was made to
the
Governor of Idaho for a requisition upon the Governor of Colorado (in
which
State the accused was alleged then to be) for the arrest of Pettibone
and
his delivery to the agent of Idaho, to be conveyed to the latter State
and there dealt with in accordance with law. The papers on which the
Governor
of Idaho based his requisition distinctly charged that Pettibone was in
that State at the time Steunenberg was murdered and was a fugitive from
its justice.
A requisition by the
Governor of Idaho
was accordingly issued and was duly honored by the Governor of
Colorado,
who issued a warrant commanding the arrest of Pettibone and his
delivery
to the authorized agent of Idaho, to be conveyed to the latter State.
Pettibone
was arrested under that warrant and carried to Idaho by its agent, and
was there delivered by order of the Probate Judge into the custody of
the
Warden of the state penitentiary, the jail of the county being deemed
at
that time an unfit place.
On the twenty-third day
of February,
1906, Pettibone sued out a writ of habeas corpus from the Supreme Court
of Idaho. The Warden made a return, stating the circumstances under
which
the accused came into his custody, and also that the charge against
Pettibone
was then under investigation by the grand jury. To this return the
accused
made an answer embodying the same matters as were alleged in the
application
for the writ of habeas corpus, and charging, in substance, that his
presence
in Idaho had been procured by connivance, conspiracy, and fraud on the
part of the executive officers of Idaho, and that his detention was in
violation of the provisions of the Constitution of the United States
and
of the act of Congress relating to fugitives from justice.
Subsequently, March 7,
1906, the grand
jury returned an indictment against Pettibone, William D. Haywood,
Charles
H. Moyer, and John L. Simpkins, charging them with the murder of
Steunenberg
on the thirtieth of December, 1905, at Caldwell, Idaho. Having been
arrested
and being in custody under that indictment, the officer holding
Pettibone
made an amended return stating the fact of the above indictment and
that
he was then held under a bench warrant based thereon.
At the hearing before
the Supreme Court
of the State the officers having Pettibone in custody moved to strike
from
the answer of the accused all allegations relating to the manner and
method
of obtaining his presence within the State. That motion was sustained
March
12, 1906, and the prisoner was remanded to await his trial under the
above
indictment. The Supreme Court of Idaho held the action of the Governor
of Colorado to be at least quasi judicial and, in effect, a
determination
that Pettibone was charged with the commission of a crime in the latter
State and was a fugitive from its justice; that after the prisoner came
within the jurisdiction of the demanding State he could not raise in
its
courts the question whether he was or had been as a matter of fact a
fugitive
from the justice of that State; that the courts of Idaho had no
jurisdiction
to inquire into the acts or motives of the executive of the State
delivering
the prisoner; that "one who commits a crime against the laws of a
State,
whether committed by him while in person on its soil or absent in a
foreign
jurisdiction and acting through some other agency or medium, has no
vested
right of asylum in a sister State," and the fact "that a wrong is
committed
against him in the manner or method pursued in subjecting his person to
the jurisdiction of the complaining State, and that such wrong is
redressible
either in the civil or criminal courts, can constitute no legal or just
reason why he himself should not answer the charge against him when
brought
before the proper tribunal." Ex parte Pettibone, 85 Pac. Rep. 902; Ex
parte
Moyer, 85 Pac. Rep. 897.
From the judgment of
the Supreme Court
of Idaho a writ of error was prosecuted to this court. That case is No.
265 on the docket of the present term, but the record has not been
printed.
But the parties agree that the same question are presented on this
appeal
as arise in that case, and as this case is one of urgency in the
affairs
of a State, we have acceded to the request that they may be argued and
determined on this appeal.
On the fifteenth of
March, 1906, after
the final judgment in the Supreme Court of Idaho, Pettibone made
application
to the Circuit Court of the United State, sitting in Idaho, for a writ
of habeas corpus, alleging that he was restrained of his liberty by the
Sheriff of Canyon County in violation of the Constitution and laws of
the
United States. As was done in the Supreme Court of Idaho, the accused
set
out numerous facts and circumstances which, he contended, showed that
his
personal presence in Idaho was secured by fraud and connivance on the
part
of the executive officers and agents of both Idaho and Colorado, in
violation
of the constitutional and statutory provisions relating to fugitives
from
justice. Consequently, it was argued, the court in Idaho did not
acquire
jurisdiction over his person. The officer having Pettibone in custody
made
return to the writ that he then held the accused under the bench
warrant
issued against him. It was stipulated that the application for the writ
of habeas corpus might be taken as his answer to the return.
Subsequently,
on motion, that answer was stricken out by the Circuit Court as
immaterial,
the writ of habeas corpus was quashed, and Pettibone was remanded to
the
custody of the State.
COUNSEL: Mr. Edmund F.
Richardson and
Mr. Clarence S. Darrow, with whom Mr. John H. Murphy was on the brief
for
appellant:
These cases are sui
generis. The facts
show that the Governor of the State, upon whom the demand was made, had
full knowledge of the falsity of the proceedings, and with such
knowledge
of that falsity, actually engaged in a conspiracy to remove citizens of
his own State to another State, and actually furnished the military
forces
of his State to aid in the accomplishment of that purpose. This is not
a case of actual fugitives from justice. If one has committed a crime
within
a State, and has fled therefrom, the law is not particular as to the
means
or the method by which his return to that State is insured. The law,
however,
will never wink at a fraud foisted upon itself, and especially is that
true where that fraud is practiced by a sworn prosecuting officer and
the
chief executive of a State. No man in this country is so high that he
is
above the law. No officer of the law may set that law at defiance with
impunity. United States v. Lee, 106 U.S. 196, 220; Burton v. United
States,
202 U.S. 344.
Jurisdiction of the
subject matter
in a court is one thing; jurisdiction of a person in any wise related
to
that subject matter is quite another. Pennoyer v. Neff, 95 U.S. 714,
724.
The jurisdiction of the
persons of
the defendants was acquired by the District Court of Canyon County,
through
the wrongs and the frauds of the prosecuting officer of that county,
aided
and abetted by the Governors of the States of Idaho and Colorado,
through
a conspiracy formed for that purpose. 2 Bishop on Crim. Law, 171.
Constitutional
guaranties have been
violated by the arrest of appellants. The Fourth Amendment provides
that
the right of the people to be secure in their persons against
unreasonable
seizures shall not be violated. Ex parte Sawyer, 124 U.S. 200.
No provision exists for
extraditing
one charged to have constructively committed an offense in a State in
which
he was not present. The Constitution and the law guards even an
offender
in such a case as that against extradition. State v. Hall, 115 N.C. 811.
It would be without due
process of
law. For definitions of due process of law see 3 Words and Phrases,
2227;
Davidson v. New Orleans, 96 U.S. 97, 104; Missouri Pacific Ry. Co. v.
Humes,
115 U.S. 512, 519; Holden v. Hardy, 169 U.S. 366; State v. Ashbrook,
154
Missouri, 375.
As protecting against
arbitrary executive
or judicial action see People v. Adirondack Ry. Co., 160 N.Y. 225, 238;
State v. Hammer, 116 Iowa, 284, 288; Jenkins v. Ballantyne, 8 Utah, 245.
The arrest and
detention of these prisoners
is in direct violation of cl. 2, @ 2, Art. 4, of the Constitution, and
@ 5278, Rev. Stats. They were not fugitives from justice, never having
been in Idaho. Kentucky v. Dennison, 24 How. 66, 110; People v. Hyatt,
172 N.Y. 176, reversed in Hyatt v. Corkran, 188 U.S. 691, 713; Munsey
v.
Clough, 196 U.S. 364; Tennessee v. Jackson, 36 Fed. Rep. 258; Re Cook,
49 Fed. Rep. 833; S.C., 146 U.S. 183; Ker v. Illinois, 119 U.S. 436;
Mahon
v. Justice, 127 U.S. 700; Re Moore, 75 Fed. Rep. 821.
The foundation of
jurisdiction of the
court of Idaho over the persons of appellants is based upon a false
affidavit
by the District Attorney of Canyon County, and no lawful thing, founded
upon a wrongful act, can be supported. Ilsley v. Nichols, 12 Pick.
(Mass.)
270; Luttin v. Benin, 11 Mod. 50; Smith v. Meyer, 1 T. & C. (N.Y.)
665; Re Largrave, 45 How. Prac. 301; 2 Wharton, Conflict of Laws, @
849;
Re Allen, 13 Blatchf. 271; Hooper v. Lane, 6 H.L. Cas. 443; Hill v.
Goodrich,
32 Connecticut, 588; Re Robinson, 8 L.R.A. (Neb.) 398; Re Walker, 61
Nebraska,
803; Compton v. Wilder, 40 Ohio St. 130; Adriance v. Largrave, 59 N.Y.
110; Browning v. Abrahams, 51 How. Prac. 173; Kendall v. Ailshire, 28
Nebraska,
707; Lascelles v. Georgia, 148 U.S. 537; Adams v. People, 1 N.Y. 173;
Ex
parte Reggel, 114 U.S. 642.
The Fourteenth
Amendment forbids any
arbitrary deprivation of liberty. Re Converse, 137 U.S. 624; Hodgson v.
Vermont, 168 U.S. 262. And it is the duty of the Federal court to
exercise
its jurisdiction to protect appellant.
Federal courts have
sometimes required
the prisoner to await the action of the state courts upon the theory
that
the state courts were as likely to administer the law as were the
courts
of the United States, and they have sometimes withheld relief on writs
of habeas corpus, and required defendants, who were convicted, to sue
out
writs of error, but they have never denied the authority of the Federal
courts in the premises. Robb v. Connolly, 111 U.S. 624; Roberts v.
Riley,
116 U.S. 80; Bruce v. Runyan, 124 Fed. Rep. 481; Ex parte Hart, 63 Fed.
Rep. 249; Re Roberts, 24 Fed. Rep. 132; Ex parte Brown, 28 Fed. Rep.
653;
Ex parte Morgan, 20 Fed. Rep. 298; Ex parte Robb, 19 Fed. Rep. 26; Re
Doo
Woon, 18 Fed. Rep. 898; Ex parte McKean, 16 Fed. Cas. No. 8848.
If this court will not
act, appellant
is without relief, and the circumstances warrant its intervention.
Allen
v. Georgia, 166 U.S. 138. Everything has been done before invoking the
aid of this court which is required. Whitten v. Tomlinson, 160 U.S. 231.
While habeas corpus
cannot usurp the
functions of a writ of error, it is preeminently the writ on which to
test
jurisdiction, not error within jurisdiction. A fatal defect in
jurisdiction
itself is the question presented by this record. Felts v. Murphy, 201
U.S.
223; Valentina v. Mercer, 201 U.S. 131; Whitney v. Dick, 202 U.S. 232;
Wood v. Brush, 140 U.S. 278; but whatever the usual rule may be,
special
circumstances authorize a departure from it. Re Lincoln, 202 U.S. 178.
Mr. James H. Hawley,
with whom Mr.
W. E. Borah was on the brief, for appellees:
There was no conspiracy
and the proceedings
were regular. Appellants were accessories to the crime, and can be
tried
as such. Sec. 7697 et seq. Rev. Stat. Idaho; Territory v. Guthrie, 2
Idaho,
432.
Even if, as is denied,
the procedure
was unlawful there is no right of asylum in a sister State by one who
commits
a crime against the laws of a State either while personally on its soil
or while in a foreign jurisdiction and acting through some other agency
or medium. Mahon v. Justice, 127 U.S. 715; Lascelles v. Georgia, 148
U.S.
543; Ker v. Illinois, 119 U.S. 436; Re Moore, 75 Fed. Rep. 824; Re
Cook,
49 Fed. Rep. 833; Cook v. Hart, 146 U.S. 183.
How the accused person
has come within
the State wherein the crime was committed cannot be inquired into by
the
courts of such State. It is not a cause of exemption from prosecution
for
a crime that the accused was illegally arrested or unlawfully brought
within
the jurisdiction. 13 Cyc. Law & Pro. 99; 12 Ency. of Law, 607;
Church
on Hab. Cor., 461; Ex parte Baker, 13 Am. St. Rep. 17; State v. Smith,
19 Am. Dec. 679; State v. Ross, 21 Iowa, 467; Dow's Case, 18 Pa. St. 37.
There is no limitation
or restriction
upon the crime for which a man may be extradited in interstate
extradition;
that duty is equally imperative as to all crimes, and no right of
return
is provided for or necessarily implied. 2 Moore, Extradition, @ 643; Re
Noyes, 17 Alb. L.J. 407; Ham v. State, 4 Texas App. 645; Harland v.
Washington,
3 Wash. Terr. 153; State v. Stewart, 60 Wisconsin, 587; Ex parte Barker
87 Alabama, 4; William v. Weber, 1 Colo. App. 191; State v. Brewster, 7
Vermont, 120; Adriance v. Lagrave, 59 N.Y. 110; United States v.
Caldwell,
8 Blatchf. 133; United States v. Lawrence, 13 Blatchf. 299, 307; People
v. Rowe, 4 Park. Crim. Rep. 253; Re Miles, 52 Vermont, 609; Mahon v.
Justice,
127 U.S. 700.
The court will not
inquire into the
legality of arrest. That the accused is in court is sufficient to
require
him to answer the indictment against him. 12 Am. & Eng. Ency. of
Law,
598; Ex parte Scott, 9 B. & C. 446; State v. Kealy, 89 Iowa, 94;
State
v. Patterson, 110 Missouri, 505; State v. Smith, 1 Bailey L. (S. Car.)
283.
There is no difference
between cases
of kidnaping by unauthorized persons and cases wherein the extradition
is conducted under the forms of law but through mistake or
intentionally
the Governor of either the demanding or surrendering State has failed
in
his duty. The Governor upon whom the demand is made must determine for
himself, in the first instance, whether the demanded person is a
fugitive
from justice. Ex parte Reggel, 114 U.S. 642; Roberts v. Reilley, 116
U.S.
80; People v. Pratt, 78 California, 349; Hyatt v. Corkran, 188 U.S.
691,
distinguished.
MR. JUSTICE HARLAN
delivered the opinion
of the court.
As the application for
the writ of
habeas corpus was, by stipulation of the parties, taken as the answer
of
the accused to the return of the officer holding him in custody, and as
that answer was stricken out by the court below as immaterial, we must,
on this appeal, regard as true all the facts sufficiently alleged in
the
application which, in a legal sense, bear upon the question whether the
detention of the accused by the state authorities was in violation of
the
Constitution or laws of the United States.
That application is too
lengthy to
be incorporated at large in this opinion. It is sufficient to say that
its allegations present the case of a conspiracy between the Governors
of Idaho and Colorado, and the respective officers and agents of those
States, to have the accused taken from Colorado to Idaho under such
circumstances
and in such way as would deprive him, while in Colorado, of the
privilege
of invoking the jurisdiction of the courts there for his protection
against
wrongful deportation from the State -- it being alleged that the
Governor
of Idaho, the Prosecuting Attorney of Canyon County, and the private
counsel
who advised them well knew all the time that "he was not in the State
of
Idaho on the thirtieth day of December, 1905, nor at any time near that
date." The application also alleged that the accused "is not and was
not
a fugitive from justice; that he was not present in the State of Idaho
when the alleged crime was alleged to have been committed, nor for
months
prior thereto, nor thereafter, until brought into the State as
aforesaid."
In the forefront of
this case is the
fact that the appellant is held in actual custody for trial under an
indictment
in one of the courts of Idaho for the crime of murder charged to have
been
committed in that State against its laws, and it is the purpose of the
State to try the question of his guilt or innocence of that charge.
Undoubtedly, the
Circuit Court had
jurisdiction to discharge the appellant from the custody of the state
authorities
if their exercise of jurisdiction over his person would be in violation
of any rights secured to him by the Constitution or laws of the United
States. But that court had a discretion as to the time and mode in
which,
by the exercise of such power, it would by its process obstruct or
delay
a criminal prosecution in the state court. The duty of a Federal court
to interfere, on habeas corpus, for the protection of one alleged to be
restrained of his liberty in violation of the Constitution or laws of
the
United States, must often be controlled by the special circumstances of
the case, and unless in some emergency demanding prompt action the
party
held in custody by a State and seeking to be enlarged will be left to
stand
his trial in the state court, which, it will be assumed, will enforce
--
as it has the power to do equally with a court of the United States;
Robb
v. Connolly, 111 U.S. 624, 637 -- any right secured by the Supreme law
of the land. "When the state court," this court has said, "shall have
finally
acted upon the case, the Circuit Court has still a discretion whether,
under all the circumstances then existing, the accused, if convicted,
shall
be put to his writ of error from the highest court of the State, or
whether
it will proceed, by writ of habeas corpus, summarily to determine
whether
the petitioner is restrained of his liberty in violation of the
Constitution
of the United States." Ex parte Royall, 117 U.S. 241, 251, 253. To the
same effect are numerous cases in this court, among which may be named
Ex parte Fonda, 117 U.S. 516; New York v. Eno, 155 U.S. 89, 93; Cook v.
Hart, 146 U.S. 183, 192; Minnesota v. Brundage, 180 U.S. 499, 501; Reid
v. Jones, 187 U.S. 153; Riggins v. United States, 199 U.S. 547, 549.
This
rule firmly established for the guidance of the courts of the United
States
is applicable here, although it appears that the Supreme Court of Idaho
has already decided some of the questions now raised. But the question
of Pettibone's guilt of the crime of having murdered Steunenberg has
not,
however, been finally determined and cannot be except by a trial under
the laws and in the courts of Idaho. If he should be acquitted by the
jury,
then no question will remain as to a violation of the Constitution and
laws of the United States by the methods adopted to secure his personal
presence within the State of Idaho.
The appellant, however,
contends that
the principle settled in Ex parte Royall and other like cases can have
application only where the State has legally acquired jurisdiction over
the person of the accused, and cannot apply when, as is alleged to be
the
case here, his presence in Idaho was obtained by fraud and by a
violation
of rights guaranteed by the Constitution and laws of the United States.
Under such circumstances, it is contended, no jurisdiction could
legally
attach for the purpose of trying the accused under the indictment for
murder.
In support of this view
we have been
referred to that clause of the Constitution of the United States
provilling
that if "a person charged in any State with treason, felony, or other
crime,
who shall flee from justice and be found in another State, shall, on
demand
of the executive authority of the State from which he fled, be
delivered
up to be removed to the State having jurisdiction of the crime." Art.
4,
@ 2; also, to sec. 5278 of the Revised Statutes, in which it is
provided
that "whenever the executive authority of any State or Territory
demands
any person as a fugitive from justice, of the executive authority of
any
State or Territory to which such person has fled, and produces a copy
of
an indictment found or an affidavit made before a magistrate of any
State
or Territory, charging the person demanded with having committed
treason,
felony, or other crime, certified as authentic by the Governor or Chief
Magistrate of the State or Territory from whence the person so charged
has fled, it shall be the duty of the executive authority of the State
or Territory to which such person has fled to cause him to be arrested
and secured, and to cause notice of the arrest to be given to the
executive
authority making such demand, or to the agent of such authority
appointed
to receive the fugitive, and to cause the fugitive to be delivered to
such
agent when he shall appear. If no such agent appears within six months
from the time of the arrest, the prisoner may be discharged. All costs
or expenses incurred in the apprehending, securing, and transmitting
such
fugitive to the State or Territory making such demand shall be paid by
such State or Territory." Looking, first, at what was alleged to have
occurred
in the State of Colorado touching the arrest of the petitioner and his
deportation from that State, we do not perceive that anything done
there,
however hastily or inconsiderately done, can be adjudged to be in
violation
of the Constitution or laws of the United States. We pass by, both as
immaterial
and inappropriate, any consideration of the motives that induced the
action
of the Governor of Colorado. This court will not inquire as to the
motives
which guided the Chief Magistrate of a State when executing the
functions
of his office. Manifestly, whatever authority may have been conferred
upon
the Governor of Colorado by the constitution or laws of his State, he
was
not required, indeed, was not authorized by the Constitution or laws of
the United States to have the petitioner arrested, unless within the
meaning
of such Constitution and laws he was a fugitive from the justice of
Idaho.
Therefore he would not have violated his duty if it had been made a
condition
of surrendering the petitioner that evidence be furnished that he was a
fugitive from justice within the meaning of the Constitution of the
United
States. Upon the Governor of Colorado rested the responsibility of
determining,
in some proper mode, what the fact was. But he was not obliged to
demand
proof of such fact by evidence apart from the requisition papers.As
those
papers showed that the accused was regularly charged by indictment with
the crime of murder committed in Idaho and was a fugitive from its
justice,
the Governor of Colorado was entitled to accept such papers, coming as
they did from the Governor of another State, as prima facie sufficient
for a warrant of arrest. His failure to require independent proof of
the
fact that petitioner was a fugitive from justice cannot be regarded as
an infringement of any right of the petitioner under the Constitution
or
laws of the United States. Ex parte Reggel, 114 U.S. 642, 652, 653. In
Munsey v. Clough, 196 U.S. 364, 372, this court aid that the issuing of
a warrant of arrest by the Governor of the surrendering State, "with or
without a recital therein that the person demanded is a fugitive from
justice,
must be regarded as sufficient to justify the removal, until the
presumption
in favor of the legality and regularity of the warrant is overthrown by
contrary proof in a legal proceeding to review the action of the Governor.
Roberts v. Reilly, supra; Hyatt v. Cockran, 188 U.S. 691." See also In
re Keller, 28 Fed. Rep. 681, 686.
But the petitioner
contends that his
arrest and deportation from Colorado was, by fraud and connivance, so
arranged
and carried out as to deprive him of an opportunity to prove, before
the
Governor of that State, that he was not a fugitive from justice, as
well
as opportunity to appeal to some court in Colorado to prevent his
illegal
deportation from its territory. If we should assume, upon the present
record,
that the facts are as alleged, it is not perceived that they make a
case
of the violation of the Constitution or laws of the United States. It
is
true, as contended by the petitioner, that if he was not a fugitive
from
justice, within the meaning of the Constitution, no warrant for his
arrest
could have been properly or legally issued by the Governor of Colorado.
It is equally true that, even after the issuing of such a warrant,
before
his deportation from Colorado, it was competent for a court, Feder 1 or
state, sitting in that State, to inquire whether he was, in fact, a
fugitive
from justice, and if found not to be, to discharge him from the custody
of the Idaho agent and prevent his deportation from Colorado. Robb v.
Connolly,
111 U.S. 624, 639; Ex parte Reggel, supra; Hyatt v. Corkran, 188 U.S.
691,
719; Munsey v. Clough, 196 U.S. 364, 374. But it was not shown by proof
before the Governor of Colorado that the petitioner, alleged in the
requisition
papers to be a fugitive from justice, was not one, nor was the
jurisdiction
of any court sitting in that State invoked to prevent his being taken
out
of the State and carried to Idaho. That he had no reasonable
opportunity
to present these facts before being taken from Colorado constitutes no
legal reason why he should be discharged from the custody of the Idaho
authorities. No obligation was imposed by the Constitution or laws of
the
United States upon the agent of Idaho to so time the arrest of the
petitioner
and so conduct his deportation from Colorado, as to afford him a
convenient
opportunity, before some judicial tribunal sitting in Colorado, to test
the question whether he was a fugitive from justice and as such liable,
under the act of Congress, to be conveyed to Idaho for trial there. In
England, in the case of one arrested for the purpose of deporting him
to
another country, it is provided that there shall be no surrender of the
accused to the demanding country until after the expiration of a
specified
time from the arrest, during which period the prisoner has an
opportunity
to institute habeas corpus proceedings. Extradition Act of 1870, 33 and
34 Vict. c. 52, @ 11; 2 Butler on the Treaty-Making Power, @ 436; 1
Moore
on Extradition, 741, 742. There is no similar act of Congress in
respect
of a person arrested in one of the States of the Union as fugitive from
the justice of another State. The speediness, therefore, with which the
Idaho agent removed the accused from Colorado cannot be urged as a
violation
of a constitutional right and constitutes no legal reason for
discharging
him from the custody of the State of Idaho.
We come now to inquire
whether the
petitioner was entitled to his discharge upon making proof in the
Circuit
Court of the United States, sitting in Idaho, that he was brought into
that State as a fugitive from justice when he was not, in fact, such a
fugitive. Of course, it cannot be contended that the Circuit Court,
sitting
in Idaho, could rightfully discharge the petitioner upon proof simply
that
he did not commit the crime of murder charged against him. His guilt or
innocence of that charge is within the exclusive jurisdiction of the
Idaho
state court. The constitutional and statutory provisions referred to
were
based upon the theory that, as between the States, the proper place for
the inquiry into the question of the guilt or innocence of an alleged
fugitive
from justice is in the courts of the State where the offense is charged
to have been committed. The question, therefore, in the court below was
not whether the accused was guilty or innocent, but whether the Idaho
court
could properly be prevented from proceeding in the trial of that issue,
upon proof being made in the Circuit Court of the United States,
sitting
in that State, that the petitioner was not a fugitive from justice and
not liable, in virtue of the Constitution and laws of the United
States,
to arrest in Colorado under the warrant of its Governor and carried
into
Idaho. As the petitioner is within the jurisdiction of Idaho, and is
held
by its authorities for trial, are the particular methods by which he
was
brought within her limits at all material in the proceeding by habeas
corpus?
It is contended by the
State that this
question was determined in its favor by the former decisions of this
court.
This is controverted by the petitioner, and we must, therefore, and
particularly
because of the unusual character of this case and the importance of the
questions involved, see what this court has heretofore adjudged.
In Ker v. Illinois, 119
U.S. 436, it
appeared that at the trial in an Illinois court of a person charged
with
having committed a crime against the laws of that State, the accused
sought
by plea in abatement to defeat the jurisdiction of the court upon the
ground
that, in violation of law, he had been seized in Peru and forcibly
brought
against his will into the United States and delivered to the
authorities
of Illinois; all of which the accused contended was in violation not
only
of due process of law as guaranteed by the Fourteenth Amendment, but of
the treaty between the United States and Peru negotiated in 1870 and
proclaimed
in 1874. One of the articles of that treaty bound the contracting
countries,
upon a requisition by either country, to deliver up to justice persons
who, being accused or convicted of certain named crimes committed
within
the jurisdiction of the requiring party, should seek an asylum or
should
be found within the territories of the other, the fact of the
commission
being so established "as that the laws of the country in which the
fugitive
or the person so accused shall be found would justify his or her
apprehension
and commitment for trial if the crime had been there committed." 18
Stat.
719, 720. The plea stated, among other things, that the defendant
protested
against his arrest and was refused opportunity, from the time of his
being
seized in Peru until he was delivered to the authorities of Illinois,
of
communicating with any person or seeking any advice or assistance in
regard
to procuring his release by legal process or otherwise.
The court overruled the
plea of abatement,
and the trial in the state court proceeded, resulting in a verdict of
guilty.
The judgment was affirmed by the Supreme Court of Illinois, and this
court
affirmed, upon writ of error, the judgment of the latter court. It was
held by the unanimous judgment of this court that, so far as any
question
of Federal right was involved, no error was committed by the state
court;
and that, notwithstanding the illegal methods pursued in bringing the
accused
within the jurisdiction of Illinois, his trial in the state court did
not
involve a violation of the due process clause of the Constitution, nor
any article in the treaty with Peru, although the case was a clear one
"of kidnapping within the dominion of Peru, without any pretense of
authority
under the treaty or from the Government of the United States." The
principle
upon which the judgment rested was that, when a criminal is brought or
is in fact within the jurisdiction and custody of a State, charged with
a crime against its laws, the State may, so far as the Constitution and
laws of the United States are concerned, proceed against him for that
crime,
and need not inquire as to the particular methods employed to bring him
into the State. "The case," the court said, "does not stand, when the
party
is in court, and required to plead to an indictment, as it would have
stood
upon a writ of habeas corpus in California, or in any States through
which
he was carried in the progress of the extradition, to test the
authority
by which he was held." In meeting the contention that the accused, Ker,
by virtue of the treaty with Peru, acquired by his residence a right of
asylum, this court said: "There is no language in this treaty, or in
any
other treaty made by this country on the subject of extradition, of
which
we are aware, which says in terms that a party fleeing from the United
States to escape punishment for crime becomes thereby entitled to an
asylum
in the country to which he has fled; indeed, the absurdity of such a
proposition
would at once prevent the making of a treaty of that kind. . . . It is
idle, therefore, to claim that, either by express terms or by
implication,
there is given to a fugitive from justice in one of these countries any
right to remain and reside in the other; and if the right of asylum
means
anything, it must mean this. The right of the government of Peru
voluntarily
to give a party in Ker's condition an asylum in that country, is quite
a different thing from the right in him to demand and insist upon
security
in such an asylum. The treaty, so far as it regulates the right of
asylum
at all, is intended to limit this right in the case of one who is
proved
to be a criminal fleeing from justice, so that, on proper demand and
proceedings
had therein, the government of the country of the asylum shall deliver
him up to the country where the crime was committed. And to this
extent,
and to this alone, the treaty does regulate or impose a restriction
upon
the right of the government of the country of the asylum to protect the
criminal from removal therefrom. . . . We think it very clear,
therefore,
that, in invoking the jurisdiction of this court upon the ground that
the
prisoner was denied a right conferred upon him by a treaty of the
United
States, he has failed to establish the existence of any such right."
If Ker, by virtue of
the treaty with
Peru, and because of his forcible and illegal abduction from that
country,
did not acquire an exemption from the criminal process of the courts of
Illinois, whose laws he had violated, it is difficult to see how
Pettibone
acquired, by virtue of the Constitution and laws of the United States,
an exemption from prosecution by the State of Idaho, which has custody
of his person.
An instructive case on
this subject
is Mahon v. Justice, 127 U.S. 700. The Governor of Kentucky made a
requisition
upon the Governor of West Virginia for Mahon, who was charged with the
crime of murder in Kentucky, and was alleged to have fled from its
jurisdiction
and taken refuge in West Virginia. While the two Governors were in
correspondence
on the subject a body of armed men, without warrant or other legal
process,
arrested Mahon in West Virginia, and by force and against his will
conveyed
him out of West Virginia, and delivered him to the jailor of Pike
County,
Kentucky, in the courts of which he stood indicted for murder.
Thereupon
the Governor of West Virginia, on behalf of that State, applied to the
District Court of the United States for the Kentucky District for a
writ
of habeas corpus and his return to the jurisdiction of West Virginia.
This
court, after observing that the States of the Union were not absolutely
sovereign and could not declare war or authorize reprisals on other
States,
and that their ability to prevent the forcible abduction of persons
from
their territory consists solely in their power to punish all violations
of their criminal laws committed within it, whether by their own
citizens
or by citizens of other States, said: "If such violators have escaped
from
the jurisdiction of the State invaded, their surrender can be secured
upon
proper demand on the executive of the State to which they have fled.
The
surrender of the fugitives in such cases to the State whose laws have
been
violated, is the only aid provided by the laws of the United States for
the punishment of depredations and violence committed in one State by
intruders
and lawless bands from another State. The offenses committed by such
parties
are against the State; and the laws of the United States merely provide
the means by which their presence can be secured in case they have fled
from its justice. No mode is provided by which a person unlawfully
abducted
from one State to another can be restored to the State from which he
was
taken, if held upon any process of law for offenses against the State
to
which he has been carried. If not thus held he can, like any other
person
wrongfully deprived of his liberty, obtain his release on habeas
corpus.
Whether Congress might not provide for the compulsory restoration to
the
State of parties wrongfully abducted from its territory upon
application
of the parties, or of the State, and whether such provision would not
greatly
tend to the public peace along the borders of the several States, are
not
matters for present consideration. It is sufficient now that no means
for
such redress through the courts of the United States have as yet been
provided.
The abduction of Mahon by Phillips and his aids was made, as appears
from
the return of the respondent to the writ, and from the findings of the
court below, without any warrant or authority from the Governor of West
Virginia. It is true that Phillips was appointed by the Governor of
Kentucky
as agent of the State to receive Mahon upon his surrender on the
requisition;
but no surrender having been made, the arrest of Mahon and his
abduction
from the State were lawless and indefensible acts, for which Phillips
and
his aids may be justly punished under the laws of West Virginia. The
process
emanating from the Governor of Kentucky furnished no ground for
charging
any complicity on the part of that State in the wrong done to the State
of West Virginia." Again: "It is true, also, that the accused had the
right
while in West Virginia of insisting that he should not be surrendered
to
the Governor of Kentucky by the Governor of West Virginia, except in
pursuance
of the acts of Congress, and that he was entitled to release from any
arrest
in that State not made in accordance with them; but having subsequently
been arrested in Kentucky under the writs issued on the indictments
against
him, the question is not as to the validity of the proceeding in West
Virginia,
but as to the legality of his detention in Kentucky. There is no comity
between the States by which a person held upon an indictment for a
criminal
offense in one State can be turned over to the authorities of another,
though abducted from the latter. If there were any such comity, its
enforcement
would not be a matter within the jurisdiction of the courts of the
United
States. By comity nothing more is meant than that courtesy on the part
of one State, by which within her territory the laws of another State
are
recognized and enforced, or another State is assisted in the execution
of her laws. From its nature the courts of the United States cannot
compel
its exercise when it is refused; it is admissible only upon the consent
of the State, and when consistent with her own interests and policy.
Bank
of Augusta v. Earle, 13 Pet. 519, 589; Story's Conflict of Laws, @ 30.
The only question, therefore, presented for our determination is
whether
a person indicted for a felony in one State, forcibly abducted from
another
State and brought to the State where he was indicted by parties acting
without warrant or authority of law, is entitled under the Constitution
or laws of the United States to release from detention under the
indictment
by reason of such forcible and unlawful abduction."
After a review of the
authorities,
inclusing the case of Ker v. Illinois, above cited, the court
concluded:
"So in this case, it is contended that, because under the Constitution
and laws of the United States a fugitive from justice from one State to
another can be surrendered to the State where the crime was committed,
upon proper proceedings taken, he has the right of asylum in the State
to which he has fled, unless removed in conformity with such
proceedings,
and that this right can be enforced in the courts of the United States.
But the plain answer to this contention is, that the laws of the United
States do not recognize any such right of asylum, as is here claimed,
on
the part of a fugitive from justice in any State to which he has fled;
nor have they, as already stated, made any provision for the return of
parties who, by violence and without lawful authority, have been
abducted
from a State. There is, therefore, no authority in the courts of the
United
States to act upon any such alleged right. In Ker v. Illinois, the
court
said that the question of how far the forcible seizure of the defendant
in another country, and his conveyance by violence, force, or fraud to
this country, could be made available to resist trial in the state
court
for the offense charged upon him, was one which it did not feel called
upon to decide, for in that transaction it did not see that the
Constitution,
or laws, or treaties of the United States guaranteed to him any
protection.
So in this case we say that, whatever effect may be given by the state
court to the illegal mode in which the defendant was brought from
another
State, no right, secured under the Constitution or laws of the United
States,
was violated by his arrest in Kentucky, and imprisonment there, upon
the
indictments found against him for murder in that State."
These principles
determine the present
case and require an affirmance of the judgment of the Circuit Court. It
is true the decision in the Mahon case was by a divided court, but its
authority is none the less controlling. The principle upon which it
rests
has been several times recognized and reaffirmed by this court, and is
no longer to be questioned. It was held in Cook v. Hart, 146 U.S. 183,
192, that the cases of Ker v. Illinois and Mahon v. Justice established
these propositions: "1. That this court will not interfere to relieve
persons
who have been arrested and taken by violence from the territory of one
State to that of another, where they are held under process legally
issued
from the courts of the latter State. 2. That the question of the
applicability
of this doctrine to a particular case is as much within the province of
a state court, as a question of common law or of the law of nations, as
it is of the courts of the United States;" in Lascelles v. Georgia, 148
U.S. 537, 543, that it was settled in the Ker and Mahon cases that,
"except
in the case of a fugitive surrendered by a foreign government, there is
nothing in the Constitution, treaties, or laws of the United States
which
exempts an offender, brought before the courts of a State for an
offense
against its laws, from trial and punishment, even though brought from
another
State by unlawful violence, or by abuse of legal process;" and in Adams
v. New York, 192 U.S. 585, 596 (the same cases being referred to), that
"if a person is brought within the jurisdiction of one State from
another,
or from a foreign country, by the unlawful use of force, which would
render
the officer liable to a civil action or in a criminal proceeding
because
of the forcible abduction, such fact would not prevent the trial of the
person thus abducted in the State wherein he had committed an offense."
See, also, In re Johnson, 167 U.S. 120, 127, in which the court
recognized
the principle that when a party in a civil suit has, by some trick or
device,
been brought within the jurisdiction of a court, he may have the
process
served upon him set aside, but that a different rule prevails in
criminal
cases involving the public interests.
To the above citations
we may add In
re Moore, 75 Fed. Rep. 821, in which it appeared or was alleged that
one
accused of crime against the laws of a State and in the custody of its
authorities for trial, was brought back from another State as a
fugitive
from justice by means of an extradition warrant procured by false
affidavits.
In his application to the Circuit Court of the United States for a writ
of habeas corpus the petitioner stated facts and circumstances tending
to show that he was not a fugitive from justice. The application was
dismissed.
After stating that the executive warrant issued by the surrendering
State
had performed its office and that the petitioner was not held in virtue
of it, the court said: "His imprisonment is not illegal unless his
extradition
makes it so, and an illegal extradition is no greater violation of his
rights of person than his forcible abduction. If a forcible abduction
from
another State and conveyance within the jurisdiction of the court
holding
him, is no objection to his detention and trial for the offense
charged,
as held in Mahon v. Justice, 127 U.S. 712, and in Ker v. Illinois, 119
U.S. 437, no more is the objection allowed if the abduction has been
accomplished
under the forms of law. The conclusion is the same in each case. The
act
complained of does not relate to the restraint from which the
petitioner
seeks to be relieved, but to the means by which he was brought within
the
jurisdiction of the court under whose process he is held. It is settled
that a party is not excused from answering to the State whose laws he
has
violated because violence has been done him in bringing him within the
State.Moreover, if any injury was done in this case in issuing the
requisition
upon the State of Washington without grounds therefor, the injury was
not
to the petitioner but to that State whose jurisdiction was imposed upon
by what was done. The United States do not recognize any right of
asylum
in the State where a party charged with a crime committed in another
State
is found; nor have they made any provision for the return of parties
who,
by violence and without lawful authority, have been abducted from a
State;
and, whatever effect may be given by a state court to the illegal mode
in which a defendant is brought from another State no right secured
under
the Constitution and laws of the United States is violated by his
arrest
and imprisonment for crimes committed in the State into which he is
brought.
Mahon v. Justice, 127 U.S. 715."
The principle announced
in the Mahon
and other cases above cited was not a new one. It has been distinctly
recognized
in the courts of England and in many States of the Union. In Ex narte
Scott,
9 B. & C. 446 (17 E.C.L. 204) (1829), one accused of crime against
the laws of England, and who was in custody for trial, sought to be
discharged
upon habeas corpus because she had been improperly apprehended in a
foreign
country. Lord Tenterden, C.J., said: "The question, therefore, is this,
whether if a person charged with a crime is found in this country it is
the duty of the court to take care that such a party shall be amenable
to justice or whether we are to consider the circumstances under which
she was brought here. I thought, and still continue to think, that we
can
not inquire into them. If the act complained of were done against the
law
of a foreign country, that country might have vindicated its own law.
If
it gave her a right of action, she may sue upon it." Some of the
American
cases, to the same general effect, are cited in Mahon v. Justice,
namely,
State v. Smith, 1 Bailey (S.C.), 283; State v. Brewster, 7 Vermont,
118;
State v. Ross, 21 Iowa, 467. See also Dow's case, 18 Pa. St. 37; State
v. Kealy, 89 Iowa, 94, 97; Ex parte Barker, 87 Alabama, 4, 8; People v.
Pratt, 78 California, 345, 349; Church on Habeas Corpus, @ 483, and
authorities
cited in notes, and note to Fetter's case, 57 Am. Dec. 389, 400.
It is said that the
present case is
distinguished from the Mahon case in the fact that the illegal
abduction
complained of in the latter was by persons who neither acted nor
assumed
to act under the authority of the State into the custody of whose
authorities
they delivered Mahon; whereas, in this case, it is alleged that Idaho
secured
the presence of Pettibone within its limits through a conspiracy on the
part of its Governor and other officers. This difference in the cases
is
not, we think, of any consequence as to the principle involved; for,
the
question now is -- and such was the fundamental question in Mahon's
case
-- whether a Circuit Court of the United States when asked, upon habeas
corpus, to discharge a person held in actual custody by a State for
trial
in one of its courts under an indictment charging a crime against its
laws,
can properly take into account the methods whereby the State obtained
such
custody. That question was determined in the negative in the Ker case
and
Mahon's case. It was there adjudged that in such a case neither the
Constitution
nor laws of the United States entitled the person so held to be
discharged
from custody and allowed to depart from the State. If, as suggested,
the
application of these principles may be attended by mischievous
consequences,
involving the personal safety of individuals within the limits of the
respective
States, the remedy is with the lawmaking department of the Government.
Congress has long been informed by judicial decisions as to the state
of
the law upon this general subject.
In this connection it
may be well to
say that we have not overlooked the allegation that the Governor and
other
officers of Idaho well knew at the time the requisition was made upon
the
Governor of Colorado, that Pettibone was not in Idaho on December 30,
1905,
nor at any time near that date, and had the purpose in all they did to
evade the constitutional and statutory provisions relating to fugitives
from justice. To say nothing of the impropriety of any such facts being
made the subject of judicial inquiry in a Federal court, the issue thus
attempted to be presented was wholly immaterial. Even were it conceded,
for the purposes of this case, that the Governor of Idaho wrongfully
issued
his requisition, and that the Governor of Colorado erred in honoring it
and in issuing his warrant of arrest, the vital fact remains that
Pettibone
is held by Idaho in actual custody for trial under an indictment
charging
him with crime against its laws, and he seeks the aid of the Circuit
Court
to relieve him from custody, so that he may leave that State and
thereby
defeat the prosecution against him without a trial. In the present case
it is not necessary to go behind the indictment and inquire as to how
it
happened that he came within reach of the process of the Idaho court in
which the indictment is pending. And any investigation as to the
motives
which induced the action taken by the Governors of Idaho and Colorado
would,
as already suggested, be improper as well as irrelevant to the real
question
to be now determined. It must be conclusively presumed that those
officers
proceeded throughout this affair with no evil purpose and with no other
motive than to enforce the law.
We perceive no error in
the action
of the Circuit Court and its final order is
Affirmed.
MR. JUSTICE McKENNA
dissenting.
I am constrained to
dissent from the
opinion and judgment of the court. The principle announced, as I
understand
it, is that "a Circuit Court of the United States, when asked upon
habeas
corpus to discharge a person held in actual custody by a State for
trial
in one of its courts under an indictment charging a crime against its
laws,
cannot properly take into account the methods whereby the State
obtained
such custody." In other words, and to illuminate the principle by the
light
of the facts in this case (facts, I mean, as alleged, and which we must
assume to be true for the purpose of our discussion), that the officers
of one State may falsely represent that a person was personally present
in the State and committed a crime there, and had fled from its
justice,
may arrest such person and take him from another State, the officers of
the latter knowing of the false accusation and conniving in and aiding
its purpose, thereby depriving him of an opportunity to appeal to the
courts,
and that such person cannot invoke the rights guaranteed to him by the
Constitution and statutes of the United States in the State to which he
is taken. And this, it is said, is supported by the cases of Ker v.
Illinois,
119 U.S. 436, and Mahon v. Justice, 127 U.S. 700. These cases, extreme
as they are, do not justify, in my judgment, the conclusion deduced
from
them. In neither case was the State the actor in the wrongs that
brought
within its confines the accused person. In the case at bar, the States,
through their officers, are the offenders. They, by an illegal exertion
of power, deprived the accused of a constitutional right. The
distinction
is important to be observed. It finds expression in Mahon v. Justice.
But
it does not need emphasizing. Kidnapping is a crime, pure and simple.
It
is difficult to accomplish; hazardous at every step. All of the
officers
of the law are supposed to be on guard against it. All of the officers
of the law may be invoked against it. But how is it when the law
becomes
the kidnapper, when the officers of the law, using its forms and
exerting
its power, become abductors? This is not a distinction without a
difference
-- another form of the crime of kidnapping, distinguished only from
that
committed by an individual by circumstances. If a State may say to one
within her borders and upon whom her process is served, I will not
inquire
how you came here; I must execute my laws and remit you to proceedings
against those who have wronged you, may she so plead against her own
offenses?
May she claim that by mere physical presence within her borders, an
accused
person is within her jurisdiction denuded of his constitutional rights,
though he has been brought there by her violence? And constitutional
rights
the accused in this case certainly did have, and valuable ones. The
foundation
of extradition between the States is that the accused should be a
fugitive
from justice from the demanding State, and he may challenge the fact by
habeas corpus immediately upon his arrest. If he refute the fact he
cannot
be removed. Hyatt v. Corkran, 188 U.S. 691. And the right to resist
removal
is not a right of asylum. To call it so in the State where the accused
is is misleading. It is the right to be free from molestation. It is
the
right of personal liberty in its most complete sense. And this right
was
vindicated in Hyatt v. Corkran, and the fiction of a constructive
presence
in a State and a constructive flight from a constructive presence
rejected.
This decision illustrates at once the value of the right and the value
of the means to enforce the right. It is to be hoped that our criminal
jurisprudence will not need for its efficient administration the
destruction
of either the right or the means to enforce it. The decision in the
case
at bar, as I view it, brings us perilously near both results. Is this
exaggeration?
What are the facts in the case at bar as alleged in the petition, and
which
it is conceded must be assumed to be true? The complaint, which was the
foundation of the extradition proceedings, charged against the accused
the crime of murder on the thirtieth of December, 1905, at Caldwell, in
the county of Canyon, State of Idaho, by killing one Frank Steunenberg,
by throwing an explosive bomb at and against his person. The accused
avers
in his petition that he had not been "in the State of Idaho, in any
way,
shape or form, for a period of more than ten years" prior to the acts
of
which he complained, and that the Governor of Idaho knew accused had
not
been in the State the day the murder was committed, "nor at any time
near
that day." A conspiracy is alleged between the Governor of the State of
Idaho and his advisers, and that the Governor of the State of Colorado
took part in the conspiracy, the purpose of which was "to avoid the
Constitution
of the United States and the act of Congress made in pursuance thereof,
and to prevent the accused from asserting his constitutional right
under
cl. 2, sec. 2, of art. IV, of the Constitution of the United States and
the act made pursuant thereof." The manner in which the alleged
conspiracy
had been executed was set out in detail. It was in effect that the
agent
of the State of Idaho arrived in Denver, Thursday, February 15, 1906,
but
it was agreed between him and the officers of Colorado that the arrest
of the accused should not be made until some time in the night of
Saturday,
after business hours -- after the courts had closed and judges and
lawyers
had departed to their homes; that the arrest should be kept a secret
and
the body of the accused should be clandestinely hurried out of the
State
of Colorado with all possible speed, without the knowledge of his
friends
or his counsel; that he was at the usual place of business during
Thursday,
Friday, and Saturday, but no attempt was made to arrest him until 11:30
o'clock P.M. Saturday, when his house was surrounded and he arrested.
Moyer
was arrested under the same circumstances at 8:45, and he and accused
"thrown
into the county jail of the city and county of Denver." It is further
alleged
that, in pursuance of the conspiracy between the hours of five and six
o'clock on Sunday morning, February 18, the officers of the State and
"certain
armed guards, being a part of the forces of the militia of the State of
Colorado," provided a special train for the purpose of forcibly
removing
him from the State of Colorado, and between said hours he was forcibly
placed on said train and removed with all possible speed to the State
of
Idaho; that prior to his removal and at all times after his
incarceration
in the jail at Denver he requested to be allowed to communicate with
his
friends and his counsel and his family, and the privilege was
absolutely
denied him. The train, it is alleged, made no stop at any considerable
station, but proceeded at great and unusual speed; and that he was
accompanied
by and surrounded with armed guards, members of the state militia of
Colorado,
under the orders and directions of the adjutant general of the State.
I submit that the facts
in this case
are different in kind and transcend in consequences those in the cases
of Ker v. Illinois and Mahon v. Justice, and differ from and transcend
them as the power of a State transcends the power of an individual. No
individual or individuals could have accomplished what the power of the
two States accomplished; no individual or individuals could have
commanded
the means and success; could have made two arrests of prominent
citizens
by invading their homes; could have commanded the resources of jails,
armed
guards and special trains; could have successfully timed all acts to
prevent
inquiry and judicial interference.
The accused, as soon as
he could have
done so, submitted his rights to the consideration of the courts. He
could
not have done so in Colorado, he could not have done so on the way from
Colorado. At the first instant that the State of Idaho relaxed its
restraining
power he invoked the aid of habeas corpus successively of the Supreme
Court
of the State and of the Circuit Court of the United States. He should
not
have been dismissed from court, and the action of the Circuit Court in
so doing should be reversed.
I also dissent in Nos.
250, 251, 265,
266 and 267. (See p. 222, post.) MOYER v. NICHOLS. No.250
|