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to that point. The grant, however, is confined to the construction of a wharf ‘on and in front of private property; there being a provision like the one in the former ordinance requiring the grantees to construct pontoons in the river for the landing of small boats, while the right is reserved to the council to regulate the passageways along the street, and any part of the wharves extending therein ‘as a part of the street and sidewalk.' The reasonable interpretation of these ordinances is that they were intended to regulate the construction of wharves by the property owners on either side of the street in front of their property, with permission, perhaps, to extend the lower floors of such wharves over and across the foot of Morrison street, for the purpose of affording access from the street to the wharves. There is, however, no grant of any privilege or right to use or appropriate the street, or an extension thereof, for wharfage purposes. On the contrary, the street and any improvements which may be put there by the abutting property owners were reserved to the use of the entire public, and the grantees had no greater rights under the ordinances than those enjoyed by the general public.” And this construction, the court observed, was supported by the averments of the complaint. It was, therefore, decided that plaintiffs acquired no greater rights in the street than the general public nor a right to compensation for loss or injury caused by a change in the grade any more than a change in the grade would entitle an abutting owner to compensation because he had improved the street in front of his property. And decided also that the ordinances “did not give to the plaintiffs or to their predecessors in interest authority to build a wharf at the foot of the street for commercial purposes, but rather confer the right to improve the street by extending it into the river, so that they could the more readily reach their own property therefrom, and the fact that their improvements have been rendered valueless on account of the subsequent change in the grade of the street does not entitle them to compensation.

“Neither are they entitled to any rights under the rule ap

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plicable to an executed parol license. Their occupation of the street and construction of the wharf and landing at the foot thereof, were permissive, under ordinances of the city defining their rights. They could not acquire any interest or easement in the street not conferred by the ordinances, because their use could not, in law, be adverse. Thayer v. New Bedford Railroad, 125 Massachusetts, 253; Washburn on Easements, $$ 152, 197.”

Against these conclusions plaintiffs cite other Oregon cases. We are, however, not called upon to reconcile the cases. Plaintiffs point to no case decided prior to the construction of the wharves which interprets the ordinance as they now contend for, which might bring the case within the ruling of Muhlker v. New York & Harlem R. R. Co., 197 C. S. 544, and Lewis v. City of Portland, 25 Oregon, 133, 159. And if we could say that the construction of the ordinances by the Supreme Court is not indisputable, yet we are required by the rule expressed in Burgess v. Seligman, 107 U. S. 20, and the many cases which have followed it, to incline to an agreement with the state court.

In accordance with the doctrine announced in Brand v. Multnomah County, 38 Oregon, 79, the Supreme Court decided that a change or alteration of the grade of a street may be made by lawful authority, without liability to abutting property owners for consequential damages, and that the act of October 18, 1878, was a legislative change of the grade of Morrison street for its full width. Plaintiffs do not deny that the legislature has such power. They make, however, two contentions (a) That the act of 1878 was not intended to change the grade of the street and did not do so. (b) If it did change the grade at all, it changed it as to those portions of the street only which were actually made use of on the new grade as an approach to the bridge, the remainder not being affected by the act. As to the latter point, it is contended that the power given to the bridge company to build an approach to the bridge on Morrison street to conform to the grade on Front street was exhausted with the exercise of the right, and that the defendants have no power under the act, after a lapse of twenty years, to extend the

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approach of the bridge to cover the opening in Morrison street, and change the grade where it was not changed when the approach was built.

The act of 1878 is a local statute and in its interpretation involves no Federal question, nor does it become such by the circumstances of this case. It expresses the legislative authority and its interpretation by the Supreme Court of the State we must accept. And the power to grade was not exhausted by one exercise. Goszler v. Georgetown, 6 Wheat. 593, 597; Wabash R. R. Co. v. Defiance, 167 U.S. 88. It is a phase of the same contention that the bridge company was given the right of election of the manner of constructing the approaches, and, being bound by that election, the city, its successor, is also bound.

Judgment affirmed.

a

HOWARD v. KENTUCKY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

No. 77. Argued November 10, !3, 1905.-Decided January 2, 1906. The provisions of the Fifth and Sixth Amendments to the Federal Con

stitution do not apply to proceedings in the state courts. A State cannot be deemed guilty of violating its obligatipns under the

Constitution of the United States because of a decision, even if erroneous,

of its highest court, if acting within its jurisdiction. While the words due process of law," as used in the Fourteenth Amend

ment, protect fundamental rights, the Amendment was not intended to interfere with the power of the State to protect the lives, liberty and property of its citizens, nor with the power of adjudication of its courts

in administering the process provided by the law of the State. In discharging a juror in a murder trial before he was sworn, for cause

sufficient to the court, and after questioning him in absence of accused and counsel but with the consent of his counsel, and substituting another juror equally competent, held, that the accused was not denied due

process of law within the meaning of the Fourteenth Amendment. It is the law of Kentucky that occasional absence of the accused from the

trial from which no injury results to his substantial rights is not reversible error.

200 U.S.

Argument for Plaintiff in Error.

The Criminal Code of Kentucky, $ 281, provides that decisions of the trial

court upon challenges shall not be subject to exception, and as the highest court of the State in deciding even though the action of the trial court in regard to the juror had been error it could not reverse under $ 281, followed the construction of that section established by prior cases, it did not make a discriminating application of the section against the accused and he was not therefore deprived of the equal protection of the laws.

The facts are stated in the opinion.

Mr. W. M. Smith, with whom Mr. J. A. Violett, Mr. J. A. Scott and Mr. Carlos B. Little were on the brief, for plaintiff in

error:

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A Federal question is seasonably presented, although made for the first time in the Appellate Court, in petition for a rehearing, provided said court passes upon same, and holds against the party invoking protection under the Constitution or laws of the United States. Mallet v. North Carolina, 181 U. S. 592; Leigh v. Green, 193 L. S. 79; U. S. Compiled Statutes, $ 709; Canal Co., v. Patten Paper Co., 172 U. S. 58; Powell v. Brunswick County, 150 C. Ş. 433; O'Neil v. Vermont, 144 U. S. 359. A State can repeal any common law offense, or change the modes of criminal procedure, so long as said change does not violate any absolute and fundamental right of the accused; as to the question here involved, the State of Kentucky has adopted the common law, without modification or change, and the provision of the Fourteenth Amendment protects the fundamental rights thereby created and recognized. Section 233 present Const. Kentucky; Ray v. Suseeney, 77 Kentucky, 9;-Chisholm v. Georgia, 2 Dallas, 419; Holden v. Hardy, 169 U. S. 366.

The provision of the Fourteenth Amendment that no State shall deprive any person of life, liberty or property without due process of law, having brought within the Federal jurisdiction and power the protection against state action, the judicial power of the Nation necessarily extends thereto; and it is not requisite for jurisdiction that the right or thing claimed come

Argument for Plaintiff in Error.

from the law of the United States; though it comes from the state law, it is protected from unlawful state action. It must not be so construed, however, as to interfere with the State in its enactment and local administration of the criminal law, nor to confine it to any special mode of proceeding, so long as said law, as enforced by the State, affords equal protection to all persons within its jurisdiction, similarly situated, and is not violative of the fundamental and inalienable rights that are essential to the protection of life, liberty and property. Section 11, Bill of Rights, Kentucky; Davidson v. New Orleans, 96 U. S. 99; Fifth Amendment Const. U. S.; Holden v. Hardy, 169 U. S. 366; Lowe v. Kansas, 163 U. S. 85; Civil Rights Cases, 109 U. S. 11; United States v. Cruikshank et al., 92 U. S. 554; United States v. Harris, 106 U. S. 629; Caldwell v. Texas, 137 U. S. 699; Allen v. Georgia, 166 U. S. 137; Brown v. New Jersey, 175 U. S. 174; Maxwell v. Dow, 176 U. S. 582; Hurtado v. California, 110 U. S. 516; Thompson v. Utah, 170 U. S. 344; Ex parte Ulrich, 42 Fed. Rep. 591.

200 U.S.

By the common law, which has been adopted by Kentucky, and by the constitution, statutes and court decisions, when the life or liberty of the accused is in peril, he not only has the right to be, but must be, present, during the whole of the trial, at every step. His presence is not only an inalienable right, but a jurisdictional fact and cannot be waived. It is the duty of the trial court to see that this right is not violated, otherwise Federal jurisdiction under the Fourteenth Amendment will attach to protect said right. 2 Story on Const., § 1791; Hale's Pleas of the Crown, 33; 3 Bacon's Abridgement, 512; Magna Charta, ch. 29; Brannon's Fourteenth Amendment, 271; Cooley, Const. Lim., 7th ed., 452; Underhill, Crim. Ev., 284, §232; Wharton, Crim. Pl. & Pr., 8th ed., §§ 540, 545; Schwab v. Berggren, 143 U. S. 442; Lewis v. United States, 146 U. S. 370; Hopt v. Utah, 110 U. S. 574; Crim. Code Utah, $218; Crim. Code Pr. (Ky.), 183; Kentucky Code, §§ 212-216; State v. Carmen, 63 Iowa, 130; Bishop's New Criminal Procedure, §§ 269, 271; Dougherty v. Commonwealth, 69 Pa. St. 290; Prine v. Common

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