[U. S. Comp. St. 1901, p. 3676], and that on the final hearing of said cause the said G. B. Randolph, as such United States commissioner as aforesaid, who had full power and authority to act as such United States officer, made an order requiring the said A. N. McLeod to make and execute a bond for his appearance at the next term of the circuit and district courts of the United States for the Southern division of the Northern district of Alabama, the said A. N. McLeod well knowing that the said G. B. Randolph was such officer as aforesaid, and well knowing that he was duly authorized to make such order; and the grand jurors do further present that on, to wit, the 30th day of October, 1900, the said A. N. McLeod did go upon the highway and unlawfully did threaten and assault the said G. B. Randolph, the said officer as aforesaid, for the reason that the said G. B. Randolph, as such officer, had required the said A. N. McLeod to execute a bond for his appearance before the grand jury of the United States as aforesaid, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The defendant demurred on numerous grounds, which resolve themselves into the objections that the count shows that the commissioner had fully and completely discharged his duty before the assault; that it did not appear that there was any proceeding pending before the commissioner, to be influenced or impeded, at the time of the alleged assault; that it did not appear that there was any proceeding pending or thereafter coming before the commissioner, to be influenced by the alleged assault; that the commissioner does not hold any court of the United States; that the indictment charges no offense against the laws of the United States.

Thos. R. Roulhac, U. S. Dist. Atty., and N. L. Steele, Asst. U. S. Dist. Atty.

Knox, Acker & Blackmon, for defendant.

JONES, District Judge (after stating the facts as above). The first clause of section 5399 of the Revised Statutes [U. S. Comp. St. 1901, p. 3656] deals with "endeavors to influence, intimidate, or impede, any witness or officer, in any court of the United States, in the discharge. of his duty." It is the discharge of duty which this clause seeks to protect. There can be no discharge of duty, to be influenced in any way, when there is no duty to be performed. Neither a duty discharged in the past, nor the motives which induced it, can, in the nature of things, legal or moral, be recalled or influenced in any wise by a subsequent assault, not contemplated by him who performed the duty at the time it was discharged. The assault here charged clearly does not fall within this clause.

The remaining clause provides for the punishment of every one "who corruptly, or by threats or force, obstructs, or impedes, or endeavors to obstruct or impede, the due administration of justice therein,”—that is, “in any court of the United States." The word "therein," here used as synonymous with "in any court of the United States," qualifies the preceding words "due administration of justice," and necessarily restricts their meaning, when we remember that this is a penal statute, to particular cases as they arise in court. But for the restraining influence of the word "therein," the words "due administration of justice" might perhaps be held to include practices subversive of the general administration of justice, regardless of their effect upon any particular case. As here used, the words "the due administration of justice therein" mean the enforcement of the law of the land in individual cases brought or sought to be brought before the courts.

119 F.-27

Justice is administered, in the sense of this statute, only by bringing rights or wrongs, and the persons or things concerned in them, before a judicial tribunal, and there dealing with each particular case as it arises. Every instrumentality or power, the exercise of which is proper or necessary to the accomplishment of any of these ends, is part and parcel of "the due administration of justice." Every unlawful act, specified in the statute, which interferes with or obstructs the normal and proper operation of any of the instrumentalities or powers which the law provides for bringing a matter before a judicial tribunal, leciding it after it is there, and enforcing the judgment rendered, constitutes, as to such matter, either an impediment or an obstruction, or an endeavor to obstruct or impede, "the due administration of justice," within the meaning of the statute.

The defendant insists the assault cannot be an obstruction to justice, or an endeavor to obstruct it, "in any court of the United States,' because a commissioner who conducts a preliminary examination does not hold any court of the United States. Todd v. U. S., 158 U. S. 278, 15 Sup. Ct. 889, 39 L. Ed. 982. When a commissioner examines and holds a defendant to bail, he performs a necessary step in the final administration of justice in the circuit or district court. The fact that the assaulted commissioner did not himself hold "any court of the United States" cannot withdraw the unlawful act from the grasp of the statute, if what was done to the commissioner could or did obstruct justice in the particular case in the circuit or district court.

The government insists the defendant is guilty, because he had been held to answer before the circuit and district courts where his case was pending at the time of the assault, and that the assault was an endeavor to impede, or an obstruction to, "the due administration of justice" in that case in the circuit or district court. The indictment, being silent as to the pendency of the case in the circuit or district court, cannot be aided by intendment. The presumption would be that the matter had been concluded there before the assault was made. If, however, the case were pending in the circuit or district court at the time of the assault, it could not bring the defendant within the mischief prohibited by the statute. An assault upon one who never had any authority or duty in the case pending in the circuit or district court, or whose relations to the case had ended before the assault, and who consequently could not, by the discharge of any function or power committed to him, exert any influence over the conduct or fate of the case in the circuit or district court, cannot constitute either endeavors to impede or an impediment to or an obstruction of justice "therein." Justice can be obstructed or influenced only by obstructing or impeding those who seek justice in a court, or those who have duties or powers in administering justice "therein." The commissioner at the time of the assault had no power to exercise, nor any duty to perform, which could be influenced by the assault. There was nothing he could do or leave undone, "in the discharge of his duty," which could exert the slightest influence upon the trial or decision of the case in the circuit or district court. The "due administration of justice therein" cannot be obstructed or impeded after it has run its course.

It is next insisted that the direct and ordinary effect of violence

upon the commissioner, because of past discharge of duty, being to influence and intimidate him in its future discharge, the defendant's unlawful act must necessarily amount to an endeavor to obstruct, or an obstruction to, "the due administration of justice," within the meaning of the statute. As we have observed, unless there is some case pending in a court, or sought to be brought "therein," there is nothing as to which "the due administration of justice" can be influenced or obstructed "therein." This statute does not create the offense of obstructing justice in general or in the abstract. Justice, in the meaning of the statute, is administered only in particular cases which are brought or sought to be brought before the court. If the unlawful act, done with reference to a particular case pending or contemplated to be brought before a judicial tribunal, does not obstruct the administration of justice "therein," no offense is committed, under this statute, though the evil effect of the unlawful act may militate against the administration of justice in some other case. Certainly a person cannot be guilty of obstructing justice, under this statute, in a case as to which he has done or intended nothing unlawful. The defendant can be held guilty here for acts done with reference to a particular case, only by holding the assault, induced because of the decision in that case, to constitute a continuing force, which ripens into a crime by relation to some other case. If the statute can fasten upon this assault, which related to a past transaction, and locate its effect upon some other case, totally disconnected from that as to which the unlawful act was done, the defendant could be held guilty, because of the doing of the one unlawful act as to one case, of as many other obstructions to justice as there were cases then pending or thereafter arising in which the discharge of duty could be directly affected by his act, though he had done or intended nothing unlawful concerning them, or, for that matter, may have been ignorant of their existence. Neither the reason nor the letter of the statute, nor any known rule of construction, permits the court to impart such fearful elasticity to a penal statute, as against a defendant. Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419.

There are other considerations quite persuasive of the correctness. of the above views. The statute under which this indictment is found was passed March 2, 1831. If it covered assaults upon officers of court, or any other person engaged "therein" in the administration of justice, because of past discharge of duty, would congress have thought it necessary to pass any subsequent statute on the subject? That congress did not deem this section to cover assaults upon court officers, or others engaged "therein" in the administration, because of past discharge of duty, is apparent from its legislation 40 years afterwards, in the act of April 20, 1871, now section 5406 of the Revised Statutes [U. S. Comp. St. 1901, p. 3657]. This is the first instance. in our criminal laws where an injury done any one on account of past discharge of duty in the courts is made a penal offense. This statute does not include court officers within its protection, but specifically restricts it to parties, witnesses, and jurors. Why, in dealing with the evil of assaults for past discharge of duty in the courts, has congress omitted officers of the court, and provided only for protection

against such evil of parties, witnesses, and jurors? This later statute would have been entirely unnecessary if the government's contention as to the proper construction of section 5399 of the Revised Statutes [U. S. Comp. St. 1901, p. 3656] is correct. The terms of this later statute are persuasive, at least, to show that section 5399 [page 3656] does not cover this case. The uniform policy of congress, as disclosed by its legislation since the foundation of the republic down to the present hour, with the exception noted in section 5406 [page 3657], has been to leave the protection of officers of court against assaults on account of past discharge of duty to the operation of the laws of the states, and the restraining influence of the power of the courts of the United States "to punish contempts of their authority." Whether the assault, under the circumstances disclosed by the record, constitutes a contempt which should be summarily dealt with, is a matter which will be taken up and considered hereafter.

The demurrers are sustained. As the act charged cannot constitute an indictable offense against the United States, the judgment will be that the defendant go hence without day.

CADY V. ASSOCIATED COLONIES.

(Circuit Court, N. D. California. November 3, 1902.)
No. 13,284.

1. REMOVAL OF CAUSES-PROCEEDINGS AFTER REMOVAL-VACATing Judgment. Where at the time a cause was removed into a federal court a judgment had been rendered against the defendant, but the state court had power under the statute to vacate the same, the federal court was vested on the removal with the same power.

2. SAME.

Where a cause has been properly removed into a federal court, that court cannot remand it for the purpose of having a motion to vacate a default judgment, rendered against defendant before the removal, determined by the state court.

8. SPECIAL APPEARANCE-FILING PETITION FOR REMOVAL-EFFECT.

The appearance of a defendant in a state court to file a petition and bond for removal is special, and is not a waiver of the right to object to the jurisdiction of the state court over him.

4. FEDERAL COURTS-JURISDICTION-DETERMINING VALIDITY OF SERVICE ON FOREIGN CORPORATION.

The authority of a federal court into which a cause has been removed to determine whether the state court, by the service made, acquired jurisdiction over the defendant, a foreign corporation, to render judgment against it, is neither derived from nor limited by the laws of the state; nor is such court concluded by the decision of the state court thereon. 5. FOREIGN CORPORATIONS-JURISDICTION IN SUIT AGAINSt-Validity of ConSTRUCTIVE SERVICE.

Constructive service on a foreign corporation under a state law applicable to corporations doing business in the state will not confer jurisdiction, where at the time of such service the corporation is not doing business in the state.

15. Service of process on foreign corporations, see note to Eldred v. American Palace Car Co., 45 C. C. A. 3.

On motion of defendant to quash the service of summons, recall an execution, and vacate a default and judgment entered by a state court before removal of the cause.

Goodwin & Goodwin and E. A. Bolton, for plaintiff.
W. F. Williamson, for defendant.

MORROW, Circuit Judge. This action was commenced in the superior court of this state, for the county of Lassen, by the plaintiff, to recover from defendant the sum of $6,000 and interest, claimed to be due on a contract for the use of water for irrigation purposes during the years 1898, 1899, and 1900. The complaint was filed in the state court on February 5, 1902. It is alleged in the complaint that the defendant is a foreign corporation, having its office. and principal place of business in the city of New York, state of New York; that from July 27, 1897, up to and including the time of the filing of the complaint, the defendant has been engaged in carrying on the business of farming agricultural lands in Lassen county, state of California; that the defendant has failed to designate a person residing in the state upon whom process issued by authority or under the law of the state may be served; and that the defendant has failed to execute and file any such designation in the office of the secretary of the state, as provided by an act of the legislature of the state of California entitled "An act in relation to foreign corporations," approved April 1, 1872, and the acts supplementary and amendatory thereof. Section 1 of the act of April 1, 1872, as amended by the act of March 17, 1899 (Statutes and Amendments of the Codes of California 1899, p. 111), provides as follows:

"Section 1. Every corporation heretofore created by the laws of any other state or foreign country, and doing business in this state, shall, within ninety days after the passage of this act, and any corporation hereafter created by the laws of any other state or foreign country and doing business in this state, within forty days from the time of commencing to do business in this state, designate some person residing in this state upon whom process, issued by authority by or under any law of this state, may be served, and within the time aforesaid shall file such designation in the office of the secretary of state, and a copy of such designation, duly certified to by the secretary of state, shall be sufficient evidence of such appointment and of the due incorporation of such corporation, and it shall be lawful to serve on such person so designated, or in event that no such person is so designated then on the secretary of state, any process issued as aforesaid. Such service shall be made on such person so designated, or the secretary of state, in such manner as shall be prescribed in case of service required to be made on foreign corporations, and such service shall be deemed a valid service thereof on such corporation."

It is claimed that the summons issued upon the complaint filed in this case and served upon the secretary of state on the 27th day of February, 1902, was a legal constructive service, under this statute. On the 2d day of April, 1902, the plaintiff had the default of the defendant entered in the clerk's office of the superior court of Lassen county, and on the 3d day of April, 1902, the court filed its findings of fact and conclusions of law; upon the same day entering a judgment in favor of the plaintiff and against the defendant in the sum of $6,945, and costs of suit, taxed at $11. On the 20th