« ForrigeFortsett »
that the secretary of the interior will identify the lands described, and, although the state could not be deprived of her rights by the inaction of that officer, (Wright v. Roseberry, 121 U. S. 488, 501, 7 Sup. Ct. Rep. 985,) she was not obliged to proceed in their assertion in the absence of such identification. By the act of 1855, which provided for the payment to the state of moneys received by the United States on the sales of swamp lands within her limits, the payment was made to depend upon proof of the sales by the authorized agent of the state before the commissioner of the general land-office. No such proof was ever made or offered, and therefore, until in some other equally convincing mode the swampy character of the lands sold was established to the satisfaction of the commissioner, no definite ascertainment of the amount due to the state was had, so as to constitute a ground of action for its recovery in the court of claims. The method of proving the character of such lands by having recourse to the field-notes of the public surveys of the surveyor general of the state was adopted by the commissioner as early as 1850, and was followed by him in this case in 1885. On the thirtieth of June of that year he found in this mode and certified that there was due to the state from such sales the amount stated above. From that date only the six years within which the action could be brought in the court of claims began to run; and this action was commenced in September of the following year.
Nor do we regard the unpaid portion of the direct tax laid by the act of congress of August 5, 1861, which was apportioned to Louisiana, as constituting any debt to the United States by the state in her political and corporate character, which can be set off against her demands. 12 St. 292, c. 45. That act imposed an annual direct tax of twenty millions "upon the United States," and apportioned it to the several states of the Union. It directed that the tax should "be assessed and laid on the value of all lands and lots of ground, with their improvements and dwelling-houses." Section 13. It was assessed and laid upon the real property of private individuals in the states. Public property of the states and of the United States was exempted from the tax. Its apportionment was merely a designation of the amount which was to be levied upon and collected from this property of individuals in the several states, respectively. The provisions of the act are inconsistent with any theory of the obligation of the states to pay the sums levied. It provides for the appointment of officers to assess the property to the different holders, and to collect the tax, and directs with minute detail the proceedings to be taken to enforce the collection, either by a distraint and sale of the personal property of the owners, or, that failing, by a sale of the real property taxed. It allows, it is true, the different states to assume the amounts apportioned to them respectively, and to collect the same in their own way by their own officers. Many of the states did thus assume the amounts, and in such cases it may well be considered that for the sums assumed they became debtors to the United States, and, so far as any portion of those sums has not been paid, that they still remain debtors. But, unless such assumption was had, no liability attached to any state in her political and corporate character. The liability was upon the individual land-owners within her limits. The act declares that the amount of the taxes assessed "shall be and remain a lien upon all lands and other real estate of the individuals who may be assessed for the same during two years after the time it shall annually become due and payable." Section 33. Louisiana never assumed the payment of the taxes apportioned to her or of any portion of them. She allowed the government to proceed by its officers to collect the tax from the property holders. The amount apportioned to her was $385,886.67; the amount collected from the owners of land was $314,500.84; leaving only a balance of $71,385.83. It is not for us to suggest in what way this balance may be collected. After the war, the secretary of the treasury was authorized to suspend the collection of the tax, in any of the states previously declared in insurrection, until January, 1868, and sub
sequently this authority was extended to January, 1869. 14 St. 331. § 14; 15 St. 260, c. 69. The secretary acted upon this authority, and suspended the collection. It is stated that since 1869 no attempts have been made by the executive department to enforce its collection in those states. Be that as it may, it is enough for the disposition of the present case that the unpaid balance of the tax apportioned to Louisiana constitutes no debt on the part of the state in her political and corporate character to the United States.
We perceive no error in the judgment of the court below, and it is therefore affirmed.
UNITED STATES v. STATE OF ALABAMA.
(October 24, 1887.)
Appeals from the Court of Claims.
Atty. Gen. Garland, for appellant. Van H. Manning, for appellee.
FIELD, J. The questions presented in these cases are covered by the decision in the case of U. S. v. Louisiana, ante, 17, and, in conformity with it, the judgments in them must be affirmed. So ordered.
THE ANARCHISTS' CASE.1
Ex parte SPIES and others.
ERROR, WRIT OF-FROM UNITED STATES SUPREME COURT-MOTION IN Open Court. Although a motion to the United States supreme court for a writ of error to a state supreme court, under Rev. St. 2 709, empowering the United States supreme court to grant writs of error, may be permitted to be made in open court, on account of the urgency and importance of the case, yet it is the duty of the court, upon such motion, not only to ascertain, from an examination of the record, whether any questions, cognizable in the United States supreme court upon appeal, were made and decided in the proper court of the state, but also whether the character of those questions is such as to make it proper to bring the judgment up for re-examination.
Motion for the Allowance of a Writ of Error to the Supreme Court of the State of Illinois.
WAITE, C. J. Following the precedent in Twitchell v. Com., 7 Wall. 321, we have permitted this motion to be made in open court, at the suggestion of Mr. Justice HARLAN, to whom the application was first presented, on account of the urgency of the case and its importance. But, as was said in that case, "writs of error to the state courts have never been allowed as of right," that is to say, as of course; and it is the duty of him to whom an application for such a writ is made to ascertain, from an examination of the record of the state court, "whether any question, cognizable here on appeal, was made and decided in the proper court of the state, and whether the case on the face of the record will justify the allowance of the writ." Deeming that the proper practice, we will hear counsel on Thursday next in support of this motion, not only upon the point whether any federal questions were actually made and decided in the supreme court of the state, but also upon the character of those questions, so that we may determine whether they are such as to make it proper for us to bring the case here for review. We have caused the attorney general of Illinois to be informed that the motion will be heard at the time stated.
1 See 12 N. E. Rep. 865.
THE ANARCHISTS' CASE.1
Ex parte SPIES and others.
(November 2, 1887.)
1. ERROR, WRIT OF-FEDERAL QUESTION-ABSENCE OF DOUBT.
A writ of error from the United States supreme court ought not to be allowed if it appears upon the face of the record that the decision of the federal question complained of is so plainly right as not to require argument, especially if such decision is in accordance with the court's well-considered judgments in former cases.
2. SAME-PRACTICE IN UNITED STATES SUPREME COURT-MOTIONS TO DISMISS AND AF
The practice under supreme court rule 6,2 5, making it permissible to unite with a motion to dismiss a writ of error a motion to affirm the judgment, is to grant the motion to affirm, although the record may show that the court has jurisdiction, if the question on which the jurisdiction depends is so manifestly rightly decided that the case ought not to be held for further argument. Held, a proper practice to adopt upon motions in open court for the allowance of a writ of error.
3. JURY-CHALLENGES FOR CAUSE-PEREMPTORY CHALLENGES.
Errors committed in the lower court in overruling defendant's challenges for cause to jurors, are not grounds for reversal, unless it be shown that a partial juror was forced upon them, and put upon the case, after they had exhausted their peremptory challenges; following Hopt v. People, 7 Sup. Ct. Rep. 614.
4. SAME COMPETENCY--OPINIONS FORMED FROM NEWSPAPERS-IMPARTIALITY.
Kev. St. Ill. c. 78, 2 14, providing that a juror shall not be disqualified because he has formed an opinion based upon rumor, or upon newspaper statements about the truth of which he has expressed no opinion, if upon oath he states that he be lieves he can fairly and impartially render a verdict in accordance with the law and the evidence, does not violate either Const. U. S. amend. 6, or Const. Ill. art. 2, 3 9, which guaranty to the accused party in every criminal prosecution "a speedy public trial by an impartial jury."
5. SAME COMPETENCY-DECISION OF TRIAL COURT-APPEAL.
The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he had formed and expressed an opinion as to the issues to be tried. is one of mixed law and fact; and the finding of the trial court upon that issue ought not to be set aside by a reviewing court unless it manifestly appears that, upon the evidence, the trial court ought to have found that the juror had formed such an opinion that he could not in law be deemed impartial.
6. WITNESS-COMPETENCY OF ACCUSED-CROSS-EXAMINATION-FEDERAL QUESTION.
Where a defendant accused of crime is examined as a witness in his own behalf, the question as to whether the cross-examination must be confined to matters pertinent to the testimony in chief, or may be extended to the matters in issue, is one of state law as administered in the courts of the state, and not of federal law; and will not ground an application to the United States supreme court for a writ of
7. ERROR, WRIT OF-MATTER NOT APPARent of Record-FAILURE TO CLAIM PRIVILEGE. The state supreme court refused, on appeal, to consider an objection to the reception in evidence of a letter which it was claimed by defendant had been forcibly seized upon his premises without a search-warrant or other legal process, in violation of Const. U. S. amend. 5, and of Const. Ill. art. 2, 8 10, on the ground that the defendant had not, at the trial, substantiated the fact of the illegal seizure by evidence, or placed it upon the record. Held, that as the record did not show, as required by Rev. St. 2 709, that any title, right, privilege, or immunity claimed under the constitution, or any treaty or statute of the United States had been "specially set up or claimed," by the defendant, at the proper time, and in the proper manner, or that the decision of the state courts was against the title, right, privilege, or immunity so set up or claimed, an application for a writ of error must be denied. 8. SAME RECORD-CORRECTION, WHERE MADE.
Defendants further objected that they were not present before the state supreme court at the time sentence was pronounced, but the record as it stood showed upon
'See 12 N. E. Rep. 865.
its face that they were present. Held, that the record must be corrected in the court below, before the United States supreme court, upon an application for a writ of error, would consider whether the objection raised any federal question or not. Application for the Allowance of a Writ of Error to the Supreme Court of the State of Illinois.
Moses Salomon, W. P. Black, Roger A. Pryor, and J. Randolph Tucker, for petitioners. B. F. Butler, for Spies and Fielden. Geo. Hunt, Atty. Gen. Ill., in opposition.
WAITE, C. J.
When, as in this case, application is made to us on the suggestion of one of our number, to whom a similar application had been previously addressed, for the allowance of a writ of error to the highest court of a state, under section 709, Rev. St., it is our duty to ascertain, not only whether any question reviewable here was made and decided in the proper court below, but whether it is of a character to justify us in bringing the judgment here for re-examination. In our opinion the writ ought not to be allowed by the court if it appears from the face of the record that the decision of the federal question which is complained of was so plainly right as not to require argument, and especially if it is in accordance with our own well-considered judgments in similar cases. That is in effect what was done in Twitchell v. Com., 7 Wall. 321, where the writ was refused, because the questions presented by the record were "no longer subjects of discussion here," although, if they had been in the opinion of the court "open," it would have been allowed. When, under section 5 of our rule 6, a motion to affirm is united with a motion to dismiss for want of jurisdiction, the practice has been to grant the motion to affirm when "the question on which our jurisdiction depends was so manifestly decided right that the case ought not to be held for further argument." Arrowsmith v. Harmoning, 118 U. S. 194, 195, 6 Sup. Ct. Rep. 1023; Church v. Kelsey, 121 U. S. 282, 7 Sup. Ct. Rep. 897. The propriety of adopting a similar rule upon motions in open court for the allowance of a writ of error is apparent, for certainly we would not be justified as a court in sending out a writ to bring up for review a judgment of the highest court of a state, when it is apparent on the face of the record that our duty would be to grant a motion to affirm as soon as it was made in proper form.
In the present case we have had the benefit of argument in support of the application, and, while counsel have not deemed it their duty to go fully into the merits of the federal questions they suggest, they have shown us distinctly what the decisions were of which they complain, and how the questions arose. In this way we are able to determine, as a court in session, whether the errors alleged are such as to justify us in bringing the case here for review.
We proceed, then, to consider what the questions are on which, if it exists at all, our jurisdiction depends. They are thus stated in the opening brief of counsel for petitioners: "First. Petitioners challenged the validity of the statute of Illinois under and pursuant to which the trial jury was selected and impaneled, on the ground of repugnancy to the constitution of the United States, and the state court sustained the validity of the statute. Second. Petitioners asserted and claimed, under the constitution of the United States, the right, privilege, and iminunity of trial by an impartial jury, and the decision of the state court was against the right, privilege, and immunity so asserted and claimed. Third. The state of Illinois made, and the state court enforced against petitioners, a law (the aforesaid statute) whereby the privileges and immunities of petitioners, as citizens of the United States, were abridged, contrary to the fourteenth amendment of the federal constitution. Fourth. Upon their trial for a capital offense, petitioners were compelled by the state court to be witnesses against themselves, contrary to the provisions of the constitution of the United States, which declare that no person shall be compelled in any criminal case to be a witness against himself,' and that
no person shall be deprived of life or liberty without due process of law.' Fifth. That by the action of the state court in said trial petitioners were denied the equal protection of the laws,' contrary to the guaranty of the said fourteenth amendment of the federal constitution."
The particular provisions of the constitution of the United States on which counsel rely are found in articles 4, 5, 6, and 14 of the amendments, as follows: Article 4. "The right of the people to be secure, in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Article 5. "No person *** shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property without due process of law." Article 6. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law." Article 14, § 1. "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law."
That the first 10 articles of amendment were not intended to limit the powers of the state governments in respect to their own people, but to operate on the national government alone, was decided more than a half century ago, and that decision has been steadily adhered to since. Barron v. Baltimore, 7 Pet. 243, 247; Livingston v. Moore, Id. 469, 552; Fox v. Ohio, 5 How. 410, 434; Smith v. Maryland, 18 How. 71, 76; Withers v. Buckley, 20 How. 84, 91; Pervear v. Com., 5 Wall. 475, 479; Twitchell v. Com., 7 Wall. 321, 325; Justices v. Murray, 9 Wall. 274, 278; Edwards v. Elliott, 21 Wall. 532, 557; Walker v. Sauvinet, 92 U. S. 90; U. S. v. Cruikshank, Id. 542, 552; Pearson v. Yewdall, 95 U. S. 294, 296; Davidson v. New Orleans, 96 U. S. 97, 101; Kelly v. Pittsburgh, 104 U. S. 79; Presser v. Illinois, 116 U. S. 252, 265, 6 Sup. Ct. Rep. 580.
It was contended, however, in argument, that, "though originally the first ten amendments were adopted as limitations on federal power, yet, in so far as they secure and recognize fundamental rights-common-law rights-of the man, they make them privileges and immunities of the man as a citizen of the United States, and cannot now be abridged by a state under the fourteenth amendment. In other words, while the ten amendments as limitations on power only apply to the federal government, and not to the states, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the fourteenth amendment as to such rights limits state power, as the ten amendments had limited federal power." It is also contended that the provision of the fourteenth amendment, which declares that no state shall deprive "any person of life, liberty, or property without due process of law," implies that every person charged with crime in a state shall be entitled to a trial by an impartial jury, and shall not be compelled to testify against himself. The objections are, in brief, (1) that a statute of the state as construed by the court deprived the petitioners of a trial by an impartial jury; and (2) that Spies was compelled to give evidence against himself. Before considering whether the constitution of the United States has the effect which is claimed, it is proper to inquire whether the federal questions relied on in fact do arise on the face of this record.
The statute to which objection is made was approved March 12, 1874, and has been in force since July 1st of that year. Hurd, Rev. St. Ill. 1885, p. 752, c. 78, § 14. It is as follows: "It shall be sufficient cause of challenge of a petit juror that he lacks any one of the qualifications mentioned in section 2 of this act; or, if he is not one of the regular panel, that he has served as a juror on the trial of a cause in any court of record in the county within one year previous to the time of his being offered as a juror; or that he is a party