mestic and foreign corporations; and, President which filled the lawful compleclearly, in this case, property of the com- ment of officers of the rank of an Army pany beyond the jurisdiction of the officer previously dismissed by the Presi dent in war time, the Senate is not exercisstate is not taxed, all of its property ing a judicial but an executive function. is in Illinois. To require foreign cor- It does not have to give a hearing or make porations to pay for the privilege of an investigation before lawful action, and doing business in a state is, of course, a if it chooses to accept the President's nomifamiliar and often approved form of tax-nation as assurance that there is a vacancy ation, and in this case the fee imposed is reasonable in amount. The tax is not imposed directly upon the proceeds of interstate commerce, and is not computed upon it. The $235,000 of interstate business of the company is only one of three factors used in estimating or measuring "the amount of the capital stock represented by property and business transacted in Illinois," up on which the privilege tax in dispute was computed. The other two factors were $5,540,000 of property in Illinois and $25,000 of business stipulated as done with residents of that state. If the fee or privilege tax were computed at the statutory rate on the whole of the interstate business, it would be trifling in amount; but if computed on the property admitted to [296] have been in use in the state, it would be but slightly less than the tax collected. to which the appointment proposed can be made, and acts on that assurance, the legal removal of the officer whose place is thus effect of the confirmation, as effecting the filled, is not affected. [For other cases, see Army and Navy, VI. &, in Digest Sup. Ct. 1908.] [No. 118.] Decided April 10, 1922. APPEAL from the Court of Claims to review the dismissal of a petition of a dismissed Army officer for salary and commutation of quarters. Petition for rehearing and motion to remand for further finding denied. See ante, page 360. The facts are stated in the opinion. Mr. Chief Justice Taft delivered the opinion of the court: Counsel for the appellant object to the If this same amount of tax had been presumption we indulge in our opinion imposed upon such a manufacturing cor- in this case that the Senate must have poration as we have here, without ref-known of the dismissal of Wallace when erence being made to the basis of its it confirmed the nomination of Lieutencomputation, very certainly no objection to its validity would have been thought of. 142 U. S. supra, p. 229. Or, if the state had imposed an income tax, a part of which would have been derived from the net profits on this same interstate business, no valid objection could have been made to it. United States Glue Co. v. Oak Creek, supra. At most, the assessment, so far as interstate commerce is concerned, is incidental, remote, and unimportant, and it is therefore constitutional. The judgment of the Supreme Court of Illinois must be affirmed. Mr. Justice Van Devanter dissents. Mr. Justice McReynolds concurs the result. H. S. WALLACE, Appt., V. UNITED STATES. in (See S. C. Reporter's ed. 296-298.) Army officers dismissal appointment and confirmation of successor. In confirming an appointment by the ant Colonel Robert Smith, whose appointment and confirmation filled the place considered vacant by Wallace's dismissal. They insist that the absence of knowledge by the Senate of Wallace's removal was conceded by the gov ernment in both the court of claims and here. What the government brief in this court said was that it did not appear that the Senate was advised. But appellant's counsel produce evidence from the record in the court of claims upon which they ask that the case be remanded to the court of claims to make a finding on this point. Let us concede, for the sake of the argument, without deciding, that is properly a matter of evidence de hors the record, and of a finding thereon. The chief item of evidence on which the motion is based is a statement in the record below that "On or before February 21st, 1918, it was the practice of the Adjutant General's office to nominate an officer vice the particular officer whose promotion or separation from the service caused the Note. On right to remove officers summarily-see note to Trainor V. Wayne County Auditors, 15 L.R.A. 95. vacancy; and that, after February 21,, visions of the Act of January 28, 1915, 1918, the practice of indicating the amending the Judicial Code, § 246, was specific vacancy was discontinued on the assimilated to the appellate jurisdiction of the Federal Supreme Court over state recommendation of the Executive Clerk of the Senate." The contention of the defendant on this showing is that the Senate adopted the practice of confirming appointments to vacancies made by the President without investigation into the cause of the vacancies because of the exigencies of war and the great number of appointments. We do not see that, if such facts were found, it would alter [298] our necessary conclusion. The Senate, in confirming nominations, is not exercising a judicial but an executive function, It does not have to give a hearing or make an investigation before lawful action; and if it chooses to accept the President's nomination as assurance that there is a vacancy to which the appointment proposed can be made, and acts on that assurance, the legal effect of the confirmation is not affected. Petition for rehearing and the motion to remand are denied. JESUS M. BALZAC, Plff. in Err., V. courts. [For other cases, see Appeal and Error, III. d, 5, in Digest Sup. Ct. 1908.] Error to Porto Rico supreme court — validity of local statutes. 2. The contention that, under the Fedecution for criminal libel in Porto Rico was eral Constitution, the defendant in a prosentitled to a jury trial, draws in question the validity of Porto Rican statutes upon which the court relies in denying the demand, so as to sustain a writ of error from the Federal Supreme Court to the Porto Rico supreme court, where the effect of such statutes was to deny the right to [For other cases, see Appeal and Error, III. jury trial in such cases. d, 5, in Digest Sup. Ct. 1908.] Error to Porto Rico supreme court question of validity of local law how raised. 3. The question of the validity, under statutes denying the right to jury trial in the Federal Constitution, of Porto Rican prosecutions for criminal libel, was properly raised so as to support a writ of error from the Federal Supreme Court to the Porto Rico supreme court, where the demand for jury trial, the statutes to the contrary notwithstanding, was made at the trial and was renewed in the assignments of error in the Porto Rico supreme court and in the Federal Supreme Court, al PEOPLE OF PORTO RICO. (No. 178.) though these assignments did not mention JESUS M. BALZAC, Plf. in Err., V. PEOPLE OF PORTO RICO. (No. 179.) (See S. C. Reporter's ed. 298-314.) Appeal jurisdiction of Federal Supreme Court -over Porto Rico supreme court. 1. The limitation upon the jurisdiction of the Federal Supreme Court to review judgments of state courts by writ of error, which was made by the Act of Sep; tember 6, 1916, amending the Judicial Code, § 237, applies to and affects the appellate jurisdiction of the Federal Supreme Court to review judgments of the supreme court of Porto Rico, which, under the pro Note. On appellate jurisdiction of Federal Supreme Court over Porto Rican courts-see note to Garrozi v. Dastas, 51 L. ed. U. S. 369. As to constitutional right of trial by jury-see notes to Justices of Supreme Ct. v. United States, 19 L. ed. U. S. 658; Eilenbecker v. District Ct. 33 L. ed. U. S. 801; Gulf, C. & S. F. R. Co. v. Shane, 39 L. ed. U. S. 727; Perego v. Dodge, 41 L. ed. U. S. 113, and Thompson v. Utah, 42 L. ed. U. S. 1061. the statute whose validity was involved, but merely averred that the defendant had been denied his right as an American citizen, under U. S. Const., 6th Amendment, since, while this is informal, it is sufficient when the record discloses the real nature of the controversy, and the specification of the assignment leaves no doubt that it is directed to that controversy. [For other cases, see Appeal and Error, III. d, 5, in Digest Sup. Ct. 1908.] Jury right to trial by application of Federal Constitution to territories and possessions. stitution for jury trials in criminal and 4. The provisions of the Federal Conof the United States, do not apply to tercivil cases, while applying to the territories ritory belonging to the United States which has not been incorporated into the Union. [For other cases, Sup. Ct. 1908.] Jury 5. There is nothing in the Porto Rican Organic Act of March 2, 1917, from which there can be inferred the purpose of Congress to incorporate Porto Rico into the Union so as to render applicable therein the provisions of the Federal Constitution respecting the right of trial by jury; nor can any such intention be inferred from the organization of a United States district court in Porto Rico; from the allowance of review of the Porto Rico supreme court in cases where the Federal Constitution is involved; from the statutory permission that Porto Rican youth can attend the West Point and Annapolis Academies; from the authorized sale of United States stamps in the island; or from the extension of the Federal revenue, navigation, immigration, banking, bankruptcy, employers' liability, safety appliance, extradition, and census laws, in one way or another, to Porto Rico. [For other cases, see Jury, I. a, in Digest Sup. Ct. 1908.] [Nos. 178 and 179.] Rep. 190; Re Vidal, 147 C. C. A. 499, 233 Fed. 733. Mr. Grant T. Trent argued the cause, and, with Mr. Arthur W. Beer, filed a brief for defendant in error: The 6th Amendment is not in force in Porto Rico. Porto Rico v. Tapia, 245 U. S. 639, 62 L. ed. 525, 38 Sup. Ct. Rep. 192; Porto Rico v. Muratti, 245 U. S. 639, 62 L. ed. 526, 38 Sup. Ct. Rep. 192; Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770; Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Argued March 20, 1922. Decided April 10, Sup. Ct. Rep. 787, 12 Am. Crim. Rep. TWO 1922. WO WRITS of Error to the Supreme Court of Porto Rico to review judgments which affirmed convictions in the District Court of Arecibo for criminal libel. Affirmed. See same case below, No. 178, 28 P. R. R. 139; No. 179, 28 P. R. R. 141. The facts are stated in the opinion. Mr. Jackson H. Ralston argued the cause, and, with Messrs. Stanley D. Willis and William T. Rankin, filed a brief for plaintiff in error: In the territories of the United States trial by jury under the Constitution is obligatory. Black v. Jackson, 177 U. S. 349, 44 L. ed. 801, 20 Sup. Ct. Rep. 648; Reynolds v. United States, 98 U. S. 145, 167, 25 L. ed. 244, 250; Scott v. Sandford, 19 How. 393, 633, 15 L. ed. 691, 795; Thompson v. Utah, 170 U. S. 343, 347, 42 L. ed. 1061, 1065, 18 Sup. Ct. Rep. 620; Callan v. Wilson, 127 U. S. 540, 32 L. ed. 223, 8 Sup. Ct. Rep. 1301; Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580; Rassmussen v. United States, 197 U. S. 516, 49 L. ed. 862, 25 Sup. Ct. Rep. 514; Low v. United States, 94 C. C. A. 1, 169 Fed. 86; Frank v. United States, 113 C. C. A. 188, 192 Fed. 864; Downes v. Bidwell, 182 U. S. 244, 45 L. ed. 1088, 21 Sup. Ct. Rep. 770. Porto Rico was such an organized territory of the United States at the time of the occurrences complained of as placed it under the 6th Amendment to the Constitution. Porto Rico, 23 Ops. Atty. Gen. 169; Porto Rico, 24 Ops. Atty. Gen. 86; American R. Co. v. Birch, 224 U. S. 547, 56 L. ed. 879, 32 Sup. Ct. Rep. 603; American R. Co. v. Didrieksen, 227 U. S. 145, 57 L. ed. 456, 33 Sup. Ct. Rep. 224; New York ex rel. Kopel v. Bingham, 211 U. S. 468, 53 L. ed. 286, 29 Sup. Ct. 465; Dorr v. United States, 195 U. S. 138, 49 L. ed. 128, 24 Sup. Ct. Rep. 808, 1 Ann. Cas. 697; Rassmussen v. United States, 197 U. S. 516, 49 L. ed. 862, 25 Sup. Ct. Rep. 514; New York ex rel. Kopel v. Bingham, 211 U. S. 468, 53 L. ed. 286, 29 Sup. Ct. Rep. 190; Dowdell v. United States, 221 U. S. 325, 55 L. ed. 753, 31 Sup. Ct. Rep. 590; Porto Rico v. Rosaly y Castillo, 227 U. S. 270, 274, 57 L. ed. 507, 508, 33 Sup. Ct. Rep. 352; Ocampo v. United States, 234 U. S. 91, 98, 58 L. ed. 1231, 1234, 34 Sup. Ct. Rep. 712; Marchie Tiger v. Western Invest. Co. 221 U. S. 286, 55 L. ed. 738, 31 Sup. Ct. Rep. 578; United States v. Celestine, 215 U. S. 278, 54 L. ed. 195, 30 Sup. Ct. Rep. 93; Re Ross, 140 U. S. 453, 35 L. ed. 581, 11 Sup. Ct. Rep. 897; Dorr v. United States, 195 U. S. 138, 49 L. ed. 128, 24 Sup. Ct. Rep. 808, 1 Ann. Cas. 697. [300] Mr. Chief Justice Taft delivered the opinion of the court: These are two prosecutions for criminal libel, brought against the same defendant, Jesus M. Balzac, on informations filed in the district court for Arecibo, Porto Rico, by the district attorney for that district. Balzac was the editor of a daily paper published in Arecibo, known as "El Baluarte," and the articles upon which the charges of libel were based were published on April 16 and April 23, 1918, respectively. In each case the defendant demanded a jury. The Code of Criminal Procedure of Porto Rico grants a jury trial in cases of felony, but not in misdemeanors. The defendant, nevertheless, contended that he was entitled to a jury in such a case, under the 6th Amendment to the Constitution, and that the language of the alleged libels was only fair comment, and their publication was protected by the 1st Amendment. His contentions were overruled, he was tried by the court, and was convicted in both cases, and sentenced to five months' imprisonment in the district jail in the first, and to four months in the second, and to the payment of the costs in each. The defendant appealed to the supreme court of Porto Rico. That court affirmed both judgments. People v. Balzac, 28 P. R. R. 139; second case, 28 P. R. R. 141. statute of, or commission held, or authority exercised under, the United States, and the decision was against such title, right, privilege, or immunity, and such cases, it was provided, could only be examined on review in this court by certiorari. stitution, treaty, statute, commission, or authority. By Act of January 28, 1915 (38 Stat. at L. 803, 804, chap. 22, amending § 246), this court was given power by certiorari to bring up for review all final judgments or decrees in civil or criminal cases in the supreme courts of Porto Rico and Hawaii, other than those reviewable here by writ of error because The first question in these cases is one in the class similar to that described in of jurisdiction of this court. By § 244 $ 237 of the Judicial Code. By Act of of the Judicial Code, approved March September 6, 1916 (39 Stat. at L. 726, 3, 1911 [36 Stat. at L. 1157, chap. 231, chap. 448, Comp. Stat. § 1214, Fed. Stat. Comp. Stat. § 1215, 5 Fed. Stat. Anno. Anno. Supp. 1918, p. 411), the jurisdic2d ed. p. 893], it was provided that tion of this court to review by writ of writs of error and appeals from the fi- error, under § 237, final judgments and nal judgments and decrees of the su- decrees of state courts of last resort, preme court of Porto Rico might be was cut down by omitting cases (other prosecuted to this court in any case in than those involving the validity of which was drawn in question the validi- [302] a treaty, statute, or authority ty of a treaty or statute of, or authority exercised under the United States or exercised under, the United States, or any state) wherein a title, right, privi wherein the Constitution of the United lege, or immunity was claimed under States, or a treaty thereof, or an act the Constitution, or any treaty or of Congress was brought in question, and the right claimed thereunder was denied, and this without regard to the [301] amount involved. By the Act of January 28, 1915 (38 Stat. at L. 803, chap. 22, Comp. Stat. § 1223, 5 Fed. Stat. Anno. 2d ed. p. 901), § 244 of the Judicial Code was repealed, but § 246 was amended and made to apply to the appellate jurisdiction of this court in respect to the decisions of the supreme court not only of Hawaii, as before, but also Porto Rico, and it was provided that writs of error to those courts from this court could be prosecuted in the same class of cases as those in which this court was authorized, under § 237 of the Judicial Code, to review decisions of state courts of last resort. Section 237 at that time allowed a writ of error to final decisions in state courts of last resort where was drawn in question the validity of a treaty, or a statute of, or an authority exercised under, the United States, and the decision was against its validity; or where was This brings us to the question whether drawn in question the validity of a there was drawn in question in these statute of, or an authority exercised un- cases the validity of a statute of Porto der, any state, on the ground of its be- Rico under the Constitution of the ing repugnant to the Constitution, trea- United States. The Penal Code of Porto ties, or laws of the United States, and Rico divides crimes into felonies and the decision was in favor of its validity, misdemeanors. Rev. Stat. and Codes of or where any title, right, privilege, or Porto Rico, 1911, Penal Code, § 13. A immunity was claimed under the Con- felony is described as a crime punishstitution, or any treaty or statute of, or able by death or imprisonment in the commission held, or authority exercised penitentiary. Every other crime is deunder, the United States, and the deci-clared to be a misdemeanor. Penal Code, sion was against the title, right, privi- § 14. Section 178 of the Porto Rican lege, or immunity especially set up or Code of Criminal Procedure provided claimed by either party under such Con- that issues of fact in cases of felony The question now presented is whether the amendment to § 237 of the Judicial Code by the Act of 1916 applies to, and affects, the appellate jurisdiction of this court in reviewing decisions of the supreme court of Porto Rico. We think it does. We think that the manifest purpose of the Act of 1915, amending § 246 of the Code, in its reference to § 237 of the Judicial Code, was to assimilate the appellate jurisdiction of this court over the supreme courts of Porto Rico and Hawaii to that over state courts of last resort, and that the reference in amended § 246, to § 237, may be fairly construed to embrace subsequent changes in § 237 that are not obviously inapplicable. should be tried by a jury when the de-, tion the statutes whose validity was fendant so elected, but gave no such involved, but merely averred that the right in the case of misdemeanors. This defendant had been denied his right as was construed by the supreme court to an American citizen under the 6th deny such right. People v. Bird, 5 P. Amendment to the Constitution. While R. R. 387. this is informal, we think that it is sufficient when the record discloses the real nature of the controversy, and the specification of the assignment leaves no doubt that it is directed to that controversy. By § 244 (5676) of the Penal Code (as amended by Act of March 9, 1911, page 71), the publication of a libel is made [303] punishable by a fine not exceeding $5,000, or imprisonment in jail for a term not exceeding two years, We have now to inquire whether that or both such fine and imprisonment, part of the 6th Amendment to the Conand also the costs of the action, institution which requires that, in all the discretion of the court. It is, criminal prosecutions, the accused shall therefore, plain that libel under the enjoy the right to a speedy and public Porto Rican law is a misdemeanor, trial by an impartial jury of the state and a jury trial was not required there- and district wherein the crime shall have in. By the Act of July 22, 1919 (Laws been committed, which district shall of Porto Rico, 1919, No. 84, p. 684) a jury trial is now given in misdemeanors, but that did not come into force until after these libels were published and these trials had. When the Penal Code, and the Code of Criminal Procedure were first passed, in 1901, they both contained the provision that in all cases of libel the jury should determine the law and the fact. It was held, however, by the supreme court of Porto Rico in People v. Bird, 5 P. R. R. 387, 405, that this did not give a jury trial, but only made provision that if and when a right of jury trial was given in such cases, the jury should have the power to determine the law and the fact. Thereafter the Act of March 10, 1904 (Laws of Porto Rico 1904, page 130), expressly repealed all reference to trials for libel in the jury act. The effect of the Penal Code of Procedure, as construed by the supreme court of Porto Rico, and of the Act of March 10th, repealing the jury act as to libel cases, was a statutory denial of the right of jury trial in such cases. A demand for a jury trial in this case, therefore, drew in question the validity of the statutes upon which the court relied in denying the demand. This necessarily leads to the conclusion that these cases are in the same class as those which come to this court by writ of error under § 237, as amended by the Act of 1916, and that jurisdiction by writ of error exists. Was the issue properly saved in the record by the defendant? We think it was. The demand for a jury trial, the statute to the contrary notwithstanding, was made at the trial. It was renewed in the assignments of error in [304] the Porto Rican supreme court and here. Those assignments did not men have been previously ascertained by law, applies to Porto Rico. Another provision on the subject is in article 3, of the Constitution, providing that the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. The 7th Amendment of the Constitution provides that in suits at common law, when the value in controversy shall exceed $20, the right of trial by jury shall be preserved. It is well settled that these provisions for jury trial in criminal and civil cases apply to the territories of the United States. Webster v. Reid, 11 How. 437, 460, 13 L. ed. 761, 770; Reynolds v. United States, 98 U. S. 145, 167, 25 L. ed. 244, 250; Callan v. Wilson, 127 U. S. 540, 556, 32 L. ed. 223, 228, 8 Sup. Ct. Rep. 1301; American Pub. Co. v. Fisher, 166 U. S. 464, 41 L. ed. 1079, 17 Sup. Ct. Rep. 618; Thompson v. Utah, 170 U. S. 343, 347, 42 L. ed. 1061, 1065, 18 Sup. Ct. Rep. 620; Capital Traction Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580; Black v. Jackson, 177 U. S. 349, 44 L. ed. 801, 20 Sup. Ct. Rep. 648; Rassmussen v. United States, 197 U. S. 516, 528, 49 L. ed. 862, 866, 25 Sup. Ct. Rep. 514; Gurvich v. United States, 198 U. S. 581, 49 L. ed. 1172, 25 Sup. Ct. Rep. 803. But it is just as clearly settled that they do not apply to territory belonging to the [305] United States which has not been incorporated into the Union. Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787, 12 Am. Crim. Rep. 465; Dorr v. United States, 195 U. S. 138, 145, 49 L. ed. 128, 131, 24 Sup. Ct. Rep. 808, 1 |