An application to remove may be made called for trial in the state court, plaintif when the case first becomes removable, even discontinued his action against the codethough made during the trial, if the plain-fendants, and the company filed a second tiff increases the ad damnum so as to bring petition for removal, which was denied. the case within the jurisdiction of the Fed-The company then again filed a transcript eral court, or if the plaintiff voluntarily dis-of the record of the proceedings in the cirmisses the action as to the resident defend-cuit court, and plaintiff again moved to reant, leaving a controversy between citizens mand, and the circuit court, being of opinof different states. ion that plaintiff had fraudulently joined Powers v. Chesapeake & O. R. Co. 169 U. the codefendants in order to defeat the reS. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264;moval, and was estopped to deny that the Northern P. R. Co. v. Austin, 135 U. S. 315, second petition for removal was filed in 34 L. ed. 218, 10 Sup. Ct. Rep. 758. time, denied the motion to remand. 65 The court should be astute not to permit Fed. 129. Final judgment was afterwards devices to become successful which are used rendered in the company's favor, and a *writ[68] for the very purpose of destroying the right of error was sued out from this court on the of removal. sole ground that the cause had not been properly removed into the circuit court. The judgment was affirmed, and it was held that "when this plaintiff discontinued his action as against the individual defendants the case for the first time became such a one as, by the express terms of the statute, the defendant railway company was entitled to remove; and therefore its petition for removal, filed immediately upon such discontinuance, was filed in due time." But we did not pass upon the questions of fraudulent joinder and estoppel, because the application was seasonably made and stated sufficient ground for removal apart from Arapahoe County v. Kansas P. R. Co. 4 Dill. 277, Fed. Cas. No. 502. It is not important that the plaintiff afterwards reduced his demand to an amount below the jurisdiction of the Federal court, or that the state court retained the case and proceeded to trial, and that the plaintiff in error participated therein. These events, occurring after the application for removal, do not affect the question of jurisdiction. Powers v. Chesapeake & O. R. Co. 169 U. S. 102, 42 L. ed. 676, 18 Sup. Ct. Rep. 264; Black's Dillon, Removal of Causes, § 192. As, under the practice of this court, the motion cannot be passed upon without referring to the transcript, it should be denied without prejudice, or continued until this cause is heard in its regular assign ment. fraud. In Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248, the action had been brought by Smithson, in a Minnesota court, against the Chicago Great Callan v. Bransford, 139 U. S. 197, 35 L. Western Railway Company and H. F. Whitcomb and Howard Morris, receivers of ed. 144, 11 Sup. Ct. Rep. 519. Mr. Silas Porter submitted the cause for the Wisconsin Central Railroad Company, defendant in error. Mr. W. B. Sutton was while he was serving the Chicago company to recover for personal injuries inflicted, with him on the brief: The ruling of the state court upon the demurrer to plaintiff's evidence, being in invitum, could not make the case removable during the progress of the trial. Whitcomb v. Smithson, 175 U. S. 635, 44 L. ed. 303, 20 Sup. Ct. Rep. 248; Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 45 L. ed. 121, 21 Sup. Ct. Rep. 67. as a locomotive fireman, in the collision of the locomotive on which he was at work and another locomotive operated by Whitcomb and Morris as receivers. The Chicago company answered the complaint, and the rethe cause into the circuit court of the ceivers filed a petition for the removal of United States for Minnesota, alleging diverse citizenship; that they were officers of Mr. Chief Justice Fuller delivered the the United States court; that the controopinion of the court: The question is whether the state court erred in denying the second application for removal, and in view of our previous rulings in respect of such applications we think there was color for the motion to dismiss. And reference to two recent decisions of this court will indicate the reasons for our conclusion that the motion to affirm must be sustained. versy was separable, and that the railway company was fraudulently made a party to prevent removal. Plaintiff answered the petition, and asserted that the company was made party defendant in good faith, and not for that purpose. An order of removal was entered, and the cause sent to the circuit court, which thereafter remanded it to the state court. Trial was had, and, after the testimony was closed, counsel for the In Powers v. Chesapeake & O. R. Co. 169 Chicago company moved that the jury be inU. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. structed to return a verdict in behalf of 264, the railroad company filed its petition that defendant, which motion was granted. for removal on the grounds of separable The receivers then presented a petition for controversy, and that its codefendants were removal, but the court denied the applicafraudulently and improperly joined in or- tion, and exception was taken. The court der to defeat the company's right of re- thereupon instructed the jury to return a moval. The transcript of the record of the verdict in favor of the Chicago company, state court was filed in the circuit court of which was done, and the cause went to the the United States, and a motion to remand jury, which returned a verdict against the [69] was sustained for want of separable contro-receivers and assessed plaintiff's damages. versy. Thereafter, when the case was Judgment was entered on the verdict, and In the case at bar, two applications for removal were made, and they were severally denied, but the record was filed in the cir cuit court of the United States only on the denial of the first application, and the case was only once remanded. Plaintiff did not discontinue as to either of the defendants, and went to trial against both, and the trial court sustained, in favor of one of them, a demurrer to the evidence. Here again the ruling was on the merits and in invitum. subsequently affirmed by the supreme court | of Minnesota on appeal, and a writ of error was sued out from this court. Motions to dismiss or affirm were submitted, and we held that there was color for the motion to dismiss, and affirmed the judgment. We there said: "The contention here is that when the trial court determined to direct a verdict in favor of the Chicago Great Western Railway Company the result was that the case stood as if the receivers had been sole defendants, and that they then acquired a right of removal, which was not concluded by the previous action of the circuit court. This might have been so if, when the cause was called for trial in the state court, plaintiff had discontinued his action against the railway company, and thereby elected to prosecute it against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all the defendants. Powers v. Chesapeake & But, apart from this, the averments of O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 fraud were specifically denied, and, so far Sup. C. Rep. 264. But that is not this as this record discloses, the petitioner, who case. The joint liability was insisted on had the affirmative of the issue, failed to here to the close of the trial, and the non-make out its case. Plymouth Consol. Gold liability of the railway company was ruled Min. Co. v. Amador & S. Canal Co. 118 U. in invitum." S. 270, 30 L. ed. 233, 6 Sup. Ct. Rep. 1034. It was pointed out that the ruling of the trial court "was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the cause then removable, and thereby to enable the other defendants to prevent plaintiff from tak ing a verdict against them. The right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried." We held also that the judgment of the circuit court in remanding the cause, when removed on the first application, covered the question of fact as to good faith in the joinder, and added that, "assuming, without deciding, that that contention could have been properly renewed under the circumstances, it is sufficient to say that the record before us does not sustain it." It will be perceived that, in Powers v. Chesapeake & O. R. Co., two applications for removal were made; they were severally denied, and the record was filed in the cir[70jcuit court of the *United States in each in stance. Remand was granted on the first removal, and denied as to the second. Plaintiff voluntarily discontinued his action against the company's codefendants before trial, thereby leaving the case pending between citizens of different states, and no necessity to dispose of the issue as to fraudulent joinder arose. In Smithson v. Whitcomb two applications for removal were made, and they were severally denied, but the record was filed in the circuit court of the United States only on denial of the first application, and the case was only once remanded. Plaintiff did not discontinue his action against either of the defendants, and went to trial against both, and the trial court directed a verdict in favor of one of them. The ruling was on the merits and in invitum. The first petition in terms raised no issue of fraudulent joinder, but the second petition did. Was that issue seasonably raised, and, if so, ought the case to have been removed? The second petition did not state when petitioner was first informed of the alleged fraud, but left it to inference that it was not until after plaintiff had introduced his evidence, notwithstanding the averments in the first petition. Doubtless the general rule is that issues of fact raised on petitions for removal should be tried in the circuit court of the United States, but petitioner did not file the record in the circuit court, and, as the issue was correctly disposed of, it would *be[71] absurd to send the case back to be removed for the purpose of being remanded, and we are obliged to deal with the record as it is. Nor was the evidence introduced on plaintiff's behalf, and demurred to, made part of the record, and the bare fact that the trial court held it insufficient to justify a verdict against the terminal company was not conclusive of bad faith. The trial court may have erred in its ruling, or there may have been evidence which, though insufficient to sustain a verdict, would have shown that plaintiff had reasonable ground for a bona fide belief in the liability of both defendants. In these circumstances, the case comes within Smithson v. Whitcomb, and the judgment must be affirmed. EDWARD S. DREYER, Plff. in Err., v. PEOPLE OF THE STATE OF ILLINOIS. (See S. C. Reporter's ed. 71-87.) Constitutional law-due process of lawfailure to sucar officers in charge of jury -Illinois indeterminate sentence actjudicial power conferred on nonjudicial officers-criminal law-former jeopardy. 1. The refusal of a state court to review the question whether the officers in charge of NOTE. As to what constitutes due process A. 655, and note; Re Gannon (R. I.) 5 L. R. A. of law-see Kuntz v. Sumption (Ind.) 2 L. R. 359, and note; Ulman v. Baltimore (Md.) 11 L. R. A. 224, and note; and Gilman v. Tucker of 1899, although such statute may confer judicial powers upon nonjudicial officers, and, In effect, invest them with the pardoning power of the Executive. the jury on a trial for a felony were sworn, | revenue, bonds, mortgages, coupons, bank as prescribed by statute, when the jury re- bills, notes, warrants, or dues, or other tired, because such question was first raised funds or securities belonging to the state or on a motion for a new trial, infringes no any county, township, incorporated city, 14th right secured to the accused by the town, or village, or any state institution, or Amendment to the Federal Constitution, even if the swearing of such officers when any canal, turnpike, railroad, school, or colthe jury retire is essential to the due process lege fund, or the fund of any public improveof law prescribed by that amendment; but ment that now is or may hereafter be ausuch a ruling is simply an adjudication of a thorized by law to be made, or any other question of criminal practice and local law. fund now in being or that may hereafter be 2. The right to the due process of law guar- established by law for public purposes, or anteed by the 14th Amendment to the Fed- belonging to any insurance or other comeral Constitution is not infringed by the decision of a state court sustaining the valid pany or person required or authorized by law to be placed in the keeping of any such Ity of the Illinois indeterminate sentence act officer or person, shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust, or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the penitentiary not less than one nor more than ten years: Provided, Such demand need not be made when, from the absence or fault of the offender, the same cannot conveniently be made: And provided, That no person shall be committed to the penitentiary under this section unless the money not paid over shall amount to $100, or if it appear that such failure or refusal is occasioned by unavoidable loss or accident. Every person unavoided under the provisions of this sec-[74] tion shall forever thereafter be ineligible and disqualified from holding any office of honor or profit in this state." Stat. 1901, § 215, p. 630. 3. A plea of former jeopardy cannot be based upon the discharge of the jury for their inability to agree on a verdict after consider ing the cause from four o'clock in the afternoon until half past nine in the morning of the succeeding day. [No. 37.] Argued and Submitted April 18, 1902. cided November 10, 1902. De N ERROR to the Supreme Court of the State of Illinois to review a judgment which affirmed a judgment of the Criminal Court of Cook County convicting a former treasurer of the West Chicago park commissioners of the offense of having failed to turn over to his successor in office property that came into his hands as such treasurer. Affirmed. Hurd's Rev. A trial was commenced on the 29th day of August, 1899, and a jury was impaneled See same case below, 188 Ill. 40, 58 N. E. and evidence heard. The jury, not having 620, 59 N. E. 424. agreed upon a verdict, were discharged. A second trial was begun on the 19th day of February, 1900. The defendant filed a plea of once in jeopardy, which in substance averred that it was not true, as recited in the order of court at the previous trial, that the jury were unable to agree upon a verdict; also, that the discharge of the jury was without the defendant's assent, was against his objections made at the time, and was without any moral or physical necessity justifying such a course on the part of the trial court. Statement by Mr. Justice Harlan: [73] *By an indictment returned in the criminal court of Cook county, Illinois, on the 4th day of February, 1899, the plaintiff in error, Dreyer, was charged with the offense of having failed to turn over to his successor in office, as treasurer of the West Chicago park commissioners, revenues, bonds, funds, warrants, and personal property that came to his hands as such treasurer, of the value of $316,013.40,-said commissioners constituting a board of public park commissioners appointed by the governor and confirmed by the senate of Illinois, and, as such, having the supervision of the public There was a second trial, which resulted parks and boulevards in the town of West Chicago, and authority under the law to col-in the defendant being found "guilty of faillect and disburse moneys, bonds, etc., forure to pay over money to his successor in their maintenance. The indictment was based on § 215 of the Criminal Code of Illinois, which is as follows: "If any state, county, town, municipal, or other officer or person who now is or hereafter may be authorized by law to collect, receive, safely keep, or disburse any money, (N. Y.) 13 L. R. A. 304, and note. notes to People v. O'Brien (N. Y.) 2 L. R. A. 255; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina ex rel. Caldwell, 42 L. ed. U. S. 865. And see On motion of the state the plea of former jeopardy was stricken from the files, the defendant at the time excepting to the action of the court. office, in manner and form as charged in the indictment," the jury stating in the verdict the amount not paid over to be $316,000, and imposing the punishment of confinement in the penitentiary. The defendant, upon written grounds filed, moved for a new trial, and also moved in arrest of judgment. Both motions were On former jeopardy-see notes to Com. v. Fitzpatrick (Pa.) 1 L. R. A. 451; Altenburg v. Com. (Pa.) 4 L. R. A. 543; Ex parte Lange, 21 L. ed. U. S. 872; and United States v. Perez, 6 L. ed. U. S. 165. 187 U. S. overruled, and it was ordered and adjudged] Coin. 2 Gratt. 570, 44 Am. Dec. 403; State that the defendant be sentenced to the penitentiary "for the crime of failure to pay over money to his successor in office, whereof he stands convicted." The judgment of the trial court having been affirmed by the supreme court of Illinois, the case is here upon writ of error allowed by the chief justice of that court. Mr. Alfred S. Austrian argued the cause, and, with Messrs. T. A. Moran and Levy Mayer, filed a brief for plaintiff in error. Mr. Levy Mayer filed a separate brief for plaintiff in error: The omission to swear the bailiffs in the manner prescribed by the common law and the statutes of the state of Illinois before the jury retired to consider of their verdict was reversible error. v. Ephraim, 19 N. C. (2 Dev. & B. L.) 162; State v. Alman, 64 N. C. 364; Whitten v. State, 61 Miss. 717; Helm v. State, 66 Miss. 537, 6 So. 322; Crookham v. State, 5 W. Va. 510; Conklin v. State, 25 Neb. 784, 41 N. W. 788; State v. Shuchardt, 18 Neb. 454, 25 N. W. 722; Com. v. Fitzpatrick, 121 Pa. 109, 1 L. R. A. 451, 15 Atl. 466; Hilands v. Com. 111 Pa. 1, 56 Am. Rep. 235, 2 Atl. 70; Com. v. Cook, 6 Serg. & R. 577, 9 Am. Dec. 465; Com. v. Clue, 3 Rawle, 498; O'Brian v. Com. 9 Bush, 333; Robinson v. Com. 88 Ky. 386, 11 S. W. 210; Ned v. State, 7 Port. (Ala.) 187; Powell v. State, 17 Tex. App. 345; Rudder v. State, 29 Tex. App. 262, 15 S. W. 717; State v. Leunig, 42 Ind. 541. Any law that grants judicial power to any person, persons, or body, other than the parties designated in the Constitution, is People ex rel. Kern v. Chase, 165 Ill. 527, 36 L. R. A. 105, 46 N. E. 454; Hoagland v. Creed, 81 Ill. 506; People v. Cummings, 88 Mich. 249, 14 L. R. A. 285, 50 N. W. 310. Jackson v. People, 36 Ill. App. 88; Mc-unconstitutional. Intyre v. People, 38 Ill. 514; Lewis v. People, 44 Ill. 452; Sanders v. People, 124 Ill. 218, 16 N. E. 81; Farley v. People, 138 Ill. 97, 27 N. E. 927; State v. McCormick, 57 Kan. 440, 46 Pac. 777; Buxton v. State, 89 Tenn. 216, 14 S. W. 480. This requirement is part of "due process of law." Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. Under the trial by jury at common law the same procedure with reference to the swearing of the bailiffs or officers to take charge of the jury was in force as is prescribed by the statute of the state of Illinois. 1 Chitty, Crim. Law, *632; Dalt. C. 185; 2 Hale, P. C. 296; Deck. Sess. 223. The fixing of the period of the sentence and commitment of the prisoner is not a ministerial, but a judicial, act. 12 Am. & Eng. Enc. Law, p. 59. To the same effect see 3 Bl. Com. p. 395; Blood v. Bates, 31 Vt. 150; Co. Litt. 39a; Davidson v. Smith, 1 Biss. 351, Fed. Cas. No. 3,608; Zeigler v. Vance, 3 Iowa, 530; 21 Am. & Eng. Enc. Law, p. 1066; Com. v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699; Arcia v. State, 26 Tex. App. 193, 9 S. W. 685; Com. cx rel. Johnson v. Halloway, 42 Pa. 446, 82 Am. Dec. 526; People v. Allen, 19 Chicago Legal News, 176. Messrs. H. J. Hamlin and Charles S. Deneen submitted the cause for defendants Mr. A. C. Barnes was with them on the brief: A jury sworn and charged in case of life in error. or member cannot be discharged by the court or any other, but they ought to give a verdict. Co. Litt. p. 227, ↑ F. When the evidence on both sides is closed, and, indeed, when any evidence hath been given, the jury cannot be discharged, unless in cases of evident necessity, till they have given in their verdict. 2 Sharswood's Bl. Com. bk. 4, p. 359. The right of trial by jury, guaranteed by the Illinois Bill of Rights as heretofore enjoyed," is the right of trial by jury as it existed in England under the common law. George v. People, 167 Ill. 447, 47 N. E. 741. This court has committed itself to the same general doctrine. The discharge of a jury without the consent of the defendant, because, after mature deliberation, they are unable to agree upon a verdict, is not an acquittal, and does not entitle the defendant to immunity from further prosecution. Whether they can agree is a question for the sound discretion of the court. United States v. Perez, 9 Wheat. 579, 6 L. ed. 165: Barrett v. State, 35 Ala. 406; Ex parte McLaughlin, 41 Cal. 212, 10 Am. Rep. 272; State v. Woodruff, 2 Day, 504, 2 Am. Dec. 122; State v. Updike, 4 Harr. (Del.) 581; Lester v. State, 33 Ga. 329; Williford v. State, 23 Ga. 1; Logg v. People, 8 Ill. App. 106; Dreyer v. People, 188 III. 47, 58 L. R. A. 620, 58 N. E. 620, 59 N. E. 424; State v. Nelson, 26 Ind. 366; State v. Walker, 26 Ind. 346; Shaffer v. State, 27 Ind. 131; State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719; Hoffman v. State, 20 Md. 425; Com. v. Purchase, 2 Pick. 521, 13 Am. Dec. 452; Com. v. Bowden, 9 Mass. 494; People v. Schocneth, 44 Mich. 489, 7 N. W. Mahala v. State, 10 Yerg. 532, 31 Am. 70; People v. Harding, 53 Mich. 487, 19 N. Dec. 591; McCauley v. State, 26 Ala. 135;| W. 155; Price v. State, 36 Miss. 533, 72 Am. Ex parte Vincent, 43 Ala. 402; Williams v. Dec. 195; Whitten v. State, 61 Miss. 723: 187 U. S. U. S., Book 47. 6 Den er dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061, 18 Sup. Ct. Rep. 620. The court has no power to discharge a jury because they cannot agree upon a verdict, unless there be some physical or legal necessity for such discharge. 81 People v. Green, 13 Wend. 57; People v. | the prosecutor for the People and the person The indeterminate sentence acts, in pro- George v. People, 167 Ill. 447, 47 N. E. 741; People cx rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 23 L. R. A. 139, 36 N. E. 76; Conlon's Cuse, 148 Mass. 168, 19 N. E. 164; Com. v. Brown, 167 Mass. 144, 45 N. E. 1; Oliver v. Oliver, 169 Mass. 592, 48 N. E. 843; Com. v. Crowley, 168 Mass. 121, 46 N. E. 415; Murphy v. Com. 172 Mass. 264, 43 L. R. A. 154, 52 N. E. 505; Miller v. State, 149 Ind. 607, 40 L. R. A. 109, 49 N. E. 894; State ex rel. Atty. Gen. v. Peters, 43 Ohio St. 629, 4 N. E. 81. [75] *Mr. Justice Harlan, after stating the facts as above reported, delivered the opin ion of the court: It is contended that the judgment of the supreme court of Illinois, affirming the judgment, in the present case, of the criminal court of Cook county, in that state, denied to the plaintiff in error certain rights secured to him by the Constitution of the United States, particularly by the clause of the 14th Amendment forbidding a state to deprive any person of liberty without due process of law. allow the jury to retire for the purpose of considering their verdict without being placed in charge of a sworn officer, as required by the statute,-citing McIntyre v. People, 38 Ill. 514, 518; Lewis v. People, 44 Ill. 452, 454; Sanders v. People, 124 III. 218, 16 N. E. 81; and Farley v. People, 138 Ill. 97, 27 N. E. 927. In Lewis v. People, just cited, the court observed that the provisions of the above section "show the great care and solicitude of the general assembly to secure to every person a fair and impartial trial; and it is eminently proper, as in many cases the accused is imprisoned and it is not in his power to protect his rights from being prejudiced by undue influences. It should ever be the care of courts of justice to guard human life and liberty against being sacrificed by public prejudice or excitement. The jury should be entirely free from all outside influences from the time they are impaneled until they return their verdict and it is accepted and they discharged, and the legislature have determined that the provisions of this statute are necessary to accomplish the object. It is a provision easily complied with, and one member of the court, at least, has never, in practice, seen it dispensed with, except in cases of misdemeanor. The provisions of the statute are clear, explicit, and peremptory. We know of no power, short of its re"The point peal, to dispense with this requirement." of controversy in the present case is not, 1. The first of those questions, as stated however, whether it is reversible error to by his counsel, relates to the alleged "omis- fail to comply with the statute, but whether the question is properly raised upon this sion to swear the bailiffs in the manner pre record. No objection or exception was scribed by the common law and the statutes taken by the defendant, at the time of the of the state of Illinois before the jury re-retirement of the jury, that the officers in tired to consider of their verdict." This charge of it were not sworn, but the quespoint will be first examined. The Criminal Code of Illinois provides:tion was raised by him for the first time "When the jury retire to consider of their verdict, in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and to the best of his ability keep them together without meat or drink (water excepted), unless by leave of court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court: Provided, In cases of misdemeanor only, if The defendant insists that three questions, involving rights secured by the Constitution of the United States, are presented by the assignments of error: But the court further said: Affi on his motion for new trial, one of the |