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of accounts; or willfully omits to make true entry of any material particular in any such account or book of accounts made, written, or kept by him or under his direction. Pen. Code N. Y. §§ 511, 515, 524, 525.

In some of the indictments the offense is charged to have been committed by Eno in 1883; in the others, in the year 1884.

Each indictment alleges that the offense described was committed by the accused while he was president of the Second National Bank in the city of New York. It also appears from the indictments that the alleged forgeries consisted in the making of certain false entries in the books and accounts of that bank, with intent to defraud, and to conceal the misappropriation of its moneys.

By the Revised Statutes of the United States it is provided:

"Sec. 563. The district courts shall have jurisdiction as follows: First. Of all crimes and offences cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, the punishment of which is not capital, except in the cases mentioned in section 5412, title, Crimes."

"Sec. 629. The circuit courts shall have original jurisdiction as follows: * * Twen

tieth. Exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where it is or may be otherwise provided by law, and concurrent jurisdiction with the district courts of crimes and offences cognizable therein."

"Sec. 711. The jurisdiction vested in the court of the United States in the cases and proceedings hereinafter mentioned shall be exclusive of the courts of the several states: First. Of all crimes and offences cognizable under the authority of the United States."

By section 5209, tit. "National Banks," it is provided that "every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, or credits of the association; or who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten."

"Sec. 5328. Nothing in this title ["Crimes"] shall be held to take away or impair the jurisdiction of the courts of the several states under the laws thereof."

The circuit court held that the several offifenses for which the defendant was indicted were cognizable under the authority of the

United States, and that the jurisdiction vested in the courts of the United States to punish them was exclusive of the courts of the state; and for that reason it was adjudged that the accused was restrained of his liberty in violation of the constitution and laws of the United States. He was consequently discharged from custody. The court in its opinion said that "if any serious doubt were entertained as to the want of jurisdiction of the court of general sessions of the city of New York, and the consequent want of authority to retain the petitioner in custody, such a disposition of the present proceeding would be made as would permit that question to be raised, in the event of a conviction upon the indictment, after a trial." 54 Fed. 669.

The circumstances under which a court of the United States is at liberty upon habeas corpus to discharge one held in custody under the process of a state court were consider. ed in Ex parte Royall, 117 U. S. 241, 252, 6 Sup. Ct. 734. Royall was charged by indictments in one of the courts of Virginia with having violated certain statutes of that commonwealth. Being held in custody by the state authorities for trial, he presented petitions for habeas corpus in the circuit court of the United States for the Eastern district of Virginia, and prayed to be discharged upon the ground that the statutes under which he had been indicted were repugnant to the constitution of the United States, and, consequently, that he was restrained of his liberty in violation of that instrument. Rev. St. §§ 751755, 761, 764; Act March 3, 1885, c. 353 (23 Stat. 437). The petitions were dismissed, and the cases were brought by appeal to this court.

This court held that congress intended to invest the courts of the Union, and the justices and judges thereof, with power, upon writ of habeas corpus, to restore to liberty any person within their respective jurisdictions who is held in custody, by whatever authority, in violation of the constitution or any law or treaty of the United States; that the statute contemplated that cases might arise when the power thus conferred should be exercised during the progress of proceedings instituted against the petitioner in a state court, or by or under the authority of a state, on account of the very matter presented for determination by the writ of habeas corpus. But it was adjudged that the statute did not imperatively require the circuit court, by writ of habeas corpus, to wrest the petitioner from the custody of the state officers in advance of his trial in the state court; that while the circuit court of the United States has the power to do so, and could discharge the accused in advance of his trial, if he be restrained of his liberty in violation of the national constitution, it is not bound in every case to exercise such power immediately upon application being made for the writ.

"We cannot suppose," the court said, "that congress intended to compel those courts, by

such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits where the accused claims that he is held in custody in violation of the constitution of the United States. The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require,' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution. When the petitioner is in custody by state authority for an act done or omitted to be done in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or where, being a subject or citizen of a foreign state, and domiciled therein, he is in custody, under like authority, for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations,-in such and like cases of urgency, involving the authority and operations of the general government, or the obligations of this country to, or its relations with, foreign nations, the courts of the United States have frequently interposed by writs of habeas corpus and discharged prisoners who were held in custody under state authority. So, also, when they are in the custody of a state officer, it may be necessary, by use of the writ, to bring them into a court of the United States to testify as witnesses. The present cases involve no such considerations. Nor do their circumstances, as detailed in the petitions, suggest any reason why the state court of original jurisdiction may not, without interference upon the part of the courts of the United States, pass upon the question which is raised as to the constitutionality of the statutes under which the appellant is indicted. The circuit court was not at liberty, under the circumstances disclosed, to presume that the decision of the state court would be otherwise than is*required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court, upon which is clearly conferred the power to decide ultimately and finally all cases arising under the constitution and laws of the United States."

Again, in the same case: "That these salutary principles may have full operation, and in harmony with what we suppose was the Intention of congress in the enactments in

question, this court holds that where a person is in custody under process from a state court of original jurisdiction, for an alleged offense against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the constitution of the United States, the circuit court has a discretion whether it will discharge him upon habeas corpus in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action. When the state court shall have finally acted upon the case, the circuit court has still a discretion whether, under all the circumstances then existing, the accused, if convicted, shall be put to his writ of error from the highest court of the state, or whether it will proceed, by writ of habeas corpus, summarily to determine whether the petitioner is restrained of his liberty in violation of the constitution of the United States." See, also, Taylor v. Carryl, 20 How. 583, 595, and Covell v. Heyman, 111 U. S. 176, 182, 4 Sup. Ct. 355. Of course, the discretion here referred to is a legal discretion, to be controlled in its exercise by such principles as are applicable to the particular case in hand.

In addition to the petitions presented to the circuit court of the United States, Royall made an original application to this court for a writ of habeas corpus based upon the same facts as those set forth in the other petitions. The application was denied upon the grounds stated in the previous cases. Ex parte Royall, 117 U. S. 241, 254, 6 Sup. Ct. 734, 742.

At the same term of this court, Ex parte Fonda, 117 U. S. 516, 518, 6 Sup. Ct. 848, was determined. That was an original application to this court for a writ of habeas corpus by one who was a clerk in a national bank, and who alleged in his petition that he had been convicted in one of the courts of Michigan, under a statute of that state, and sentenced to imprisonment, for having embezzled the funds of that banking association. The principal ground upon which he asked for a writ of habeas corpus and for his discharge from custody was that the offense for which he was tried was covered by the statutes of the United States, and was therefore exclusively cognizable by the federal courts. This court denied the application, upon the authority of Ex parte Royall, observing that no reason had been suggested why the supreme court of the state might not review the judgment of the inferior state court upon the question as to the application of the statute under which the conviction was had to embezzlement by the servants and clerks of national banks, nor why it should not be permitted to do so without interference by the courts of the United States; that the question appeared to be one which, if properly presented by the record, might be reviewed in this court after a decision by the supreme court of the state adverse to the petitioner. The judg

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ment of conviction in that case was subsequently reviewed in the supreme court of Michigan, and that court held that jurisdiction of the offense charged against Fonda was exclusive in the federal court. People v. Fonda, 62 Mich. 401, 29 N. W. 26.

The rule laid down in the cases in this court above cited has been recognized in Re Duncan, 139 U. S. 449, 454, 11 Sup. Ct. 573; Re Wood, 140 U. S. 278, 289, 11 Sup. Ct. 738; Cook v. Hart, 146 U. S. 183, 194, 13 Sup. Ct. 40; and Re Frederich, 149 U. S. 70, 75, 13 Sup. Ct. 793.

It may be well to refer to the case of In re Loney, 134 U. S. 372, 375, 10 Sup. Ct. 584. It will be observed that this court in Ex parte Royall recognized certain cases as constituting exceptions to the general rule, -among which are cases of urgency, involving the authority and operations of the general government. Loney's Case was of that class. It appeared from the record that he was duly summoned to give his deposition in a contested election case pending in the house of representatives of the congress of the United States,-a summons he was obliged to obey, unless prevented by sickaess or unavoidable accident, under the penalty of forfeiting a named sum to the party at whose instance he was summoned, and of becoming subject to fine and imprisonment (Rev. St. § 116); that he appeared before a notary public, in obedience to such summons, and proceeded to give his deposition; and that, while in the office of an attorney for the purpose of completing his testimony, he was arrested under a warrant issued by a justice of the peace, and based upon the affidavit of one of the parties to the contested election case, charging him with willful perjury committed in his deposition.

Having been arrested under that warrant, he sued out a writ of habeas corpus from the circuit court of the United States upon the ground that he was restrained of his liberty in violation of the constitution of the United States. That court, in advance of any trial in the state court for the offense charged against Loney, adjudged that the offense was punishable only under section 5392 of the Revised Statutes, and was exclusively cognizable by the courts of the United States. He was discharged, and the judgment was affirmed by this court.

It is clear from this statement that that case was one of urgency, involving, in a substantial sense, the authority and operations of the general government. The obvious effect of Loney's arrest, under the circumstances disclosed, was to embarrass one of the parties in the contested election case in obtaining evidence in his behalf, intimidate witnesses whom he might desire to introduce, and delay the preparation of the case for final determination by the house of representatives. This court, therefore, said: "It is essential to the impartial and efficient administration of justice in the tribunals of

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the nation that witnesses should be able to testify freely before them, unrestrained by legislation of the state, or by fear of punishment in the state courts. The administration of justice in the national tribunals would be greatly embarrassed and impeded if a witness testifying before a court of the United States, or upon a contested election of a member of congress, were liable to prosecution and punishment in the courts of the state upon a charge of perjury, preferred by a disappointed suitor or contestant, or instigated by local passion or prejudice." Whether the offenses described in the indictments against Eno are offenses against the state of New York, and punishable under its laws, or are made by existing statutes offenses also against the United States, and are exclusively cognizable by courts of the United States; and whether the same acts, upon the part of the accused, may be offenses against both the national and state governments, and punishable in the judicial tribunals of each government, without infringing upon the constitutional guaranty against being twice put in jeopardy of limb for the same offense,-these are questions which the state court of original jurisdiction is competent to decide in the first instance. And its obligation to render such decision as will give full effect to the supreme law of the land, and protect any right secured by it to the accused, is the same that rests upon the courts of the United States. When the claim of the accused of immunity from prosecution in a state court for the offenses charged against him has been passed upon by the highest court of New York in which it can be determined, he may then, if the final judgment of that court be adverse to him, invoke the jurisdiction of this court for his protection in respect of any federal right distinctly asserted by him, but which may be denied by such judgment.

Without considering the merits of the several questions discussed by counsel, we are of opinion that the circuit court erred in granting the prayer of the accused. He should not have been discharged from the custody of the state authorities, especially as he does not appear to have been under indictment in any court of the United States for the offenses alleged to have been com mitted by him.

The judgment is reversed, with direction to dismiss the writ of habeas corpus, an to remand the accused to the custody of the proper state authorities.

Mr. Justice FIELD, dissenting.

I am unable to agree with the majority of the court in the reversal of the judgment of the circuit court of the United States directing the dismissal of proceedings against the defendant upon the indictments against him found in the state court of New York.

The 711th section of the Revised Statutes provides that the courts of the United States

shall have jurisdiction, exclusive of the courts of the several states, of all crimes and offenses cognizable under the authority of the United States; and section 5209 of the Revised Statutes, relating to national banks, provides that "every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, or credits of the association; * or who makes any false entry in any book, report, or statement of the association, with intent in either case to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive an officer of an association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten." The circuit court was thus cognizable, under the authority of the United States, of the several offenses for which the defendant was indicted; and the jurisdiction vested in the court of the United States was exclusive of all jurisdiction of the offenses in the state courts. It would, therefore, subserve no useful purpose to proceed with the cases in the state court, and thus ascertain what that court might have done or would have done had it possessed jurisdiction. Until its jurisdiction was established, its determination, either one way or the other, would be only an idle proceeding. It could not, under any circumtances, take cognizance of the cases charged against the defendant, and hold him under them. He was, therefore, entitled to his discharge whenever the matter was properly brought to the attention of the federal court.

Mr. Justice SHIRAS concurred.

junction was granted, and under the restraining order, and a search warrant, also issued, the sheriff took possession of the building and contents. While the sheriff had possession, Emil J. Pepke entered the building, under the license? and permission of the owners, whereupon, upon report of the sheriff, a rule upon him to show cause why he should not be punished for contempt was entered by the district court, the rule was made absolute, and Pepke was sentenced to imprisonment in the county jail for 90 days and to pay a fine of $200, and was committed accordingly. Thereupon Pepke presented his petition for habeas corpus to the district judge of the United States for the district of North Dakota, setting forth grounds upon which he charged that section 13 of chapter 110 of the Laws of North Dakota of 1890, under which section the proceedings against him had been had, and the entire act, were in contravention of the constitution of the United States and of the state, and the judgment against him therefore void. The writ of habeas corpus was issued, and upon hearing was discharged and the petitioner remanded, whereupon the cause was brought to this court by appeal.

Marshall A. Spooner and Armstrong Taylor, for appellant. W. H. Standish, Atty. Gen., N. D., for appellee.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

It was insisted upon the argument that the judgment in contempt was not appealable. State v. Davis, 2 N. D. 461, 51 N. W. 942. But it was conceded that the validity of the law and of the sentence could be tested by the supreme court of the state on certiorari or habeas corpus, and no reason was suggested why, if the judgment of the district court was the final judgment of the highest court of the state in which a decision in the matter could be had, a writ of error from this court might not be applied for.

Without considering the merits of the questions discussed, the judgment must be affirmed upon the authority of Ex parte Fonda, 117 U. S. 516, 6 Sup. Ct. 848; In re Wood, 140 U. S. 278, 11 Sup. Ct. 738; Cook v. Hart, 146 U. S. 183, 13 Sup. Ct. 40; New York v. Eno. 15 Sup. Ct. 30, and cases cited. Judgment affirmed.

(155 U. S. 100)

PEPKE v. CRONAN, Sheriff of Walsh County, N. D.

(October 29, 1894.) No. 641.

Appeal from the District Court of the United States for the District of North Dakota.

Certain citizens of Minnesota were the owners of a lot and building in Walsh county, N. D., which they had leased, and which were occupied under their lessee. Against the occupant and one of the owners a proceeding was instituted in the district court of Walsh county, in the name of the state upon the relation of its attorney general, under an act of North Dakota in that behalf, entitled "An act to prescribe penalties for the unlawful manufacture, sale and keeping for sale intoxicating liquors, and to regulate the sale, barter and giving away of such liquors for medical, scientific and mechanical purposes" (Laws N. D. 1890, p. 309, c. 110), praying for an injunction against the occupant for unlawfully disposing of intoxicating liquors upon the premises, and against the owner for permitting the use thereof for the unlawful keeping or selling of such liquors; which in

(155 U. S. 102)

CHAPPELL v. WATERWORTH. (November 5, 1894.)

No. 16.

REMOVAL OF CAUSES-FEDERAL QUESTION-
WHERE MUST APPEAR.

Under Acts March 3, 1887, c. 373 (24 Stat. 552), and Aug. 13, 1888, c. 866 (25 Stat. 433), a cause not depending on the citizenship of the parties, nor otherwise specially provided for, cannot be removed from a state court into the circuit court of the United States, as one arising under the constitution, laws, or treaties of the United States, unless the facts making it removable appear by plaintiff's statement of his claim; and the want of such facts cannot be supplied by a statement of them in the petition for removal or subsequent pleadings. Tennessee v. Bank of Commerce, 14 Sup. Ct. 654, 152 U. S. 454, followed.

In Error to the Circuit Court of the United States for the District of Maryland.

This was an action of ejectment, brought December 23, 1887, by Thomas C. Chappell against James M. Waterworth, both citizens of Maryland, in the circuit court for the

Fifth Judicial circuit of the state of Mary-lowing words: To regulate commerce with land.

The declaration alleged that on January 1, 1878, the plaintiff was in possession of a parcel of land, partly above and partly below high-water mark, extending from Hawkins Point lighthouse, on the west side of the Patapsco river, in Anne Arundel county, in the state of Maryland, to the Brewerton channel in that river, and otherwise described by metes and bounds; and that the defendant wrongfully entered upon said parcel of land, and ejected plaintiff therefrom, and ever since retained possession thereof, and did other wrongs to the plaintiff; and the plaintiff claimed to recover the land, and damages to the amount of $33,333.

In February, 1888, the case was removed into the circuit court of the United States for the district of Maryland, upon the petition of the defendant, alleging that the suit "arises under the constitution of the United States in the following*manner, that is to say: The title to the locus in quo described in the declaration in this suit, with the right of possession, is averred by this defendant to be now, and to have been at the commencement of said suit, in the United States of America. The said title of the United States, with the right of possession aforesaid, is derived as follows: The locus in quo aforesaid is now, and ever has been, submerged land situated in the Patapsco river, in the state of Maryland, the said river being one of the public waters and navigable rivers of the said United States; and it is now and has been ever since in the possession of the United States, used by the United States as a site for Hawkins Point lighthouse, the same being a lighthouse of the United States, used as an aid to the navigation of the said Patapsco river. The said defendant is in possession of said site, being the land described in the said declaration, by appointment of the proper executive authority of the United States for and on behalf of the United States as the keeper of the said lighthouse. The said defendant, for his defense to this action, relies upon the paramount right and title of the United States, given and conferred by the constitution of the United States, to the use of the said submerged land in the said river for the purposes of a site for said lighthouse, the same being necessary and used as an aid to the navigation of the Patapsco river, and which right and title of the United States to the said locus in quo for the uses and purposes aforesaid, he will claim in his said defense, is, by virtue of the said constitution and its provisions, paramount to the right or title of the state of Maryland or the said plaintiff; and in support of his right of possession of said locus in quo, as the keeper aforesaid of said lighthouse, for and on behalf of the United States, and in defense of the title of the United States to the same, he relies upon article 1, § 8, of the said constitution of the United States, which is in the fol

foreign nations and among the several states and with the Indian tribes.'"

In June, 1888, the defendant filed a plea disclaiming all title and right of possession, either in his own right or for and in behalf of, the United States, to the fast land described in the declaration; and making, as to the submerged land on which the lighthouse was built, allegations substantially like those in his petition for removal, as above quoted; and further alleging that on February 20, 1877, the state of Maryland, by deed executed in conformity to law, ceded to the United States jurisdiction on the site of the lighthouse.

A motion to remand the case to the state court was made by the plaintiff, and denied by the court.

The plaintiff then, for replication to the defendant's plea, alleged "that when possession was taken, in 1868, of the portion of submerged land described in said plea, as and for the site of Hawkins Point light station, the said land was held and owned in fee simple by a certain John M. Johnston, under a good and sufficient patent to him therefor from the state of Maryland, dated July 2, 1861; and that such possession was taken, as in said plea alleged, without any grant of any kind from said Johnston, and without any compensation being paid or tendered to him for said land, or for any use of or easement, in the same; and that the plaintiff, at the time of the institution of this suit, and for a long time prior thereto, held, and still holds, the legal title to said land in fee simple as successor in title of said John M. Johnston; and that no compensation has ever been paid or tendered to him for said land or for the use thereof, or for any easement therein, nor has any deed or grant of any kind ever been made by him to any person whatsoever of said land, or of any interest. right, or easement therein."

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