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of accounts; or willfully omits to make true United States, and that the jurisdiction vested entry of any material particular in any such in the courts of the United States to punish account or book of accounts made, written, them was exclusive of the courts of the state; or kept by him or under his direction. Pen. and for that reason it was adjudged that the Code N. Y. 88 511, 515, 524, 525.

accused was restrained of his liberty in vioIn some of the indictments the offense is lation of the constitution and laws of the Unitcharged to have been committed by Eno in ed States. He was consequently discharged 1883; in the others, in the year 1884.

from custody. The court in its opinion said Each indictment alleges that the offense that "if any serious doubt were entertained described was committed by the accused as to the want of jurisdiction of the court of while he was president of the Second Na- general sessions of the city of New York, and tional Bank in the city of New York. It the consequent want of authority to retain the also appears from the indictments that the petitioner in custody, such a disposition of alleged forgeries consisted in the making the present proceeding would be made as of certain false entries in the books and would permit that question to be raised, in accounts of that bank, with intent to de the event of a conviction upon the indictment, fraud, and to conceal the misappropriation after a trial.” 54 Fed. 669. of its moneys.

The circumstances under which a court of By the Revised Statutes of the United the United States is at liberty upon habeas States it is provided:

corpus to discharge one held in custody un"Sec. 563. The district courts shall have der the process of a state court were jurisdiction as follows: First. Of all crimes ed in.Ex parte Royall, 117 U. S. 241, 252, 6 Sup. and offences cognizable under the authority Ct. 734. Royall was charged by indictments of the United States, committed within their in one of the courts of Virginia with having respective districts, or upon the high seas, violated certain statutes of that commonthe punishment of which is not capital, ex wealth. Being held in custody by the state cept in the cases mentioned in section 5412, authorities for trial, he presented petitions title, Crimes.”

for habeas corpus in the circuit court of the “Sec. 629. The circuit courts shall have orig United States for the Eastern district of Virinal jurisdiction as follows:

Twen ginia, and prayed to be discharged upon the tieth. Exclusive cognizance of all crimes and ground that the statutes under which he had offences cognizable under the authority of been indicted were repugnant to the constituthe United States, except where it is or may tion of the United States, and, consequently, be otherwise provided by law, and concurrent that he was restrained of his liberty in viojurisdiction with the district courts of crimes lation of that instrument. Rev. St. 88 751and offences cognizable therein.”

755, 761, 764; Act March 3, 1883, c. 353 (23 “Sec. 711. The jurisdiction vested in the Stat. 437). The petitions were dismissed, court of the United States in the cases and and the cases were brought by appeal to this. proceedings hereinafter-mentioned shall be court. exclusive of the courts of the several states: This court held that congress intended to First. Of all crimes and offences cognizable invest the courts of the Union, and the jus under the authority of the United States." tices and judges thereof, with power, upon

By section 5209, tit. “National Banks," it is writ of habeas corpus, to restore to liberty provided that “every president, director, cash any person within their respective jurisdicier, teller, clerk, or agent of any association, tions who is held in custody, by whatever who embezzles, abstracts, or wilfully misap- authority, in violation of the constitution or plies any of the moneys, funds, or credits of any law or treaty of the United States; that the association;

or who makes any the statute contemplated that cases might false entry in any book, report, or statement arise when the power thus conferred should of the association, with intent, in either case, be exercised during the progress of proceedto injure or defraud the association or any ings instituted against the petitioner in a other company, body politic or corporate, or state court, or by or under the authority of a any individual person, or to deceive any state, on account of the very matter presentofficer of the association, or any agent ap

ed for determination by the writ of habeas. pointed to examine the affairs of any such corpus. But it was adjudged that the statassociation; and every person who with like ute did not imperatively require the circuit intent aids or abets any officer, clerk, or court, by writ of habeas corpus, to wrest the agent in violation of this section, shall be petitioner from the custody of the state offi. deemed guilty of a misdemeanor, and shall cers in advance of his trial in the state court; be imprisoned not less than five years nor

that while the circuit court of the United more than ten."

States has the power to do so, and could dis“Sec. 5328. Nothing in this title (“Crimes"] charge the accused in advance of his trial, if shall be held to take away or impair the juris- he be restrained of his liberty in ation of diction of the courts of the several states the national constitution, it is not bound in under the laws thereof."

every case to exercise such power immediateThe circuit court held that the several offi ly upon application being made for the writ. tenses for which the defendant was indicted “We cannot suppose," the court said, “that were cognizable under the authority of the congress intended to compel those courts, by

such means, to draw to themselves, in the question, this court holds that where a perfirst instance, the control of all criminal pros son is in custody under process from a state ecutions commenced in state courts exercis. court of original jurisdiction, for &L alleged ing authority within the same territorial lim offense against the laws of such state, and it its where the accused claims that he is held is claimed that he is restrained of his liberty in custody in violation of the constitution of in violation of the constitution of the United the United States. The injunction to hear States, the circuit court has a discretion the case summarily, and thereupon 'to dispose whether it will discharge him upon habeas of the party as law and justice require,' does corpus in advance of his trial in the court in not deprive the court of discretion as to the which he is indicted; that discretion, howtime and mode in which it will exert the ever, to be subordinated to any special cirpowers conferred upon it. That discretion cumstances requiring immediate action. should be exercised in the light of the rela When the state court shall have finally acted tions existing, under our system of govern upon the case, the circuit court has still a disment, between the judicial tribunals of the cretion whether, under all the circumstances Union and of the states, and in recognition of then existing, the accused, if convicted, shall the fact that the public good requires that be put to his writ of error from the highest those relations be not disturbed by unneces court of the state, or whether it will proceed, sary conflict between courts equally bound by writ of babeas corpus, summarily to deterto guard and protect rights secured by the mine whether the petitioner is restrained of constitution. When the petitioner is in cus bis liberty in violation of the constitution of tody by state authority for an act done or the United States." See, also, Taylor v. Car. omitted to be done in pursuance of a law of ryl, 20 How. 583, 593, and Covell v. Heyman, the United States, or of an order, process, or 111 U. S. 176, 182, 4 Sup. Ct. 355. Of course, decree of a court or judge thereof; or where, the discretion here referred to is a legal disbeing a subject or citizen of a foreign state, cretion, to be controlled in its exercise by aud domiciled therein, he is in custody, under such principles as are applicable to the par like authority, for an act done or omitted un ticular use in hand. der any alleged right, title, authority, priv In addition to the petitions presented to the ilege, protection, or exemption claimed under circuit court of the United States, Royall the commission, or order, or sanction of any made an original application to this court for foreign state, or under color thereof, the va a writ of habeas corpus based upon the same lidity and effect whereof depend upon the facts as those set forth in the other petitions. law of nations,-in such and like cases of The application was denied upon the grounds urgency, involving the authority and opera stated in the previous cases. Ex parte Roy. tions of the general government, or the obli- all, 117 U. S. 241, 254, 6 Sup. Ct. 734, 742. gations of this country to, or its relations At the same term of this court, Ex parte with, foreign nations, the courts of the United Fonda, 117 U. S. 516, 518, 6 Sup. Ct. 818, States have frequently interposed by writs of was determined. That was an original aphabeas corpus and discharged prisoners who plication to this court for a writ of habeas were held in custody under state authority. corpus by one who was a clerk in a national So, also, when they are in the custody of a bank, and who alleged in his petition that state otticer, it may be necessary, by use of he had been convicted in one of the courts the writ, to bring them into a court of the of Michigan, under a statute of that state, United States to testify as witnesses. The and sentenced to imprisonment, for having present cases involve no such considerations. embezzled the funds of that banking assoNor do their circumstances, as detailed in the ciation. The principal ground upon which petitions, suggest any reason why the state he asked for a writ of habeas corpus and court of original jurisdiction may not, witb for his discharge from custody was that the out interference upon the part of the courts offense for which he was tried was covered of the United States, pass upon the question by the statutes of the United States, and which is raised as to the constitutionality of was therefore exclusively cognizable by the the statuies under which the appellant is in federal courts. This court denied the apdicted. The circuit court was not at liberty, plication, upon the authority of Ex parte under the circumstances disclosed, to pre Royall, observing that no reason had been sume that the decision of the state court suggested why the supreme court of the would be otherwise than is required by the state might not review the judgment of the fundamental law of the land, or that it would inferior state court upon the question as to disregard the settled principles of constitu the application of the statute under which tional law announced by this court, upon the conviction was had to embezzlement which is clearly conferred the power to de. by the servants and clerks of national banks, cide ultimately and finally all cases arising nor why it should not be permitted to do so under the constitution and laws of the United without interference by the courts of the States."

United States; that the question appeared Again, in the same case: “That these salu to be one which, if properly presented by tary priuciples may have full operation, and the record, might be reviewed in this court in harmony with what we suppose was the after a decision by the supreme court of the intention of congress in the enactments in state adverse to the petitionur. The judg.

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ment of conviction in that case was subse the nation that witnesses should be abie to quently reviewed in the supreme court of testify freely before them, unrestrained by Michigan, and that court held that juris legislation of the state, or by fear of punishdiction of the offense charged against Fonda inent in the state courts. The administra. was exclusive in the federal court. People tion of justice in the national tribunals v. Fouda, 62 Mich, 401, 29 X. W. 26.

would be greatly embarrassed and impeded The rule laid down in the cases in this if a witness testifying before a court of the court above cited bas been recognized in United States, or upon a contested election Re Duncan, 139 U. S. 419, 454, 11 Sup. Ct. of a member of congress, were liable to 573; Re Wood, 140 U. S. 278, 289, 11 Sup. prosecution and punishment in the courts of Ct. 738; Cook v. Hart, 146 U. S. 183, 194, the state upon a charge of perjury, prefer13 Sup. Ct. 40; and Re Frederich, 149 U. S. red by a disappointed suitor or contestant, 70, 75, 13 Sup. Ct. 793.

or instigated by local passion or prejudice.". It may be well to refer to the case of In • Whether the offenses described in the inre Loney, 134 U. S. 372, 375, 10 Sup. Ct. dictments against Eno are offenses against 584. It will be observed that this court in the state of New York, and punishable under Ex parte Royall recognized certain cases as its laws, or are made by existing statutes of. constituting exceptions to the general rule, fenses also against the United States, and are -among which are cases of urgency, involv exclusively cognizable by courts of the Uniting the authority and operations of the gen

ed States; and whether the same acts, upon eral government. Loney's Case was of that the part of the accused, may be offenses class. It appeared from the record that he against both the national and state governwas duly summoned to give his deposition ments, and punishable in the judicial triin a contested election case pending in the bunals of each government, without infringhouse of representatives of the congress of ing upon the constitutional guaranty against the United States,-a summons he was being twice put in jeopardy of limb for the obliged to obey, unless prevented by sick same offense,-these are questions which the dess or unavoidable accident, under the pen state court of original jurisdiction is compealty of forfeiting a named sum to the party

tent to decide in the first instance. And its at whose instance he was summoned, and of obligation to render such decision as will give becoming subject to fine and imprisonment

full effect to the supreme law of the land, (Rev. St. $ 116); that he appeared before a and protect any right secured by it to the acnotary public, in obedience to such sum cused, is the same that rests upon the courts mons, and proceeded to give his deposition;

of the United States. When the claim of and that, while in the office of an attorney

the accused of immunity from prosecution in for the purpose of completing his testimony,

a state court for the offenses charged agaicst he was arrested under a warrant issued by

him has been passed upon by the highest a justice of the peace, and based upon the

court of New York in which it can be deteraffidavit of one of the parties to the contest mined, he may then, if the final judgment ed election case, charging him with willful

of that court be adrerse to him, invoke the perjury committed in his deposition.

jurisdiction of this court for his protection Having been arrested under that warrant, in respect of any federal right distinctly as. he sued out a writ of habeas corpus from

serted by him, but which may be denied by the circuit court of the United States upon

such judgment. the ground that he was restrained of his

Without considering the merits of the sevliberty in violation of the constitution of the eral questions discussed by counsel, we are United States. That court, in advance of of opinion that the circuit court erred in any trial in the state court for the offense granting the prayer of the accused. He charged against Loney, adjudged that the should not have been discharged from the offense was punishable only under section custody of the state authorities, especially as 5392 of the Revised Statutes, and was ex

he does not appear to have been under inclusively cognizable by the courts of the dictment in any court of the United States l'nited States. He was discharged, and the

for the offenses alleged to have been com judgment was affirmed by this court.

mitted by him. It is clear from this statement that that The judgment is reversed, with direction case was one of urgency, involving, in a

to dismiss the writ of babeas corpus, and substantial sense, the authority and opera

to remand the accused to the custody of the tions of the general government. The obvi proper state authorities. ous effect of Loney's arrest, under the circumstances disclosed, was to embarrass one Mr. Justice FIELD, dissenting. of the parties in the contested election case I am unable to agree with the majority of in obtaining evidence in his behalf, intimi. the court in the reversal of the judgment of date witnesses whom he might desire to in the circuit court of the United States direct-. troduce, and delay the preparation of the ing the dismissal of proceedings against the case for final determination by the house of defendant upon the indictments against him representatives. This court, therefore, said: found in the state court of New York. “It is essential to the impartial and efficient The 711th section of the Revised Statutes administration of justice in the tribunals of 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 Inteut 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 xclusive of all jurisdiction of the offenses in the state courts. It would, therefore, subzerve 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

junction was granted, and under the restrain. ing 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 contraven. tion 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 ques. tions discussed, the judgment must be affirmed upon the authority of Ex parte Fonda, 117 U. S. 516. 6 Sup. Ct. 818; 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.

Mr. Justice SHIRAS concurred.

(155 U. S. 102)

(155 U. S. 100)
PEPKE 7. 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. 1830, 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

(November 5, 1894.)

No. 16.

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, por 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. 651, 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 regiilate commerce with land.

foreign nations and among the several states The declaration alleged that on January 1, and with the Indian tribes.'" 1878, the plaintiff was in possession of a par Iu June, 1888, the defendant filed a plea cel of land, partly above and partly below disclaiming all title and right of possession, high-water mark, extending from Hawkins either in his own right or for and in behalf of Point lighthouse, on the west side of the the United States, to the fast land described Patapsco river, in Anne Arundel county, in in the declaration; and making, as to the the state of Maryland, to the Brewerton chan submerged land on which the lighthouse was nel in that river, and otherwise described by built, allegations substantially like those in metes and bounds; and that the defendant his petition for removal, as above quoted; wrongfully entered upon said parcel of land, and further alleging that on February 20, and ejected plaintiff therefrom, and ever 1877, the state of Maryland, by deed exesince retained possession thereof, and did cuted in conformity to law, ceded to the other wrongs to the plaintiff; and the plain United States jurisdiction on the site of the tiff claimed to recover the land, and damages lighthouse. to the amount of $33,333.

A motion to remand the case to the state In February, 1888, the case was removed court was made by the plaintiff, and denied into the circuit court of the United States for by the court. the district of Maryland, upon the petition of The plaintiff then, for replication to the de the defendant, alleging that the suit "arises fendant's plea, alleged "that when possession under the constitution of the United States in was taken, in 1868, of the portion of subthe following manner, that is to say: The merged land described in said plea, as and title to the locus in quo described in the dec for the site of Hawkins Point light station, laration in this suit, with the right of posses the said land was held and owned in fee sion, is averred by this defendant to be now, simple by a certain John M. Johnston, under and to have been at the commencement of a good and sufficient patent to him therefor said suit, in the United States of America. from the state of Maryland, dated July 2, The said title of the United States, with the 1861; and that such possession was taken, as right of possession aforesaid, is derived as in said plea alleged, without any grant of any follows: The locus in quo aforesaid is now, kind from said Johnston, and without any and ever has been, submerged land situated compensation being paid or tendered to him in the Patapsco river, in the state of Mary for said land, or for any use of or easement, land, the said river being one of the public in the same; and that the plaintiff, at tha waters and navigable rivers of the said Unit time of the institution of this suit, and for a ed States; and it is now and has been ever long time prior thereto, held, and still holds, since in the possession of the United States, the legal title to said land in fee simple as used by the United States as a site for Haw successor in title of said John M. Johnston; kins Point lighthouse, the same being a and that no compensation has ever been paid lighthouse of the United States, used as an or tendered to him for said land or for the aid to the navigation of the said Patapsco use thereof, or for any easement therein, nor river. The said defendant is in possession has any deed or grant of any kind ever been of said site, being the land described in the made by him to any person whatsoever of said declaration, by appointment of the prop said land, or of any interest, right, or easeer executive authority of the United States ment therein." for and on behalf of the United States as the The defendant demurred to the replication, keeper of the said lighthouse. The said de and the plaintiff joined issue on the demurfendant, for his defense to this action, relies The court sustained the demurrer, and, upon the paramount right and title of the the plaintiff electing to stand upon his repliUnited States, given and conferred by the cation, entered judgment for the defendant constitution of the United States, to the use 39 Fed. 77. of the said submerged land in the said river The plaintiff tendered, and was allowed, e for the purposes of a site for said lighthouse, bill of exceptions to the denial of his motion the same being necessary and used as an aid to remand, as well as to the action of the to the navigation of the Patapsco river, and court in sustaining the demurrer to his repli which right and title of the United States to cation, and in rendering judgment for the de the said locus in quo for the uses and pur fendant; and thereupon sued out this writ of poses aforesaid, he will claim in his said defense, is, by virtue of the said constitution W. Cabell Bruce and Thos. C. Chappell, foi and its provisions, paramount to the right or

plaintiff in error. Sol. Gen. Maxwell, for ne title of the state of Maryland or the said fendant in error. plaintiff; and in support of his right of possession of said locus in quo, as the keeper * Mr. Justice GRAY, after stating the case aforesaid of said lighthouse, for and on be delivered the opinion of the court. half of the United States, and in defense of The question presented by the pleadings the title of the United States to the same, he considered in the opinion below, and argued relies upon article 1, § 8, of the said constitu at the bar cannot be decided upon this rea tion of the United States, which is in the fol ord, because the case was removed into the




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