Opinion of the Court.

been duly elected sheriff, setting forth the pendency of the proceedings in the quo warranto case, and demanding that the writ of mandamus be denied.

The suit in reality turned upon the question whether the proceedings in quo warranto were still pending, or had been dismissed, and resulted in a judgment that the quo warranto case then pending in the District Court should be dismissed, and that a writ of mandamus forthwith issue, directing the defendants, the county commissioners of Boisé County to order the issuing of a warrant for the amount theretofore allowed by the board for the time specified on account of fees and expenses; and that immediately upon the dismissal of the action in quo warranto a writ of mandate issue, "commanding said commissioners to order the issuing of a warrant or warrants in the name of plaintiff herein, for the amount due him as salary for the time specified, and that a copy hereof be certified to said District Court." From this judgment Gorman appealed, but the County Commissioners did not. Petitioner thereupon made this motion to dismiss upon the ground that the requisite jurisdictional amount was not involved.

Mr. John Goode for the motion.

Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson, opposing.

MR. JUSTICE BROWN delivered the opinion of the court.

While the whole amount of Havird's claim was $5595.47 — more than enough to give this court jurisdiction - the sum of $1994.25 was for disbursements in boarding prisoners and in jailor's fees, leaving but $3601.22 as representing the salary, fees and other perquisites of the office. As Havird was sheriff de facto, Gorman, even if he had maintained his suit, could not in any case have recovered of him more than the salary and perquisites of the office, less Havird's lawful disbursements, which, under any view which can be taken of this case, would have reduced his recovery below the sum of $5000. In entering its judgment in this case the Supreme Court evidently

Opinion of the Court.

had this distinction between disbursements and salary in mind, as the order was that the County Commissioners should issue warrants at once for the amount of fees and expenses, but should not issue warrants for the amount due as salary until after the dismissal of the action of quo warranto in the District Court. It was evidently contemplated that Havird should receive the amount of his disbursements in any event, but that the salary should be withheld until the quo warranto proceedings had been dismissed. This was also a compliance with the Idaho statute, which inhibited only payment of the salary while the contest was pending.

It is true as a general rule that where judgment goes for the defendant, the amount of the plaintiff's claim is the test of jurisdiction; but this rule is subject to the qualification that the demand shall appear to have been made in good faith for such amount. If it appear clearly from the whole record that under no aspect of the case the plaintiff could recover the full amount of his claim, this court, will decline to assume jurisdiction of the case. If, for instance, a greater amount than $5000 were claimed in the ad damnum clause of the declaration, and the bill of particulars showed the actual claim to be less, the latter would determine the jurisdiction. Examples of the distinction between the sum demanded and the sum actually in dispute are frequent in the decisions of this court. Lee v. Watson, 1 Wall. 337; Schacker v. Hartford Fire Ins. Co., 93 U. S. 241; Gray v. Blanchard, 97 U. S. 564; Tintsman v. National Bank, 100 U. S. 6; Hilton v. Dickinson, 108 U. S. 165; Jenness v. Citizens' Bank of Rome, 110 U. S. 52; Wabash, St. Louis &c. Railway Co. v. Knox, 110 U. S. 304.

Gauged by the rule laid down in these cases,

It is clear that we have no jurisdiction, and the motion to dismiss will therefore be granted.

Statement of the Case.

CALDWELL v. TEXAS.

ERROR TO THE COURT OF APPEALS OF THE STATE OF TEXAS.

No. 1541. Submitted May 11, 1891.- Decided May 25, 1891.

There having been some irregularity in the submission of this case on the 15th of December, 1890, the court allows a resubmission, and an additional brief is filed at its request; and it now adheres to its former decision, dismissing the writ for want of jurisdiction. 137 U. S. 692.

THE case, as stated by the court, was as follows:

The writ of error in this case was dismissed January 12, 1891. Caldwell v. Texas, 137 U. S. 692. Plaintiff in error applied for a rehearing upon the ground that no notice had been given of the motion to dismiss. The record here showed that a motion to advance and a motion to dismiss were submitted on December 15, 1890, and the order in relation to the latter motion stated that it was submitted on the record and printed arguments of counsel for both parties.

An extended printed argument on the merits had been previously filed on behalf of plaintiff in error, as well as written consent of his counsel that the cause might be advanced, but from the affidavits accompanying the application for rehearing it appeared that through some inadvertence the notice of the motion to dismiss had not in fact been given. The court therefore, on the 9th of March, directed the judg ment to be vacated and notice to be served, returnable on the second Monday in April, the motion to be then considered upon such additional printed briefs as might be presented.

This was accordingly done, but no further briefs were tled, and on April 14 suggestion of illness of counsel was made, and the time twice enlarged. On the 11th of May the case. was taken on resubmission, and a request having been made that the cause be continued to next term, or that other counsel be assigned to represent plaintiff in error, other counsel has examined the record and filed an additional brief.

VOL. CXLI-14

Argument for Plaintiff in Error.

Mr. Augustus H. Garland, at the request of the court, prepared and filed the following brief on behalf of the plaintiff in error.

The question presented on this petition, as to notice to plaintiff in error of the motion to dismiss, is to be disposed of by the facts of record in the cause, and I take it the court waives that, as it is willing to receive argument as if that motion were now pending, and of which plaintiff in error had due notice.

Then upon the point of the jurisdiction of this court in respect of a Federal question, it is to be said that while the case of Hurtado v. California, 110 U. S. 516, and others go to the extent that a State may by law provide for punishing persons charged, as Caldwell is here, without indictment, yet if indictment is by the state law the prescribed method, there must be a good indictment, such as is understood by the common law. Such is unquestionably the doctrine of Ex parte Bain, 121 U. S. 1 et seq. Although Bain's case was in the United States court, yet this court, in passing upon the indictment, held this doctrine substantially as obtaining in the state courts, the United States courts and the courts of England.

No question is raised here as to the power of the State to dispense with indictment and take some other method in lieu of it, but the question is, can the State, keeping the procedure by indictment in existence, convict upon an indictment fundamentally defective?

That this indictment is essentially defective, Mr. Burns, in his brief, filed November 28, 1890, seeins to show, and nothing more need be said on that subject.

It must follow necessarily that, as a fundamental right to Caldwell to have a good indictment, he is protected by the Fourteenth Amendment as to "due process of law." The authorities abundantly show that whatever process-indictment, information or what not brings a man into court for trial, it must be one giving him full notice of all the material facts constituting the offence charged. There can be no "due process of law" without this.

Opinion of the Court.

The party "must be notified exactly of the case he is to meet." Foster v. Kansas, 112 U. S. 201 et seq.; 2 Hare Am. Constitutional Law, 845-849, 858-863, 874, 876, and cases

cited.

It is nothing to the purpose to say, in response to this, the State of Texas has ruled this to be a good indictment and that it' suits her purposes. Some other authority, having an interest in this citizen, and which has the right to his allegiance, and therefore owing him protection, must also see that it is good and sufficient. The State cannot by direction or indirection, keep this question from this court. It was in part to prevent all this that brought forth the Fourteenth Amendment. This court, if the Fourteenth Amendment is not meaningless, must take this question and pass upon it, whether it was raised in the court below or not, as it is a question going to the very bottom of the proceeding, and affects it from the beginning to the end; and this question is waived in no case, and certainly never in one involving life.

In Gelpcke v. Dubuque, 1 Wall. 175 et seq., it was attempted to beg the question away from the court on just such grounds as are urged here for the dismissal of this case, which were answered in strong and impressive language thus: "We shall never immolate truth, justice and the law because a state tribunal has erected the altar and decreed the sacrifice," pp. 206, 207; words quite applicable here and now.

It is submitted, in view of the fact that Caldwell's life is at stake, and in view of the general importance of the question. involved, that his counsel should be heard upon the merits.

MR. CHIEF JUSTICE FULLER delivered the opinion, (including the above statement,) of the court.

We have again considered the case but see no reason to change the conclusion heretofore announced.

The writ of error will therefore be

Dismissed.