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formed of the accusation against him, and shall have the right to confront the accusers and witnesses with other testimony, and shall not be convicted except by the unanimous verdict of a jury of good and lawful men in open court as heretofore used. That is his trial. This, of course, implies that he shall have a right to be present. If he complains of any error in his trial, the record of the trial is transmitted to this court. Here are no accusers,' no witnesses,' and no 'jury;' but upon inspection of the record this court decides whether there was error in the trial, and, without rendering any judgment, orders its decision to be certified to the court below. It has never been understood, nor has it been the practice, that the defendant shall be present in this court; nor is he ever convicted' here." To the same effect are State v. Leak, 90 N. C. 655; State v. Jacobs, 107 N. C. 772, 11 S. E. Rep. 962. See, also, People v. Clark, 1 Parker, Crim. R. 360, 367.

We are of opinion that the practice prevailing in Illinois, New Jersey, and North Carolina, as shown in the above cases, is that which is pursued, and has always been pursued, in the different states, as well as at common law. It is not only consistent with "due process of law, "giving these words the most liberal interpretation, but is founded on a wise public policy.

Nor is the question affected by the fact that the supreme court of Illinois, under express authority conferred by statute, ixed the time when the punishment prescribed by the judgment which it affirined should be inflicted. Neither the statute nor due process of law required that the accused should, upon the affirmance of the judgment, be sentenced anew by the trial court to suffer the punishment of death, or that he should be present when the day was fixed by the appellate court for carrying the original sentence into execution. The judgment prescribing that punishment was not vacated by the writ❘ of error; only its execution was stayed pending proceedings in the appellate court. Besides, it is well settled that the time and place of execution are not, strictly, part of the judgment or sentence, unless made so by statute. Holden v. Minnesota, 137 C. S. 483, 11 Sup. Ct. Rep. 143, and authorities there cited; 1 Chit. Crim. Law. 780, 787; Costley v. Com., 118 Mass. 32.

It is said in respect to the commutation by the governor of his sentence to imprisonment in the penitentiary for life that it was of no effect if the judgments were void. But the judgments are held not to be void. It is proper, however, to say that the constitution of Illinois expressly confers upon that officer the power “to grant reprieves, commutations, and pardons, after conviction, for all offenses." Article 5, § 13. Of course, therefore, the governor had authority to commute the punishment of death to imprisonment for life in the penitentiary. And by the statutes of Illinois the penitentiary at Joliet is made the general penitentiary and prison of that state for the confinement and reformation, as well as for the pun

ishment, of all persons sentenced by any court of competent jurisdiction in that state for the commission of crime, the punishment of which is confinement in the penitentiary, "in which the person so sentenced shall be securely confined, employed at hard labor." Rev. St. Ill. c. 108, § 1. So that the detention of the appel-a lant by the warden of the penitentiary is *not in violation of any rights secured to him by the constitution of the United States.

There are no other questions in the case which require to be noticed, and the judg ment must be affirmed. It is so ordered.

(143 U. S. 452)

FIELDEN V. PEOPLE OF STATE OF ILLINOIS. (February 29, 1892.)

CONSTITUTIONAL LAW-DUE PROCESS-EQUAL Pro

TECTION.

1. The supreme court of the United States is bound by the decisions of the supreme court of Illinois that no amendments of its record in derogation of its final judgment can be made after the expiration of the term; and, as this rule is ap plicable to all persons in the state, its enforcement against a particular person is not a denial by the state of the equal protection of its laws.

2. Due process of law does not require the presence in the appellate court of a person under sentence of death when judgment of affirmance thereof is entered and the day of execution is fixed by the supreme court, as required by the state statute. Schwab v. Berggren, 12 Sup. Ct. Rep. 525, followed.

21 N. E. Rep. 584, affirmed.

In error to the supreme court of the state of Illinois. Affirmed.

STATEMENT BY MR. JUSTICE HARLAN,

The judgment of the supreme court of Illinois rendered September 14, 1887, in the case of Spies v. Illinois, 12 N. E. Rep. 865, and which is set out in the opinion in Schwab v. Berggren, 12 Sup. Ct. Rep. 525, was before this court on application for a writ of error, which was dismissed November 2, 1887. 123 . S. 131, 8 Sup. Ct. Rep. 21.

As stated in the opinion in Schwab v. Berggren, it was represented to the court below, by a petition filed March 5, 1888, by Fielden, Neebe, and Schwab, three of the defendants convicted in the criminal court of Cook county of the crime of murder, that the order of September 14, 1887, was false and untrue in its recital that they were in court when it was entered; whereas, in fact, neither of them was so present, in person or by counsel, nor were they or either of them, or the counsel of either, notified to be present on that day in court. They asked an amendment of the record that would make it conform to the truth, and show upon its face the above facts. The application was supported by the affidavits of counsel. This motion was stricken from the docket by order of court entered March 16, 1888. Subsequently, March 22, 1888, a motion was made to set aside that order, and the application to amend the record, in the manner above indicated, was renewed. This motion was taken under advisement, and its consideration deferred until the succeeding term, and on the 15th of March. 1889, was denied.

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under the practice in that state, "amendments of the record in affirmance of the judgment, when there is anything to amend by, may, upon notice, be made at a term subsequent to that at which final judgment is rendered; but amendments not in affirmance, but in derogation, of the judgment, are not allowed at a term subsequent to that at which final judgment is rendered. * * * This motion, not having been made at the same term at which final judgment was rendered, nor until the case had passed beyond the power of this court to stay, by its order, the execution of the judgment, clearly comes too late. In order that it might not be understood as conceding that the amendment, if made, would affect the validity of the judgment, the court proceeded to show that according to the principles of the common law, as well as under the laws of Illinois, it had jurisdiction to hear and finally determine, in the absence of the defendants, the writ of error sued out for the review of the judgment of the crimi

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Subsequently, March 26, 1889, Fielden, Schwab, and Neebe asked leave to amend the original motion, so as to add thereto the following: "And in support of said motion to amend said record your petitioners file herewith, and refer to the same in support of amendment of said record, the affidavits of Samuel Fielden, Michael Schwab, Oscar W. Neebe, petitioners, and W. P. Black and M. Salomon, petitioners' attorneys, wherein it is set forth that none of the plaintiffs in error appeared or could appear in this honorable court, where the said judgment was given, nor were they or any of them present by counsel on said occasion, nor were their counsel notified or furnished opportunity to be present on said occasion; and petitioners further say and allege and claim that the said recital in said record deprives petitioners and said plaintiffs in error of substantial rights guarantied the said plaintiffs in error by the constitution of the United States and by the constitution of the state of Illinois, and particularly in said recital on said record and the judg-nal court of Cook county. It said: "If ment of this court, in violation of the 14th amendment to the constitution of the United States, and in violation of section two of article two of the constitution of the state of Illinois; and plaintiffs in error claim the benefit, right, privileges, and im munities guarantied by the constitutional provisions referred to." At the same time they applied for a rehearing of the motion previously made, claiming that the decision of the court below in overruling it, and in refusing to amend the record as requested by them, was in violation of the rights secured to them by the fourteenth amendment of the constitution of the United States, and by other provisions of that instrument, and also in violation of section 2 of article 2 and other provisions of the constitution of the state of Illinois. They insisted, in the application for a rehearing, that a legal judgment could not have been rendered against them unless they were brought before the court and were personally present when the judgment against them was pronounced; that the refusal to amend the record, and permitting it to stand as it was, deprived them of their right and privilege of questioning the judgment so pronounced, “if pctitioners shall see fit to do so, in the United States supreme court, to which petitioners claim they have a right of appeal from the judgment of this court condemning petitioners." They also applied for leave to present a bill of exceptions embodying the above motions, amendment to motion, petition for rehearing, and affidavits filed in support of the application to amend the record. The supreme court of Illinois overruled each motion and the petition for rehearing, and from its order to that effect Fielden prosecuted this writ of error.

Benj. F. Butler and Moses Salomon, for plaintiff in error. George Hunt and E. S. Smith, for defendant in error.

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

The supreme court of Illinois held that, v.12s.c.-34

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the present plaintiffs in error and their
counsel had been actually present in court
when the judgment of affirmance here was
entered, the law allowed them to then say
or do nothing which by any possibility
could have benefited plaintiffs in error.
They were, after judgment was entered,
entitled only to move for a rehearing,
and this could only be done on printed pe-
tition; but thirty days were allowed in
which to prepare it. 93 Ill. p. 11, rule 41."
“Undoubtedly," the court further said, “if
plaintiffs in error or their counsel had
been actually present in court when the
decision was announced, they would then
have known what the decision was; but
that fact was equally well made known
to them by notice from the clerk in ample
time to avail of their right to file a peti-
tion for rehearing. And if, indeed, without
any fault of theirs, more time would have
been needed within which to prepare the
petition for rehearing, it was within the
recognized practice of this court to have
extended the time for that purpose be-
yond the thirty days. But no claim is
here made that plaintiffs in error were not
informed of the decision in the case in
time to file a petition for rehearing.
They did not seek to avail of that right,
but voluntarily waived it, and prosecuted
a writ of error upon the record from the
supreme court of the United States, and
it was not until after that was decided
adversely to them that they discovered
the claim made error in the record of which
amendment is now sought.
Fielden v.
People, 128 Ill. 595, 21 N. E. Rep. 584.
*The plaintiff in error contends that the
refusal to amend the record, so as to
show that he was not present in person
or by counsel in the supreme court of Illi-
nois, at the time it affirmed the judg-
ment of the trial court, and fixed the day
for carrying that judgment into execu
tion, was a denial to him of that equal
protection of the laws which is accorded
by the constitution of the United States
to all persons within the jurisdiction of
the respective states; also, that such ac-
tion upon the part of the court below

455

was inconsistent with "due process of law."

Assuming that these constitutional questions were so raised in the court below as to authorize them to be considered here, we are of opinion that no right secured to the plaintiff in error by the constitution of the United States was violated by the refusal of the supreme court of Illinois to allow the proposed amendment of its record. We take, as is our duty, the law of Illinois to be, as declared by its highest court, that amendments of the record of a court, in derogation of its final judgment, are not permitted in that state after the expiration of the term at which the judgment was rendered. That law is applicable to all persons within the jurisdiction of the state; and its en. forcement against the plaintiff in error cannot, therefore, be said to be a denial to him by the state of the equal protection of the laws. Neither discussion nor citation of authorities is required to support a proposition so manifestly correct.

When the original case was before this court, Chief Justice WAITE said: "The objection that the defendants were not actually present in the supreme court of the state at the time sentence was pronounced cannot be made on the record as it now stands, because on its face it shows that they were present. If this is not in accordance with the fact, the record must be corrected below, not here. It will be time enough to consider whether the objection presents a federal question when the correction has been made." Spies v. Illinois, 123 U. S. 131, 182, 8 Sup. Ct. Rep. 21. These observations were adverted to in argument. but we do not perceive that they have any bearing on the questions now raised. The chief justice only meant to say that this court could not amend the record, but, if amended by the court below, the question would still remain whether the objection referred to could be considered by this court.

Equally without merit is the suggestion that the action of the court below in disposing of the writ of error to the crimi. nal court of Cook county in the absence of the accused was not in conformity to "due process of law." This question was determined in Schwab v. Berggren, (just decided,) and we do not deem it necessary to add anything to what is there said. Judgment affirmed.

(143 U. S. 371)

WINONA & ST. P. R. Co. v. TOWN OF PLAIN-
VIEW.

SAME V. TOWN OF ELGIN.
(February 29, 1892.)

JURISDICTION ON APPEAL-FEDERAL QUESTION. 1. A tax-payer brought suit in the district court of Minnesota against plaintiff town and the P. Ry Co to restrain the issue of railway aid bonds by the town to the company, under Gen. Laws Minn. 1877, c. 106, § 7. and judgment was entered therein for defendants. Pending an appeal, the bonds were issued and negotiated to bona fide purchasers. The decree was reversed on appeal, and the bonds declared invalid. sequently defendant railroad company purchased the rights, etc., of the P. Ry. Co. under Act Minn. March 3, 1881, authorizing such purchase, with the proviso that it should be subject to the

Sub

claims and rights of action against the latter growing out of the disposal of such bonds. The bondholders, being non-resident, sued in the fed eral court on coupons, and recovered; the court holding that, as they purchased in good faith under the decision of the state court holding the bonds valid, they could not be affected by the subsequent decision on appeal declaring them invalid. Held, in a subsequent action in the state courts by the town against defendant company to recover the amount of such bonds, in which the court held that the company was bound by the prior decision declaring them invalid, and gave judgment for plaintiff, that the court did not fail to give full faith and credit to the decision of the federal court, as the right of recovery must have depended upon the fact that the holders of the bonds were bona fide holders, and entitled to enforce them against the town.

2. The decision did not impair the obligations of a contract by giving effect to the act of 1881, as the decision was rendered prior to the passage of such act, and defendant voluntarily assumed the liability imposed thereby, and therefore no federal question was presented in the case.

In error to the supreme court of the state of Minnesota.

Actions by the town of Plainview and the town of Elgin against the Winoua & St. Peter Railroad Company to recover the amount of certain railroad aid bonds. Judgments for plaintiffs were affirmed by the supreme court of Minnesota, (32 N. W. Rep. 745,) and defendant sued out these writs of error. Dismissed.

Thomas Wilson and Lloyd W. Bowers, for plaintiff in error. C. K. Davis and F. B. Kellogg, for defendants in error.

Mr. Justice BLATCHFORD delivered the opinion of the court.

By an act of the legislature of the state of Minnesota approved March 5, 1877, (Gen. Laws 1877, c. 106.) it was enacted by sections 4, 5, 6, and 7 thereof, as is printed in the margin.1

372

*Purporting to proceed under sections 4*

1 Sec. 4. Whenever any such railroad company, specified in the first section of this act, shall desire aid in the construction of its railroad from any county, town, city, or village specified in said first section, it shall make and deliver to the county auditor of such county, the town clerk of such town, or the clerk of such incorporated city or village, as the case may be, a definite proposi tion in writing, signed by the president and secretary of said railroad company, and sealed with its seal, which proposition shall contain a statement of the amount of bonds desired, the time when payable, and whether payable before maturity at the option of such municipality, the rate of interest which they shall bear, and such proposition shall contain a statement specifying when said bonds are to be delivered with reference to the time of the entire or partial construction of said railroad, and may contain a statement that such bonds may be deposited in escrow prior to the delivery to the railroad company; and such proposition shall contain a statement that the said railroad company will, in consideration of said bonds, at the election of such municipality, issue to the municipality from which it is to receive the same such number of the shares of its capital stock as will, at par value of such stock, corrrespond with the principal sum of such bonds. In case such bonds are proposed to be deposited in escrow as aforesaid, the proposition shall also state that the certificate of the stock to be exchanged therefor shall be placed with the same depository at the same time, and in that case the proposition shall set forth the full name and residence of the trustee or trustees, who shall be the custodian of the stock of

*374 373

notice and the proposition were published in a newspaper printed and published in the town.

On the 30th of March, 1878, within three months after the filing of the proposition with the town-clerk, the company delivered to him four petitions, in the form required by section 7 of the act, addressed to the town board of supervisors, stating that the petitioners, being residents of the town and assessed for taxes upon real or personal estate therein, as shown by its last assessment roll, asked the supervisors, as the proper authorities of the town, to agree to the proposition of the company to which the petition was appended. The petitions bore the signatures of a ma

and 7 of that act, the Plainview Railroad Company, a Minnesota corporation, on the 31st of January, 1878, delivered to the town-clerk of the town of Plainview a proposition in writing, signed by the president and secretary of the company, containing the statements and specifications required by section 4 of the act, and stating that the amount of the bonds of the town desired by the company was $50,000. The town-clerk indorsed on the proposition the date of filing, and transcribed the proposition in his records on March 30, 1878. On the 31st of January, 1878, the company posted in three public places in the town a notice that, after February 6, 1878. a petition to the supervisors of the town, appended to a copy of said proposi-jority of the persons residing in the town tion, would be presented to the resident tax-payers of the town, asking the supervisors to agree to the proposition. The

said company and of the bonds of such city, village, town, or county. The auditor or clerk with whom any such proposition shall be filed shall immediately indorse thereon the date of its receipt by him, and transcribe the same into the record book of the county, town, city, or village, as the case may be, of which he is such clerk.

Sec. 5. The mode of arriving at such mutual agreement, as is herein before specified, shall be as follows:

First. Upon receiving such proposition, the county auditor of such county, the town clerk of such town, or the clerk of such incorporated city or village, as the case may be, shall immediately publish a notice of an election to be held by the legal voters of such county, town, incorporated city or village, at the usual place or places of holding elections therein, and at such time as such clerk may designate, not less than ten (10) days or more than twenty (20) days from the date of such notices, which notice shall contain a substantial statement of the proposition made by said railroad company for the issue of the bonds of such municipality, and shall notify the legal voters thereof to deposit a ballot upon which shall be written or printed the words, "For the railroad proposition," or the words, "Against the railroad proposition." And such notice shall be posted in three (3) public places in each election precinct in the district in which aid is desired, at least seven (7) days before the day of such election, and shall also be published at least twice before such election in one newspaper in such city, village, or town, if any is published therein, and, if the aid is asked of a county, in one newspaper in each village and city in such county in which a newspaper is published, and if there is no newspaper published in such city, village, town, or county, then such notice shall be so published in a newspaper published at the nearest place thereto in which one is published.

Fourth. If a majority of the legal voters who shall vote upon the question at any election to be held in any such county, town, city, or village, in pursuance of the provisions of this act, shall, as indicated by the official returns of any such election, vote "For the railroad proposition," then such mutual agreement for the issue of bonds by such municipality and of stock by such railroad company, as provided in this act, shall be deemed and considered to have been arrived at and perfected, and thereupon such bonds and stock shall be issued and delivered by the proper officer in conformity with the true intent of such proposition and with the provisions of this act.

And provided, further, that the board of county commissioners of any such county, or the board of supervisors of any such town, or the

who were assessed for taxes on real or personal estate therein, as shown by its then latest assessment roll, and the signa

common council of any such village or city, may, in case it shall deem it for the interest of such county, town, village, or city to do so, waive the issuance by such railroad company of any such stock to such county, town, village, or city.

Sec. 6. No bonds shall be delivered to the company under such proposition until the road, branch, or extension thereof for the construction of which the aid has been granted shall have been completed ready for the passage of cars continuously from one terminus through or to the district granting the aid, or to the nearest point in its line to such district, or from such terminus to such point as the company in its proposition shall have proposed to construct said road, where the line of the road shall not lie through the district.

*

*

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Sec. 7. Another mode of arriving at such mutual agreement shall be as follows:

First. Within three (3) months after the filing of any such proposition as is specified in the fourth (4th) section of this act with any county auditor, town-clerk, or clerk of any city or village, as the case may be, the said railroad company shall cause notice to be given as prescribed in the fifth (5th) section of this act, in three (3) public places in each election precinct in the district in which aid is desired, stating that after a day named in said notice, which shall be at least five (5) days after its date, a petition to the proper authorities of such county, town, city, or village will be presented to the resident tax-payers of such county, town, city, or village for their signatures, asking such authorities to agree to such proposition, and such petition shall be appended to a substantial copy of such proposition.

Second. If, within four months after the filing of such proposition with any such county auditor, town-clerk, or clerk of any city or village, as the case may be, the said railroad company shall deliver to such clerk a substantial copy or copies of such proposition, so filed, with such petition to the proper authorities of such county, town, city, or village, asking such authorities to agree to such proposition appended thereto, bearing the signatures of a majority of the persons residing in such county, town, city, or village, who were assessed for taxes upon real or personal estate, in such county, town, city, or village, as the case may be, as shown by the last assessment roll of the district of which aid is desired, which signatures shall be verified by the affidavit of some person witnessing such signatures, then such mutual agreement for the issue of bonds by such municipality and of stock by such railroad company shall be deemed and considered to have been arrived at and perfected, and thereupon such bonds and stock shall be issued and delivered in conformity with the true intent and meaning of such proposition, and with the provisions of this act.

$375

tures were verified by the affidavits of the persons witnessing such signatures; but the petitions were not signed by a majority of the electors or legal voters of the town. Those petitions were the only ones ever made asking the authorities of the town to agree to the proposition of the company, and they and section 7 of the act constituted the only authority had or claimed for the issue of the bonds hereinafter mentioned. No election was held in the town to authorize its supervisors to agree to the proposition or to the issue of any such bonds.

On the 30th of March, 1878, the board of supervisors of the town adopted and placed on file in the office of the town-clerk resolutions which recited the proposition of the company, the posting of the notices, and the presenting of the petitions, with signatures and affidavits, from which it appeared that a majority of the resident tax-payers of the town, assessed for taxes upon real or personal estate therein, as shown by its last assessment roll, had signed the petitions, and that the construction of the railroad by the company, as set forth in its proposition, would promote the general prosperity and welfare of the tax-payers of the town. The resolutions were that the proposition of the company was accepted, so far as related to the issue of bonds; that bonds of the town to the amount of $50,000, with interest coupons attached and payable as requested in the proposition, be issued to the company as soon as it should have its railroad completed, with the cars running thereon; and that the issue of stock to the town by the company, in consideration of the bonds, was waived.

The company constructed its railroad, had the cars running thereon, and performed what was stated in the proposi. tion, except that it never issued to the town any stock of the company.

Before any bonds of the town were issued to the company, one George W. Harrington, a resident citizen and tax-payer of the town, brought a suit in the district court for Wabasha county, in which county the town is situated, against the town and its officers and the railroad company, setting forth the proceedings on which the bonds were to be issued; that they were illegal; and that it was intended to issue the bonds; and praying that the town and its officers, particularly the chairman of the board of supervisors and the town-clerk, might be enjoined from issuing, and the railroad company from accepting or receiving, any such bonds. The town answered the complaint, and in January, 1879, the case was tried by the district court, which, on February 6, 1879, gave judgment for the defendants, and dismissed the suit. Harrington took an appeal to the supreme court of the state, but, before it was perfected, the bonds were issued and delivered to the company. The supreme court, on October 6, 1880, reversed the judgment below, its opinion being reported in 27 Minn. 224, 6 N. W. Rep. 777. It held that, under the constitution of Minnesota, it was not competent for the legislature to authorize any person or class of persons, other than the electors

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of a town or the officers chosen by such electors, to determine what action, requir ing local taxation, the town would take in any particular case: that, therefore, section 7 of chapter 106 of the Laws of 1877, which assumed to empower a major. ity of the "resident tax-payers," whether they were electors or not, to bind a town to issue its bonds to aid in the construction of a railroad, was unconstitutional and void; and that, although the mode for authorizing the issue of bonds provided by section 7 was invalid, yet, as the same act provided another mode for authorizing such issue, which was valid, and as the bonds need not recite under which of the two provisions of the act they were issued, but only that they were issued under and pursuant to such act generally, and a purchaser would then have the right to presume that they were issued under its valid provisions, and there might thus be bona fide purchasers of the bonds, a suit for an injunction would lie to restrain the issuing of the bonds by the town officers under the invalid mode provided by section 7 of the act.

On the 18th of March, 1879, the town board of supervisors passed a resolution that the town issue to the company its bonds in the sum of $50,000, dated on Jan. uary 1, 1879, to become due on or before 20 years from that date, with interest thereon, payable annually, at 7 per cent. per annum; that the bonds be signed and issued by the chairman of the board and the town-clerk; and that the issue of stock by the company to the town in a corresponding amount was waived. The bonds were issued on the 19th of March, 1879, being 100 in number, and numbered, consecutively, from 1 to 100, each purporting to be the bond of the town of Plainview, payable to the Plainview Railroad Company or bearer, for $500, dated January 1, 1879, due on or before January 1, 1899, with interest at 7 per cent. per annum, payable annually, according to the conditions of the 20 interest coupons attached, one of them payable January 1, 1880, and one on January 1 of each year thereafter until the maturity of the bond. Each bond contained on its face the following statement: "This bond is issued in pursuance of a mutual agreement between the said town and the said railroad company, which agreement was made in accordance with the laws of the state of Minnesota, and through and by a propo. sition made by said railroad company, and duly accepted by said town upon petition therefor signed by a majority of the resident tax-payers of said town, said agreement having been fully performed by the said railroad company on its part. This bond is issued in pursuance of the authority given for that purpose by the laws of the state of Minnesota, and in compliance with a resolution of the board of supervisors of said town."

The company, on or about July 9, 1879, sold, transferred, and delivered the bonds and coupons to citizens of the state of Wisconsin, who purchased the same without notice of any facts invalidating the bonds, and paid the company $50,000 for them. The bonds and coupons were pur

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