£1] * COMMONWEALTH OF KENTUCKY

v.

CALEB POWERS. (No. 393.)

Ex Parte: IN THE MATTER OF THE COMMONWEALTH OF KENTUCKY, Petitioner. (No. 15.)

(See S. C. Reporter’s ed. 1-40.)

rights. — The denial, In summoning or im¬ paneling jurors, of any equal civil rights secured to an accused by the Federal Con¬ stitution or laws, does not, unless authorized by the state Constitution or laws, as in¬ terpreted by its highest court, give the right to remove a criminal prosecution from a state to a Federal circuit court, under U. S. Rev. Stat. § 641, U. S. Comp. Stat. 1901, pp. 520, 521, authorizing such removal when¬ ever the accused is denied, or cannot enforce In the judicial tribunals of the state, any

right secured to him by any law providing for the equal civil rights of citizens of the United States or of all persons within its jurisdiction.

run to inferior tribunal. — A writ of error will lie from the Supreme Court of the United States to review the final judgment of a subordinate state court denying a Fed¬ eral right specially set up or claimed, if, under the local law, that court is the high¬ est court of the state entitled to pass upon such claim of Federal right.

rights. — The nonrecognition by the state courts of the validity of a pardon pleaded in bar of a criminal prosecution, even if involving a denial of a right secured to the accused by the Federal Constitution or laws, does not make a case for a removal of such cause from a state to a Federal circuit court, under U. S. Rev. Stat. § 641, authorizing such removals whenever the accused is denied or cannot enforce in the judicial tribunals of

Note. — When writ of error may run to in¬ ferior state court.

In declaring that a writ of error may run from the Supreme Court of the United States to the highest court of the state “in which a decision of the Federal question could be had," although the final judgment of that court was subject to review in a higher state tribunal, Kentucky v. Powers extends the rule heretofore announced by the Federal court. Previous decisions have stated the rule as re¬ quiring that the state court whose judgment Is sought to be reviewed be the highest court In which a decision in the “suit” could be had. Mullen v. Western Union Beef Co. 173

U. S. 116, 43 L. ed. 635,. 19 Sup. Ct. Rep. 404;

Fisher v. Perkins (Fisher v. Carrico) 122 U. S. 522, 30 L. ed. 1192, 7 Sup. Ct. Rep. 1227. And the usual difficulty has been to determine whether the judgment was rendered by the court which, as to the particular case, was

the state court of last resort. McComb v.

Knox County, 91 • U. S. 1, 23 L. ed. 185 : Great Western Teleg. Co. v. Burnham, 162 U. S. 339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850 : 201 U. S. U. S., Book 50.

The Moses Taylor (The Moses Taylor v. Ham¬ mons) 4 Wall. 411, 18 L. ed. 397; Lane v. Wallace, 131 U. S. ccxix. Appx., and 26 L. ed. 703 ; Callan v. Bransford, 139 U. S. 197, 35 L. ed. 144, 11 Sup. Ct. Rep. 519; Miller v. Joseph, 17 Wall. 655, 21 L. ed. 741 ; Gregory v. McVeigh, 23 Wall. 294, 23 L. ed. 156; Clark v. Pennsylvania, 128 U. S. 395, 32 L. ed. 487, 9 Sup. Ct. Rep. 113 ; Bergemann v. Backer, 157 U. S. 655, 39 L. ed. 845, 15 Sup. Ct. Rep. 727; Bacon v. Texas, 163 U. S. 207, 41 L. ed. 132, 16 Sup. Ct. Rep. 1023 ; Mis¬ souri, K. & T. R. Co. v. Elliott, 184 U. S. 530, 46 L. ed. 673, 22 Sup. Ct. Rep. 446 ; ICanouse v. Martin, 15 How. 198, 14 L. ed. 660 ; McGuire v. Massachusetts, 3 Wall. 382, 18 L. ed. 164 ; Bryan v. Bates, 12 Allen, 201 ; McKnight v. James, 155 U. S. 685, 39 L. ed. 310, 15 Sup. Ct. Rep. 248 ; Stanley v. Schwalby,

162 U. S. 255, 40 L. ed. 960, 16 Sup. Ct.

Rep. 754 ; Clarke v. McDade, 165 U. S. 168, 41 L. ed. 673, 17 Sup. Ct. Rep. 284 ; and

Olney v. Arnold, 3 Dali. 308, 1 L. ed. 614.

And see-division III. b, in note to Apex Transp. Co. v. Garbade, 62 L.R.A. 518, on What ad¬ judications of state courts can be brought up

40 6 33

2, 3

the state any right secured to him by any law providing for the equal civil rights of citi¬ zens of the United States, or of all persons within its jurisdiction.

[Nos. 393, 15, Original.]

No. 393 submitted January 22, 1906. De¬ cided March 12, 1906.

No. 15, Original, argued January 22, 1906. Decided March 12, 1906.

APPEAL from the Circuit Court of the United States for the Eastern District of Kentucky to review an order granting a writ of habeas corpus in aid of an order removing to that court a criminal prosecu¬ tion pending in the Circuit Court of Scott County, in that state. Reversed with di¬ rections to set aside both orders. Also, a ETITION by the Commonwealth of Ken¬ tucky for a writ of mandamus to compel the Circuit Court of the United States for the Eastern District of Kentucky to remand a criminal prosecution which had been re¬ moved to that court from the Circuit Court of Scott County, in that state, and to re¬ store the custody of the accused to the state authorities. Rule for mandamus made ab¬ solute.

See same case below, 139 Fed. 452.

Statement by Mr. Justice Harlan:

These cases arise out of a criminal pros¬ ecution begun in one of the courts of Ken¬ tucky, and, after several trials, removed on the petition of the accused, Caleb Powers, into the circuit court of the United States for the eastern district of Kentucky.

The principal question to be determined

for review in the Supreme Court of the United States by writ of error to those courts. But unless a writ of error lies when the inferior state court is the highest tribunal which can pass upon the Federal question, it is clear, as stated by Mr. Justice Harlan in Kentucky v. Powers, that it will be in the power of a state so to regulate the jurisdiction of its courts as to prevent the Supreme Court of the United States from protecting rights secured by the Federal Constitution and improperly denied in a subordinate sta{e court, although specially set up and claimed.

Even where there Is no uncertainty as to whether the judgment sought to be reviewed is that of the highest court of the state, it is sometimes difficult to determine whether the writ of error has been directed to the proper court.

The writ is ordinarily directed to the court which rendered the judgment. Atherton v. Fowler, 91 U. S. 143, 23 L. ed. 265.

But where the record remains in, or is re¬ turned to, the inferior state court, the writ of error may be directed to that court. Mc¬ Donald v. Massachusetts, 180 U. S. 311, 45 L. ed. 542, 21 Sup. Ct. Rep. 389 ; Rothschild v. Knight, 184 U. S. 334, 46 L. ed. 573, 22 634

Oct. Term,

is whether the prosecution was removabl# from the state court.

After referring to the indictment and to ■ the transfer of the prosecution into the cir¬ cuit court of the United States, the petition for removal alleged that the accused was within the jurisdiction of the United States and of the commonwealth of Kentucky; that he was, and all of his life had been, a citizen of the United States, and of that common¬ wealth, and as such citizen was entitled to enforce in the judicial tribunals of Kentucky,

on the trial and final disposition of aid

prosecution, all equal civil rights and equal protection of laws secured to him by that part of the Amendment providing that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [Art.

14, § 1.] He also claimed the rights secured by § 1977 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 1259), providing, “all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other;” as well as those secured by the act of Congress of March 1st, 1875.

(18 Stat. at L. 335, chap. 114, U. S. Comp. Stat. 1901, p. 1260), the preamble of which

Sup. Ct. Rep. 391 ; Wurts v. Hoagland, 105 U. S. 701, 26 L. ed. 1109 ; Gelston v. Hoyt,

3 Wheat. 246, 4 L. ed. 381 ; Green v. Van Buskerk, 3 Wall. 448, 18 L. ed. 245 ; McGuire v. Massachusetts, 3 Wall. 382, 18 L. ed. 164 ; Wedding v. Meyler, 192 U. S. 573, 48 L. ed. 570, 66 L.R.A. 833, 24 Sup. Ct. Rep. 322; and Polleys v. Black River Improv. Co. 113 U.

S. 81, 28 L. ed. 938, 5 Sup. Ct. Rep. 369.

At any time before the remittitur, the writ may be directed to the higher court. Wurts v. Hoagland, supra.

The word “may,” as used in this connection, probable means “must.” Atherton v. Fowler, supra.

And the mere fact that the highest state court orders its judgment of affirmance to be certified to the lower state court, where it is received and entered, does not make it proper to direct the writ of error to the lower court. Underwood v. McVeigh, 131 U. S. cxix., Appx., and 21 L. ed. 952.

And see division II. b, of note to wedding v. Meyler, 66 L.R.A. 833, on the Practice and procedure governing the transfer of causes to the Federal Supreme Court on writ of error or appeal.

Supreme Ccurt of the United States.

201 U. S,

Kentucky v. Powebs.

3-5

declares that: “Whereas, it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, col¬ or, or persuasion, religious or political; and it being the appropriate object of legislation to enact great fundamental principles into law.”

The petition then refers to the arrest of the accused on the 9th of March, 1900, upon the charge of being an accessory before the fact to the wilful murder of William Goebel, and alleges that on the 10th of March, 1900, and prior to the finding and reporting of the indictment against the accused, “William S. Taylor, who was then the duly and legally elected, qualified, actual, and acting governor of the state of Kentucky, and had in his actual possession and under his actual control the office and executive mansion prepared by said state for its gov¬ ernor, and all the books, papers, records, and archives belonging thereto, in due form of law duly and legally granted and de-

liver ed *to your petitioner, and your pe¬ titioner accepted from him, a full, complete, absolute, and unconditional par¬ don, release, and acquittance of the iden¬ tical charge against him in said indict¬ ment, and the charge now pending in said prosecution against your petitioner in said Scott circuit court, and under which your petitioner is now in custody ; that said Tay¬ lor, at the time he granted said pardon, had the right and authority, under the Constitu¬ tion and the laws of Kentucky, to grant same; that your petitioner accepted said pardon, and from the time same was grant¬ ed he claimed, and he now claims, the full benefit and effect thereof and his liberty thereunder. That on the day said pardon was granted him it was, by said Taylor, as governor aforesaid, duly entered on the ex- evecutive journal kept in his office, and a cer¬ tificate thereof was duly and in due form of law, and as required by law, issued and de¬ livered to him, duly executed by said govern¬ or and the secretary of said state, and placed in your petitioner's possession, and same was by your petitioner accepted. Your petitioner further states that at the time the said pardon was granted to him by his Excellency, the said William S. Taylor, and subsequent thereto, the said William S. Taylor was, and prior thereto he had been recognized, regarded, and treated as the duly elected, actual, and acting governor of the state of Kentucky by the executive pow¬ er and executive departments, of the United States government, including the President, the Attorney General, and the Postmaster General, and by the postmaster at Frankfort, 201 U. S.

Kentucky;” that “for said state to hold him in custody, or to try or to require him to be tried in any one of its courts for the offense alleged against him in and by said indict¬ ment, since the granting and acceptance of said pardon and the issuance and acceptance of the certificate thereof, is a denial to him of the equal protection of the laws and the equal civil rights to which he is entitled under and as provided for in and by the portions of said amendment to the Consti¬ tution of the United States above copied, and by said section of said Revised Statutes, and by said act of Congress;” and, that “notwithstanding the granting and accept¬ ance *of said pardon, the issuance and ac-

ceptance of said certificate, the fact that the said William, S. Taylor was the governor of Kentucky when said pardon was granted and when said certificate was issued, and was then recognized as such governor by said executive officers of the United States, that he cannot enforce in the said Scott circuit court in which said prosecution is pending, or in that part of the state in which said Scott county is located, or in any court, judicial tribunal, or place of the said state, the equal civil rights and the equal pro¬ tection of the laws secured to him by each and all of the three portions of said amend¬ ment copied above, and by said section of the Revised Statutes of the United States, and by said act of Congress for the reasons now set forth.”

The accused here refers to the three trials to which' he was subjected, and after stating that he was confined in the county jail, without bail, and awaiting trial, proceeds in his petition : “That at each of said trials your petitioner presented to said Scott cir¬ cuit court said certificate of pardon, and pleaded and offered in evidence said pardon and said certificate as a bar and complete defense to said prosecution and the trial and conviction of your petitioner under said indictment, but at each of said trials the said trial court overruled said pleas and refused to admit said pardon and certifi¬ cate as evidence, and held and adjudged that said pardon and certificate were null and void and of no effect whatever, and in each of said trials the said holding of the trial court in reference to said pardon and cer¬ tificate was duly excepted to and made one of the grounds which was presented and on which a reversal was asked by said court of appeals on the trial of each one of said ap¬ peals heretofore mentioned, and on each one of said appeals your petitioner contended that said pardon and certificate entitled him to an acquittal of the charge contained in said indictment, but the said court of ap¬ peals, on the trial and final disposition of each one of said appeals, failed and refused

635

6-8

Supreme Court of the United States.

Oct. Term,

to hold that said pardon and certificate au¬ thorized your petitioner’s acquittance of said charge ; instead, that court, as the

said trial court had "done, held that said pardon and certificate were and are null and void and of no. effect whatever. The holding of said court of appeals on the trial of each of said appeals was re¬ duced to writing, and each holding, as pre¬ pared and ordered by said court of appeals, has been, by the official reporter of that court, under the court’s direction, caused to be printed in, and is now a part of, the official printed reports of said court, and all of said holdings are now in full force ahd effect as, and they in fact are, the laws of said state in this case, and are binding up¬ on and will have to control this honorable court. That the instances named are the only instances in which said court of ap¬ peals or any trial court of said state ever held any pardon and certificate thereof, granted, entered, and issued by any governor of Kentucky, to be void and of no effect. That in consequence of the action and hold¬ ings of said trial court and said court of appeals, above stated, this honorable court, cannot, and should this case be retried in this honorable court, could not, allow your petitioner to plead or introduce said par¬ don and certificate as evidence as a defense to the said charges contained in said indictment against him, and could not allow your petitioner his liberty and ac¬ quittal under and by virtue of said pardon and certificate, or allow said pardon and certificate to have any effect whatever in your petitioner’s behalf, but instead is and will be bound in consequence of said laws to hold said pardon and certificate null and void and of no effect whatever.”

In the second paragraph of his petition for removal the accused states that he is a citizen of the United States and of Ken¬ tucky, and as such is entitled to enforce in the judicial tribunals of the state the equal civil rights and the equal protection of the law secured to him by the above constitu¬ tional provisions and statutes.

His petition then alleges: “But your petitioner states that he is denied and can¬ not enforce in. the judicial tribunals of this state and in the part of the state where this "otion is pending, the rights secured to him

by shid laws and each of said laws, "because the said state of Kentucky has enacted a law which has not been repealed nor abro¬ gated, and which is now in full force and ef¬ fect, to wit, § 281 of the Criminal Code of Practice of said state, which section reads as follows: ‘The decisions of the court upon challenges to the panel and for cause, upon motions to set aside an indictment, and upon motions for a new trial, shall not be subject 636

to exception;’ and because of the decisions of the court of appeals of Kentucky, tha highest judicial tribunal in this state, render¬ ed in this action . upholding the

validity of said law, notwithstanding its plain contravention of the said provisions of the Constitution of the United States.

“Your petitioner states that the death of said Goebel occurred during the exist¬ ence of intense political excitement follow¬ ing the election of a governor and other state officers in November, 1899; that said Goebel had been the Democratic candidate for the office of governor, and was, at the time of his death, contesting the right of said William S. Taylor to the office of gov¬ ernor, said Taylor, who was a Republican candidate for that office, having been ac¬ tually elected governor and declared elected governor by the duly and legally constituted authorities, and inducted into said office; that this petitioner was, at said election, the Republican candidate for the office of secretary of state, and had been actually elected and declared elected to said office, and had been inducted into said office; and there was pending at the time of said Goebel’s death a contest for the said office of secretary of state, against this defendant, inaugurated by one C. B. Hill, who had been a Democratic candidate for said office; that the public mind was, by said election and said contest for the office of governor, lieutenant governor, secretary of state, and the other state offices greatly inflamed, and bitter and intense political ani¬ mosities were excited and fostered by reason thereof, and that such feelings existed at all of the trials of this petitioner here¬ inafter referred to, and such feelings still exist against him on the part of said "ad-

herents of said Goebel throughout the state of Kentucky; and particularly in Scott county.

“Your petitioner further states that he was first put on trial under said charge on the 9th day of July, 1900, at a special term of the Scott circuit court begun and holden on said date; that said trial resulted in a verdict of conviction, and he was sentenced to confinement in the state penitentiary during his natural life; that the jury in said trial was selected from a large number of the citizens of said county, and that, with three or four exceptions, all of the venire men were purposely summoned be¬ cause of their known party affiliations, which were different from the known party affiliations of your petitioner; that by the laws of Kentucky in such cases made and provided the prosecution has a right to five, and the defense to fifteen, peremptory challenges, and that with the exception

201 U. S.

Kentucky v. Powers.

8-10

of three or four Republicans and Independ¬ ent Democrats, all of those summoned were known to be partisan Goebel Democrats, while your petitioner was and is a Repub¬ lican, and was known to belong to the Re¬ publican party; that from venire men so summoned a trial jury was selected that was composed, almost if not entirely, of Goebel Democrats, and no Republicans, al¬ though there were then residing in said countv many hundreds of citizens qualified for jury service who were Republicans and Independent Democrats, and not supporters of said Goebel in his candidacy or contest for the office of governor of Kentucky, nor in sympathy with him; but your petitioner avers and charges that all of such citizens, with the exceptions named, were intention¬ ally passed by in summoning said venire men, in order that your petitioner should not have a fair trial by a jury of his peers, impartially selected, but to the end that such jury might be selected to convict him.

“Your petitioner further respectfully rep¬ resents that the sheriff of Scott county, to whom is assigned the duty of selecting all jurors whose names are not drawn from the jury wheel, is a Goebel Democrat, as are also the deputy sheriffs of said county.

*“Your petitioner further states that at said first trial hereinbefore mentioned the judge of the Scott circuit court, when the original list of names drawn from the jury wrheel for jury service had been exhausted, although requested by counsel for this peti¬ tioner, and while there remained in said jury wheel about one hundred names, to draw the names remaining in said jury wheel therefrom, refused to do so, but di¬ rected the sheriff to summon one hundred men for jury service, and explicitly directed him to summon no men for jury service from the city of Georgetown, but to go out into the county for that purpose. Your petitioner states that the said one hundred names that remained at said time in said jury wheel had been placed there by impartial and unbiased jury commissioners prior to the election in November, 1899, and prior to the killing of said Goebel. Your petitioner states that on the morning following the order of the court to the sheriff to summon the one hundred men for jury service from the county, and when said one hundred men so summoned had appeared in court, they were

seated on one side of the court room, separate and apart from the specta¬ tors and other persons; that the judge of said court, without notice to your petitioner or any of his counsel, and without making any request of any of his counsel or of this petitioner to accompany him, left the bench and went to the side of the court room

201 TJ. S.

wherein said parties summoned for jury serv¬ ice were assembled, and without swearing said parties, so far as this petitioner saw, heard, or has information, as to their ex¬ cuses for pot serving as jurors, if any they had, called them up to him one at a time, not in the hearing of this petitioner, or his counsel, and excused such of them from jury service as he saw fit, without any knowledge on the part of this petitioner or his counsel as to why such parties were thus excused, and on the following day the same proceed¬ ing was had as to forty additional men that had been summoned for jury service in this case.

“Your petitioner further states that an appeal was taken from the judgment of said court to the Kentucky court of appeals, and that at the January term, 1901, of said court, the 'judgment of the trial court was

reversed; that your petitioner was again tried in the Scott circuit court at its October, 1901, term, and a verdict of guilty returned again, fixing the punishment of your petitioner at confinement in the state penitentiary for life; that in summoning the venire men from whom the jury was selected at the second trial, the same un¬ just and unlawful discrimination was prac¬ tised, and that of one hundred and twenty- five venire men summoned in Scott county, all were partisan Goebel Democrats except three, and of one hundred and sixty-eight venire men summoned in the adjoining county of Bourbon, all were partisan Demo¬ crats except three, so that of the aggregate of two hundred and ninety summoned, two hundred and eighty-four were Goebel Demo¬ crats and six were Republicans, notwith¬ standing the fact that there were many hundreds of citizens in each of said counties qualified for jury service who were Repub¬ licans, or Independent Democrats, and not Goebel partisans.

“Your petitioner states that at said sec¬ ond trial he objected to the formation of a jury from the venire men summoned as hereinbefore stated, and moved to discharge the entire venire on the ground that he could not obtain a fair trial before a jury selected therefrom, and filed in support of said objection an affidavit.

The affidavit referred to is given in full in the margin.!

tThe affiant states that he ought not to be required to go to trial before a iury drawn as a panel for service at the present term of this court or already summoned from the coun¬ ty of Bourbon, for the following reasons, namely : that the political canvass in this state in 1899, In which the late William Goebel was candidate for the office of governor, was a heated and angry one, and tended to create great antagonism in the minds of his political adherents against those who opposed ; that

637

11-14

Supreme Court of the United States.

Oct. Term,

*The petition then proceeds: “Your peti¬ tioner states that although the statements in said affidavit were true and known to be true by the court, he was forced to sub¬ mit to trial before a jury composed entirely

of Goebel Democrats, your petitioner ‘always having been a Republican in politics, as hereinabove stated ; and, as hereinabove stated, your petitioner was at said trial found guilty and sentenced to imprisonment for life by the judgment of said Scott cir¬ cuit court; that your petitioner took an appeal from the judgment so rendered,

which judgment was ‘reversed by the court of appeals of Kentucky at the September,

1902, term; that your petitioner was again and for the third time tried at a special term of the Scott circuit court under the charge hereinabove mentioned, Which trial was be¬ gun and holden on the 3d day of August,

1903, and that of the number of one hun¬ dred and seventy-six venire men summoned from Bourbon county, from which the jury was selected, three only, or possibly four, were Republicans, and the remaining one hundred and seventy- three (two) were Goebel Democrats and were summoned for that reason, and because they differed polit¬ ically from your petitioner, whereas there were many hundreds of Republicans and Independent Democrats in said county qual¬ ified for jury service, but your petitioner states they were purposely avoided and

this canvass was followed by a contest before the state legislature for said office, in which the deepest and fiercest passions were stirred in the minds of his followers in this county, as well as in other counties of the state, in¬ cluding the county of Bourbon ; that during that contest the said Goebel was killed, which killing tended still further to deepen and in¬ tensify the political passions of his friends and admirers in this county and in the county of Bourbon and throughout the state, against this affiant, who was a candidate for a state office on the Republican ticket in the said year of 1900. The passions thus created have since that time been stimulated and fed by the political contests which have since followed, and are still In existence, in this county and Bourbon county. Affiant says that, at a special term of this court in July, 1900, he was put on trial in this county, i charged with being an accessory before the fact to the killing of said William Goebel, and was by the jury found guilty. From the judgment of the court at that term, the affiant appealed to the ap¬ pellate court, the appeal being taken in the early part of September in said year ; that at the subsequent October term of said court, jury commissioners for this county were se¬ lected whose duty it was to select a large num¬ ber of names and place them in the jury wheel for service during the year 1901.

The three commissioners appointed were John Bradford, Ben Mallory, and H. H. Haggard, all three of whom were partisan supporters and allies, in the contest referred to, of the said William Goebel, deceased. The said jury 638

passed by in summoning said venire men, and that said trial jury was not selected impartially, as required by law ; that in the year 1896 there were over twenty-six hun¬ dred votes in said county for William McKinley, Republican candidate for Presi¬ dent of the United States, and about twenty- two hundred votes cast for William J. Bryan, his Democratic opponent; that in the year 1899 William S. Taylor, Republican candidate for governor of Kentucky, re¬ ceived twenty-seven more votes in said coun¬ ty than were cast for said William Goebel, his Democratic opponent, and that a jury impartially selected could not have been and would not have been, as it was, composed entirely of Goebel Democrats, — on his said third trial one juror, a Goebel supporter, but of doubtful polities, excepted.

“Your petitioner further represents that at the third and last trial of this petitioner in said Scott circuit court, the judge thereof entered an order directing the sheriff of said Scott county to summon two hundred men from Bourbon county for jury service; that this petitioner’s attorneys asked the court to admonish the sheriff to summon an equal number of men of each political party; that this request was refused, and there¬ upon counsel for this petitioner asked the court to instruct the sheriff to summon the talesmen as he came to them, ‘regardless

commissioners discharged the work assigned to them by placing in said jury wheel the names of two hundred citizens of Scott county, for purposes of said jury service ; that at the February term, 1901 of the circuit court of this county, and at the May term of the said year, seventy-five or more names were drawn from the jury wheel for said service ; that at the present term there were drawn from the said jury wheel for the purpose of securing a jury in this case about one hundred and twenty-five names, that being the entire number of names placed in the wheel. Affiant further states that at the regular state election of 1900, in the county of Scott, there were ca*t for the Democratic candidate, in round num¬ bers, 2,500 votes, and for the Republican can¬ didate 2,100 votes; that of these 2,100 votes not less than 1,300 were white voters of equal character, standing, and intelligence with the white voters who cast their votes for the Dem¬ ocratic party at said election.

Affiant says that, despite these conditions, which were shown to exist in this county, that of the 200 names placed in the jury wheel by the aforesaid commissioners and drawn out as herein described, only five were supporters of the Republican party, and the other 195 being active partisan friends and supporters of the party with which William Goebel was identified as its leader, and whose minds and passions had been inflamed against this affiant by continued political agitation.

The affiant further says that of the five Republicans whose names were placed in the jury wheel for jury service by said commls-

201 U. S.

Kentucky v. Powers.

14, 15

of political affiliation. This the court also refused to do.

“Your petitioner further states that said trial resulted in a verdict of guilty, affixing the death sentence, and a judgment was thereupon entered, from which judgment an appeal was taken to the court of appeals of Kentucky, and on December 6th, 1904, the judgment of conviction was for the third time reversed by said court, and that it is the purpose and intention of the Com¬ monwealth of Kentucky to subject this petitioner to a fourth trial under said charge, within a short time, in said Scott circuit court.

“Your petitioner further respectfully states that at each of said three trials the facts in relation to the jurors given or hereinbefore recited were embraced in affidavits filed in support of challenges to the panel and the venire and objections to the formation of the jury from the men summoned as hereinabove mentioned, and were also embraced in the motions and grounds for new trial prepared and filed on behalf of this petitioner at each of said trials, but that they were disregarded by the court and your petitioner’s challenge to the panels, to the venire, and the motions for new trials in each instance overruled; that by reason of § 281 of the Criminal

sioners, as before stated, one man drawn for service at the February term of this court, 1901, and another at the May term ; of the remaining three, two of them at the present term disqualified themselves herein by previously formed opinions, and the fifth and last, after qualification and acceptance on the voir dire, was peremptorily challenged by the common¬ wealth. The affiant says that it will be im¬ possible under these circumstances for him to avoid being tried at this term of this court except by a jury composed entirely of his political opponents, and exclusively made up of those who were the adherents and admirers of said Goebel, and it will be impossible for him to obtain a fair and impartial trial before any jury so constituted and formed.

The affiant further states that the officers of this county who went to Bourbon county to summon the men for jury service sent directly to the sheriff of Bourbon county, who, together with his deputies, were earnest and ardent adherents, supporters, and friends of the said William Goebel, and opposed politically to this affiant; that the officers of this county consulted and advised with the said officers of Bourbon county as to the selection of the men summoned, and that Wallace Mitchell, deputy sheriff of said county, James Burke, another deputy sheriff of said county, Joseph Williams, a constable of Bourbon county, and James A. Gibson, a guard for county prisoners in Bourbon county, all of whom are the politi¬ cal adherents of said Goebel and politically opposed to this affiant, acted with them in making the selection and summoning said men. 201 TJ. S.

Code of the state, hereinbefore quoted, this petitioner was and is denied the right of any exception on said grounds, and the court of appeals of Kentucky, on each of the three appeals hereinbefore set forth, have decided that no irregularity in the summoning or impaneling of the jury is a reversible error, and they are powerless to reverse any judg¬ ment of said court by reason of such facts, and have held said law to be valid, and such law is now the law of this case, and said court of appeals of Kentucky are powerless upon any future appeal to reverse any judg¬ ment of said court by reason of a repeti¬ tion of the acts hereinbefore set forth, or for any other irregularity or improper con¬ duct in the formation of a jury, no matter how prejudicial to the substantial rights of your petitioner they may be, and must be followed and cannot be disregarded by this honorable court.

*“Your petitioner therefore prays this hon-

orable court that the said indictment and the prosecution pending thereunder in this honorable coujt against your petitioner be removed into the circuit court of the United States for the eastern district for trial at the next ensuing term of said cir¬ cuit court, and your petitioner will ever pray.”

He says that the political complexion of Bourbon is almost equally Democratic and Republican, there being a slight majority in favor of the Democratic party ; that of the Republicans, about three fifths are colored, but there are many conscientious, fairminded and respectable citizens of Bourbon county, qualified for jury service, of the same political faith of this affiant, a great many of whom could have been as readily and conveniently summoned, and who would give to both sides herein a fair and impartial trial ; but that none of such persons were summoned with the exception of two men, and with these exceptions ninety-one of the ninety-three names appear¬ ing upon the list furnished this affiant as a correct list of the men summoned from Bourbon county are the names of the supporters and adherents of said Goebel, and opposed politi¬ cally to this affiant, and were summoned for jury service herein by reason of such fact, as this affiant believes.

Affiant further states that said Wallace Mitch¬ ell the deputy sheriff of Bourbon county, is now a candidate for sheriff of said county, seeking an election at the hands of the supporters and adherents of said William Goebel, and is their nominee for said office. Said Mitchell, in the fall of 1900, acted in summoning for jury service in this court in the case of the Com. v. Youtsey, indicter for the same offense as this affiant, and in making the selection of men to serve as jurors therein, made the statement that he would not summons a single Brown Democrat or Republican for such service, and he did not summons any such.

639

Oct. Tebm,

Supreme Court of the United States.

Messrs. N. B. Hays and Lawrence Maxwell, Jr., argued the cause, and, with Messrs. Robert B. Franklin and G. J. Bron- ston, filed a brief for petitioner in No. 15, original :

The decision of the court of appeals of Kentucky that W. S. Taylor was not gov¬ ernor of the state when he assumed to grant a pardon to Powers, and that the pardon is therefore invalid, presents no Federal ques¬ tion.

Taylor v. Beckham, 178 U. S. 548, 578, 44 L. ed. 1187, 1200, 20 Sup. Ct. Rep. 890,

The state cannot be deemed guilty of a violation of its obligations, under the Con¬ stitution of the United States, because of a decision, even if erroneous, of its highest court, while acting within its jurisdiction.

Re Converse, 137 U. S. 624, 631, 34 L. ed. 796, 799, 11 Sup. Ct. Rep. 191.

With the disposition of state questions by the appropriate state authorities it is not the province of this court to interfere.

Lambert v. Barrett, 157 U. S. 697, 699, 39 L. ed. 865, 866, 15 Sup. Ct. Rep. 722.

The possibility that officers of the state court will disregard the statutes of the state, and practise unlawful discrimination in summoning jurors at the next trial, is not ground for removal to the Federal courts.

Ex parte Wells, 3 Woods, 128, Fed. Cas. No. 17,386; Virginia v. Rives ( Ex parte Virginia) 100 U. S. 313, 322, 25 L. ed. 667, 670; Neal v. Dclaicare, 103 U. S. 370, 386, 26 L. ed. 567, 570; Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904; Murray v. Louisiana, 163 U. S. 101, 105, 41 L. ed. 87, 89, 16 Sup. Ct. Rep. 990; Re Wood ( Wood v. Brush ) 140 U. S. 278, 285, 35 L. ed. 505, 508, 11 Sup. Ct. Rep. 738; Andrews v. Swartz, 156 U. S. 272, 276, 39 L. ed. 422, 423, 15 Sup. Ct. Rep.

The possibility that the judge who pre¬ sides at the next trial in the state court will commit error of law in overruling challenges to the panel is not ground for removing the prosecution into a Federal court. It is ground for a writ of error.

Carter v. Texas, 177 U. S. 442, 44 L. ed. 839, 20 Sup. Ct. Rep. 687; Rogers v. Ala¬ bama, 192 U. S. 226, 48 L. ed. 417, 24 Sup. Ct. Rep. 257.

The removal statute will not be enlarged by construction.

Virginia v. Paul, 148 U. S. 107, 114, 37 L. ed. 386, 389, 13 Sup. Ct. Rep. 536.

The right to trial by an impartial jury in a state court is not guaranteed by the Constitution or laws of the United States.

Brooks v. Missouri, 124 U. S. 394, 31 L. ed. 454, 8 Sup. Ct. Rep. 443; Central Land 640

Co. v. Laidley, 159 U. S. 103, 112, 40 L. ed. 91, 94, 16 Sup. Ct. Rep. 80; Marrow v. Brinkley, 129 U. S. 178, 32 L. ed. 654, 9 Sup. Ct. Rep. 267; Howard v. Fleming, 191 U. S. 126, 48 L. ed. 121, 24 Sup. Ct. Rep. 49' Re Converse, 137 U. S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191.

The right of appeal in a criminal case is left entirely to the discretion of the state, and is not guaranteed by the Federal Con¬ stitution.

Kohl v. Lehlback, 160 U. S. 293, 40 L. ed. 432, 16 Sup. Ct. Rep. 304; Mallett v. North , Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730; Missouri v. Lewis ( Bowman v. Lewis) 101 U. S. 22, 25 L. ed. 989; Andrews v. Swartz, 156 U. S. 272, 39 L. ed. 422, 15 Sup. Ct. Rep. 389.

' If any right of a defendant in a criminal case, under the Constitution of laws of the United States, in connection with a chal¬ lenge to a panel, or . upon, motion to set aside an indictment, or upon motion for a new trial, is denied by a state court, the remedy is by writ of error from this court, as in Carter v. Texas and Rogers v. Ala¬ bama, supra, or by writ of habeas corpus from a Federal court after conviction.

Due process of law and the equal protec¬ tion of the laws do not require that there shall be right of appeal from a criminal prosecution in the state court.

Andrews v. Swartz, supra.

The commonwealth is entitled to a writ of mandamus.

Virginia v. Rives (Ex parte Virginia), 100 U. S. 313, 25 L. ed. 667 ; Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386, 13 Sup. Ct. Rep. 536.

Messrs. N. B. Hays and Laivrence Max¬ well, Jr., also filed a separate brief for petitioner :

The 14th Amendment prohibits action by states, and not by individuals, and author¬ izes only legislation to correct or redress state action.

Civil Rights Cases, 109 U. S. 3, 11, 27 L. ed. 835, 839, 3 Sup. Ct. Rep. 18; James v. Bowman, 190 U. S. 127, 136, 47 L. ed. 979, 981, 23 Sup. Ct. Rep. 678; Virginia v. Rives (Ex parte Virginia) , 100 U. S. 313, 318, 25 L. ed. 667, 669.

Where a state, acting through its judicial department, has violated the 14th Amend¬ ment, the final judgment of the state court is to be deemed the act of the state, within the meaning of that Amendment.

Chicago, B. d Q. R. Co. v. Chicago, 160 U. S. 226, 235, 41 L. ed. 979, 984, 17 Sup. Ct. Rep. 581; Virginia v. Rives (Ex parte Virginia), 100 U. S. 313, 320, 25 L. ed. 667, 670; Lent v. Tillson, 140 U. S. 316, 331, 35 L. ed. 419, 426, 11 Sup. Ct. Rep.

201 U. S,

Kentucky v. Powers.

The clause of U. S. Rev. Stat. § 641, U. S. Comp. Stat. 1901, p. 520, which is relied upon, does not provide for removal by white persons.

Strauder v. West Virginia, 100 U. S. 303, 311, 25 L. ed. 664, 666; Virginia v. Rives (Ex parte Virginia ) supra.

Mr. E. L. Worthington argued the cause, and, with Messrs. Richard Yates, R. D. Hill, James C . Sims, and H. Clay How¬ ard, filed a brief for respondent:

It is true that this court has decided in Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664, and other cases, that a legisla¬ tive denial of his equal civil rights entitles a party to a removal under U. S. Rev. Stat.

§ 641, U. S. Comp. Stat. 1901, p. 520. But it puts this, not upon the ground that a legislative denial is within the terms of that section, but upon the ground that it is fair to presume that this legislative denial will be followed by a denial in the judicial tri¬ bunals.

But it would be an anomalous construc¬ tion of a statute which speaks not of a legislative denial, nor of an executive denial, but solely of a .judicial denial, — a denial in the judicial tribunals of the state, — to say that it refers not to a judicial denial, but solely to a legislative denial.

Nor has this court ever decided that a denial in the judicial tribunals of the state, which is made before the last and final trial has begun, does not come within the spirit as well as the letter of this section.

Virginia v. Rives (Ex parte Virginia ) 100 U. S. 313, 25 L. ed. 667; Neal v. Dela¬ ware, 103 U. S. 370, 26 L. ed. 567 ; Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904; Smith v. Mississippi, 162 U. S. 592, 40 L. ed. 1082, 16 Sup. Ct. Rep. 900; Murray v. Louisiana, 163 U. S. 101, 41 L. ed. 87, 16 Sup. Ct. Rep. 990; Williams v. Mississippi, 170 U. S. 213, 42 L. ed. 1012, 18 Sup. Ct. Rep. 583.

The judgment of a trial court of a state cannot be re-examined and reversed or af¬ firmed by this court unless that trial court is the highest court of the state in which a decision in the suit can be had. The court of appeals is the highest court in Kentucky in which a decision in the prosecution against Caleb Powers can be had. It is the judgment of that court only in the case, therefore, that may be re-examined by this court. The judgment of the Scott circuit court cannot be so re-examined.

Great Western Teleg. Co. v. Burnham, 162 U. S. 342, 40 L. ed. 992, 16 Sup. Ct. Rep. 850.

It results, therefore, that the error of the Scott circuit court in denying to Powers the right to be tried by a jury selected without class discrimination, — a right which

201 U. S.

is given him by the Constitution and lawn of the United States, — cannot be corrected, on appeal or writ of error, by any court; not by the court of appeals of Kentucky, because of § 281 of the Criminal Code; and not by this court, because it can re-examine the judgment of the court of appeals only, which is the highest court in the state in which a decision in the suit can be had.

This court cannot reverse a judgment of the court of appeals because it correctly de¬ cided that it had no jurisdiction to pass on certain alleged errors committed by the trial court.

Fashnacht v. Frank, 23 Wall. 416, 23 L. ed. 81.

Mr. Frank S. Black also argued the cause, and, with Messrs. Richard Yates, E. L. Worthington, R. D. Hill, James C. Sims, and H. Clay Howard, filed a brief for re¬ spondent:

Unless there is a record contradiction, the sworn allegations of a petition for removal which are not traversed must be taken as true.

Dishon v. Cincinnati, N. 0. & T. P. R. Co. 66 C. C. A. 345, 133 Fed. 471; Toledo Traction Co. v. Cameron, 137 Fed. 48; 18 Enc. PI. & Pr. p. 372.

U. S. Rev. Stat. § 641, U. S. Comp. Stat. 1901, p. 520, is constitutional.

Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676; Strauder v. West Virginia, 100 U. S. 303, 25 L. ed. 664; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567 ; Bush v. Ken¬ tucky, 107 U. S. 110, 27 L. ed. 354, 1 Sup. Ct. Rep. 625; Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904; Smith v. Mississippi, 162 U. S. 592, 40 L. ed. 1082, 16 Sup. Ct. Rep. 900; Murray v. Louisiana, 163 U. S. 10d, 41 L. ed. 87, 16 Sup. Ct. Rep. 990; Williams v. Mississippi, 170 U. S. 213, 42 L. ed. 1012, 18 Sup. Ct. Rep. 583; Virginia v. Rives (Ex parte Vir¬ ginia) 100 U. S. 313, 25 L. ed. 667; Ten¬ nessee v. Davis, 100 U. S. 257, 25 L. ed.

Civil rights are not limited to any class of citizens.

Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; Missouri P.

R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107, 8 Sup. Ct. Rep. 1161; Santa Clara County v. Southern P. R. Co. 118 U. S. 394, 30 L. ed. 118, 6 Sup. Ct. Rep. 1132; Pembina Consol. Silver Min. d- Mill. Co. v. Pennsylvania, 125 IT. S. 181, 31 L. ed. 650, 2 Inters. Com. Rep. 24, 8 Sup. Ct. Rep.

As to what is meant by equal civil rights see: —

Kentucky Railroad Tax Cases, 115 U.

S. 321, 29 L. ed. 414, 6 Sup. Ct. Rep. 57 ; Holden v. Hardy, supra; Yick Wo v. flop-

641

Supreme Court of the United States.

Oct. Term,

kins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; Ho Ah Row v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546 ; Gandolfo v. Hartman, 16 L.R.A. 277, 49 Fed. 181.

A state, by its judicial tribunals, cannot deny to a citizen of the United States a right secured to him by any law providing for the equal civil rights of citizens of the United States.

Missouri v. Leiois ( Bowman v. Leiois) 101 U. S. 22, 25 L. ed. 989; Pace v. Ala¬ bama, 106 U. S. 583, 27 L. ed. 207, 1 Sup. Ct. Rep. 637; Moore v. Missouri, 159 U. S. 673, 40 L. ed. 301, 16 Sup. Ct. Rep. 179; Guthrie’s 14th Amendment, pp. 107, 108.

The Kentucky courts have held the par¬ don to be invalid.

Poicers v. Com. 110 Ky. 399, 53 L.R.A. 245, 61 S. W. 735, 114 Ky. 273, 70 S. W. 644, 1050, 114 Ky. 287, 71 S. W. 494, 26 Ky. L. Rep. 1112, 83 S. W. 146.

These decisions of the Kentucky court of appeals are binding upon all of the courts of Kentucky, and must, by those courts, be regarded as the inexorable law of this case.

Rowland v. Craig, Sneed (Ky.) 330;

Morgan v. Dickerson, 1 T. B. Mon. 20; Legrand v. Baker, 6 T. B. Moil. 235 ; Sims v. Heed , 12 B. Mon. 51; Gray v. Dickinson, 11 Ky. L. Rep. 890, 13 S. W. 209; Louis¬ ville d- AT. R. Co. v. Survant, 19 Ky. L. Rep. 1576, 44 S. W. 88; Schmetzer v. Louis¬ ville & N. R. Co. 19 Ky. L. Rep. 1713, 44 S. W. 395; Com. v. Louisville d N. R. Co. 20 Ky. L. Rep. 351, 46 S. W. 206; Louis¬ ville ct N. R. Co. v. Ricketts, 21 Ky. L. Rep. 662, 52 S. W. 939; Lancashire Ins. Co. v. Monroe, 21 Ky. L. Rep. 7S2. 52 S. W. 1058; Brashears v. Letcher County Court, 21 Ky. L. Rep. 1250, 54 S. W. 840; Freeman v. Mills, 22 Ky. L. Rep. 859, 59 S. W. 3; Butler v. Prewitt, 22 Ky. L. Rep. 1911, 62 S. W. 20; Louisville d N. R. Co. v. Penrod, 24 Ky. L. Rep. 50, 66 S. W. 1013; Gray Tie d Lumber Co. v. Farmers Bank, 24 Ky. L. Rep. 2319, 74 S. W. 174; Wilson v. Louisville Nat. Bkg. Co. 25 Ky. L. Rep. 1065, 76 S. W. 1095; Booth v. Bethel, 25 Ky. L. Rep. 1747, 78 S. W. 868 ; Brown v. Crow, Hardin (Ky.) 443; Bryan v. Beckley, Litt. Sel. Cas. 91, 12 Am. Dec. 276; Leiois v. Lewis, 11 Ky. L. Rep. 413.

Equal civil rights are denied by state decisions no less than by state enact¬ ments.

Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567 ; Bush v. Kentucky. 107 U. S. 110, 27 L. ed. 354, 1 Sup. Ct. Rep. 625.

Federal courts must enforce a valid state pardon when denied by the highest state court.

United States v. Wilson, 7 Pet. 150, 8 L. ed. 640; Davis v. Braden, 10 Pet, 288, 9 L. ed. 428; United States v. Rosenburgh,

642

7 Wall. 582, 19 L. ed. 263; United States v. Harris, 1 Abb. (U. S.) 114, Fed. Cas. No. 15,312; Re De Puy, 3 Ben. 316, Fed, Cas. No. 3,814; Re Callicot, 8 piatchf. 96, Fed. Cas. No. 2,323; People v. Boiven. 43 Cal. 439, 13 Am. Rep. 148; Church, Ha¬ beas Corpus, § 458 ; Ex parte Garland. 4 Wall. 333, 18 L. ed. 366; Ex parte Wells, 18 How. 310, 15 L. ed. 423; Greathouse’s Case, 2 Abb. (U. S.) 385, Fed. Cas. No. 5,741; Ex parte Slauson, 73 Fed. 666; Whit¬ ten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297; Iasigi v. Van de Carr, 166 U. S. 391, 41 L. ed. 1045, 17 Sup. Ct. Rep. 595 ; United States v. Fowkes, 3 C. C. A. 394, 3 U. S. App. 247, 53 Fed. 13 ; Ornelas v. Ruiz, 161 U. S. 502, 40 L. ed. 787, 16 Sup. Ct. Rep. 689; Re Dana. 68 Fed. 886; Re Ludwig, 32 Fed. 774; Cook v. Hart, 146 U. S. 1S3, 36 L. ed. 934, 13 Sup. Ct. Rep. 40.

When an officer has been lawfully induct- ed into office and holds actual possession thereof, claiming title by virtue of a certif¬ icate of election, his authorized official acts until legally and actually ousted are bind¬ ing upon the state and third persons, re¬ gardless of the alleged determination of a contest. His powers continue as original¬ ly invested, pending any litigation that may properly ensue, and it is his duty to hold such office until title thereto is final¬ ly adjusted.

Braidy v. Theritt, 17 Kan. 471; State v. Durkee, 12 Kan. 308; Ex parte Powers, 129 Fed. 985; Taylor v. Beckham, 178 U. S. 548, 44 L. ed.' 1187, 20 Sup. Ct. Rep. 890, 1009 ; State ex rel. Fairbanks v. Su¬ perior Court, 17 Wash. 12, 61 Am. St. Rep. 893, 48 Pac. 741; Petersilea v. Stone, 119 Mass. 465, 20 Am. Rep. 337 ; State ex rel. Leal v. Jones, 19 Ind. 358, 81 Am. Dec. 403; Hamlin v. Kassafcr. 15 Or. 456, 3 Am. St. Rep. 181, 15 Pac. 778; Leach v. Cassidy, 23 Ind. 449 ; State ex rel. Van Amrinae v. Taylor, 108 N. C. 196, 12 L.R.A. 202, 23 Am. St. Rep. 51, 12 S. E. 1005; State v. Carroll, 38 Conn. 449, 9 Am. Rep 412; Weatherford v. State, 31 Tex. Crim. Rep. 530, 37 Am. St. Rep. 829, 21 S. W. 251; State ex rel. Hartford v. Craig, 132 Ind. 54, 16 L.R.A. 688, 32 Am. St. Rep. 239, 31 N. E. 352; Marbury v. Madison, 1 Cranch, 154, 2 L. ed. 66; United States v. Mitchell, 136 Fed. 896.

Title to an office cannot be determined in a suit between A and B. The judgment in such a suit binds the parties thereto, but them only. To be conclusive upon all the world, it must be by quo warranto.

People ex rel. Smith v. Olds, 3 Cal. 167, 58 Am. Dec. 398; Marlde v. Wright, 13 Ind. 548; Cochran v. McCleary, 22 Iowa, 75; Updegraff v. Crans, 47 Pa. 103.

201 U. S,

Kentucky v. Powers.

State decisions involving general princi¬ ples are not followed in Federal courts.

Olcott v. Fond du Lac County, 16 Wall. 678, 21 L. ed. 382; Venice v. Murdock, 92 U. S. 494, 23 L. ed. 583: Mohr v. Manierre , 7 Biss. 419, Fed. Cas. No. 9,695.

State decisions are not followed if they deny equal civil rights.

Rowan v. Runnels , 5 How. 134, 12 L. ed. 85; Piqua Branch of State Bank v. Knoop, 16 How. 369, 14 L. ed. 977 ; Jefferson Branch Bank v. Skelly, 1 Black, 436, 17 L. ed.

Federal recognition of the Taylor admin¬ istration as the state government of Ken¬ tucky binds all courts.

Jones v. United States, 137 U. S. 202, 34 L. ed. 691, 11 Sup. Ct. Rep. 80; Wolsey v. Chapman, 101 U. S. 755, 25 L. ed. 915; Runkle v. United States, 122 U. S. 557, 30 L. ed. 1171, 7 Sup. Ct. Rep. 1141; Wil¬ cox v. Jackson, 13 Pet. 498, 10 L. ed. 264; United States v. Eliason, 16 Pet./ 291, 10 L. ed. 968; The Confiscation Cases ( Unit¬ ed States v. Clarke) 20 Wall. 92, 22 L. ed. 320; United States v. Farden, 99 U. S. 10, 25 L. ed. 267; Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60; Re American Guano Co. 11 Ops. Attv. Gen. p. 397 ; Luth¬ er v. Borden , 7 How. 1, 12 L. ed. 581.

Messrs. N. B. Hays and Lawrence Maxwell, Jr., submitted the cause for ap¬ pellant in No. 393.

Messrs. Richard Yates, H. C. How¬ ard, J.C. Sims, and E. L. Worthington

submitted the cause for appellee. Mr. R. D. Hill was on the brief:

Though the law itself be fair on its face and impartial in appearance, vet, if it is applied and administered by public author¬ ity with an evil eye and an unequal hand, so as practically to make unjust and ille¬ gal discriminations between persons in sim¬ ilar circumstances, material to their rights, the denial cf eoua] justice is still within the prohibition of the Constitution.

Yick IFo v. Hopkins , 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064.

The question in each case is whether the legislature has adopted the statute in the exercise of a reasonable discretion, or wheth¬ er its action is a mere excuse for an unjust discrimination, or the oppression or spolia¬ tion of a particular class.

Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383.

Hostile and discriminating legislation by a state against persons of any class, sect, creed, or nation, in whatever form it may be expressed, is forbidden by the 14th Amendment.

Ho Ah Kow v. Hunan, 5 Sawy. 552, Fed. Cas. No. 6,546.

In the administration of criminal jus-

201 U. S.

tice, no rule can be applied to one class which is not applicable to all other classes.

Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075, 16 Sup. Ct. Rep. 904.

A discrimination by the state, between persons within its jurisdiction, is just and reasonable in the selection of jurors.

Strauder v. West Virginia, 100 U. S.

303, 25 L. ed. 664.

Beyond such discrimination, a class dis¬ crimination in the selection of jurors is unjust and unreasonable.

Ibid; Virginia v. Rives {Ex parte Vir¬ ginia) 100 U. S. 313, 25 L. ed. 667.

The commonwealth of Kentucky has not filed a reply to the petition for removal, or in any way taken issue with the defend¬ ant as to any of the allegations thereof.

Such allegations must, therefore, be accept¬ ed as true save in so far as they may be contradicted by the transcript on file here¬ in.

Dishon v. Cincinnati, N. O. & T. P. R. Co.

66 C. C. A. 345, 133 Fed. 471; Whitten v. Tomlinson, 160 U. S. 231, 40 L. .ed. 406,

16 Sup. Ct. Rep. 297.

Messrs. Frank S. Black and R. C. Kinkead also submitted the cause for ap¬ pellee.

Mr. Justice Harlan delivered the opin¬ ion of the court:

Powers, the accused, was indicted in the circuit court of Franklin county, Kentucky, for the crime of having been an accessory before the fact to the murder of William Goebel, who was assassinated in that county on the 30th day of January, 1900. The prosecution was removed by change of venue to the circuit court of Scott county. In the latter court the accused was found guilty and his punishment fixed by the jury at confinement in the state penitentiary for life. Upon appeal *to the court of appeals

of Kentucky the judgment was reversed and a new trial ordered. 110 Ky. 386,

53 L. R. A. 245, 61 S. W. 735. At the second trial the verdict was guilty, and the punishment was again fixed at confinement in the penitentiary for life. Upon appeal, that judgment was reversed and a new trial ordered. 114 Ky. 239, 70 S. W. 644,

1050, 71 S. W. 494. A third trial occurred, which resulted in a verdict of guilty, with the punishment fixed at death. This judg¬ ment was also reversed and the case sent back for a new trial. 26 Ky. L. Rep. 1111,

83 S. W. 146.

When the case came on for trial the fourth time the accused tendered and offered to file in the state court his petition pray¬ ing, upon grounds therein stated (and which appear in the above statement), that the prosecution be removed for trial into

643

Oct. Teem,

StlPBEME COTJBT OF THE UNITED STATES.

23-25

the circuit court of the United States for the eastern district of Kentucky. But the state court would not allow the petition to be filed. Subsequently, a partial tran¬ script of the record was filed in the Federal court, and the case was docketed in that court. The commonwealth objected to the filing of the transcript from the state court and to the docketing of the case in the Federal court, and moved to vacate the order of filing and docketing. That motion was overruled.

Thereupon the accused, by his counsel, presented to the Federal court an appli¬ cation for a writ of habeas corpus, in order that he might be discharged from the cus¬ tody of the state authorities. For the reasons set forth in the opinion of that cou- t the application was granted and a writ ordered to issue, commanding the jailer of Scott county, who held the accused in custody for the state, to deliver him into the custody of the marshal of the Federal court, which was done, that officer being directed to keep the accused confined in the county jail of Campbell county, Kentucky, until the further order of the Federal court. 139 Fed. 452. From that order the com¬ monwealth of Kentucky has prosecuted the above appeal (No. 393), the sole ground of such appeal being that the Federal court

was without jurisdiction to make the *order allowing the writ of habeas corpus and taking the accused from the custody of the state authorities. The accused has moved to dismiss the appeal because the remedy of the commonwealth was by a writ of mandamus.

The commonwealth also asked leave to file a petition for mandamus to compel the Federal court to remand the case to the state court and to restore the custody of the accused to the state authorities. Leave to file was granted and the Federal judge, having made his return, submitted the rule upon the record of the case, including the opinion filed by the court below when the writ of habeas corpus was awarded to take the accused from the custody of the state authorities. This is case No. 15, Original.

The fundamental question to be deter¬ mined is whether the removal of this crim¬ inal prosecution from the state court into the Federal court was authorized by any statute of the United States. We say, by any' statute, because the subordinate judi¬ cial tribunals of the United States can ex¬ ercise only such jurisdiction, civil and crim¬ inal, as may be authorized by acts of Con¬ gress. Chief Justice Marshall, speaking for this court, has said that “courts which origi¬ nate in the common law possess a jurisdic¬ tion which must be regulated by their com¬ mon law, until some statute shall change 644

their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, can¬ not transcend that jurisdiction.” Ex Parte Bollman, 4 Cranch, 75, 93, 2 L. ed. 554,

560; United States v. Hudson, 7 Cranch,

32, 33, 3 L. ed. 259, 260; Cary v. Curtis, 3 How. 236, 245, 11 L. ed. 576, 581; M’Intire v. Wood, 7 Cranch, 504, 506, 3 L. ed. 420,

421; United States v. Eckford (United States v. TiUou) 6 Wall. 484, 488, 18 L. ed. 920, 921; Sheldon v. Sill, 8 How. 441,

449, 12 L. ed. 1147, 1161; Jones v. United States, 137 U. S. 202, 211, 34 L. ed. 691,

695, 11 Sup. Ct. Rep. 80.

The adjudged cases make it clear that whatever the nature of a civil suit or crim¬ inal proceeding in a state court, it cannot be removed into a Federal court unless warrant therefor be found in some act of Congress.

*We are now to enquire whether the case

was removable from thq state court, in virtue of any act of Congress.

The removal of this prosecution into the Federal court was rested on §§ 641 and 642 of the Revised Statutes (U. S. Comp.

Stat. 1901, pp. 520, 521), which are as follows:

Ҥ 641. When any civil suit or criminal prosecution is commenced in any state court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, . . . such suit or

prosecution may, upon the petition of such defendant, filed in said state court at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next, circuit court to be held in the district where it is pending. Upon the filing of such peti¬ tion all further proceedings in the state courts shall cease and shall not be resumed except as hereinafter provided. But all bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the state court. . . .

Ҥ 642. When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petition ing for such removal is in actual custody on process issued by said state court, it shall be the duty of the clerk of said circuit court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of

201 TJ. S.

Kentucky v. Powebs.

25-28

said writ, to take the body of the defendant into his custody, to be dealt with in said circuit court . according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said state court a duplicate copy of said writ.”

The contention of the commonwealth is that the decisions of this court wholly pre¬ clude the suggestion that § 641 authorized the removal of this case into the Federal court. In review of this contention we must see what has been heretofore decided.

has been called, the first one, in point of time, involving the construction of § 641, is Ex parte Wells, 3 Woods, 128, 132, Fed. Cas. No. 17,386, determined in the circuit court of the United States for the district of Louisiana, Mr. Justice Bradley presiding. The accused there sought to remove the prosecution from the state court, upon the ground, among others, that such vindictive prejudice existed against them on the part of the lawmaking and law-administering authorities of the state that they would be denied their rights as citizens in the state court, as well as before any jury that might be impaneled therein under the then-exist¬ ing jury law of the state; consequently, they would not be able to enforce their rights in said court. It was also alleged that the state court and its officers had so manipulated the local law as to deprive the accused of an impartial jury, and that they would be deprived of the full and equal benefit of the laws and proceedings for the security of their persons. The court, hav¬ ing found that there was nothing in the Constitution or laws of the state that was hostile to the equal rights of the accused, in any particular, said: “The allegations with regard to the manipulation of the law in such manner as to secure a jury inimical to the petitioners, and with regard to the existence of a general prejudice against them in the minds of the court, the jurors, the officials, and the people, are not within the purview of the statute authorizing a removal. The 14th Amendment to the Con¬ stitution, which guarantees the equal bene¬ fit of the laws, on which the present appli¬ cation is based, only prohibits state legis¬ lation violative of said right; it is not directed against individual infringements thereof. The civil rights bill of 1866 was broader in its scope, undertaking to vindi¬ cate those rights against individual ag¬ gression; but, still, only when committed under color of some ‘law, statute, ordinance, regulation, or custom.’ 114 Stat. at L. 27, chap. 31, § 1.1 And when that provision in this law, which is transferred to § 641 of the Revised Statutes, gave the right to 201 U. S.

remove to the United States courts a cause commenced in a state court, against a per¬ son who is denied or cannot enforce any *of the rights secured by the act, it had

reference to a denial of those rights or impediments to their enforcement, arising from some state law, statute, regulation, or custom. It is only when some such hos¬ tile state legislation can be shown to exist, interfering with the party’s right of defense, that he can have his cause removed to the Federal court.”

In Strauder v. West Virginia, 100 U. S.

303, 309, 312, 25 L. ed. 664, 666, 667, which was an indictment in a court of West Vir¬ ginia against a person of the African race for the crime of murder, the accused, before the trial commenced, presented his petition for the removal of the case into the United States court upon the ground that the laws of the state, in relation to both grand and petit juries, discriminated against colored citizens, because of their race, in violation of the Constitution and the laws of the United States. The petition for removal was denied, and the accused was forced to a trial in the state court, found guilty, and sentenced. That judgment was affirmed by the supreme court of appeals of the state, and the case was brought here upon writ of error. This court held the state statute to be unconstitutional, as making an illegal discrimination against negroes, because of their race. After referring to what was said in United States v. Reese, 92 U. S. 214,

23 L. ed. 563, to the effect that rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress, and that the form and manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide, the court said : “There is express authority to protect the rights and immunities referred to in the 14th Amendment, and to enforce observance of them by appropriate congressional legisla¬ tion. And one very efficient and appropri¬ ate mode of extending such protection and securing to a party the enjoyment of the right or immunity is a law providing for the removal of his case from a state court, in which the right is denied by the state law, into a Federal court, where it will be upheld. This is an ordinary mode of pro¬ tecting rights and immunities conferred by the Federal Constitution and laws. Sec¬ tion 641 is *such a provision.” Adverting

to the act from which §§ 1977 and 1978 of the Revised Statutes (U. S. Comp. Stat.

1901, pp. 1259-1262) were taken, the court further said: “This act puts in the form of a statute what had been substantially or1- dained by the constitutional amendment.

It was a step towards enforcing the cod-

645

28-30

Supreme Court of the United States.

Oct. Term,

Btitutional provisions. Section 641 was an advanced step, fully warranted, we think, by the 5th section of the 14th Amendment.” Observe that this was the case of a state statute held to prevent the enforcement in the judicial tribunals of the state of rights secured to the accused by the' Constitution of the United States. Upon that point this court said : “That the petition of the plain¬ tiff in error, filed by him in the state court before the trial of his case, made a case for removal into the Federal cir¬ cuit court, under § 641, is very plain, if, by the constitutional amendment and § 1977 of the Revised Statutes, he was entitled to im¬ munity from discrimination against him in the selection of jurors, because of their color, as we have endeavored to show that he was. It set forth sufficient facts to ex¬ hibit a denial of that immunity, and a denial by the statute law of the state. There was error, therefore, in proceeding to the trial of the indictment against him after his petition was filed, as also in overruling his challenge to the array of the jury, and in refusing to quash the panel.”

In Virginia v. Rives (Ex parte Virginia ), 100 U. S. 313, 321, 25 L. ed. 667, 670, which was an indictment in a court of Vir¬ ginia against colored persons charged with the crime of murder, the accused moved that the venire, which was composed entire¬ ly of white men, should be modified so as to allow one third of the jury to be composed of colored men. That motion was overruled. Thereupon the defendants, before the trial, sought by petition to have the prosecution removed into the Federal court, upon the ground that the right secured to them by the act of Congress providing for the equal civil rights of all citizens of the United States was denied to them in the judicial tribunals of the county in which the prosecu¬ tion was pending ; also, upon the ground that the grand jury finding the indictment had been organized in discrimination

against the ‘colored race because of their race. The application to remove the case was denied, and the defendants were tried in the state court and convicted. The case at that stage of the trial was docketed, at the motion of the accused, in the Federal court, and, upon writ of habeas corpus sued out from that court, they were taken from the custody of the state, and placed in the custody of the United States marshal. The common¬ wealth of Virginia obtained from this court a rule against the judge of the Federal court to show cause why the accused should not be redelivered to the authorities of the state, to be dealt with according to the laws of that commonwealth. The judge made his re¬ turn to the rule, averring that the indict- 646

ments were removed into the Federal court by virtue of § 641 of the Revised Statutes.

It is important to notice that there was no claim in that case that either the Constitu¬ tion or laws of Virginia denied the civil rights of colored people, or stood in the way of their enforcing the equal protection of the laws. The law, this court said, made no discrimination against them because of their color, nor any discrimination at all.

And further, referring to the officer charged with the duty of selecting jurors, this court said: “He made himself liable to punish¬ ment at the instance of the state and under the laws of the United States. In one sense, indeed, his act was the act of the state, and was prohibited by the constitutional amend¬ ment. But, inasmuch as it was a criminal misuse of the state law, it cannot be said to have been such a ‘denial or disability to enforce in the judicial tribunals of the state,’ the rights of colored men, as is con¬ templated by the removal act. § 641.

It is to be observed that act gives the right of removal only to a per¬ son ‘who is denied, or cannot enforce, in the judicial tribunals of the state, his equal civil rights.’ And this is to appear before trial. When a statute of the state denies his right, or interposes a bar to his enfor¬ cing it, in the judicial tribunals, the pre¬ sumption is fair that they will be controlled by it in their decisions; and in such a case a defendant may affirm on oath what is necessary for a removal. Such a case is clearly within the provisions of § 641.

But ‘when a subordinate officer of the* state,

in violation of state law, undertakes to de¬ prive an accused party of a right which the statute law accords to him, as in the case at bar, it can hardly be said that he is denied, or cannot enforce, ‘in the judicial tribunals of the state’ the rights which be¬ long to him. In such a case it ought to be presumed the court will redress the wrong.

If the accused is deprived of the right, the final and practical denial will be in the judi¬ cial tribunal which tries the case, after the trial has commenced. If, as in this case, the subordinate officer, whose duty it is to select jurors, fails to discharge that duty in the true spirit of the law; if he excludes all colored men solely because they are colored; or if the sheriff to whom a venire is given, composed of both white and colored citizens, neglects to sum¬ mon the colored jurors only because they are colored; or if a clerk whose duty it is to take the twelve names from the box re¬ jects all the colored jurors for the same rea¬ son, — it can with no propriety be said the defendant’s right is denied by the state, and cannot be enforced in the judicial tribunals.

The court will correct the wrong, will quash

201 TJ. S.

Kentucky v. Powers

30-32

the indictment or the panel, or, if not, the error will be corrected in a superior court. We cannot think such cases are within the provisions of § 641. Denials of equal rights in the action of the judicial tribunals of the state are left to the revisory powers of this court.”

The question as to the scope of § 641 of the Revised Statute again arose in the sub¬ sequent cases of Neal v. Delaware, 103 U. S. 370, 386, 26 L. ed. 567, 570; Bush v. Ken¬ tucky, 107 U. S. 110, 116, 27 L. ed. 354, 356, 1 Sup. Ct. Rep. 625; Gibson v. Mississippi, 162 U. S. 565, 581, 584, 40 L. ed. 1075, 1078, 1079, 16 Sup. Ct. Rep. 904, and Smithy. Mis¬ sissippi, 162 U. S. 592, 600, 40 L. ed. 1082, 1085, 16 Sup. Ct. Rep. 900. In each of these cases it was distinctly adjudged, in har¬ mony with previous cases, that the words in § 641 — “who is denied or cannot enforce in the judicial tribunals of the state, or in the part of the state where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States” — did not give the right

of removal, unless *the Constitution or the laws of the state in which the criminal pros¬ ecution was pending denied or prevented the enforcement in the judicial tribunals of such state of the equal rights of the accused as se¬ cured by any law of the United States. Those cases, as did the prior ones, expressly held that there was no right of removal under § 641, where the alleged discrimination against the accused, in respect of his equal rights, was due to the illegal or corrupt acts of administrative officers, unauthorized by the Constitution or laws of the state, as interpreted by its highest court. For wrongs of that character the remedy, it was held, is in the state court, and ultimately in the power of this court, upon writ of error, to protect any right secured or granted to an accused by the Constitution or laws of the United States, and which has been denied to him in the highest court of the state in which the decision, in respect of that right, could be had.

In Gibson v. Mississippi, supra, the words of this court as to the scope of § 641 were very emphatic. In that case there was a conviction in a state court of a negro for the crime of murder, and in which one of the questions, upon writ of error to the highest court of that state, was as to the ac¬ tion of the trial court in denying a petition for the removal of the prosecution to the Federal court. This court said : “When the Constitution and laws of a state, as in¬ terpreted by its highest judicial tribunal, do not stand in the way of the enforce¬ ment of rights secured equally to all citizens 201 U. S.

of the United States, the possibility that during the trial of a particular case the state court may not respect and enforce the right to the equal protection of the laws constitutes no ground, under the statute, for removing the prosecution into the cir¬ cuit oourt of the United States in advance of a trial. We may repeat here what was said in Neal v. Delaware, namely, that in thus construing the statute ‘we do not with¬ hold from a party claiming that he is de¬ nied, or cannot enforce in the judicial tri¬ bunals of the state, his constitutional equal¬ ity of civil rights, all opportunity of appeal¬ ing to the courts of the United States for redress *of his wrongs. For if not entitled,

under the statute, to the removal of the suit or prosecution, he may, when denied, in the subsequent proceedings of the state court, or in the execution of its judgment, any right, privilege, or immunity given or secured to him by the Constitution or laws of the United States, bring the case here for review.’ ... We therefore held in Neal v. Delaware that Congress had not au¬ thorized a removal of the prosecution from the state court, where jury commissioners or other subordinate officers had, without authority derived from the Constitution and laws of the state, excluded colored citizens from juries because of their race.” Again:

“The application was to remove the prosecu¬ tion from the state court, and a removal, as we have seen, could not be ordered upon the ground simply that citizens of African descent had been improperly excluded, be¬ cause of their race, and without the sanc¬ tion of the Constitution and laws of the state, from service on previous grand juries, or from service on the particular grand jury that returned the indictment against the accused. We do not overlook in this connection the fact that the petition for the removal of the cause into the Federal court alleged that the accused, by reason of the great prejudice against him on account of his color, could not secure a fair and im¬ partial trial in the county, and that he prayed an opportunity to subpoena witnesses to prove that fact. Such evidence, if it had been introduced, and however cogent, could not, as already shown, have entitled the ac¬ cused to the removal sought; for the alleged existence of race prejudice interfering with a fair trial was not to be attributed to the Constitution and laws of the state. It was incumbent upon the state court to see to it that the accused had a fair and impartial trial, and to set aside any verdict of guilty based on prejudice of race.”

The cases to which we have adverted had reference, it is true, to alleged discrimina¬ tions against negroes because of their race.

But the rules announced in them equally

647

32-35

SUPBEME COOBT OF THE UNITED STATES.

Oct. Tebm,

a,pply where the accused is of the white race. Section 641, as well as the 14th Amend¬ ment of the Constitution, is for the benefit

of all *of every race whose cases are em¬ braced by its provisions, and not alone for the benefit of the African race.

We have not overlooked the suggestion, earnestly pressed upon our attention, that it is impossible for the accused- to obtain a fair trial in the locality where the prosecu¬ tion is pending. Indeed, the suggestion is, in effect, that there was a deliberate pur¬ pose on the part of those charged with the administration of justice in that locality to take his life, under the forms of law, even if the facts did not establish his guilt of the crime charged. It is true that, looking alone at the petition for removal, the trials of the accused disclose such misconduct on the part of administrative officers connected with those trials as may well shock all who love justice and recognize the right of every human being, accused of crime, to be tried according to law. The case, as made by the record, it must be conceded, tends to show, if it does not justify the belief, that administrative officers "having connection with the trial of the accused had it in mind, at each trial, to exclude from the jury, so far as it was possible to do so, every person, however competent, who be¬ longed to the same political party as the accused. In his separate opinion, in 26 Ky. L. Rep. 1111, 1117, 83 S. W. 146, 149, Judge Barker, of the court of appeals of Kentucky, referring to the third trial of the accused, said: “It is clear that the trial judge was of opinion that it was not an offense against the 14th Amendment or a denial of the equal protection of the laws to the defendant to exclude Republicans [the accused being a Republican in politics] from the jury, solely because they were Republi¬ cans, provided the selected Democrats [the deceased Goebel being a Democrat in poli¬ ties] were possessed of the statutory quali¬ fications required for jury service.”

It is appropriate here to recall that the circuit court, referring to the petition for removal, said: “The commonwealth of Kentucky has not filed a reply to said peti¬ tion for removal, or in any way taken issue with the defendant as to any of the allega¬ tions thereof. Said allegations must, there¬ fore, be accepted as true, save in so far as they may be contradicted by the transcript

*on file herein. In the case of Dishon v. Cin¬

cinnati, N. 0. & T. P. R. Co. 66 C. C. A. 345, 133 Fed. 471, Judge Richards, in discussing the affirmative allegations of a petition for removal in a civil suit under the jurisdic¬ tional acts of 1887, 1888 (24 Stat. at L.

552, chap. 373, 25 Stat. at L. 433, chap. 866, U. S. Comp. Stat. 1901, p. 508), said: ‘If 648

these averments were not true, the plaintiff should have denied them, and an issue would then have been made for the court be¬ low to try and determine. No answer was filed; no issue in any other way was taken.

The plaintiff contented himself with mak¬ ing a motion to remand, and which only raised a legal question, namely, whether, upon the facts stated in the petition for re¬ moval, taken in connection with the record, a case for removal was made out.’ In the case of Whitten v. Tomlinson, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297, Jus¬ tice Gray, in referring to a petition for a writ of habeas corpus, under §§ 751-755,

U. S. Rev. Stat. (U. S. Comp. Stat. 1901, pp. 592, 593), said: ‘In a petition for a writ of habeas corpus, verified by oath of the petitioner, as required by U. S. Rev.

Stat. § 754, U. S. Comp. Stat. 1901, p.

593, facts duly alleged may be taken to be true, unless denied by the return, or con¬ trolled by other evidence. But no allega¬ tion of fact in the petition can be assumed to be admitted, unless distinct and unam¬ biguous.’ The allegations of the petition for removal are not borne out by the tran¬ script in ail their detail. They are, how¬ ever, borne out to a substantial degree, and are not contradicted in any substantial par¬ ticular. It establishes the discrimination complained of in the selection of the jurors by the subordinate officers having to do there¬ with on the second and third trials, and that on both trials the Scott circuit court held that such discrimination was not il¬ legal and the defendant had no right to complain thereof, it not being claimed that the jurors selected did not possess the statutory qualifications. As to the first trial, all that the transcript shows is that it was one of the grounds of defendant’s motion for new trial that the circuit judge, after the regular panel was exhausted, had refused to draw from the wheel the names of the jurors placed there in the fall of 1899, before any motive for discrimination had arisen, concerning which Judge Du Relle had this to say in the opinion de¬ livered by him on behalf of the majority of the court of appeals on the first appeal:

‘In the grounds relied on in the motion for new trial it is stated that the court overruled the motion of appellant, after the regular panel was exhausted, to draw the remaining names necessary to complete the jury from the jury wheel. It is to be re¬ gretted that, in a case concerning which so much feeling existed, the simple and easy mode was not adopted, which would have put beyond cavil the question of the accused having a trial by jury impartially selected. This will doubtless be done upon the succeeding trial.’ ”

201 U. St

Kentucky v. Powers.

35-37

Taking, then, the facts to be as repre¬ sented in the petition for removal, still the remedy of the accused was not to have prosecution removed into the Federal court, that court not being authorized to take cognizance of the case upon removal from the state court. It is not contended, as it could not be, that the Constitution and laws of Kentucky deny to the accused any rights secured to him by the Consti¬ tution of the United States or by any act of Congress. Such being the case, it is impossible, in view of prior adjudications, to hold that this prosecution was remov¬ able into the circuit court of the United States by virtue of § 641 of the Revised Statutes. Such a case as the one before us has not been provided for by any act of Congress; that is, a circuit court of the United States has not been authorized to take cognizance of a criminal prosecution commenced in a state court for an alleged crime against the state, where the Consti¬ tution and laws of such state do not per¬ mit discrimination against the accused in respect of such rights as are specified in the first clause of § 641. This court, while sustaining the subordinate courts of the United States in the exercise of such ju¬ risdiction as has been lawfully conferred upon them, must see to it that they do not usurp authority not affirmatively given to them by acts of Congress. In Mansfield C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382, 28 L. ed. 462, 463, 4 Sup. Ct. Rep. 510, 511, we said that “the rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction, and, in the ear

ercise of its appellate power, that of *all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal the first and fundamental question is that of jurisdiction, — first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.” This principle has been again and again reaf¬ firmed. Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 453, 44 L. ed. 842, 843, 20 Sup. Ct. Rep. 690, and au¬ thorities there cited.

Now, it affirmatively appears of record that the circuit court has taken juris¬ diction of this case on removal from the state court, when, as we hold, no act of Congress authorized it do so. We cannot, 201 U. S. U. S., Book 50.

in fidelity to the law, as declared in former cases, overlook this defect of jurisdiction in the court below or fail to express our inability to concur in the views of the learned court below upon this point.

The circuit court said : “I, therefore,

conclude that the prior action of the Scott circuit court denying the defendant the equal protection of the laws is a real hin¬ drance and obstacle to his asserting his right thereto in a future trial therein, — just as real as an unconstitutional statute would be, — and that the defendant is denied the equal protection of the laws in said court, within the meaning of said sec¬ tion, and entitled to a removal on account thereof. He is denied in said court the equal protection of the laws because he has been denied, and such denial has never been set aside, but remains in full force and effect. . . . By an ‘inability to en¬

force in the judicial tribunals of the state’ is meant, as I construe the statute, any judicial tribunal of the state that may have jurisdiction of the prosecution.” This view is met by what has been said in former cases, namely, that the words in § 641 —

“who is denied or cannot enforce in the judicial tribunals of the state” — have no application to any case where the rights secured to an accused “by any law provid¬ ing for the equal civil rights of citizens of the United States, *or of all persons with-

in the jurisdiction of the United States,” are recognized or are not denied by the Constitution or laws of the state in which the prosecution is pending.

Under this holding, the accused is not deprived of opportunity to have his rights, of whatever nature, which are secured or guaranteed to him by the Constitution or laws of the United States, fully protected by a Federal court. But, it is said that the action of the trial court in refusing to quash the indictment or the panel of petit jurors, although the motion to quash was based on Federal grounds, cannot, under the laws of Kentucky, be reviewed by the court of appeals, the highest court of that commonwealth. If such be the law of Kentucky, as declared by the statutes and by the court of appeals of that commonwealth, then, after the case is disposed of in that court by final judg¬ ment, in respect of the matters of which, under the local law, it may take cognizance, a writ of error can run from this court to the trial court as the highest court of Kentucky in which a decision of the Fed¬ eral question could be hadj and this court in that event, upon writ of error, reviewing the final judgment of the trial court, can exercise such jurisdiction in the case as may be necessary to vindi- , 649

37-39

Supreme Court of the United States.

Oct. Term,

cate any right, privilege, or immunity specially set up or claimed under the Con¬ stitution and laws of the United States, and in respect of which the decision of the trial court is made final by the local law ; that is, it may re-examine the final judg¬ ment of the trial court so far as it involved and denied the Federal right, privilege, or immunity asserted. This must be so, else it will be in the power of a state t* so regulate the jurisdiction of its courts as to prevent this court from protecting rights secured by the Constitution, and improperly denied in a subordinate state court, although specially set up and claimed. What we have said is clear from § 709 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 575), which declares that “a final judgment or decree in any suit in the highest court of a state, in which a decision in the suit could be had, . . .

where any title, right, privilege, or im¬ munity is claimed under the Constitution, . . . and the decision is against the

title, right, privilege, or immunity *specially set up or claimed, by either party, under such Constitution, . . . may be re-ex¬

amined and reversed or affirmed in the Supreme Court upon a writ of error.” Looking at the object of that section it must be held that this court has juris¬ diction, upon writ of error, to re-examine the final judgment of a subordinate state court denying a Federal right, specially set up or claimed, if, under the local law, that court is the highest court of the state entitled to pass upon such claim of Federal right. The great case of Cohen v. Vir¬ ginia, 6 Wheat. 2C4, 5 L. ed. 257, which was a criminal prosecution for a misde¬ meanor, was brought to this court, upon writ of error, from the quarterly session court for the borough of Norfolk, Virginia, and our jurisdiction was sustained upon the ground that such court was the highest court of the state in which, under the laws of Virginia, that case was cognizable. In Doivnham v. Alexandria, 9 Wall. 659, 19 L. ed. 807, which was a suit for taxes against a dealer in liquors, the court said: “The legislature, then, having thought fit to make the judgment of the district court in this case final and without appeal, that court is, for this case, the highest court in which the decision could be made; and the writ of error is, therefore, warranted by the act of Congress, and regular.” In Gregory v. McVeigh, 23 Wall. 294, 306, 23 L. ed. 156, 157, which was a writ of error to the corporation court of Alexandria, Vir¬ ginia, and in which there was a motion to dismiss for want of jurisdiction, this court, said: “The court of appeals is the 650

highest court in the state of Virginia.

If a decision of a suit could be had in that court, we must wait for such a decision before we can take jurisdiction, and then can only examine the judgment of that court. If, however, the suit is one of which that court cannot take jurisdiction, we may re-examine the judgment of the highest court which, under the laws of the state, could decide it. . . . We think, there¬ fore, that the judgment of the corporation court of the city of Alexandria is the judgment of the highest court of the state in which a decision of the suit could be had, and that we may re¬ examine it upon error.” In Bergcmann v. Backer, 157 U. S. 655, 659, 39 L. ed.

845, 848, 15 Sup. Ct. Rep. 727, 728, a crimi¬ nal prosecution for murder *in a subordinate

court of New Jersey, this court said: “If the proceedings in the court of oyer and terminer could not, under the laws of New Jersey, be reviewed in' a higher court of that stdte, except upon the allowance of a writ of error by such court or by some judge, and if such allowance was refused, then the judgment of the court of original jurisdiction was, within the meaning of the acts of Congress, the judgment of the highest court of the state in which a deter¬ mination of the case could be had, and such judgment could have been, upon writ of error re-examined here, if it had denied any right, privilege, or immunity spe¬ cially set up and claimed under the Consti¬ tution of the United States.” So, in Missouri, K. c6 T. R. Co. v. Elliott, 184 U. S.

530, 539, 46 L. ed. 673, 678, 22 Sup. Gt. Rep.

446, in which the defendant made a claim of immunity in virtue of an authority exercised under the United States, it was held that our writ of error ran, not to the supreme court of Missouri, but to the Kansas City court of appeals, — the highest court in which, under the law of that state, the ques¬ tion as to that immunity could be decided.

It is necessary to notice one other point made in behalf of the accused. At each of the trials he pleaded in bar of the prose¬ cution a pardon granted to him on the 10th day of March, 1900, by William S. Taylor, who was alleged to have been, at the time, the duly elected, qualified, actual, and acting governor of Kentucky, having in his possession and under his control all the books, papers, records, and archives, as well as the executive mansion, belong¬ ing to the office of governor. That pardon, it is alleged, was accepted by the accused.

It is further alleged that at the time said pardon was issued Taylor had been recog¬ nized, regarded, and treated as the lawful

201 TJ. S.

New Mexico v. Atchison, T. & S. F. R. Co.

39—42

governor of Kentucky by the executive pow¬ er and executive department of the govern¬ ment of the United States, including the President, tne Attorney General, and the Postmaster General, and by the postmaster at Frankfort, the capital of Kentucky. The petition for removal alleged that the court in which the accused was tried, as well as the court of appeals of Kentucky, had re¬ fused to recognize said pardon as having 40] any legal effect, and had *thereby denied to him the equal civil rights and the equal protection of the laws secured to him by the above provisions of the Constitution and laws of the United States; consequent¬ ly, it was contended, he was denied, and could not enforce, in any judicial tribu¬ nal of Kentucky, the rights which said pardon gave him.

Manifestly, in view of what has ■ already been said, this question as to the pardon of the accused does not make a case of re¬ moval on the ground of the denial or in¬ ability to enforce in the judicial tribunals of Kentucky of a right secured to the ac¬ cused “by any law providing for the equal civil rights of citizens of the United States or of all persons within the jurisdiction of the United States.” Whether the non¬ recognition by the courts of the state of the validity of the alleged pardon involved a denial of any right secured to the accused by any other law or by the Constitution of the United States, we need not now consider. As the circuit court could not, in virtue of § 641, take cognizance of this prosecution or removal, we cannot properly pass upon the merits of any question of Federal right which might arise in the case. It is sufficient to say that if the ac¬ cused, by reason of the Taylor pardon, ac¬ quired any right under the Constitution or laws of the United States, and if, at the next tria] of his case, that right, having been specially set up and claimed, should be denied by the highest court of the state in which a decision of that question could be had, such action of that court, in respect of that pardon, can be reviewed here upon writ of error. We do not perceive that any question arising out of the pardon could make a case under § 641 for the removal of the prosecution from the state court.

We are all of opinion that the order awarding the writ of habeas corpus cum causa must be reversed, with directions to set aside that order as well as the order docketing the case in the circuit court of the United States; also, that the rule in relation to mandamus must be made ab¬ solute, the prosecution remanded to the state court, and the custody of the accused surrendered to the state authorities.

It is so ordered.

201 U. S.