STATE OF TENNESSEE 'V. RIBDOl!:.
a witness upon a charge coming before him for investigation. St. 1879, p. 84:2, § 7\:). Nor can a grand jury issue a subprena for a witness, or decide the competency of a question asked, or punish for contempt. These matters rest with the court. Sections 85-88. This provision of the act of March 7, 1885, is a strange combination of judicial and ministerial duties, aided with rewards and penalties, and, 80 far as I have been able to ascertain, is an anomaly to all the judicial proceedings known to the land. It attempts to unite the judicial with the executive branch of civil government; and when the law-making power and the power which declares and applies, as well as that which executes and administers the law, are united and vested in one person or body, it becomes a despotic and not a constitutional government. Are these objections sufficient to justify a court in the conclusion that a person restricted of his liberty under these proceedings is deprived of his liberty without "due process of law?" I am compelled to answer in the affirmative. I believe no precedent can be found for the application and use of judicial power in the manner and for the purpose contemplated by this act, and that it is a dangerous innovation on the fixed maxims and rules in the administration of justice, established for the protection of private rights. In this conclusion I am also sustained by a recent decision of Judge CROZIER, of the First judicial district of this state. In re Beller, 1 Kan. Law J. 229. It is therefore ordered that the petitioner be discharged from custody.
STATE OF TENNESSEE
(Oircuit Oourt, M. D. Tennessee.
COUItT-MARTIAL-TRIAL OF SOLDIEH COURT-Ac'r OF MARCH 3, 1863.
April Term, 1885.)
FOR MURDER-JURISDICTION OF STATJll
A state court in Tennessee has no jurisdiction to try a party for a murder alleged to have heen committed on February 22, 1865, while the accused was a soldier in the United 8tates army, as such offense is triaule under the act of congress of March 3, 1863, by court-martial.
Ha1;Jeas Corpus. Andrew McClain, U. S. Dist. Atty., and W. B. Stokes, for peti-
J. A. Jones, for the State.
KEY, J. The petitioner, who is the defendant in this case, is under indictment, in the circuit court of Cannon county, Tennessee, for the murder of James Gibson. He has been arrested and imprisoned in the jail of Cannon county under the charge. He insists that he is not subject to the jurisdiction of the state court, because, at the time
the murder is alleged to have been committed, he was a· soldier in the federal service, and that a court-martial had the sale and exclusive jurisdiction of his case. The thirteenth section of the act of congress of March 3, 1863, to enroll and call out the national forces, enacts "that in time of war, insurrection, or rebellion, murder, assault and battery with an intent to kill, manslaughter, mayhem, wounding by shooting or stabbing with an intent to commit rape, and larceny, shall be punishable by the sentence of a general court.martial or military commission, when committed by persons who are in the military service of the United States and subject to the articles of war; and the punishment for such offenses shall never be less than those inflicted by the laws of the state, territory, or district in which they may have been commit. ted." 12 St. 736. In the case of Coleman v. Tennessee,97 U. S. 510-520, Justice FIELD, delivering the opinion of the court, says this section "does not make the jurisdiction of military tribunals exclusive of the state not declare that soldiers committing the offenses courts. It named shall not be amenable to punishment by the state courts. It simply declares that the offenses shall be 'punishable,' not that they shall be punished by the military courts; and this is merely saying that they may be thus punished." 97 U. S. 513, 514. But, notwithstanding the principle thus enunciated, the court goes on to say;
"In denying to the military tribunals exclusive jurisdiction, under the seetion in question, over the offenses mentioned, when committed by persons in the military service of the United States, and subject to the articles of war, we have reference to them when they were held in states occupying, as members of the Union, their normal and constitutiomtl relations to the federal government, in which the supremacy of that government was recognized, and the civil courts were open and in the undisturbed exercise of their jurisdiction. When the armies of the United States were in the territory of insrtrgent states banded together in hostility to the national government, and making war against it,-m other words, when the armies of the United States were in the enemy's country,-the military tribunals mentioned, had, under the laws of war, and the authority conferred by the section named, exclusive jurislliction to try and punish offenses of every grade, committed by persons in the military service. Officers and soldiers of the armies of the Union wert' not subject. during the war, to the laws of the enemy, or amenable to his tribunals for offenses committed by them. They were answerable only to their own government, and only by its laws, as enforced by its armies, could they be punished." 97 U. S. 515.
But it is insisted on behalf of the state that the state of Tennessee had been restored to its normal condition in the Union at the time the offense is charged to have been committed; that a military governor had been appointed by the president of the United States, and the machinery of the state government was friendly to and acknowledged the federal government and constitution as paramount to its authority. The case of Coleman v. Tennessee decides this point also. The murder in Coleman's Case was alleged to have been committed
WOONSOCKET RUBBER 00.
March 7, 1865. 97 U. S. 510. The murder with which the petitioner is charged, is alleged to have been committed on the twentysecond day of February, 1865. The supreme court of the United States say, in the Colemnn Case: "The fact that when the offense was committed for which the defendant was indicted, the state of Tennessee was in the military occupation of the United States, with a military governor at its head appointed by the President, cannot alter this conclusion. (That is that the state courts had no jurisdiction.) Tennessee was one of the insurgent states forming the organization knOWn as the confederate states, against which the war was waged. Her territory was enemy's country, and its character in this respect was not changed until long afterwards." I think'the Coleman Case is decisive of all the points made in the one under consideration, and have come to the conclusion that the motion made on behalf of the state of to quash or dismiss the writ of habeas corpus, because the facts stated in the petition are not sufficient to authorize its issuance, must be overruled. NOTE.-Upon the hearing of the petition upon its merits, it appeared that the petitioner was a federal soldier at the date of the alleged murder. 'fhe judge thereupon ordered that he be released from his imprisonment, and the order was carried into execution.
WOONSOCKET RUBBER Co. v. CANDEE and others.
(Oircuz't Oourt, D. Oonnecticut. May 19, 1885.)
PATENTS FOR INVENTIONS-TAP FOR RUBBER BOOTS-NOVELTY.
Patent No. 103,594, granted May 31, 1870, to Francis Flynn, for an improved tap for rubber boots, void for want of patentable novelty.
In Equity. B. F. Thurston, Causten Browne, and Chas. E. Mitchell, for complainant. J. S. Beach and C. R. Ingersoll, for defendant. WALLACE, J. The complainant's bill in this suit alleges infringement of the patent granted May 31, 1870, to Francis Flynn, assignor of complainant, for an improved tap for rubber boots. The answer sets up that the alleged invention was known to and used by others in this country prior to the invention of Flynn, and that there was no invention in the improvement in view of the prior state of the art. The patentee states in his specification that the improvement "consists in the construction of the double sole or tap," which on the rubber boots and shoes theretofore made "terminated abruptly where the shank begins, which is objectionable, because in walking the greatest 6train comes directly across this point, so that after a few months'