cOnt:IUlted the text-books and the adjudged cases, and have noticed the of the law,.-the courts on one side commissioners to to pay therefo!',keep dockets, and, the congress, on the other, but, for the reasons.,.aforesaid. and those given by Judge TOULMIN in Strong v. U., S., iJUpra, I am constrained to hold that thelegisll1tjon in question was general, and not restricted, and that thereby the coplmissioners' fee:bill was soamended as not to allow,docket fees under any circumstances. On the other points submitted on this motion for. a new trial, I agree with the trial judge inhis opinion on file in this case and in the case of #trong v.U. S. As certain findings of fact and allowances have been refused the petitioner to which. according to this opinion, he is entitled, it is necessary that a new trial should be granted in the case. An order to that effect will be entered.
LAMAR, Justice. Having sat with the circuit judge on the hearing of this motion, after due consideration and consultation we agreed in the general conclusions, andI aBsignedto him the preparation of the opinion. I have examiiled'the above opinion prepared by him,and concur fully ' ,with the,viewstberein presented.
UNITED STATES f1·. CHAIRES
Oourt, N. D. FlCYt1da. December 19,'1889.)
·to S:.u4lC"":SELECTINGFROM 'PaTi
21 U.S. at Large, 43,requiring the court to appqillta jury who shall be: Ii 'oitlzen of -good standing; andshali Teside in ,the district in which' the court is h,eld, ,and, w,ho shall b"e, a well-knoWll,member Of'the, pri ncipal. political par,ty in the that.to which the cler}l: belongs, is dire9tory merely, and not m a n d a t o r y . ' .
the district, and. not from the entire terriWry within the distridt,ls bad, there baing no inj\1ry Qr averred. 8,$.UllC., ' ' ,,', ' ,: A plea is 'also bad under this statute,which, in efl'ect,set forth that the defend, ants citizens.Qf L. county, in said dlstrictjtbat the,oifense charged , was if at all, in sai!! L. county j and that noneof the names placed in t,he . . jury-box froIinV'hich the grand jury was drawn were citizens of said L. county. " wrrn RI!lGARD TiO POLlTiIOAL,AFFILIATIONS., i ' , second, plea was to tile, effect that the. jury' 811d ,the clerk, in selecting names to be placed in the jurY-box from which the grand jury whioh found the indictment against defendants was drawn. did not CQmply,with the law, aI/dselect such without ,to party afti,liations, but did select; lIuch nl;lmes'wfth regard to the piLrtyalllillations of the No in , jUry or in'ejlidioewas averred. Held tblllt, Wbile the plea was defectivem form &Jld the mattilrBSet fOl'tb,c were so pleaded as tQ p.\1t the court on inquirr, aud tlie demurrer thereto would be overruled, and the district attorneyordered tb traverse the same.,' ;, , ,' : '.
v.. S: § 802,plea thatOil" DISTRICT.were retnrnep,on an order of c,?urlf.from PE1rmitting, to be partsofa dIstriCt, a tbe Jurors drawn from an alleged dlvislon of
Indictment fOf Violation of Election LawsiBrought against ,Benjamin ,Chaires, J. L. Agnew,and DooW()oten.
ll'NITED STATES P. (lBJ.IBBL
Cockerell & Sun, for defendants.' Mr. Stripling, Dist. Atty.
and SWAYNE, IJ.
PAR])EE, J. The defendants have filed several pleas in abatement, hereinafter more fully set forth, to which the district attorney .for the United States has demurred, assigning,as grounds therefor that the same are bad in substance, in ,that the said plG:as do not allege that the defimdants are prejudiced in any way, and that the matters alleged in said pleas do. not in law constitute any ground of abatement. Counsel for the defendants and for the United States have argued the questions of law thus raised, and the court has considered the same. The first, :plea is to the effect that the jury commissioner, appointed by the COUl.'t on July 2, 1889, ll.nd who acted in placing the names in the box from which was drawn the jurors composing the grand jury finding the. indictment against the defendants, is not now, and was not when of the principal political party in the districtopp9$ec;l to that political party to which the clerk of the courkbe-. longi\. 'l'he said plea contains no averment ofinjuryor prejudice to thl:f defendll.nts, resulting from the fact alleged, and constituting the sup;; o,f,the plea. At the,.hearing, we were under the impression that the pleaiwaa good insubstance,.snd that injury and prejudice to the de(en<1ants might be inferred from the non-eompliance with the requireme,nts of the law, considering the same to be mandatory 8S to the quali:' fication of the jury commissioner; but an examination of the law. and, a consideration of the nature of. the Case, have forced us to the contrary conclusions.'rhe statute provides as follows: ' "And that all such jurors. grand and petit, including those summonl'd during the .session of, the court, shall be publicly drawn from a bOlC containing, at the time of each drawing, the names of not less than three hllndre<i persons possessing the qualifications prescribed in section 8UO of the Revised Statutes, which names 'shall have been placed therein by the clerk of such thereof, which comcourt. and a commissioner to be appointed' by the missioner shall be a citizen of good residing in 'the district in which f!uch court is held, and a well-known member of the principal political party in th,e district in which the ,c()urt.is held, opposing that to which the clerk may belong; the clerk andSl;'idcommissioner each to place one name insajd box altf'rnately, without to party affiliations, the whole number required shall be placed therein." 21 St. at Large, 43. , ,
An inspection of this statQte shows that the work of preparing the names of tqe persons possessing the qualifications Of jurors,. and ,placing them in the,box, is to be 40ne by the clerk of the .court and a jury commissioner to be appointed bythejudge. The duty to be performed by thei;le parties is clell.r1y and specifically prescribed in the statute. It may be considered, ,and prob!lbly is, .fIlandatory; but it is entirely. distinct from the duty devolving, under the ptatute;upon the judge. ,The plea under consideration rel!ltes entirely to the performanceofthe'dutyofthe jf1<1g.e. By thes!4tute, the ju4geis to appoint 8. commissioner, w'ho of. gooqstandipg, who· sbaUrellide in the district ,in
which the court is held, and who shall.t.u: weU';'known ·xn.einber·()( the principal political party in the district opposing that to which the. clerk belongs. The question is whether thisTpartof the statute is mandatory or directoryj whether, in appointing a jury commissioner, the judge, while endeavoring toTcomply with the law,must make nO'lIlistakei.of fact or ofjudgmeIlt; bUitmliist, at the p-erih>f aU subsequent proceedings, be ,sure·to appoint a citizen, not only of standing, but ofg00d standing, and notonl)? a a well-known,: member of the principal poclerk belongs. The statement liticaL par,tyopposedto that to which, of the question; and thcniature of the case, satisfies U$ that the statute in, this partjicularis directory, and not mandatory. What is the stand. ard for a citizen in good standing? By what rule is itto'be determined who isa well.known memberofa political party? 'Considering that the judge' has knowledge, jndicial or othetwise, as to the political party of the clerk, bywhatmleis :the judge to determine which is the principal party opposed? Suppose that the clerk' is an independent or, a .prohibitionist? In, case ofa challenge to the array Of ora pIeRI in abatement, who is to'try the.issue? Allmatteis and questions comeback to the judge. The judge, in ,the exercise 'of &sounddis.cretion,: under the ofhia office, directed:'by the statute,passes upon thequalifications of the jury he appoiilts, and his action would; seem to ,he final· andconclusive, eJt:cept, 'perhaps j in the cout'Hhat can call the: judge to account, lor misbehavior in office; .Particularly mU$t this be the 'case where neither injury nor prejudice nor oppression is ap-' parent,nor',iS.averred. q ',., . the case of·U. 8. V.' Ambrose, 3 Fed. Rep. 283,r&o lied upon by counsel for defendants ali holding that the statute,. as to the qUali6,Qatwns of the:jury' commi8sioner1· is not directory merely, but ismandatoW.iWe find no Buch quegtioriin issue in, that case, nor any holding! bl'.'lan8'l.ageof the jUdge therein. to warrant the elusion tl,i'll.tstidhever opinion,. ::Them'atter.presepted by this plea interesting and subject to pwcourt, (aile of qUestion,) and we would be diSposed, eil:propria motu, to suspend ruling on this plea; and direct an issue thereon,and an investigation thereunder, but for the fact, of which we take judicial, notice asa part ofthe history of tpis ,and the preceding term, thatupoti' the identical 'the. court bas ;had and allowed the fullest investigationj thatthe i'eal'issue therein was'not as to whether the jurycomoiissioner was a Democrat, and a known but whether he'wfl$'Bwell-known Democratj and thereafter, upontQe evidence, thecoul'thas'heldand decided that thejury eommissioner w.as' is a well-known member of the ptim:i ptd polithjal party iIi the trict opposing that towhich the cletk'belon'gs, (U. 8. v.Bwan, ante, 451j) and a furUler investigation is not neeeasaty,either for the of the court' or· the protection of parties. The is to' the effect that the name.s of the persons placed oy thejur)'oommissionerand the clerk in tbebo::t were not drawn froxnth& entireterntory ,;withinthe'northetndiatrict of Florida. but were drawn
I . . . "
from an alleged division of the district. No injury or prejudice is averred. Section 802, Rev. to be returned on an order of court from parts of a district. No injury or can therefore be inferred. We think ,this plea,is bad in form and substance. The fourth plea is to the same effect, and, in addition, sets forth that the defendants are, and were, citizens of Leon county, in said district; that the offense charged was committed, if at all, in saiel LeQn, c()llnty; and 'that none of the names placed in the box from which the grand jury were of citizens of said Leon county. No injury or 'prejudice is averred, and as jurors can be drawn,under section 802, Rev.: St., 'from a part of the district, no injury can be inferred. The plea is faulty in form and substance, and the demurrer thereto is well taken. The fifth and sixth on the hearing. This disposes of all the pleas .but the second, which is to the effect that the jury commissioner and the clerk,' hi names to be' placed in the jury-box from which the grand jury which found the indictment 'Was cdra.Jvn, did not comply with the li:\w,. and select DAmel!' .without ,regard to party ,but, did select such of the persons selected. or j);rejudice is a'ler!:ed.. WerElgard this plea asdefective.iniform ·ands\lbstll,nce, and containi;ng argumentative ,and irrelevant matter,; but :we to the opinion that matters therein set forth might,beao as tfJ put theCQurt,Qp,inquiry.Weconsiderthatthecharge is, , prMticaUy", tlaat, the ,for political ,purposes. ',. We are disposed:t;o agree"with the case of U. S.v. Ambr08e,8Upfa, that .. of.tbe jury in.,preparingthe jury-box, do not thi.nltit.Jl,/lceswy to ,so decideJn this case·. :'The jo, andpresej)ted. J;.yreputable counsel, as it ill, we irf3gard,'Il$, ofsuch importan<le to well as to the administa'a, tion <,>(JU$tke, as inquiry. :, . ' An ,orlier will be en,tered sustaining the demurre:r to the. first, third, and f()ul'th,ple/:ls, declaring ,.the fifth .and sixth pleas ,withdrawn on the hearing,overrulingthl) the second plea,:anddir/lcting the "district o,f the· United to traverse the said second plea, ;·w.ith:, a. toa .hearing thereon.
Sw....llilIl, .J., concurs.
In re In ,.e
(CirouU Coort, E. D. Tennessee. December 6, 1889.)
H.1BEAS CORPUS-CoNVICTION JlEIIORE UNITED STATES COMMISSIONER.
Upon an application for a writ of habeas corpus by one jailed, in :.default of bail, upon a conviction before a United States commissioner, .under a warrant charging counterfeiting the coin of the United States, the court will not inquh'einto the merits of the decision of the commissioner, but only as to whether an offense is charged, .and whether the commissioner has power inquire into and adjudge the com·
Application of George Morris for habeas C01pua. W. H. Harbison, for petitioner. H. ·M.Wiltae,Asst. U.S. Dist. Atty.
KEY, J. The has presented his application for a writ of :habea.a CorpU8. He that he Wll-S 'arrested ulldera: warrant issued 'by a commissioner of this court in which he is charged with counterfeitingthecoin of,the UnitedStatesj that he was tried befote the commissioner, and found guilty; and, failing to give bond, was cbmmittedto jailto awaitttialat the next term of the court. His not insisted tha.t the offense chargecl is not 8 crime against the United States, or that the commissioner had no authority to hear the case. The petition alleges that the proof the commissibrier was insufficient io justify tHe judgment rendered j that it fails to show probable cause of the petitioner's guilt. "The case is of considerable importance, not only to the petitioner "and thosesimila.rly situated, but to the government. There are several ·hundred criminal offenses tried intihe federal courts of the eastern and middle districts of Tennessee in every year, and four-fifths of them, I pre. same, are commenced before commissioners of the courts. If it be the , duty ofthe court or judge to grant and hear applications for writs ofha'beaa corpua upon the ground ofthecharacter or weight ofthe proof upon "' which the cotDtnissioners act in the'Secases,therewill he scope and opportunity for an extensive business and great expenditure of the publio money in this field of operations. But if the law imposes such a duty, or gives such a right, it must be met and enforced. Procel'<1ingson habeaa CO'l-pU8 in the federal courts are not governed by state legislation, but must conform to common-law rules. Ex parte Kaine, 3 Blatchf. 1. 'We must look to the common law, to the legislation of congress, and the decisions of the federal courts for the principles which should control the determination of this case. There is not absolute uniformity in the decisions of the circuit and district courts in regard to these principles, as applicable to the case under consideration. In Re Stupp, 12 Blatchf. 507, it was held that the court issuing the writ will not retry the case, but will inquire into the jurisdiction and the regularity of the ings. In Ex parte Parka, 14 Alb. Law J. 339, it was said that it is only when the proceedings below are entirely void that the prisoner is entitled