FEDERAL REPORTER.
Ill. 495, where a cause was dismissed on the defendant's motion because no declaration had been fi]edby the first day of the second term, the court awarding to defendant a judgment for costs, but giving no judgment for return of the property. About two years thereafter, and after the lapse of the term at which the cause was dismissed, defendant moved to amend the judgment, as is done in this case, by the addition of a judgment for return of the property. Such motion was allowed, and on appeal the supreme court reversed the action of the court, holding that the court had no supervisory power over the judgment after the expiration of the term at which it was rendered; that the amendment made was a ,U1a,tter of substance, and not a mere matter of form; and that although the court on the dismissal of the case had the right to render a judgment for return of the property, it by no means followed that it could 'several years afterwards review its own Judgment and enter. the judgment that should have been entered in the first instance. And to the same effect are Troutman v. Hills, 5 Bradw.. 396j Becker v. Sauter, 89 Ill. 596; Jones v. Randolph, 104 U. S. 1l0jLinder v. Lewis, 1 Fed. Rep. 378. The statute, it will be seen, provides for just such a judgment as was entered in this case, if it shall appear that the plaihtiff since the commencement of the suit has become entitled to the possession of the property in question; and, in the absence of proof to the contrary, the court will presume that ,the judgment was in accordance with the proof before the court. But even if proof was now offered showing conclusively that at the time the judgment of dismissal was entered there was nothing before the court which would authorize the court to deny the judgment for return of the property, such proo( could not now be heard, as that would be in effect correcting the error of th.. court after the term had closed. The motion must be overruled.
Ex parte KINNEBREW. (C'ircuit Court, N. D. Georgia. March 19,1888.)
1.
INTOXICATING LIQUORS-CONSTITUTIONALITY OF ACTS-REGULATION OF COM:' LOCAL OPTION LAW
The Georgia local option act of September 18, 1885, which, after prohibiting the sale oj' liquor, provides, "that nothing in this act shall be so construed'as to prevent the manufacture, sale. and use of domestic wines or cider, "etc., in excepting domestic wines from the prohibition must be taken as also excepting other wines, and so construed is not in violation of Const.· U. S. art. 1, § 1:1, giving to congress the power to regulate interstate commerce.
2.
COURTS.,...FEDERAL JURISDICTION-FEDERAL QUESTION.
Whether the objectionablepa,rt of the Georgia local option act of September 18, 1885, being separated, the rest may stand alone, Is not a question arising under the United States constitution, or a law or treaty of the Uniterl States. When a defendant has been indicted for violation of the Georgia local option act of September 18, 1885, the validity of which Is for the state court to
8.
SAME-DUE PROCESS OF LAW.
EX PARTE KINNEBREW.
53
determine, has been tried by a jury according to the usual forms, and been heard in the supreme court of the state, and the case, for want' of any federal question, has been rejected at the United States supreme court, his imprisonment is not "without due process of Ill,W."l
Petition for '''rit of Habeas Corpus. The relator's case is thus stated in his petition: "The petition of Columbus D. Kinnebrew, who alleges that he is a citizen of the United States and of the state of Georgia, respectfully showeth that he is illegally restrained of his liberty in violation of article first, section eight, and paragraph third of the constitution of the United States by being deprived of his liberty by L. P. Thomas, the sheriff of Fulton county, in the Northern district of Georgia, by virtue of an alleged accusation, with the verdict and judgment of .the court, or sentence, rendtlred thereon, which was depending in, tried; and said verdict ,and sentence rendered by the city court of Atlanta, of said ,Fulton county; a copy of WhICh said accusation, verdict, and sentence is hereto attached asa part of this petition, and is marked' Exhibit A.' Petitioner shows that he was accused on said accusation, tried, and found gUilty, ltndsentellced by said court as and at the times stated in said Exhibit A, (said conviction" verdict, and sentence being had and pronounced on 6th day of July, A. D. 1887,) for an alleged violation of what is known as the' General Local Option Liquor Law,' which said alleged law is a pretended act of the general assemblyof Georgia. approved by the governor 18th day of September, 1885, entitled an 'Act to provide for preventing the evils of intemperance, by local option in any county in this state, by submitti ng the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county; to provide penalties for its violation, and for other purposes.' The'Case made by the testimony and submitted to the jury being that petitioner had bartered and sold for a valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors to one R. S. Ogborn, and other persons, on the 26th day of April, 1887, and other days since 1st day of July, 1886; said liquor not being domestic wines, nor wines sold for sacramental purposes, nor pure alcohol. Petitioner shows that the jury were instructed that the law which petitioner was charged with ,violating was said general local option liq uor la w, as appears from the charge of the court, which is a part of the record of said case in said <:ity court of Atlanta, and .is as follows: 'The jury is instructed that it is unlawful for any person, within the limits of any county of this state in which what is known as the "Genel'al Local Option Liquor Law" is of force, to sell or barter for valuable consideration, either directly or indirectly. or to give away to induce trade at any place of bUsiness. or furnish at any other public places. any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters 01' drinks, which, if drank to excess. will prod nce intoxication.' Petitionershows .that the provisions of the said general local option liquor law Which. relate to the prohilJition of or rendering illegal the sale of liquor, and to what liquors, bitters. or drinks are prohibited to be sold or given away, are the sixth and eighth sections of said act. All of the other provisions of said pretended act relate to the method of invoking the exercise of the local option providedfQr therejn, of holding an election, canvassing, and declaring the re:suIt, with penalties for fraud in such an election, or for the violation of the hereinafter recited sections of said act. Said sixth and eighth sections are as follows: '" 1 Re!!pecting,the constitutional guaranty of due process of law, see RutSOD'V. Pro' tection Dist.,(Cal.) 16 Pac. Rep. 549l..andnote; People v. Haug, (Mich,) 37 N. W. Rep. :21; Savage Y.,' Com., (Va.) 5 S., E. J;l,ep. 565; School-Dist. v. Seminary, (Pa.) 12 At!. Rep. 857.
54
". Section Si'l:th. That if a the votes cast at any election lleld as by this act provided shall be" Against the sale,".it shall not be lawful for any person within the limits of such county to sell or barter for 'valuable consideration, either directly or indirectly, or give away to induce trade at any place of business, or furnish at other public places, any alcoholic, spirituous, malt. or intoxicating liquors, or intoxicating or other drinks which, if drank to excess, will produce intoxication.' ". Section Eighth. That nothing in this act shall be so construed as to prevent themnnufacture, sale, and use of domestic wines or cider, or the sale of wines for sacramental purposes: provided such wines or cider shall not be sold in bar-room by retail; nor shall anything herein contained prevent licensed druggists from selling or furnishing pure alcohol for medicinal, art, scientific, and mechanical purposes.' "Petitioner shows that it was for an alleged violation of this pretended act as above set the alleKed sale or bartpr of liquors, bitters, or drinks not for sacramental purposes, and the same not being domestic wine or cider or pure alcohol-that petitioner was tried as aforesaid,and is now retained and deprived of his liberty. Petitioner further shows that the various steps necessary to be done to have the election spoken of in section sixth of said act. above quoted, called and ordered for the county of Fulton aforesaid , were duly carrit'd out as prescribed In said pretended act. Petitioner shows that a peti. tionas prescribed in said act, asking that such ('lection be held for Fulton countyafol'esaid, was presented to the ordinary of said county, and that an election as prayed was ordered thereunder, and said election held on the 26th day of November, 1885, and that said election resulted in a majority 'Against the sale,' of 228 voters, and that said result had been proclaimed and puulished under the requirements of said act, and tllat said act,' if valid and COllStitUtional, bad'gone into effect,. and was of force, on and after 1st day of July, 1886. But petitioner alleges that said law is unconstitutional and void as . in violation of the paragraph, section, and article of the constitution of the United States first aforesaid, in this:· that said act auove quoted attempts to discriminate in favor of domestic wineS and ciders, as specified in the eighth section thereof, and against all other wines or liquors of every sort not domestic; said discrimination being contrary to said articie, sf'ction, and paragraph of the constitution of the Ullited States. Petitioner shows that his said case on said accusation has been carried .by him to the supreme court of Georgia, and that said court has affirmed said sentence and jUdgment of said city court of Atlanta in his case; that said jUdgment of affirmance has been made the judgment of the said city court; that no further appeal, writ of error, or any other way of escaping said sentence and judgml'nt remains which can now be had or taken in any state court, nor of reviewing the Same. PetitIOner shows that he is now restrained of his liberty, and depl'lved of the same, by said L. P Thomas, sheriff of Fulton county 'aforesaid, under said jUdgment and sentence of said city court; that said judgment and sentence and said restraint aDd deprivation of petitioner's liberty thereunder are in violation of said. article first, section eighth, paragraph.third of the constitution of the United States, and are void, and petitioner's restraint and deprivation of liberty without color of law,-unconstitutional as aforesaid,-nuJ] and void. Petitioner sbows that said general local option Jiq uor act· has not been declared to be unconstitutional by the supreme cOUlt of Georgia." A writ of habeas corpus having' issued, the case is on the fol· lowing agreed statement of facts: (1) "That this matter be heard before the Honorable DON A. PARDEE, jUdge of said court, at New Orleans, La., on Monday, the 13th day ofFebrQarY,1888. (2) That the statements coritainedin the petition for writ of habeas CQrpWJ
EX PARTE KINNE13REW.
55
are true. (8) That in addition to said statements the. following are also true. viz.: After the said jUdgment of the said city court was affirmed by thesu. preme court of Georgia, an application for the allowance of a writ of error to the judgment of the said supreme court, accompanied by a full and completetraIiscript of the record in said case. was presented to one of the jUdges of the supreme COlll't of the United States. to·wit, Mr. Justice FIELD. and the -same was by him handed to another jUdge of said court. to-wit, Mr. Justice HARLAN, who. upon an inspection of said application, and examination of said record, refused to allow said writ. as follows: " · SUPREMECOUR1' OF THE UNITED STATES.
" ·WASHINGT02'l. December 1887. Mr. Justice FIELD handed me the record and your brief in Kinnebrew v. State of Georgia for aD examination in connection with application ·by,·your client for the allowance of a wptof error to the supreme court of the state of Georgia. The allowance of the writ !Dust be denied. I am unable to find -in the record even any intimation tbata federal question was raised or decijled, or that there was .any claim upon part of your clients of · rights uu,daJ' the constitution of the United StIJ,tes. The claim in the grounds for a new trial in the Cou\,toforiginal jurisdiction, that "the is against the law." is insufficient to show that a federal question was raised, or that a right ulIder:iM constitution of the United States' was asserted. within the · JDeaning of the statutes giving the supreme court of the United States power to review the judgments of the highest court of a state. I return the papers , by ml!oil.. R!ls'py. your obdp. servant. Circuit Justice assigned to 5th circuit. " ·JOHN M. · 'i To Meslfrs.Arnold &: A;rnold. Attorneys at Lq,w.' It . , .. 'GENTLEMEN:
,Howell C. Glenn and a. 'V. -Rm, for the State. Calhoon, King&:8pa1ding, for relator. PARDEIi:,J, The generalctlocal option" act Or the legislature of the stare of Georgia, approved September 18, 1885,a8 set forth in the agreed , statement offacts on file; in so far.as it discriminates in favor of domes, tic and against the importation and sale or wines manufactured in ot1:ler'states and foreign countries; is in violation of the constitution of the United States. WeltOn v. lIfi88ouri; 91 U. S. 275; Tiernan v. Rinker, , 102U. S. 123; Webber v. Virginia, 103 U. S.344; Salzenstein v. Mams, 91 Ill.3{)1;· Vines v. State, 67 Ala. 73; McOreary v. State, 73 .Ala. 481. The dOIIiestic wines mentioned in the eighth section of the act are such winesiisare made within the state, and probably froni fruits grown therein. See Com. v. Giltinan, 64 Pa. St. 100; Laws Ga. 1887, p. 21. If it is -.conl!!idered,thatthe sixth 'sectiollof the act prohibits the sale ofimported 'wines, and wines made In other states, under the head of intoxicating liqu'ors,6r other drinks which, if drank to excess, will produce intoxication, while the eighth section permits the sale or'domestic wines, then the unconstitutional discrimination is apparent on the face of the act, and it can only ,be eliminated by striking' from the act the exception in . favor bfdomestic wines;' or, by construction,inserting in the act an exception in favor of impol't-ed wines and wines from other states. The one 'means to strike out something, the legislature did enact, and the other is to insert something that- the legislature did not enact, in terms, but is
56
o
the legal implication arising fr0I11 what the legislature did enact. In . McCreary v. State, supra, the'supreme court of Alabama, following the case of Powell v. State, 69 Ala. 10, and citing Tiernan v. Rinker, 102 U. S. 123, held, in a case strictly analogous to the present, that the illegal proviso or exception of the. statute might be stricken out, and the remainder permitted to stand unaffected thereby, and thus affirmed a conviction for doing that which the legi81ature of Alabama enacted might be done. In Spraigue v ThompsfYn, 6 Sup. Ct. Rep. 988, the supreme court of the United States, in reversing the supreme court of Georgia in the Pilotage Cases, 69 Ga. 409, says in regard to the principle of construction which disregards illegal exceptions, and leaves the rest of the law to stand as a separable part of the statute: "The insuper'able difficulty with the ltpplication of that principle of constrnction to the present instance is that, by rejecting the exceptions intended by the legislature of Georgia. the statute is made to enact what confessedly the legislature never meant. :. It confers upon the statute' a positive operation beyond the legislative intent. arid beyond what anyone can say it would have enacted, in view of the illegality of the exceptions. 0" The case of Tiernan v. Rinker, supra, passed upon,a tax law of Texas requiring an annual tax to be paid upon the occupation of liquor selling generally, but exempting wines or beer manufactured in the state, and the supreme court held that the statute was inopemt'ive so far as it made a discrimination against wines and beer imported ftom other states; that the sale of these products rtmst stand on the same footing as to tax as the wines and beer manufactured in· the state, .but that there was no objection to the tax as laid on the sellers of brandies and whiskies and other alcoholic drinks. It appears to be doubtful that the legislature of Georgiaintended .the said act to be sepilrable and to stand as the law-makers' will, without t1;le protection therein .afforded to Georgia wines. See subsequent act, approved September 12, 1887, taxing dealers in domestic wines. Laws 1887, p. 21. And no one can authoritatively say that, , without such protection to Georgia wines, the people would have given the majority necessary to put the act in force; nor can anyone say that with a provisIon exempting all wines that the legislature would have enacted, or the people would have adopted, the act. In the case of Weil' ,v. Calhoun, 25 Fed. Rep. 865, decided in this court in 1885, Judge McCAY, in commenting on this same Georgia law, and the unconstitutional discrimination, said: ·"It is possible. as I think, to separate this obnoxious clause-protecting domestic wines from the operatiop of the act-from the rest of it; declare it. void, and let the broad prohibition clause have its full effect. I am not, however, as clear on this branch of the subject as I would like to be." The consideration of the foregoing cases, and the reason of this particular case, lead me to the conclusion that Tiernan v. Rinker, supra, is thf. proper guide to follow in con!jtruing this Georgia act, and that ac.:ordingly the said act is to be held inoperative so as it diSt:riminates. against wines imported from other states; that the sale of these products must stand on the same footing as the domestic wines of Georgia; and
EX PARTE "KINNEBREW.
57
there is no objection to the general prohibition of the sale of alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters or other drinks which, if drank in excess, will produce intoxication, other than wines imported or domestic. This strikes out no clause, no provision, of the statute, but merely gives the statute the construction that the legislators must have'intended in view of their acquaintance with and sworn intent to support the constitution of the United States. Under this construction of the statute, as the relator shows that he was not convicted for selling wines imported or otherwise, he presents no case for relief on the ground that he is in custody in violation of the constitution of the United Sta.tes. Of course, if the Alabama view be taken, and t1;lestatute held to be valid when sufficiently purged by striking out the exception as not enacted, then the relator was properly convicted, and is entitled to no relief. And I think it is proper to say that my examination of the authorities leads me to the conclusion that thesame result as to 'relief in this case follows if, as claimed by relator's counsel, the said act is not. separable, so as to stand as a valid law with the illegal exception stricken out. As has been already stated, according to the agreed case, the Telator, Kinnebrew, was not prosecuted and convicted under or by reason of the unconstitutional proviso or exception in the said act, but lmder the pint of the act that the legislature had the power-if it had the will-to enact. Whether that part can stand as a separable part of the statute does :qot depend upon the constitution or laws of the United .states, but upon general principles of legislative construction; and if it be .conceded that it cannot stand because the statute is an entirety, and not separable, then the case is very similar to In re Brosnahan, decided by Mr. Justice MitLlm on circuit, and reported in 18 Fed. Rep. 62. In that case Mr. Justice MILLER, conceding that the claim thatthe oleomat"is an unwarranted invasion of public and private a8sumption of power without authority, in the nature of our institutions, and an interference with the natural rights of the citizen and' of the public, which does not come within the province of legislation," said: "This objection to the statute is one which we cannot consider in this case. As already stated, when a writ of habeas corpus is iss lIed by the circuit court in behalf of one in custody of a state officer under judicial proceedings in state ·courts, under state laws, the only inqUiry we can make is whether he is held in violation of the constitution or of a law of congress, or a treaty of the United States. The aot in question may be in conflict with the constitution of the state without Violating the constitution or any law 01' treaty of the United States. It may be in excess of the powers which the people of Missouri have on their' legislative body, and therefore void, without infringing any / principle found in the constitution, laws, or treaties of the United States." It is clear that the relator cannot be said to be in custody in violation of the third paragraph, section 8 of article 1 of the constitution of the United States, which relates to regulations of commerce with foreign nations, and among the several states, and with the Indian tribes, since, as has been stated, he was not convicted under that part of the statuto which discriminates against the importation and sale of other than do-
58 meatic wines. Relator's case. would be a very different one .if he had been indicted, tried,and convicted for importing and selling foreign wines, or the wines from other states, in. the state of Georgia, or if that even had been his real offense, though notsbown by the in<iictment. . Nor do I think it can be fairly said that the relator has been deprived of his liberty without due process, of law in violation of the fourteenth amendment of the constitution of the United States. He has been indicted by a grand jury for an offense' punishable by the letter of the acts on the statute-books; tried by tlojUiy, with all the forms which from time immemorial have been held to be "d,ueprocess oflaw;" his case has been heard in the supreme court of his st.ll.te, and been rejected at the supreme court of the United States a!! no.t involving any federal question,and should be considered as finalli Aecided. See Oooley, Oonst. Lim. (1st Ed.) 355; Hurtado v. California, 110 U. S. 537, 4 Sup. Ct. Rep. 111, 292. It is probablytr:ue everylegislative enactment is "due process oflaw," but w1;l.ere an alleged statute does not conflict with any of the federal and, if void at all, is only void be-' cause of the application of geneJ,'alprinciples of legislative construction, and where undersl1ch a statute a person is indicted by a grand jury and regularly tried, convicted, with fnll opportunity tomll.ke all his defenses, in a state of course, decides upon the validity Of, the statute unde.r, wh,icp it W9ce"eds, lam of the opinion that. he has had "due processofla:w," and particularly that no case is thereby made to authorize a federaJcourt to interfere and release the convict on the ground that he is in .custody in ,violation of the constitution of the United States. To interfere ill such a'case would be an assumption of appellate jurisdiction by the circuit courts in criminal cases in the state courts in which no distinctive, if any, federal question is involved. The writ of habeaB qorpU8 in this cl,\Se will be' discharged, and the relator remanded to the custody of the sheriff of Fulton county I with costs. .
Ga.,
UNITED STATES fl. POLITE
et al.
(Dz3trict Oourt, D. SoutAOa1'olina. :May 15,1888.) WICT¥ENT AND INFoRMATION-FILmG INPORMATION-SUFFICIENCY.
"
An information set out that it was issued on the oath of the office of the dis. trict attorney, but the information was not sworn to. Accompanying the in· formation were the papers of the commissioner who held the preliminary examinathilD, Ilhowing that the aCCJlsed had been arrested on a warrant issued upon affidavits, and stating the necessary facts upon knowledge, and that at .the hearing the evidence the accused was taken oath. Held, on motion to quash, that the lDformation was good.
Information under Rev: St. U'-S. § 5399, for impediIig a witness. motion to quash. T. E. Miller t for the motion.
On