Minot v. Philadelphia, Wilmington, & Baltimore R. R. Co.

silver transported from that State to any port or place out of the State, was substantially a tax upon the transportation itself, and was unconstitutional. It is true the decision was rested on the ground that it was a tax upon exports; and, subsequently, in Woodruff v. Parham, 8 Wall. 123, the court denied the correctness of the reasons given for the decision; but they said at the same time the case was well decided for another reason, viz: that such a tax was a regulation of commerce-a tax imposed upon the transportation of goods from one State to another, over the high seas, in conflict with that freedom of transit of goods and persons between one State and another, which is within the rule laid down in Crandall v. Nevada, 6 Wall. 35, and with the authority of Congress to regulate commerce among the States. In the very recent case of Crandall v. Nevada, 6 Wall. 35, it was held that a special tax imposed by the State on railroad and stage companies for every passenger carried out of the State by them, was a tax on the passenger for the privilege of passing through the State by ordinary modes of travel, and not simply a tax on the business of the companies. Hence it was ruled that the power of a State to impose such a tax is inconsistent with rights conferred by the Constitution on the Federal government and on the people, and consequently that no State can lay such a tax. The majority of the court, indeed, declined to put their decision upon the ground that the tax was a regulation of inter-State commerce, and as such, beyond the reach of the State, but all the judges agreed that the State law was unconstitutional and void. The chief justice and Mr. Justice CLIFFORD thought the judgment should have been placed exclusively on the ground that the act of the State legislature was inconsistent with the power conferred upon Congress to regulate commerce among the several States, and I do not understand that the other members of the court held de

Minot v. Philadelphia, Wilmington, & Baltimore R. R. Co.

cisively that it was not thus inconsistent. The case, in any view of it, decides that a State cannot directly or indirectly tax persons for passing through or out of it. That is enough for the case I have before me. The Delaware statute of April, 1869, does indirectly levy a tax upon both persons and property for transit through the State, into it, and out of it. It is, therefore, in my opinion, so far in conflict with the Constitution of the United States.

I shall, therefore, enjoin against any steps for the assessment, collection, or payment of the tax prescribed by section 21 of the act of April 8, 1869, namely, the tax for the use of locomotives, passenger cars, freight cars, and trucks, and I shall refuse the injunction prayed for to prevent the collection and payment of the tax prescribed by section 15, upon the actual cash value of every share of the capital stock of the company defendant, and I shall also refuse an injunction against the collection and payment of the tax prescribed by section 20 upon the net earnings or increase of the company.

Decree accordingly.

Farez' Case.

FAREZ CASE.

Circuit Court, Second Circuit; Southern District of New York, June T., 1870.

EXTRADITION. EVIDENCE AND PROCEDURE.

The complaint in a foreign extradition case is not defective because it does not aver personal knowledge of the deponent, being a foreign consul, of the facts charged. An official statement of the charge, by a consul, made with distinctness enough to enable the accused to understand what is charged, is a sufficient complaint.

The complaint in a foreign extradition case need not show that any warrant has been issued against the accused, abroad.

The warrant issued by a commissioner in a foreign extradition case, need not show that the commissioner was appointed to issue the particular warrant. An averment of his authority to issue such warrants generally, is good.

Under the convention with Switzerland, 11 Stat. at L. 593, extradition is warranted, when one of the specified crimes has been committed, if it is subject to infamous punishment by the laws of the country where it was committed. It need not also be infamous by the laws of the United States.

There is no rule of procedure in foreign extradition cases, which entitles the accused to cross-examine the complainant, before any evidence has been offered on behalf of the prosecution.

When, upon the hearing of a foreign extradition case, depositions of witnesses examined abroad, authenticated in the manner prescribed by the act of June 22, 1860, 12 Stat. at L. 84, are produced on the question of criminality, the judicial authorities here are bound to give them the same effect as would be given to the testimony of the witnesses if personally present and testifying. Thus, if the charge is forgery, and the depositions show that the witnesses had the alleged forged papers before them, no objection can be heard that such papers are not produced upon the examination.

In reviewing the proceedings in a foreign extradition case, upon habeas corpus and certiorari, the court cannot pass, in any manner, upon

Farez' Case.

the discharge of the executive functions of the president. If the mandate of the president, authenticated by the State department, shows that the president considers that satisfactory evidence has been produced that the person named stands charged with the crime, the court can in no manner question the evidence on which the president came to that conclusion.

The various rules which govern the authentication of the papers requisite or admissible in proceedings of foreign extradition,-stated and explained.

In foreign extradition cases, the examination of the offender must be conducted according to the laws of the State in which the proceeding is had, as respects all particulars which are not specially regulated by a statute of the United States.

If the laws of the State entitle a person under preliminary examination for a crime against those laws to testify in his own behalf,— e. g., N. Y. Laws of 1869, ch. 678,-then a person under examination with a view to his extradition is entitled to be so examined. To justify holding a person accused of crime against a foreign government, for extradition, evidence furnishing good reason to believe that the crime alleged has been committed by the person charged, is necessary. But the examining magistrate should not require the full proof which would insure a conviction upon a trial in chief. Where, upon proceedings to revise the action of an examining commissioner, in committing a person charged with crime against a foreign government, for extradition, it appeared that the commissioner erred in refusing to permit the prisoner to be examined on his own behalf,-Held, that the prisoner must be discharged from custody under the final commitment; but that he was properly held under the warrant of arrest, and must be remanded to the custody of the marshal thereunder, and the examination should proceed anew.

Hearing upon writs of habeas corpus and certiorari.

BLATCHFORD, J.-In this case a writ of habeas corpus and writ of certiorari have been issued to review the proceedings which have taken place before Kenneth G. White, Esq., a United States commission-' er, in reference to the application of the authorities of the Swiss Confederation for the extradition of the petitioner, Francois Farez. The proceedings which took place before the commissioner have been brought

Farez' Case.

before me, and the questions involved have been fully discussed by the respective counsel.

It appears by the record that the proceedings went on before Commissioner WHITE by consent, he not having been the commissioner who issued the warrant of arrest, and that before the matter was proceeded with at all before Commissioner WHITE on the part of prosecuting party, a motion was made before the said commissioner by the accused, to dismiss the complaint and warrant on several grounds.

The first ground was, that the complaint was insufficient, because it did not contain anything more than an official statement on the part of the deponent, as consul, &c., that the prisoner was charged with the crimes stated, and did not contain the express personal averment to that effect, required by law. I do not think there is anything in that objection. Necessarily, in carrying out the provisions of extradition treaties, the complaint must, in many cases, be made by the representative of the foreign government; and all that can be required is that it shall be sufficiently specific, clear, and distinct in its averments to enable the party accused to understand precisely what it is he is charged with. The complaint made in this case by the Swiss consul in his official capacity, he not pretending to any personal knowledge of the matters set forth in the complaint, contains all the necessary and proper averments to enable the party accused to understand what offenses he is charged with having committed; and there is no force in the objection that it does not contain anything but an official statement.

The second objection was, that it did not appear by the complaint by what magistrate abroad the warrant against the prisoner had been issued, so as to enable the commissioner to decide whether such magistrate had authority in the premises. The complaint states that a warrant of arrest against the prisoner, on