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Opinion of the Court.
may be taken from the District Courts or from the existing Circuit Courts direct to the Supreme Court in any case in which the jurisdiction of the court is in issue; from the final sentences and decrees in prize causes; in cases of conviction of a capital or otherwise infamous crime; in any case involving the construction or application of the Constitution of the United States; in any case in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question ; and in any case in which the constitution or law of a State is claimed to be in contravention of the Constitution of the United States. But nothing in the act was to affect the jurisdiction of this court in cases appealed from the highest court of a State, nor the construction of the statute providing for review of such cases.
In view of the general rule that if a law conferring jurisdiction is repealed, without any reservation as to pending cases, all such cases fall with the law, Railroad Company v. Grant, 98 U. S. 398; Gurnee v. Patrick County, 137 U. S. 141, a joint resolution was passed on March 3, 1891, providing “that nothing in said act shall be held or construed in anywise to impair the jurisdiction of the Supreme Court or any Circuit Court of the United States in any case now pending before it ;” and it was added, “or in respect of any case wherein the writ of error or the appeal shall have been sued out or taken to any of said courts before the first day of July, anno Domini, eighteen hundred and ninety-one.” 26 Stat. 1115, 1116.
The case in hand did not come within either of the six classes of cases specified in section five; and as the appeal was not taken until after July 1, 1891, it must be dismissed. Wauton v. De Wolf, 142 U. S. 138. When the decree was entered, appellants had two years thereafter in which to take an appeal to this court. The act and resolution of March 3, 1891, declared that the right must be exercised prior to July 1, 1891. Although the appellate powers of this court are given by the Constitution, they are nevertheless limited and regulated by acts of Congress. Durousseau v. United States, 6 Cranch, 307,
Statement of the Case.
314. In that case it was held that the affirmative description of jurisdiction implied a “negative on the exercise of such appellate power as is not comprehended within it.” And here the appellate jurisdiction is not left to inference, but is taken away in terms after the date mentioned.
BROWN v. MASSACHUSETTS.
ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS.
No. 839. Argued April 6, 1892. – Decided April 18, 1892.
A defendant indicted in a state court for forging discharges for money
payable by a municipal corporation, with intent to defraud it, pleaded in abatement to the array of the grand jury, and to the array of the traverse jury, that all the jurors were inhabitants of the municipality, but did not at that stage of the case claim in any form a right or immunity under the Constitution of the United States. After conviction, the defendant, by motion in arrest of judgment, and by exception to the jurisdiction of the court, objected that the proceedings were in violation of the Fourteenth Amendment to the Constitution of the United States for the same reason, and also because the selectmen of the municipality who prepared the jury list, and took the principal part in drawing the jurors, were at the same time actively promoting this prosecution. The highest court of the State held the objections taken before verdict to be unfounded, and those after verdict to be taken too late. Held, that this court had no jurisdiction to review the judgment on writ of error.
An indictment was found by the grand jury in the superior court for the county of Nantucket and Commonwealth of Massachusetts, on c. 204, SS 1, 2, of the Public Statutes of Massachusetts, containing twenty-four counts, each of which was for forging, or for uttering, a discharge for money payable by the county of Nantucket, or by the town of Nantucket, with intent to defraud the county, or the town.
The town and county of Nantucket are geographically identical; the selectmen of the town have the powers of county commissioners; the town may raise money to pay the expenses of the county; and the treasurer of the town is county treasurer. Mass. Pub. Stat. c. 22, $ 29; c. 23, $ 4.
Statement of the Case.
By the general jury act of Massachusetts, in every town, lists of persons qualified to serve as jurors are prepared annually by the selectmen, and are subject to revision by the town in town meeting; and all grand jurors and traverse jurors are drawn by lot from the names on such lists. Mass. Pub. Stat. c. 170, SS 6–22. That act contains the following provisions:
“Sec. 38. In indictments and penal actions for the recovery of a sum of money or other thing forfeited, it shall not be a cause of challenge to a juror that he is liable to pay taxes in a county, city or town, which may be benefited by such recovery.
“SEC. 39. If a party knows of an objection to a juror in season to propose it before the trial, and omits to do so, he shall not afterwards be allowed to make the same objection, unless by leave of the court.
"SEC. 40. No irregularity in a writ of venire facias, or in the drawing, summoning, returning or empanelling of jurors, shall be sufficient to set aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the returning of the verdict."
The act of Massachusetts concerning proceedings before judgment in criminal cases contains this provision : “No motion in arrest of judgment shall be allowed for a cause existing before verdict, unless the same affects the jurisdiction of the court.” Mass. Pub. Stat. c. 214, $ 27.
The defendant pleaded in abatement to the array of the grand jury, and afterwards to the array of the traverse jury, upon several grounds, the only one of which relied on at the argument in this court was “because the names of said jurors were not drawn from the list of jurors in the manner provided by law.” The district attorney filed a replication to each plea; and at the hearing thereon it appeared that the crimes charged in the indictment were committed, if at all, in regard to vouchers presented to the town and county treasurer, with intent to defraud the town or the county; and the defendant requested the court to rule, “that by reason of bias and interest a grand jury” (or “a jury") " drawn and made up from
Statement of the Case.
the inhabitants of the town and county of Nantucket was not competent to make a presentment” (or “to try an indictment”) “for crimes against the county or town treasury.” The court declined so to rule, and overruled each plea; the defendant duly excepted to each ruling, and pleaded not guilty, and was thereupon tried and convicted; and his exceptions were overruled by the Supreme Judicial Court of Massachusetts, for reasons stated in the rescript sent down to the superior court as follows: “ The jurors were not disqualified to serve by reason of interest as inhabitants of the town or county of Nantucket." The opinion then delivered is annexed to the transcript of the record, as required by Rule 8 of this court, and is reported in 147 Mass. 585.
The defendant then filed in the Superior Court a motion in arrest of judgment, renewing the same objections to the grand and traverse juries; and further alleging that before the finding of the indictment the selectmen had been directed, by a vote of the town at a meeting duly warned, to prosecute the defendant for the offences described in the indictment, and pursuant to that vote employed counsel, and a majority of them, with the approval of the others, made a complaint against the defendant for those offences before a trial justice, who was himself an inhabitant and voter of the town, and had taken part in the town meeting and in its vote, and had there declared that the defendant was guilty, and, before the making of the complaint, had advised and counselled with the selectmen as to the furtherance of the prosecution ; that the selectmen prosecuted the complaint, and obtained an order from the justice requiring the defendant to recognize for his appearance before the superior court, and prepared evidence and sought out witnesses to be produced against him before the grand jury; that while engaged in furthering such prosecution the selectmen prepared the list from which were drawn the grand and traverse jurors who found and tried the indictment against the defendant; that at the town meeting at which such jurors were drawn no one was present, except the selectmen, and the constable who had served the warrant for the meeting; that of the twenty-three grand jurors who found
Statement of the Case.
the indictment, all but five had been present at the town meeting first mentioned, and had joined in the vote there adopted; and that for these reasons “the presentment and the trial and conviction of the defendant were in conflict with the provisions of the constitution of this Commonwealth, and in particular of the provisions of the twelfth article of the Declaration of Rights, and were in conflict with the Constitution of the United States of America, and in particular with the provisions of the Fourteenth Amendment thereto."
Together with the motion in arrest of judgment, the de fendant filed an “exception to the jurisdiction,” containing like allegations, and further alleging that by reason of the facts alleged the grand jurors had no authority to present, and the traverse jurors had no authority to try, the indictment against the defendant, and the court had no jurisdiction to receive the presentment or to try the matter thereof.
At the hearing of this motion and exception the district attorney admitted the facts alleged therein. The court overruled the motion and the exception. The defendant appealed from the order overruling the motion in arrest of judgment, and alleged exceptions to the overruling of his exception to the jurisdiction.
The Supreme Judicial Court of Massachusetts affirmed the order, and overruled the exceptions, for reasons stated in its rescript to the superior court as follows: "A motion in arrest of judgment can be sustained only for errors apparent on the record. The record discloses no error. The exception to the jurisdiction is nothing but a motion in arrest of judgment under another name.”
In the opinion then delivered, and duly transmitted to this court with the record, the Supreme Judicial Court, after deciding the case upon the grounds stated in this rescript, added :
It is difficult to see how any question deserving serious consideration arises under the Constitution, either of this State or of the United States. In view of the authorities cited in the former opinion in this case, it can hardly be argued that a legislature has no constitutional authority to provide that mere inhabitancy in a town or county shall not disqualify one