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S.Ct. 1059 30 L.Ed. 207 (Cite
as: 118 U.S. 346, 6 S.Ct. 1059) Supreme
Court of the United States SNOW v. UNITED
STATES (Three Cases.) [FN1] FN1
See 9 Pac. Rep. 501, 686, 697; 7 Sup. Ct. Rep. 556.
Filed May 10, 1886. In
Error to the Supreme Court of the Territory of Utah. West
Headnotes Federal
Courts k491 170Bk491 (Formerly
106k387(1)) Act
Cong. March 3, 1885, § 2, 22 Stat. 443, which allows an appeal or writ of error
from the Supreme Court of a territory, regardless of the sum or value in dispute,
"in any case * * * in which is drawn in question * * * an authority exercised
under the United States," does not give the Supreme Court of the United States
jurisdiction of a writ of error to a territorial court in a criminal case, where
neither the validity of the existence of the court, nor its jurisdiction over
the crime or over the person of defendant, is drawn in question. *346
**1059 F. S. Richards and Geo. T. Curtis, for Lorenzo Snow.
Asst. Atty. Gen. Maury, for the United States. *347
**1060 BLATCHFORD, J. These
are three writs of error to the supreme court of he territory of Utah to review
judgments of that court affirming judgments of the district court of the First
judicial district of that territory, rendered on convictions of the plaintiff
in error on indictments founded on section 3 of the act of March 22, 1882, (22
St. 31,) for cohabiting with more than one woman. Each of the judgments imposed
imprisonment for six months and a fine of $300. The
question of the jurisdiction of this court over these writs of error presents
itself at the threshold. It was not suggested by the counsel for the United States
at the argument, nor referred to by the counsel for the plaintiff in error, for
the reason, as the court has been advised by both parties since the argument,
that a decision on the merits was desired; and for the further reason that this
court, at the present term, in Cannon v. U. S., 116 U. S. 55, S.
C. ante, 278, took cognizance of a writ of error in a like case. But the
question has presented itself to the court, and since the argument we have been
furnished with a brief, on the part of the plaintiff in error, in support of the
jurisdiction. Section
702 of the Revised Statutes provides as follows: 'The final judgments and decrees
of the supreme court of any territory, except the Territory of Washington, in
cases where the value of the matter in dispute, exclusive of costs, to be ascertained
by the oath of either party, or of other competent witnesses, exceeds one thousand
dollars, may be reviewed, and reversed or affirmed, in the supreme court, upon
writ of error or appeal, in the same manner and under the same regulations as
the final judgments and decrees of a circuit court. In the Territory of Washington
the value of the matter in dispute must exceed two thousand dollars, exclusive
of costs. And any final judgment or decree of the supreme court of said territory,
in any cause [when] the constitution or a statute or treaty of the United States
is brought in question, may be reviewed in like manner.' So
much of this section 702 as relates to the territory of Utah was carried into
the section from section 9 of the act of September 9, *348 1850, establishing
a territorial government for Utah, (9 St. 455,) which provided that writs of error
and appeals from the final decisions of the supreme court of the territory should
be allowed, and might be taken to the supreme court of the United States, 'where
the value of the property or the amount in controversy, to be ascertained by the
oath or affirmation of either party or other competent witness,' should exceed
$1,000, except only that in all cases involving title to slaves, and on any writ
of error or appeal on a habeas corpus involving the question of personal
freedom, no regard should be had to value. So much of section 702 as provides
for the review of 'any final judgment or decree' of the supreme court of the Territory
of Washington 'in any cause when the constitution or a statute or treaty of the
United States is brought in question,' is taken from the act of March 2, 1853,
establishing a territorial government for Washington, (10 St. 175,) which, after
providing that writs of error and appeals from the final decisions of the supreme
court of the territory should be allowed, and might be taken to the supreme court
of the United States, 'where the value of the property, or the amount in controversy,
to be ascertained by the oath or affirmation of either party or other competent
witness,' should exceed $2,000, went on in these words, which were not found in
the prior act of 1850, in regard to Utah: 'And in all cases where the constitution
of the United States, or acts of congress, or a treaty of the United States, is
brought in question.' It
is plain that section 702, so far as Utah is concerned, does not cover the present
cases, and that the provision in it in regard to cases where the constitution,
or an act of congress, or a treaty, is brought in question has reference only
to Washington, and not to Utah. Section
1909 of the Revised Statutes provides that writs of error and appeals **1061
from the final decisions of the supreme court of any one of eight named territories,
of which Utah is one, 'shall be allowed to the supreme court of the United States
in the same manner and under the same regulations as from the circuit courts of
the United States, where the value of the property, or the amount in controversy,
to be ascertained by *349 the oath of either party or of other competent
witnesses, exceeds one thousand dollars,' except that a writ of error or appeal
shall be allowed 'upon writs of habeas corpus involving the question of
personal freedom.' This section does not cover the present cases. Section
1911 relates exclusively to writs of error and appeals from Washington Territory,
and contains a provision that they shall be allowed 'in all cases where the constitution
of the United States, or a treaty thereof, or acts of congress, are brought in
question.' That provision exists only in regard to Washington, and is not found
in section 1909 in regard to the eight other territories. Section
709 of the Revised Statutes applies only to a writ of error to review a final
judgment or decree in a suit in the highest court of a state. There
being thus no statute in force on December 1, 1873, to which time the enactments
in the Revised Statutes related, giving to this court jurisdiction of a writ of
error to the supreme court of Utah in a case like those before us, an act was
passed on June 23, 1874, (18 St. 253,) entitled 'An act in relation to courts
and judicial officers in the territory of Utah;' section 3 of which contained
this provision: 'A writ of error from the supreme court of the United States to
the supreme court of the territory shall lie in criminal cases, where the accused
shall have been sentenced to capital punishment, or convicted of bigamy or polygamy.'
The writ of error in Reynolds v. U. S., 98 U. S. 145, was brought
under that statute; the conviction being for bigamy under section 5352 of the
Revised Statutes. This section (5352) was taken from section 1 of the act of July
1, 1862, (12 St. 501,) entitled 'An act to punish and prevent the practice of
polygamy in the territories of the United States and other places, and disapproving
and annulling certain acts of the legislative assembly of the territory of Utah,'
which section 1 declares that every person having a husband or wife living, who
shall marry any other person, whether married or single, in a territory of the
United States, shall (with certain exceptions) be adjudged guilty of bigamy. The
act then proceeds to disapprove and annul all acts and *350 parts of acts
theretofore passed by the legislative assembly of Utah 'which establish, support,
maintain, shield, or countenance polygamy,' with the proviso that the act should
'not affect or interfere with the right 'to worship God according to the dictates
of conscience,' but only to annul all acts and laws which establish, maintain,
protect, or countenance the practice of polygamy, evasively called spiritual marriage,
however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies,
consecrations, or other contrivances.' Hence section 3 of the act of 1874, in
speaking of 'bigamy or polygamy,' referred to the crime denounced by section 1
of the act of 1862 as carried into the Revised Statutes. Then
came the act of March 22, 1882, (22 St. 30,) section 1 of which amended section
5352 of the Revised Statutes; the original and new sections 5352 (leaving out
the exceptions) being as follows, the parts in each which differ from the other
being in italic: ORIGINAL. 'Every
person having a husband or wife living, who marries another, whether married
or single, in a territory or other place over which the United States have exclusive
jurisdiction, is guilty of bigamy, and shall **1062 be punished
by a fine of not more than five hundred dollars, and by imprisonment for a term
not more than five years.' **1061
NEW. 'Every
person who has a husband or wife living, who, in a territory or other
place over which the United States have exclusive jurisdiction, hereafter
marries another, whether married or single, and any man who **1062 hereafter
simultaneously, or on the same day, marries more than one woman, in a territory
or other place over which the United States have exclusive jurisdiction, is guilty
of polygamy, and shall be punished by a fine of not more than five hundred
dollars, and by imprisonment for a term of not more than five years.' Section
3 of the act of 1882 is the one on which the indictments in these cases were founded.
It is in these words: 'If *351 any male person, in a territory or other
place over which the United States have exclusive jurisdiction, hereafter cohabits
with more than one woman, he shall be deemed guilty of a misdemeanor, and on conviction
thereof shall be punished by a fine of not more than three hundred dollars, or
by imprisonment for not more than six months, or by both said punishments, in
the discretion of the court.' This section creates a new and distinct offense
from bigamy or polygamy,--one which is to be declared to be a misdemeanor, (there
having been and being no such declaration as to bigamy or polygamy,) and the punishment
for which is much less than the punishment for bigamy or polygamy. The act of
1882 made no provision for any writ of error from this court in a case under section
3, while, by the then existing act of July 23, 1874, a writ of error could lie
on a conviction of bigamy or polygamy. By no proper construction can the offense
of cohabiting with more than one woman be regarded as identical with the offense
of bigamy or polygamy. The act of 1882, in sections 1, 3, and 5, classes bigamy
or polygamy as a different offense from the offense of cohabiting with more than
one woman; and we cannot regard a statutory provision for a writ of error on a
conviction of bigamy or polygamy as authorizing one on a conviction, under section
3 of the act of 1882, of cohabiting with more than one woman. On
the third of March, 1885, the following act was passed, (23 St. 443:) 'No appeal
or writ of error shall hereafter be allowed from any judgment or decree in any
suit at law or in equity in the supreme court of the District of Columbia, or
in the supreme court of any of the territories of the United States, unless the
matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars.'
Sec. 2. 'The preceding section shall not apply to any case wherein is involved
the validity of any patent or copyright, or in which is drawn in question the
validity of a treaty or statute of, or an authority exercised under, the United
States; but in all such cases an appeal or writ of error may be brought without
regard to the sum or value in dispute.' This act is relied on by the plaintiff
in error as covering the present cases. The first section of it applies solely
to judgments *352 or decrees in suits at law or in equity, measured by
a pecuniary value. If the second section applies to a criminal case wherein 'is
drawn in question the validity of a' 'statute of, or an authority exercised under,
the United States,' without regard to whether there is or is not any sum or value
in dispute, the question still remains for consideration, whether, in the present
cases, the validity of a statute of the United States, or the validity of an authority
exercised under the United States, is drawn in question. The
peculiar language of section 2 is to be noted. In section 709 of the Revised Statutes,
allowing a writ of error to review a final judgment or decree in any suit in the
highest court of a state, in which a decision in the suit could be had, the language
is, 'where is drawn in question the validity of a treaty or statute of, or an
authority exercised under, the United States, and the decision is against their
validity.' This language is taken from section 2 of the act of February 5, 1867,
(14 St. 386,) where it is reproduced verbatim **1063 from section
25 of the judiciary act of September 24, 1789, (1 St. 85.) In section 2 of the
act under consideration the words 'and the decision is against their validity'
are not found. In section 1911 of the Revised Statutes, in regard to Washington
Territory, the language, adopted substantially from the act of March 2, 1853,
(10 St. 175,) is, 'in all cases where the constitution of the United States, or
a treaty thereof, or acts of Congress, are brought in question;' and is not limited
to the case of a decision against the validity of the act. Section 2 of the act
of 1885 applies, not where merely an act of congress is brought in question, but
only where the validity of a statute of the United States is drawn in question,
or where the validity of an authority exercised under the United States is drawn
in question; but this is not limited by the requirement that the decision shall
have been against such validity. In
the present cases the validity of a statute of the United States is not drawn
in question. No such question is presented by the bills of exceptions, or the
requests for instructions, or the exceptions to the charges, or anywhere else
in the records. Nor is the validity of an authority exercised under the United
States drawn in question. The plaintiff in error contends that *353 the
construction of the act of 1882 is drawn in question, and also the authority exercised
under the United States by which he was tried and convicted; that the authority
of the United States is invoked to deprive him of his liberty, in a court established
by congress, and acting solely by federal power; and that the question is whether
the authority exercised by the court under the act of 1882 is a valid authority,
and within the scope of that act, because the contention is that the court misconstrued
the statute, and acted beyond the authority which is conferred. The authority
exercised by the court in the trial and conviction of the plaintiff in error is
not such an 'authority' as is intended by the act. The validity of the existence
of the court, and its jurisdiction over the crime named in the indictments, and
over the person of the defendant, are not drawn in question. All that is drawn
in question is whether there is or is not error in the administration of the statute.
The contention of the plaintiff in error would allow a writ of error from this
court in every criminal case in a territory where the prosecution is based on
a statute of the United States; and, indeed, might go still further, for the authority
of every court sitting in a territory is founded on a statute of the United States.
From the fact that a given criminal case involves the construction of a statute
of the United States, it does not follow that the validity of 'an authority exercised
under the United States' is drawn in question. There
is a decision of this court on this point in Bethell v. Demaret,
10 Wall. 537. The twenty-fifth section of the judiciary act of 1789 allowed a
writ of error from this court to the highest court of a state 'where is drawn
in question the validity of a statute of, or an authority exercised under, any
state, on the ground of their being repugnant to the constitution, treaties, or
laws of the United States, and the decision is in favor of such their validity.'
The case referred to was a writ of error to the highest court of a state, and
it was contended that that court, in rendering the decision complained of, acted
under the authority of the state, and so there was drawn in question an authority
exercised under the state, which, in the particular *354 case, impaired
the obligation of a contract, and was repugnant to the constitution of the United
States, and the decision was in favor of the validity of such authority. To this
view, this court, speaking by Mr. Justice NELSON, gave this answer: 'The authority
conferred on a court to hear and determine cases in a state is not the kind of
authority referred to in the twenty-fifth section; otherwise every judgment of
the supreme court of a state would be re-examinable under the section.' In
the recent case of Kurtz v. Moffitt, 115 U. S. 487, 498, S. C.
ante, 148, it was said by this court, speaking by Mr. Justice GRAY, as the
result of the **1064 examination of numerous cases which are there cited,
that 'a jurisdiction conferred by congress upon any court of the United States,
of suits at law or in equity, in which the matter in dispute exceeds the sum or
value of a certain number of dollars, includes no case in which the right of neither
party is capable of being valued in money.' In each of the present cases the pecuniary
value involved does not exceed $300, even if the fine could be called a 'matter
in dispute,' within the statute. As to the deprivation of liberty, whether as
a punishment for crime or otherwise, it is settled by a long course of decisions,
cited and commented on in Kurtz v. Moffitt, ubi supra, that no test
of money value can be applied to it, to confer jurisdiction. We conclude, therefore,
that we have no jurisdiction of these writs of error, and that they must be dismissed
for that reason. It
is urged, however, that this court took jurisdiction of the writ of error in
Cannon v. U. S., 116 U. S. 55, S. C. ante, 278, and affirmed
the judgment on a conviction under the same section 3 of the act of 1882. The
question of jurisdiction was not considered in fact in that case, nor alluded
to in the decision, nor presented to the court by the counsel for the United States,
nor referred to by either party at the argument or in the briefs. Probably both
parties desired a decision on the merits. The question was overlooked by all the
members of the court. But, as the case was decided at the present term, and the
want of jurisdiction in it is clear, we have decided to vacate our judgment, and
recall the mandate, and dismiss the writ of *355 error for want of jurisdiction,
in order that the reported decision may not appear to be a precedent for the exercise
of jurisdiction by this court in a case of the kind. Copr.
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