Reply Brief — Rice v. Ames

oUSO

fice Supreme Court U.S,

FILED

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| f° “4 Qo. DEC 17 1900

JAMES W. McKENNEY,

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IN THE

Supreme Court of the United States.

OctospeR TERM, A. D. 1900.

No. 420.

FRED LEE RICE, FRANK RUTLEDGE anp THOMAS JONES

vs.

JOHN C. AMES, Marsuat oF THE NoRTHERN DISTRICT OF THE

STATE OF ILLINOIS.

Appeal from the District Court in and for the Northern District of the

State of Illinois, Northern Division thereof.

BRIEF OF APPELLANTS IN ANSWER TO BRIEF OF APPELLEE ON

MOTION TO DISMISS OR AFFIRM OR ADVANCE THE CAUSE,

S. H. TRUDE,

ATTORNEY FOR APPELLANTS.

IN THE

Supreme Court of the United States,

Octrosper Term, A. D, 1900.

No. 420.

FRED LEE RICE, FRANK RUTLEDGE anp THOMAS JONES

US.

JOHN C. AMES, MarsHat oF THE NorRTHERN DisTRICT OF THE

STATE OF ILLINOIS.

Appeal from the District Court in and for the Northern District of the

State of Illinois, Northern Division thereof.

Brief of Appellants in answer to Brief of

Appellee on motion to dismiss or affirm

or advance the cause.

MAy IT PLEASE THE CouRT:

The appellants were arrested in the city of Chicago

by the police on June 1, 1900, without any process what-

ever, and were told that they were wanted in Canada.

(Rec., 2.) On June 2, 1900, Police Officer Clifton R.

Wooldridge, of Chicago, made a complaint on informa-

tion and belief, which was viod (Rec., 21), before U.

S. Commissioner Mark A. Foote, who issued a warrant.

The appellants were then taken by John C. Ames, U. S.

marshal, appellee, out of the custody of the police and

brought before said commissioner ; thereupon the police

asked that the cause be continued to June 4th. (Rec., 3.)

2

After the appellants were committed to jail, Police Officer

Alfred Cuddy, of Toronto, lodged an additional affidavit

with the commissioner (Rec., 25), which was also void

for insufficiency. (Rec., 21, 22.) On June 4, 1900,

another complaint was lodged before said commissioner

by Arthur Cuddy, a police officer of Canada (Rec., 3),

which complaint was also void and conferred no jurisdic:

tion upon the commissioner (Rec., 25, 26); thereupon

the appellants moved to dismiss said proceedings for

want of jurisdiction in the commissioner (Rec., 3, 31),

and thereupon the cause was continued to June 14th on

motion of Arthur Cuddy, the complainant. On June

14th appellants were brought into court and a new com-

plaint by William Greer was lodged with the commis-

sioner. The appellants moved the commissioner to re-

quire the Canadian government to return to them the

money which was taken from them at the time of their

arrest, and for an order that such funds be placed in

court, which was overruled. Appellants also moved to

see the depositions from Canada which were then in

court, and motion denied (Rec., 31), and that time be

given appellants to examine the complaint of William

Greer then filed (Rec., 42); whereupon said cause was

continued to June 25, 1900. On June 25, 1900, appel-

lants moved for a discharge on the ground that the com-

plaints were void and conferred no jurisdiction, and

especially on the ground that the commissioner had lost

all possible jurisdiction by continuing the cause for

eleven days, contrary to Section 6 of the Treaty with

Great Britain proclaimed March 25, 1900, and in viola-

tion of the Statutes of the United States and the Laws

of Illinois governing proceedings in extraditional cases.

(Rec., 4, 5, 6, 42.)

3

Depositions offered in evidence and adjournment taken

to June 26th and further evidence heard, and again con-

tinued to the 27th and further evidence heard; where-

upon appellants moved the commissioner to discharge the

defendants for want of jurisdiction; motion denied and

cause continued to June 28. (Rec., 44.) June 28th

appellants moved for discharge for want of jurisdiction

and insufficiency of the evidence; motion overruled, and

Thomas Jones and Frank Rutledge told the commissioner

they would offer no evidence, and denied authority in

the commissioner tc proceed further. (Rec., 6, 44.)

Thereupon proceedings were taken by said commissioner

under advisement to July 6, 1900. (Rec., 6, 44.) July

6th counsel for the prosecution being absent from Chi-

cago, further proceedings were adjourned to July roth,

and then some evidence was introduced as to Fred Lee

Rice only, and appellants were all held to await the

action of the proper authority in the matter. On July

11th appellants filed a petition for a writ of habeas

corpus under oath, showing that they were restrained of

their liberty by the appellee and confined in the Cook

county jail, and were imprisoned and held in custody

under the color and authority of the Constitution and

Statutes of the United States relating to the return of

fugitives from justice; that their imprisonment was

illegal and in violation of the Constitution and laws of

the United States for reasons which then followed.

(Rec., 2.) Said petition contained a complete history of

the proceedings from the time of appellants’ arrest until

the time of filing the petition, together with a copy of

Section 6 of the Treaty of 1889 and the laws that appel-

lants contended should have been followed. (Rec., 2,

4,5.) Acopy of the mzzttimus was attached to said peti-

OUSedve

4

tion. (Rec., 7, 8,9.) Writ of habeas corpus issued and

made returnable on July 14th. By stipulation in open

court at the time of filing the petition the parties hereto

agreed that the dockets, complaints, warrants, evidence

and all the transactions and proceedings and papers be-

fore Mark A. Foote, commissioner, were to be produced

in court on the hearing without a certiorari. (Rec., 20.)

Amended petition, under oath, filed July 14th, alleges

that Section 5270 of Title 66 of the Revised Statutes

of the United States is unconstitutional in that it author-

ized the District Court to appoint an inferior court for

the purpose of extradition purposes; that said commis-

sioner exercised judicial powers contrary to Section 1,

Article 3 of the Constitution of the United States (Rec.,

15); that the appellants on June 4th applied to the com-

missioner to be admitted to bail and that bail was not at

any time granted them. (Rec., 16.) On the return to

the writ, July 14th, it was then stipulated between the

appellants and appellee that all formal and further join-

ing of issues be waived and that the hearing proceed upon

the petition for writ of habeas corpus, the amended petis

tion thereto, the writ of habeas corpus and the return

thereto, papers, «locuments and evidence before said com-

missioner embraced in the stipulation of July rith.

(Rec., 20.) Hearing was then had, and the court certi-

fied in the bill of exceptions that he thereupon consid-

ered all the material allegations and all the points raised

on said petition and amendment thereto, and being fully

advised in the premises, denied the application for dis-

charge, dismissed the petition and remanded appellants

into the custody of appellee (Rec., 16) ; to which ruling

of the court the petitioners herein then and there duly

excepted. (Rec., 45.)

5

Appellants filed their assignment of errors and prayed

an appeal, which was allowed, and the District Court,

under Rule 36 of this court, granted a supersedeas and

stay of proceedings, and directed the officer of this court,

to wit: the appellee herein, in open court, not to deliver

the appellants to the Canadian authorities, but to hold

them to await the action of this Honorable court. (Rec.,

18, 19.) Citation was issued and served on the appellee

(Rec., 51), amount of the supersedeas bond fixed at

$500, which bond was given and approved by the court.

(Rec.. 41-47.) By stipulation, in making up the trans-

cript of the record for this court, the clerk omitted the

depositions taken before examining magistrates in Can-

ada and the oral testimony taken before Mark A. Foote

and the assignment of error thereon.

And on the 29th day of August, after the appeal was

perfected, the appellants moved the District Court, under

Rules 34 and 36 of this court, that bail be fixed and that

they be admitted to bail, which motion was overruled

and excepted to (Rec., 48) ; and on the 8th day of August,

additional assignment of error filed by leave of court. _

August 8, 1900, order extending time for filing record

and bill of exceptions. (Rec., 19.)

August 29th bill of exceptions signed and filed. (Rec.,

45.).

LRT TE OIE TS 8 wy

ASSIGNMENT OF ERRORS.

(Rec., 17, 18 and 48.)

That there is manifest error in this, to wit: Mark A.

Foote, the United States commissioner and extradition

commissioner, who heard the evidence and held your

petitioners in said matter to await the action of the secre-

tary of state, had no jurisdiction on June the 14th, A. D.

1900, to issue the warrant for their said commitment,

dated that day, because the complaint of William Greer

was on information and belief and not a sufficient com-

plaint as required by Section 10 of the Treaty with Great

Britain and Section 5270, Title 66, Revised Statutes of

the United States.

There is also manifest error in this, to wit: that said

Mark A. Foote lost all possible jurisdiction in the prem-

ises by continuing said proceedings on June 14, 1900, to

June 25, 1900, for a period more than ten days; that said

continuance was not in conformity to any law and con-

trary to and in violation of Section 6 of the Treaty with

Great Britain proclaimed March 25, 1890, contrary to and

in violation of the laws of the United States and of the

laws of the State of Illinois regulating the mode of pro-

cedure of such examining magistrates in such cases made

and provided.

There is also manifest error in this, to wit: that said

Mark A. Foote had no jurisdiction in the premises, be-

cause Section 5270, Title 66, is unconstitutional (1), be-

cause it does not provide for any mode of procedure relat-

commissioners appointed in extradition matters by the

District Courts of the United States; (2) Section 5270,

Tb ie i a eRe ee oR nC J ap EE

7

ing to continuance, change of venue, bail, etc., before

Title 66, is unconstitutional because Congress had no

power to confer upon a district judge of the United

power to create such inferior courts; (3) because said

magistrate is exercising judicial power in the premises,

and Congress has not created such court and established

its jurisdiction, powers, etc.

There is also manifest error in this, to wit: that your

petitioners were denied bail by the said Mark A. Foote.

There is also manifest error in this, to wit: that the

finding and judgment of Christian C. Kohlsaat, judge of

the District Court of the United States in and for the

Northern District of Illinois, denied the application of

your petitioners for discharge in said habeas corpus pro-

ceedings, which finding and judgment were excepted to

by your petitioners at the time it was entered; whereas,

by the law of the land, the said judgment ought to have

discharged your petitioners and set them at liberty, and

the said Fred Lee Rice, Frank Rutledge and Thomas

Jones pray the judgment aforesaid may be reversed and

annulled and that your petitioners may be set at liberty

in this habeas corpus proceeding.

There is also manifest error in this, to wit: that the

said Mark A. Foote took the matter under advisement

on June 28, 1900, as to relators, Frank Rutledge and

Thomas Jones, and ordered them into custody after they

had then and there and at all times refused to offer any

evidence on their part on the ground, which was repeat-

edly urged, that said commissioner had no jurisdiction ;

that any discretion which said Mark A. Foote could pos-

sibly have had relating to granting continuances for time

to procure evidence and prepare for hearing ended when

no necessity for exercising such discretion any longer

existed; that so many continuances on said complaints

and so long confinement of the relators and such taking

of the relators’ cases under advisement was an absolute

abuse of discretion.

I.

The only reason advanced by appellee in his brief why

this appeal, which has been allowed and perfected in

every detail, should be dismissed, is: “That there is no

provision in the law in force when this appeal was prayed

and allowed for appeal in this class of cases,’’ and cites

Bucklin vy. U. S., 159 U. S., 680, in support of his posi-

tion, which he says is the only direct adjudication he has

found.

The principle announced in the case of Bucklin v.

United States, 159 U. S., 680, and chiefly relied upon by

counsel for appellee on his motion to dismiss this appeal,

in no way affects or has any application to the right of

appeal in this case. Bucklin was sentenced to the peni-

tentiary on a verdict finding him guilty of perjury, and

the only way he could have that judgment reviewed was

on a writ of error. He had no right to appeal before the

taking effect of the judiciary act of March 3, 1891, and it

was held that act did not give him a right of appeal which

before that act he did not have; that his remedy was by

writ of error as before.

Sec. 763 of the Habeas Corpus Act, Rev. Stat. U. S.,

which was in force before and at the time of the passage

of the Judiciary Act of 1891, provided:

“From the final decisions of any court, justice or

judge inferior to the Circuit Court, upon an applica-

9

tion for a writ of habeas corpus or upon such writ

when issued, an appeal may be taken to the Circuit

Court for the district in which the cause is heard.

(1) In the case of any person alleged to be re-

strained of his liberty in violation of the constitution

or of any law or treaty of the United States.” * * *

Section 784, as amended in 1885, provided for an ap-

peal from the final judgment of such Circuit Court to the

Supreme Court.

By the 5th Section of the Judiciary Act of March 3,

1891, it was expressly provided :

“That appeals or writs of error may be taken from

the District Courts or from the existing Circuit

Courts to the Supreme Court in the following

cases :””

two of which cases so enumerated are as follows:

“In any case that involves 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 construc-

tion of any treaty made under its authority is drawn

in question.”

The Judiciary Act of March 3, 1891, did not cut off

the right to appeal which then existed or change the form

of reviewing the cause to a higher court from appeal to

writ of error.

Bucklin v. U. S., 159 U. S., 680.

The Act of 1891 simply changed the right of the re-

lator or respondent in habeas corpus cases, if the facts

came within any of the provisions enumerated in Sec. 5,

to appeal direct to this court, instead of the Circuit Court,

as was done im re Lennon, 150 U. S., 393.

-Ornelius v. Ruyz, 161 U.S., 502.

10

The right to appeal was not repealed by that act. Sec-

tion 14 of that act is:

“And all acts and parts of acts relating to appeals

or writs of error inconsistent with the provisions

for review by appeals or writs of error in the pre-

ceding Sections 5 and 6 of this act are repealed.”

The right to appeal, as it then existed, was not incon-

sistent with the provisions of the Act of March 3, 1891;

it was the right to have the appeal taken to the Circuit

Court that was cut off by that act and another court ex-

pressly substituted in place of the Circuit Court, to wit:

the Supreme Court of the United States, if the construc-

tion of a treaty or the constitutionality of an act of Con-

gress was involved.

In Re Lennon it was said, in passing on the words,

“unless otherwise provided by law,” in Section 6 of that

act:

“The words are manifestly inserted out of abund-

ant caution, in order that any qualifications of the

jurisdiction by contemporaneous or subsequent acts

should not be construed as taking it away, except

when expressly so provided. Implied repeals were

thereby intended to be guarded against.”

On motion to dismiss the appeal, in Shute v. Keyser,

149 U. S., 651, which was an appeal from the Supreme

Court of the Territory of Arizona to this court, on the

ground that by reason of the Act of 1891 the appeal was

improperly allowed, it was held: “There was no ex-

press repeal of the provisions of the prior acts regulating

appeal or writs of error in such other cases from these

courts to this.”

“There is nothing to indicate an intention that the

judgments and decrees of the Supreme Courts of

the Territories should not be susceptible of review in

I!

the class of cases in which there was no appeal or

writ of error to the Circuit Court of Appeals. And

the acts regulating appeals or writs of error to or

from this court were not repealed except to the ex-

tent specified.”

And the motion to dismiss was denied.

And a motion to dismiss was denied under similar

facts in Gunzales v. Cunningham, 164 U. S., 619, which

was a habeas corpus case, decided in 1896. It was there

held that, where appeals would lie under acts of Congress

allowing appeals in force at the time of the passage of

the Act of 1891, the right of appeal was not affected by

the Act of 1891.

In the case of in re Lennon, 150 U. S., p. 393, which

was an appeal from the Circuit Court of the Northern

District of Ohio in a habeas corpus case, this court, speak-

ing through Chief Justice FULLER, said:

“While the right of appeal from the judgment of

Circuit Courts directly to this court in all cases is

taken away by the Act of March 3, 1891, that right

still exists in the cases designated in Section 5 of

that act.” (Citing:

Nishimura Ekin vy. United States, 142 U. S.,

651.

Horner v. United States (No. 2), 143 U. S.,

570.

In the case of Ornelas v. Ruys, 161 U. S., 502, which

was an extradition proceeding and was an appeal from

the decision of the judge in a District Court of the

United States in the Western District of Texas, discharg-

ing the appellees therein from custody in an extradition

proceeding, in which they were held by a commissioner

of the Circuit Court on the complaint of the Mexican

consul, the court said:

12

“As the construction of the treaty was drawn in

question, the appeal was taken directly to this court,

and the District Court rightly required petitioners,

under Rule 34, to enter into recognizance to answer

its judgment.”

Carter v. Roberts, 177 U. S., 496.

Cincinnati, Hamilton, etc. v. Thiebaud, 177 U.

S., 619.

Scott v. Donald, 165 U. S., 58.

The case of Bryant v. United States, 167 U. S., 104,

was an appeal from the final order of the Southern Dis-

trict of the District of New York upon a writ of habeas

corpus sued out by the appellant to obtain his release from

the custody of the marshal of that district, who held him

by a mittimus issued by a commissioner of a Circuit

Court in an extradition proceeding.

Shute v. Keyser, 149 U. S., p. 651.

Cramer v. Washington State, 168 U. S., 127.

If Congress used the words appeals and writs of error

advisedly in Section 5 of the Act of 1891, as counsel for

appellee suggests in his brief, then it must be held that

Congress did not intend to abolish the right to appeal

as it then existed; otherwise Congress would have omit-

ted from that act the words “appeals and said writs of

error may be taken,” etc., or, if Congress intended to

limit appeals, would have done so by saying in what cases

appeals might be taken.

It is manifest that if this appeal had been taken to the

Circuit Court or Circuit Court of Appeals the motion to

dismiss would be good.

Most of the courts have held that, independent of

statutory provisions, a decision in a habeas corpus case

30862

13

is not of that final and conclusive character necessary

to support a review by writ of error. (Encyc. Pl. &

Pr., Vol. 9, foot p. 1072.) And, if appellants in this

case had sued out a writ of error, a motion could have

been made to dismiss it for that reason. (Ex parte

Siebold, 100 U. S., 371.) If Congress had undertaken

to pass an act designed especially to provide for allowing

the appellants to appeal their case from the Northern

District of Illinois to this court, they could not make the

appellants’ right to appeal any clearer or more positive

than their right to appeal now in pursuance of Section

5 of March 3, 1891.

And, if counsel for appellee’s contention is true, then

this court is powerless to entertain an appeal from a judg-

ment remanding the prisoners in any habeas corpus case

—a power which was so admirably wielded by this court

in the case of In re Neagle, 135 U. S., 1, discharging

from custody Deputy United States Marshal David

Neagle, whose brave act shielded the life of the late Mr.

Justice Stephen J. Field, former justice of this court,

then in the discharge of his duties, from the murderous

assault made by David S. Terry.

In re Siebold, 100 U. S., 371.

II.

I enter upon the discussion of the other points raised in

counsel for appellee’s brief, namely, the motions to affirm

under rule six and to advance the cause on the docket

under protest; first, that counsel is asking this court,

under the pretenses of a motion to dismiss the appeal, to

consider, pass upon and determine on this motion, and at

this time, all the points and issues involved, and errors

14

assigned, which this court has repeatedly held it will

not do.

Second, since counsel has asked to have the judgment,

affirmed on the statement that this appeal and errors as-

signed are frivolous and taken for delay and has referred

to the assignment of érrors in a way which gives promi-

nence in his brief to the minor assignments and scarcely

touches on the important assignment of errors, it possi-

bly calls upon the appellants to enter into a full discussion

at this time of the merits of the case.

The complaint of Wm. Greer utterly fails to set forth

a crime in the demanding country.

The averments in the complaint relating to shop break-

ing on May 22, 1900, are the only ones in the complaint

by which any endeavor was made to show that the acts

complained of were crimes and punishable by the laws

in force in the Dominion of Canada and these averments

are mere conclusions of the rankest form without the

averment of any facts whatever and are therefore wholly

fatal to confer jurisdiction. (Rec., 33.)

State v. Swoop, 72 Mo., 399.

Bundy v. Hart, 46 Mo., 460.

Ex parte Smith, 3rd McLean's Rep., 121.

People ex rel Lawrence, 56 N. Y., 182.

In re Hayward, 1 Sand Sup. Ct. (N. Y.) R.,

701.

In re Fetter, 23 N. J. L., 311.

Shop-breaking was not an offense at common law. No

common law burglary is alleged. The acts complained

of on May 22 charge nothing more than a trespass.

The usual and customary words, such as felonious,

simainien

€

3

15

burglarious and felonious intent, are omitted and “did

commit an indictable offense” without naming what

offense was committed therein and then concluding “‘con-

trary to statute,” etc., are wholly defective.

Whorton’s Pl. & Pr., Sec. 265.

State v. Swope, 72 Mo., 401.

The first charge on information and belief in complaint

of Wm. Greer (Rec., 33) and also the second and third

charges are wholly insufficient to charge a common law

larceny because no value is averred; the words “sum of

money” and figures $55, $200, do not show that it was

current or lawful money of the United States, what kind

of money of what country is meant—this is fatal.

Brown v. People, 173 Ul., 34.

$380.50 in money held not sufficient, /b.

Wharton Pl. & Pr., Secs. 213-218.

Reside v. State, 10 Tex. App., €75.

“A large sum of money, to wit: the sum of $1,100"

was held fatal by the Supreme Court of N. Y. in 16

Hun., 476.

“The said sum of fifteen hundred dollars did steal, take

and carry away contrary, etc.,” held bad.

People v. McDonald, 48 Mich., 492.

State v. Denton, 74 Md., 517.

“One pound eleven shillings” held insufficient.

Rex v. Furneaux, Russ, Ryan (British Crown

Cases), 334.

State v. Thompson, 42 Ark., 517.

King v. Flowers, 5 Barn. & Cress., 736.

O&

yA =

COO

16

“Sundry promissory notes for payment of money of

value $80, the chattels of A,” charges no larceny.

Stewart v. Com., 4 Serg. & R. (Pa.), 194.

People v. Williams, 35 Cal., 671.

State v. Hoke, 84 Ind., 137.

State v. Hinkley, 4 Minn., 345.

State v. Oakley, 10 S. W. Rep., 17.

Rhodes v. Com., 2 Duv. (Ky.), 159.

Kearney v. State, 48 Md., 16.

People v. Ball, 14 Cal., 101.

The allegation in the complaint regarding the shop

breaking is was guilty and does not show which one

of appellants is referred to.

This complaint of Wm. Greer does not charge that

anything was feloniously done,—this is also fatal.

Scudder v. State, 62 Ind., 13.

Gregg v. State, 64 Ind., 223.

Ridgeway v. State, 41 Tex., 231.

Baker v. Com., 2 Va. Cas., 122.

The omission of felonious reduces the act to trespass.

Savine v. State, 85 Ind., 576.

A complaint charging the larceny of coin must allege

that it is current money of the U. S., or of some other

country.

People v. Ball, 14 Cal., 101.

State v. Parker, 1 Haust Crim. C. (Del.), 9.

Lord v. State, 20 N. H., 404.

Leptwich v. Com., 20 Gratt ( Va.), 716.

Must allege also the value of the coin.

Boyle v. State, 37 Tex., 359.

Beery v. U. S., 2 Cal., 186.

FPO SLER EI ON SALT CLI LL ELSE LAIN IESE PIO 1. LIE OTE BENET ET

5

aQOS8i

17

The complaint does not charge a larceny at common

law, because it does not aver a taking and carrying away.

Gregg v. State, 4 Ind., 223.

1 Hale P. C., 504, 508, 2 id., 184.

Spittorf v. State, 108 Ind., 171.

A complaint under oath, as provided by the treaty, is

wholly insufficient to confer jurisdiction unless all the

essential elements and facts necessary to constitute the

particular crime charged are set forth in the complaint.

In re Farez, 7 Blatchf., 35.

Ex parte Hart, 63 Fed. Rep., 259.

Ex parte Morgan, 20 Fed. Rep., 299.

“All legal intendments in a case of this kind are to

avail the prisoner, Jd.”

Ex parte Smith, 3d McLean, 121.

State v. Richardson, 34 Mimn., 115.

In the case of People, ex rel. Lawrence, 56 N. York

Rep., 183, the court, in passing upon the Act of Congress

providing for extradition between the states, said:

“The false pretenses are not set out. * *

In an indictment the false pretenses must be averred.

* * * Jt cannot be held that any less degree of

certainty is admissible in an affidavit * * *

than in an indictment for the same offense. If any

distinction exists in this respect the affidavit should

be more full and specific. It is usually the ex parte

statement of an accuser, while an indictment is by

a body of men standing indifferent between the par-

ties.”

“The complaint must positively and explicitly state

what the prisoner is called upon to answer.”

Smith v. State, 21 Neb., 556

U.S. v. Tureaud, 20 Fed. Rep., 623.

Lippman v. People, 175 Ill., 113.

AY ahs ot, ¥

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18

Sec. 3 of Fugitive from Justice Act of Illinois, supra,

is:

“Upon complaint under oath, setting forth the

offense and such other matters as are necessary to

bring the case within the provisions of law.”

Sec. 348, Hurd’s Rev. Stat. (Ill.), p. 627, as to com-

plaints, is:

“Upon complaint jnade to any judge or justice of

the peace that any such criminal offense has been

committed, he shall examine on oath the complain-

ant, and any witness produced by him, shall reduce

the complaint to writing and cause it to be subscribed

and sworn to by the complainant; wich complaint

shall contain a concise statement of the offense

charged to have been commitged.”’

And the Supreme Court of this state in construing that

statute he'd that in order to confer jurisdiction the facts

must be fully set out to show the crime charged.

Haush vy. People, 75 il., 487.

So it will be observed that there is no legislation in

[liinois regarding a complaint that makes it possible to

confer jurisdiction by a complaint not good by the terms

of the treaty.

Where an essential element necessary to charge an of-

fense has been omitted in complaint it is a matter of sub-

stance; no jurisdiction is conferred upon the magistrate

and such fatal defects can be availed of at any stage of

this proceeding even in this court, if raised for the first

time on appeal.

Donaldson v. Hazen, Hemp. (U. S.), 423.

Eilenberger v. Nelson, 64 Ill. App., 277.

Chicago & E. Ill. Ry. Co. v. Hines, Admr., 132

Ill., 161.

in 3a086

19

1 Chitty’s Pl. (7th Am. Ed.), 722, 723.

Dillard v. St. L. K. G. & N. R. R. Co., 58

Mo., 68.

Mathie v. McIntosh, 40 Wis., 120.

Riley v. City of Lowell, 117 Mass., 76.

Stearly’s appeal, 3 Grant (Pa.), 270.

Doctor et al. v. Hartman, 74 Ind., 231.

The complaints being void the magistrate had no juris-

diction. Where the magistrate loses jurisdiction, his

judgment is void ard habeas corpus is the proper remedy

to relieve from imprisonment thereunder.

Ex parte Siebold, 100 U. S., 371.

The complaints before Marke A. Foote were insuffi-

cient complaints under oath in that they were on informa.

tion and belief and therefore void and gave said Marke

A. Foote no jurisdiction in the extradition matter in

which the appellants were held and deprived of their

liberty.

Ex parte Lang, 6 Fed. Rep., 34.

Jchnston v. U. S., 87 Fed. Rep., 189.

Ex parte McCabe, 46 Fed. Rep., 363.

Lipman v. People, 175 Ill., 101.

State v. Swope, 72 Mo., 399.

In re Helbonn, 1st Parker Crim. Rep. (N. Y.

S. C.), 436.

In re Kelly, 25 Fed. Rep., 268.

William Greer in the third paragraph of his complaint

says “That he is informed and believes, etc.,” and in the

next to the last paragraph says he “is informed and be-

lieves.””

When it is not clear what portion of a complaint is on

5 eae w . .

‘ a EE a aR eine Te.

——————————

a=

Peek

Se toe. Mes

dee

20

information and belief, and what, if any, is positively

sworn to, all is on information and belief.

Siegmund v. Ascher, 37 Ill. App., 122.

Stirlen v. Neustadt, 36 Ill. App., 378.

The B. T. Co. v. Balding Bros. & Co., 40 Ill.

App., 378.

Commerce Vault v. Hurd et al., 73 Ul. App.

107.

Chi, Ex. Co. v. Ill. State B’d of Ed., 77 MU.

App., 350.

III.

The second assignment of error I most respectfully

submit is of the most vital importance for several rea-

sons.

The decision of this Honorable Court on the merits in

this case will settle the questions of what statutes and

mode of procedure extradition commissioners ought to

follow in international extradition cases. No two com-

missioners can be found in this district who proceed

alike in international extradition cases—some say contin-

uances can be granted for longer periods than the state

law allows—others say not—some refuse change of

venues on the ground that Sec. 1014 of the U. S. Rev.

Stat. does not apply—some grant changes of venue on

the ground that they should proceed as examining magis-

trates in each state—some refuse bail, others grant it—

some say when change of venue is granted the case should

go to the next nearest justice as provided by our state

law, others say the state law does not apply, etc.; and

when counsel says this assignment is frivolous I do not

believe he fully appreciates the importance of having

these things settled.

30868

The second assignment of errors does not attack the

treaty on the ground that it is unconstitutional as counsel

erroneously asserts by his brief, but calls for the construc-

tion of Sec. 6 of the treaty of 1889 in as positive and di-

rect manner as it is possible to raise it.

The construction of that section has never been passed

on in any court in this country or England, if it has I

have been unable to find it.

judge C. C. Kohlsaat of this district would not have

granted a supersedeas herein and ordered the marshal of

his court to hold the appellants to await the final orders of

this court if he had thought that the questions were not

submitted in good faith and of sufficient weight and im-

portance to get the decision of this court thereon.

The said Marke A. Foote lost all possible jurisdiction

in the extradition proceeding by continuing the said cause

from June 14, 1900, to June 25, 1900, the same being a

period of more than ten days, and every order entered in

said proceeding thereafter was absolutely null and void

and of no effect.

U.S. v. Horton, 2 Dill., 94.

Mahr v. Young, 13 Wis., 710.

Gamage v. Law, 2 Johns, 192.

Crichton v. Beebe, 7 Ill. App., 272.

The People v. Jarrett, 7 I. App., 566.

State v. Swope; 72 Mo., 399.

In re Thomas Kane, 10 N. Y. Leg. Obs., 129.

In re Thomas Kane, 14 How., 103.

In re MacDonald, 11 Blatch., 79.

Section 627 Revised Statutes of the United States is

“commissioners of the Circuit Courts shall exercise the

PRADO OT

22

powers, which are or may be expressly conferred upon

commissioners of Circuit Courts.”

The act abolishing Circuit Court Commissioners au-

thorized U. S. Commissioners to be appointed by the Dis-

trict Courts with the same powers that Circuit Court

Commissioners formerly held.

Section 1014 of the Revised Statutes of the United

States provides: “That for any crime or offense against

the United States the offender may, by any justice or

judge of the United States or any commissioner of the

Circuit Court to take bail, etc. * * * and agree-

ably to the usual mode of process against offenders in

such state be arrested and imprisoned, etc., or bailed as

the case may be.

Section 727 Revised Statutes of the United States pro-

vides that the commissioners of the Circuit Courts, etc.,

shall have authority to hold for security of the peace and

good behavior in cases arising under the constitution and

laws of the United States as may be exercised by any

judge or justice of the peace of respective states in cases

cognizable before them.

Article 10 of the Ashburton treaty with Great Britain

of 1842 providing for the extradition of fugitives from

justice provides, that this shall only be done upon such

evidence of criminalty as according to the laws of the

place where the fugitive or person so charged shall be

found would justify his apprehension and commitment

for trial if the crime or offense had there been committed

and provides that a warrant may be issued by judges or

other magistrates.

Section six of the treaty between the United States and

Great Britain, proclaimed March 25, 1890, is:

—“ 30869

33

“The extradition of fugitives under the provisions

of this and of the said tenth article shall be carried

out in the United States and Her Majesty’s domin-

ions respectively in conformity to the laws regu-

lating extradition for the time being in force in the

surrendering state.”

Section 67, Article 7 of Chapter 79, Revised Statutes

of Illinois, governing continuances by justices of the

peace and examining magistrates, in force July 1, 1872,

is as follows:

“The justice before the commencement of the trial

may continue a case not exceeding ten days at any

one time on consent of the parties or on any good

cause shown. Either party shall be entitled to such

continuance if it shall appear upon his oath, or that

of a credible witness, that he cannot safely go to trial

on account of the absence of material testimony.”

Section 3, Chapter 60, Revised Statutes of Illinois,

called the Fugitive from Justice Act, which was enacted

as auxiliary to the United States statutes on extradition

between states, in force July 1, 1874, is as follows:

“When a person is found in this state, charged

with an offense committed in another state or terri-

tory, and liable, by the constitution and laws of the

United States, to be delivered over upon the demand

of the executive of such other state or territory, any

judge, justice of the peace or police magistrate may.

upon complaint under oath, setting forth the offense,

and such other matters as are necessary to bring the

case within the provisions of law, issue a warrant to

bring the person charged before the same or some

other judge, justice of the peace or police magis-

trate within this state, fo answer to such complaint

as in other cases.”

It is also clear that as a U. S. commissioner Mark A.

Foote could not have continued from June 14th to Jung

25th in the manner in which he did without losing juris-

diction either under Section 724 or 1014, Rev. St. o.oo

ink ams ny iN Gy AP UR DOR pan

24

Sec. 5270 Rev. St. U. S., relating to international ex-

tradition, does not provide for any mode of procedure

whatever except that a person charged may be brought

before said commissioner to the end that evidence of

criminalty may be heard and considered; and it is fair to

presume that Congress at the time of the passage of said

Section 5270 intended that commissioners appointed by

the courts to act as extradition commissioners should pro-

ceed in accordance with the sections of the statutes gov-

erning U. S. commissioners. There can be no good rea-

son advanced why they should not proceed directly in ac-

cordance with Sect. 724 or 1014 of U. S. Rev. S.

In re Mineau, 45 Fed. Rep., 189, which was a habeas

corpus case in an extradition matter, it was held that

under Sect. 727 of the Rev. St. of U. S. the commis-

sioner was authorized to proceed and had power to arrest

in order to carry out treaty obligations.

In the MacDonald case, 11 Blatchf., 79, it is said:

“The practice in analogous ‘cases in the state

wherein the proceedings are conducted, is said, in

one of the cases referred to to be a guide to the com-

missioner in the conduct of the investigation. If this

be so then it is quite pertinent to refer to a familiar

practice, sanctioned by the courts of this state where

persons charged as fugitives are sought to be re-

turned to another state.”

In re MacDonald, 11 Blatchf., 79, and In re Ludwig,

32 Fed. Rep., 774, the question of discretion as to ad-

journments was discussed.

It will be noticed that the adjournments were not made

contrary to and in violation of the statutes. The court

in ve MacDonald said no abuse of discretion appeared in

that case, if it did relief could be had on habeas corpus.

CSRS Nr git AE AAS ENE METS BONEN GRETA Do BPTI TMI OT ee Se RRR ETT BE Sirgen —

30870

25

Certainly no magistrate on the theory of discretion can

continue causes contrary to all laws, including Section 6

of the treaty of 1899, which was not in force when these

cases were decided.

“Discretion must be governed by rule, not by humor; it

must not be arbitrary, vague or fanciful, but legal and

regular.”

Lord Mansfield in Rex. v. Wilkes, 4 Burr, 2539.

Tripp v. Cook, 26 Wend., 152.

In the case at bar there was an absolute abuse of dis-

cretion; the appellants were held without bail from June

2, on void complaints, over objection. The commission-

er’s docket shows (Rec., 25-31) that certain complaints

having served their purpose were dismissed. The appel-

lants did not ask that the case on June 14th be continued

eleven days; they only asked for time to examine the last

complaint and to defend against it. An hour or so would

have been sufficient time. They asked to see the deposi-

tions of the Canadian Government, then in open court,

and their request was denied. (Rec., 31.) After all the

evidence was in on June 28, and two of the defendants

absolutely refused to put in any evidence the commis-

sioner took the case under advisement to July 6th, and

again to July roth.

The case at bar is essentially different in many re-

spects from any case yet decided. No case is found that

holds that a magistrate can take a case under advisement

after the evidence is all in. The authorities are against it.

In re Calder, 2 Edm. Select Cases, 380.

The appointment of Mark A. Foote to act in extradi-

tion matters by the district judge (Rec., 44) did not make

a9,

SPE? ee teen, Ya aes ere

26

him a District Court or confer upon him powers of a

district judge or powers to proceed as a district judge

might have proceeded or continue a cause for more than

ten days as a district judge might have done.

Todd v. U. S., 158 U. S., 278.

Under the proviso in Art. 10 of the treaty of 1842,

that delivery “shall only be done upon such evidence of

criminality as, according to the laws of the place where

the fugitive or person so charged shall be found will

justify his apprehension and detention for trial. It is

held that the extradition commissioner should proceed

according to the laws of the states.

In re Farez, 7 Blatch. 360.

In re Kelly, 25 Fed., 268.

In re Ezeta et al, 62 Fed. Rep., 972:

Where it was held the law of the states must furnish the

rule of procedure.

Benson v. McMahon, 127 U. S., 463.

If neither congress nor the treaty has provided for the

procedure as to continuances by extradition commission-

ers, the Laws of Illinois which are not in conflict with

the treaty or acts of Congress, but auxiliary thereto, and

; which provide a mode of procedure as to continuances

must govern the extradition commissioner, and such laws

are constitutional.

Ex P. Rosenblat, 51 Cal., 287.

Ex P. Cubreth, 49 Cal., 436.

Kurtz v. State, 22 Fla., 36.

Com. v. Tracy, 5 Met. (Mass.), 536.

Ex P. Romanes, 1 Utah, 23.

Hurd on Habeas Corpus, p. 636.

Moore v. Illinois, 14 How, 1314.

REIS 2 EL ROR RT a al VASO P” METI IERIE BAGS ‘ ee ene oe tad eee TD

¥ fs 2 eae

30871

27

Mark A. Foote did ffot proceed in accordance with the

laws of Illinois or any other law. His orders entered

after June 14, 1900, were void under the decisions of this

and other states as heretofore cited, and it does not mat-

ter which side asked for the continuance.

U.S. v. Horton, 2 Dill, 94.

State v. Swope, 72 Mo., 399.

It will be noticed :

“The 6th section of the treaty of 1889, providing

that extradition should be carried out in the U. S.

and her Majesty's dominions respectively, in con-

formity with the laws regulating extradition pro-

ceedings for the time being in the surrendering

state”

contains the word Jaws in the plural. If this section

does not mean anything, why was it incorporated into

the treaty? It is fair to presume that the parties who

drafted the treaty were familiar with the auxiliary legis-

lation enacted by nearly all, if not all, of the states of the

Union providing for modes of procedure not covered by

the acts of Congress, and that the signers of the treaty

wanted the proceedings to be carried out in accordance

with not only the laws regarding the sufficiency of the

evidence, but laws regulating continuances and all laws

of the surrendering state not inconsistent with the other

provisions of the treaty or Art. 10 of 1842.

Counsel for appellee refers to U. S. v. Rauscher, 119

LU. S., 412, and says the state cannot surrender fugitives

to a foreign power. I agree with him and say the state

of Illinois is not a party to this proceeding and is neither

trying to surrender nor prevent the surrender of appel-

lants, and further say that no extradition commissioner

aL a a ETRY SEL BOT IMME CRETE CES

eee ee

Pe ee Sean e

eA AE

ee Pee ee a ae

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™

Me es

can surrender any one except according to law. Nothing

in the Illinois law regulating continuances is in conflict

with the treaty or acts of congress.

The cases of Jn re Henrich, § Blatch., 414, and Jn re

Farez, 7 Blatch., 35, do not sustain the position of ap-

pellee. It does not appear that the extradition commis-

sioner in these cases continued the hearings in violation

of the U. S. Rev. Statutes or the state statutes, and no

objections were made on the hearings or later that the

continuances in those cases were not according to law,

and the questions of discretion in regard to the continu-

ances were not discussed, and further, section 6 of the

treaty of 1889 was not in force at the time those cases

were decided.

IV.

The complaints, the commissioner's warrants and mit-

timuses contain various recitals that Mark A. Foote was

specially appointed for the purpose of Title, 66 R. S.

U. S., and I do not think he was entitled to act because

of his special appointment for the reason that Section

5270 of Title 66 of the U. S. Statutes is in that respect

unconstitutional, for the reasons set out in the assign-

ment of errors on that point (Rec. 17). Thie tenth arti-

cle of the treaty of 1842 provided for the issuance of war-

rants by judges or other magistrates.

The word “magistrates,”” used in connection with the

words “warrants by judges.” does not refer to magis-

trates in the broad sense of a civil officer, but in the sense

of an inferior judicial officer, whose powers are created

and regulated by law. In the absence of Sec. 5270 would

any one say that under the Ashburton treaty Mark A.

30872

29

Foote, as a private citizen, who held these appellants, was

a magistrate empowered to issue warrants within the

terms of that treaty ?

Congress can establish an inferior tribunal, but it does

not invest such inferior tribunal with judicial power.

Robertson v. Baldwin, 165 U.S., 275.

Congress did not say U. S. Commissioners authorized

to issue warrants by law. If so, the act might be good.

Robertson v. Baldwin, supra.

But Sec. 5270 is “Commissioners so authorized to do

by the courts.” Commissioners cannot be authorized to

issue warrants by the courts. Commissioners are ap-

pointed to office by the courts, but they derive their au-

thority to issue warrants from the law, not from the

courts. Sec. 5270 is unconstitutional in thus attempting

to invest a person with powers to hear and determine the

rights of the parties under the treaty and pass upon the

sufficiency of the evidence and construe treaties and laws.

Am. & Enc., Vol. 6, foot pages 1048, 1053.

1054 and 1055.

People v. Chase, 165 Ill., 527.

U. S. v. Rider, 50 Fed. Rep., 406.

Campbell v. State Union Bank, 6 How.

( Miss.), 659.

Election Supervisors Cases, 114, Mass., 247.

If Mark A. Foote, as U. S. Commissioner, was a mag-

istrate without such special appointment, then he should

have continued the case according to the state statutes on

continuances.

eT eT a

- os aid iy

Ae rally hig et Hp) es.

30

Judge Nelson /n re Kane 14, How. 103, said:

“This would be so even without the treaty as the

only mode of procedure in summary criminal pro-

ceedings is according to the practice before the state

magistrates.”

Counsel for appellee lays much stress upon the decision

of Jn re Kane, 14 How., 103, as sustaining the special!

appointment. The Kane case was not decided by a ma-

jority of this court. The bench then consisted of eight

members, and this court was then equally divided on the

main questions then decided, and stood four to four.

The court there did not decide that a special appoint-

ment under Sec. 5270 was good. In that case it did

not appear that the U. S. commissioner was specially ap-

pointed. The chief question in that case was whether

the commissioners could act without being first authorized

to do so by the presidert.

¥.

No rule of law, or rule of this court has been cited by

the appellee why this cause should be advanced on the

docket. Sec. 3 of Rule 26 is that criminal cases may be

advanced, but a habeas corpus proceeding is not a crim-

inal case. If reasonable bail is now granted and appel-

lants can give it, one of the reasons assigned by appellee,

namely, that appellants may have to remain in jail a

year or more, will no longer-exis«.

Respectfully submitted