James H. McKenney, Clerk, Sup. Court, U. S. Cited-104 U. S., 409; 105 U. S., 578; 106 U. S., 194; 112 U. S., 720; 3 McCrary, 543; 6 Sawy., 222.

1. Congress never intended that the patent laws should displace the police powers of the States, that is, those powers by which the health, good order, peace and general welfare of the community are promoted. 2. Whatever rights are secured to inventors must be enjoyed in subordination to this general authority of the State over all property within its limits. 3. There is no objection to the law of Virginia requiring a license for the sale of sewing-machines, by reason of the grant of letters patent for the invention. 4. There is, however, an objection to its legislation arising from its discriminating provisions against non-resident merchants and their agents. The 45th and 46th sections of the revenue laws of the State 5. Commerce among the States in any commodity, can only be free when the commodity is exempted from all discriminating regulations and burdens imposed by local authority, by reason of its foreign [No. 1136.] Argued Mar. 11, 1881.

are unconstitutional.

growth or manufacture.

Decided May 2, 1881.

but a separate license shall be required from any agent or employé who may sell or offer to sell such articles for another. For any violation of this section, the person offending shall pay a fine of not less than $50 nor more than $100 for each offense.

46. The specific license tax upon an agent for the sale of any manufactured article or machine of other States or Territories shall be $25; and this tax shall give to any party licensed under this section the right to sell the same within the county or corporation in which he shall take out his license; and if he shall sell or offer to sell the same in any other of the counties or corporations of this State, he shall pay an additional tax of $10 in each of the counties or corporations where he may sell or offer to sell the same. All persons other than resident manufacturers or their agents, selling articles manufactured in this State, shall pay the specific license tax imposed by this section." Acts of Assembly 1875 and 1876, p. 184, ch. 162, secs. 45,

46.

To the indictment the accused pleaded "not guilty;" and on the trial it was proved that he had sold and offered to sell sewing-machines in Henrico County, as charged, but that at the time he was acting as agent or employé of the Singer Manufacturing Company, a corporation created under the laws of New Jersey; that this company had a place of business in Richmond, Virginia, where it was licensed as a resident merchant, for the year beginning May 1, 1880, and had paid the required license tax; and where it kept a stock of machines for sale; that the machines sold by the accused were the property

of the State of Virginia.

Statement of the case by Mr. Justice Field: This case comes before this court on a writ of error to the Supreme Court of Appeals of the State of Virginia, and arose in this way: In May, 1880, the plaintiff in error, J. T. Webber, was indicted in the County Court of Henrico County, in that State, for unlawfully selling and offering for sale in that county, to its citizens, certain machines known as Singer sewingmachines, which were manufactured out of the State, without having first obtained a license for that purpose from the authorities of the county, or having paid the tax imposed by law For that privilege.

The indictment was founded upon the 45th and 46th sections of the revenue law of the State, which are as follows:

"45. Any person who shall sell, or offer for ale, the manufactured articles or machines of ther States or Territories, unless he be the wner thereof and taxed as a merchant, or take rders therefor, on commission or otherwise, hall be deemed to be an agent for the sale of anufactured articles of other States and Teritories, and shall not act as such without takag out a license therefor. No such person hall, under his license as such, sell or offer to NOTE-Power of States to tax. See, note to Provence Bk. v. Billings, 29 U. S. (4 Pet.), 514; and note Dobbins v. Erie Co., 41 U. S. (16 Pet.), 435. Power of Congress to regulate commerce; state lines; power of States to tax commerce. See, note to ibbons v. Ogden, 22 U. S. (9 Wheat.), 1; and note to Town v. Maryland, 25 U. S. (12 Wheat.), 419.

out of the State, and in accordance with specifications of a patent of the United States, granted in 1879, to one W. C. Hicks, and by him transferred to the company. It also appeared that the accused had not taken out a license to sell the machines in Henrico County, and was not himself taxed as a merchant, and had not taken orders for the machines on commission or otherwise.

On the trial his counsel requested the court to instruct the jury, that if they believed the Singer Manufacturing Company had paid for a general merchant's license for the year beginning May 1st, 1880, and received such license, or that the machines sold were constructed according to the specifications of the patent held by the company, and that the accused was acting in the sales made only as its employé, he was entitled to a verdict of acquittal. The court refused to give these instructions, and, at the request of the attorney for the Commonwealth, instructed the jury, in substance, that if they believed the accused had, at different times within the year, previous to the indictment, sold or offered to sell in Henrico County to its citizens Singer sewing-machines manufactured beyond the State, and at the time he was neither the manufacturer himself nor the owner of them, and was not taxed as a merchant in the county, and had not taken orders therefor on commission or otherwise, and had not obtained a license to sell the same in the county, and had not paid to the proper officer the tax imposed by law for selling the same in that county, they should find him guilty.

citizens, otherwise qualified, competent to serve on juries in the State Courts.

4. The presumption should be indulged in the first instance that the State recognizes, as is its plain duty,

statutes.

an Amendment of the Federal Constitution from the time of its adoption as binding on all of its citizens and every department of its government, and to be enforced within its limits, without reference to any inconsistent provisions in its own Constitution or 5. In this case that presumption is strengthened and becomes conclusive not only by reason of the direct adjudication of the State Court, recognizing the modification of the State Constitution, by reason of the amendments to the National Constitution, but by the entire absence of any statutory enact ments since the adoption of the Amendments indicating that the State, by its constituted authorities, does not recognize in the fullest legal sense their legal effect upon the Constitution and laws of the State.

6. Had the State since the adoption of the Fourteenth Amendment passed any statute in conflict with its provisions, or had its judicial tribunals by their decisions repudiated that amendment as a part of the supreme law of the land or declared the Acts passed to enforce its provisions to be inoperative and void, there would have been just ground to hold that the case was one embraced by section 641 of the Revised Statutes and, therefore, removable into the Circuit Court of the United States.

7. The alleged exclusion from the grand jury that found, and from the petit jury that was summoned to try this indictment, of citizens of the African race because of their race, did not result from the Constitution or laws of the State as expounded by its highest judicial tribunal; and consequently, the accused was not entitled to the removal of the prosecution into the Circuit Court. Such exclusion how ever, if made by the jury commissioners without authority derived from the Constitution and laws of the State, was a violation of the prisoner's rights under the Constitution and laws of the United States which the trial court was bound to redress; and the remedy for any failure in that respect is ultimately in this court upon writ of error to the State Court. 8. Upon the showing made by the accused, the motions to quash the indictment and the panels of jurors should have been sustained.

9. The doctrines announced in Strauder v. West Virginia, Virginia v. Rives, and Ec parte Virginia, 100 U. S., 303, 313, 339, reaffirmed.

[No. 865.]

Argued Mar. 21, 22, 1881. Decided May 2, 1881.

The qualifications of voters at the general election are fixed by the Constitution of Delaware, article IV., section I:

"And in such elections every free, white, male citizen," etc.

The 14th Amendment, the Civil Rights Act, the 15th Amendment, and the Acts of Congress passed to enforce it, did not repeal any provis ions of the Constitution or statutes of Delaware, or amend by striking out the word "white."

The fallacy of the argument of the court below is, that it confounds the distinction between federal and state sovereignty. Each is as distinct as though separated by boundaries visible to the eye.

Ableman v. Booth, 21 How., 516 (62 U. S., XVI., 173).

In such case, the superior will prevails over the inferior. It does not annihilate the weaker purpose; it simply prevents its being carried into execution.

The Legislature of Delaware, in 1874, repub lished the Constitution and Revised Statutes of the State, and therein printed the above cited clause of the State Constitution (art. IV, sec. 1), without any change or alterations because of the 14th and 15th Amendments, and leaving the word "white" therein.

If colored men have been allowed to vote, it has been through the obedience of the election officers to the mandate of the 15th Amendment.

The fact is, as the court admits, that no colored man has ever yet been placed on any jury list in Delaware, and to their demand for that right it is but a poor answer, indeed it is no answer, to say that they are permitted to testify and to vote.

This court held in the case of Strauder v. W. Va., that that cause should have been removed, under section 641 of the Revised Statutes, West Virginia excluding colored persons from notwithstanding and because the Statute of

The fact that the Constitution and Statutes of Delaware were passed before, while the Statute of West Virginia was passed after the adoption of the 14th and 15th Amendments and the Civil Rights Acts, including section 641, for the removal of causes, is a distinction without a difference, and does not weaken the binding force on this case, of the decision in Strauder's case.

Strauder v. W. Va., 100 U. S., 303 (XXV., 664); Va. v. Rives, 100 U. S., 313 (XXV., 667); Ex parte Va., 100 U. S., 339 (XXV., 676).

2. By the Constitution and laws of Delaware, persons of African race and of color are excluded from the juries, because of their race and color.

The qualifications of jurors in Delaware are fixed by the Revised Statutes of Delaware, chapter 109:

"Sec. 1. All persons qualified to vote at the general election shall be liable to serve as jurors."

The Court of Oyer and Terminer should have quashed the indictment and the panels of Grand Jurors and Petit Jurors, on the ground that the Levy Court of New Castle County had excluded from said juries, all persons of African race and color, because of their race and color, and should not have refused the motion to quash because the plaintiff in error produced no evidence aliunde in support of the allegations of his petition, verified by his own oath.

None but white men were selected by the levy court.

None but white men were drawn on the lists and panels of the Grand and Petit Juries.

None but white men had ever been selected or drawn on juries in the State.

The Constitution and laws of Delaware, in express language, prohibited the placing of any but white men upon the juries.

No court of the State had, up to that time

ever held that the Constitution, Statute and practice of the State excluding blacks from the juries had been abrogated or changed by the Amendments to the Constitution of the United States, and by the Acts of Congress.

The decision of the court below in this case, already quoted, was the first judicial determination, in the history of Delaware, to the contrary.

The Levy Court Commissioners, in selecting the lists of jurors, were merely administrative officers, not lawyers. They were acting in an executive, not a judicial capacity; and were discharging a mere executive, and not judicial function and duty.

It cannot be presumed that such officers, in selecting the lists of jurors, exercised the judicial function by construing and treating the Statute and Constitution of Delaware, in respect to the qualifications of jurors, as abrogated or changed by the 14th and 15th Amendments and the Acts of Congress.

It must be presumed, on the contrary, that they were governed by the text of the law of the State, rather than by that of the United States. This court have held that even the judicial tribunals are presumed to be governed by the state, and not by the federal law.

Va. v. Rives (supra).

The court should have permitted the plaintiff in error to go into proof to support the allegations of his petition, on which the motion to quash was grounded, even after the motion to quash was argued and overruled.

Mr. George Gray, Atty-Gen, of Delaware, for defendant in error:

By the express requirement of the statute, the petition must set forth the facts upon which the defendant bases his claim to have his case removed. The mere filing of the petition is not enough, but the facts set forth must be such as to justify a removal, and the sufficiency of such facts is a material inquiry for the court.

Va. v. Rives, 100 U. S., 317 (XXV., 669). The denial or inability to enforce, in the judicial tribunals of the State, rights secured by any law providing for the equal civil rights of all persons, citizens of the United States, of which section 641 speaks, is a denial of such rights, or inability to enforce them, resulting from the Constitution or laws of the State rather than a denial, first made manifest at the trial of the cause; "In other words, the statute has reference to a legislative denial, or an inability resulting from it."

Va. v. Rices (supra).

Were colored persons, at the time of the filing of this petition for removal, so excluded by the laws of Delaware?

We might rest the case on the answer to this question given by the court below:

"Because it is well settled that this court will take the decision of the State Court of last resort, not called in question by any conflicting decision, as conclusive evidence of what the law of the State is.

Randall v. Brigham, 7 Wall., 523 (74 U. S., XIX., 285).

There is nowhere on the statute-book of Delaware, any law expressly excluding colored persons from liability to serve as jurors. It is a matter of construction. Whose construction

must we take as the correct one, that of the learned counsel or that of the State Court?

All voters may be jurors. Who are voters? The answer is plain since the 15th Amendment; all male citizens, twenty-one years of age and upwards, having certain other qualifications, may vote in Delaware, and therefore may be jurors.

To require that the court below should have granted this motion to quash, on the unsupported allegations of the prisoner at the bar, and when the facts alleged were such as could not possibly have been within his knowledge, and moreover imputed grave offenses against the law, to all the persons constituting the Levy Court of New Castle County, would be to reverse all the rules of evidence, overturn all orderly procedure in courts of justice, and contradict the settled maxims of ordinary human experience.

Va. v. Rives (supra).

Mr. Justice Harlan delivered the opinion of the court:

The plaintiff in error, a citizen of the African race, was, on the 11th May, 1880, indicted in the court of General Sessions of the Peace and Jail delivery of New Castle County in the State of Delaware for the crime of rape, an offense punishable, under the laws of that State, with death. The indictment, upon writ of certiorari sued out by the Attorney-General of the State, was removed for trial into the court of Oyer and Terminer for the same county, the highest judicial tribunal of Delaware in which the decision of such a case could be had. In the latter court, the accused, by counsel specially assigned for his defense, filed a petition, verified by his oath, for the removal of the prosecution into the Circuit Court of the United States for the District of Delaware.

The general grounds alleged for removal were that the grand jurors who returned the indictment, and the petit jurors who were summoned to try the case, were of the white race exclusively; that all citizens of the African race, though otherwise qualified, had, by virtue of the Constitution and laws of the State, been excluded from the lists of grand and petit jurors, because of their race and color; that, in fact, persons of that race, though otherwise qualified, have always, in said County and State, been excluded, because of their color, from service on juries; and, consequently, that the accused had been and, in the trial of his case, would be denied the equal protection of the laws, and the full and equal benefit of all laws and proceedings in that State for the security of his person as is enjoyed by the white race.

The removal was denied, as were motions, subsequently made in behalf of the accused, to quash the indictment and the panels of grand and petit jurors. A trial was had before a jury composed wholly of white persons, and a verdict of guilty having been returned, it was, on the 27th May, 1880, adjudged that the accused suffer death by hanging. From that judgment this writ of error has been prosecuted.

The assignments of error are numerous, but they are all embraced by the general proposition that the court erred, as well in proceeding with the trial after the petition for removal was filed,