Opinion of the Court. CARTER v. GREENHOW. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA. Motion to advance, made October 9th, 1883.-Denied October 15th, 1883. Practice. A case will not be taken up out of its order simply because it is of great public importance. Motion to advance a suit against a tax collector. MR. CHIEF JUSTICE WAITE delivered the opinion of the court. These motions are denied. Rule 32 applies only to writs of error and appeals brought to this court under the provisions of section five of the act of March 3, 1875; that is to say, to writs of error and appeals from orders of the circuit courts remanding causes which have been removed from a State court, and from orders dismissing suits because they do not really and substantially involve disputes or controversies properly within the jurisdiction of the circuit courts, or because the parties to the suits have been improperly made or joined for the purpose of creating a case cognizable under that act. These are not such cases. That of Poindexter is a writ of error to a State court. In those of White and Carter, begun in the circuit court, the declarations were demurred to because not sufficient in law, and the judgments were in favor of the defendants on the demurrers. The cases as made by the declarations were disposed of on the merits, and the writs of error are for the `review of such judgments. Neither are the parties entitled to a hearing in preference to others under the provisions of section 949 of the Revised Statutes. The State of Virginia is not a party to either of the suits, and the execution of the revenue laws has not been enjoined or stayed. A tax collector has been sued for alleged wrongs done the several plaintiffs while he was engaged in the collection of taxes due the State, but he is not restrained from discharging any of his official duties. Par. 4 of Rule 26 relates only to revenue cases and cases in Statement of Facts. which the United States are concerned, which also involve or affect some matter of general public interest. Even these can not be advanced except in the discretion of the court and on the motion of the attorney-general. The questions involved may be of public importance, but that does not necessarily entitle the parties to a hearing in preference to others. Practically, every case advanced postpones another that has been on the docket three years awaiting its turn in the regular call. Under these circumstances we deem it our duty not to take up a case out of its order except for imperative reasons. Motion denied. UNITED STATES v. GALE & Another. ON CERTIFICATE OF DIVISION FROM THE CIRCUIT COURT OF THE Submitted November 9th, 1882.-Decided October 15th, 1883. Constitution-Criminal Law-Elections-Fraudulent Registration-Grand Jury-Practice-Revised Statutes. 1. The court adheres to the rulings in Ex parte Siebold, 100 U. S. 371, and Ex parte Clarke, 100 U. S. 399, that §§ 5512 and 5515 Rev. St. relating to violations of duty by officers of elections are not repugnant to the Constitution of the United States, and holds them to be valid. 2. Where a defendant pleads not guilty to an indictment, and goes to trial without making objection to the mode of selecting the grand jury, the objection is waived; even though a law unconstitutional, or assumed to be unconstitutional, may be followed in making the panel. 3. An objection to the qualification of grand jurors, or to the mode of summoning or empanelling them, must be made by a motion to quash, or by a plea in abatement, before pleading in bar. Indictment against inspector and clerk of Election District No. 8, Northern District of Florida, for removal of ballots cast by electors at an election for representative in Congress, and substitution of different ballots. Mr. Solicitor-General Phillips for the plaintiffs. No appearance for defendants. VOL. CIX-5 Opinion of the Court. MR. JUSTICE BRADLEY delivered the opinion of the court. The indictment against the defendants in this case was for misconduct as election officers at an election held in Florida for a representative to Congress, in stuffing the ballot-box with fraudulent tickets, and abstracting tickets which had been voted. In empanelling the grand jury which found the indictment, four persons, otherwise competent, were excluded from the panel for the causes mentioned in section 820 of the Revised Statutes, which grounds are, in substance, voluntarily taking part in the Rebellion, and giving aid and comfort thereto. The exclusion of these persons for this cause appears by an amendment of the record, made nunc pro tunc, showing what took place; but no objection was taken to the indictment or proceedings on that account until after a plea of not guilty, and a conviction, when the objection was first taken on motion in arrest of judgment. The indictment was founded upon sections 5512 and 5515 of the Revised Statutes, and the constitutionality of those sections was called in question, as well as that of section 820. The judges having disagreed upon the motion in arrest of judgment, certified up the following questions for the determination of this court, namely: 1. Whether sections 5512 and 5515 of the Revised Statutes of the United States, on which such indictment was founded, are repugnant to and in violation of the Constitution of the United States? 2. Whether section 820 of the Revised Statutes of the United States is repugnant to and in violation of the Constitution of the United States? 3. Whether judgment of this court could be rendered against the defendants on an indictment found by a grand jury empanelled and sworn under the section aforesaid? and 4. Whether the indictment aforesaid charges any offence for which judgment could be rendered against the defendants in this court under the Constitution and laws of the United States? The question of the validity of sections 5512 and 5515 has already been decided by this court in the cases of Siebold and Clarke, 100 U. S. 371, 399, and was determined in favor of their validity. As to those sections, therefore, the answer must Opinion of the Court. be in the negative, namely, that they are not repugnant to, nor in violation of, the Constitution of the United States. The second question, as to the constitutionality of the 820th section of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the Rebellion, is not an essential one in the case; inasmuch as, by pleading not guilty to the indictment, and going to trial without making any objection to the mode of selecting the grand jury, such objection was waived. The defendants should either have moved to quash the indictment or have pleaded in abatement, if they had no opportunity, or did not see fit, to challenge the array. This, we think, is the true doctrine in cases where the objection does not go to the subversion of all the proceedings taken in empanelling and swearing the grand jury; but relates only to the qualification or disqualification of certain persons sworn upon the jury or excluded therefrom, or to mere irregularities in constituting the panel. We have no inexorable statute making the whole proceedings void for any such irregularities. Chitty, in his work on Criminal Law, vol. 1, p. 307, says: "It is perfectly clear that all persons serving upon the grand jury must be good and lawful men; by which it is intended, that they must be liege subjects of the king, and neither aliens nor persons outlawed even in a civil action; attainted of any treason or felony; or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous. And if a man who lies under any of these disqualifications be returned, he may be challenged by the prisoner before the bill is presented; or, if it be discovered after the finding, the defendant may plead it in avoidance, and answer over to the felony; for which purpose he may be allowed the assistance of counsel on producing in court the record of the outlawry, attainder, or conviction, on which the incompetence of the juryman rests." This is undoubtedly the general rule as to the manner in which objection may be taken to the personnel of the grand jury, though in this country a motion to quash the indictment may be made instead of pleading specially in abatement. The requirement of answering over to the felony in connection Opinion of the Court. with the plea in abatement is for the benefit of the accused, in order that he may not be concluded on the merits if he should fail in sustaining his special plea,-a precaution which probably would not be necessary in our practice. By an English statute passed in the 11th year of Henry IV., it was declared that indictments made by persons not returned by the sheriff, or by persons nominated to him, or who were outlawed or had fled to sanctuary for treason or felony, should be void, revoked and annulled. On this statute it was held that if any such persons were on a grand jury which found an indictment, it made the whole void, and if the matter appeared on the record, or in the proceedings of the same court, advantage might be taken of it on motion in arrest of judgment, or even on the suggestion of an amicus curiæ; but if it did not appear on the record of the cause, or in the records of the same court, the better opinion was that it could only be pleaded in abatement, or raised by motion to quash. Hawkins says: "If a person who is tried upon such an indictment take no exception before his trial, it may be doubtful whether he may be allowed to take exception afterward, because he hath slipped the most proper time for it; except it be verified by the records of the same court wherein the indictment is depending, as by an outlawry in the same court of one of the indictors, etc." Hawkins, book 2, ch. 25, sect. 27. In Bacon's Abridgment (Juries, A) it is said that the court need not admit of the plea of outlawry of an indictor unless he who pleads it have the record ready, or it be an outlawry of the same court; and it is added, as the better opinion, that no exception against an indictor is allowable, unless the party takes it before trial. Chitty lays down the same rule. 1 Crim. L. 307-8. Lord Chief Justice Hale, speaking of what the caption ought to contain, among other things, says: "It must name the jurors that presented the offence, and therefore a return of an indictment or presentment per sacramentum A. B., C. D., et aliorum, is not good, for it may be the |