valenti. It also discovered, after laborious search and long reading, that in one of the leading articles of the American Law Review, a plural noun had a singular verb. Each of these discoveries, in the dearth of anything more interesting with which to regale his small circle of readers, afforded him the material for a half-column editorial. Poor old Canada.

NOTES OF RECENT DECISIONS.

REMOVAL OF CAUSES-WHO MAY OBJECT to JURISDICTION-REMOVAL AFTER MISTRIAL. We have been requested by a subscriber to print the decision of the Supreme Court of the United States in Ayers v. Watson. We find ourselves unable to do so on account of its length; but we shall here give that portion of it concerning which our subscriber makes inquiry, which rules the two following points: 1. That after the removal of a cause to a Federal court, objection to the jurisdiction of the latter court will not be listened to, if made by the party at whose instance the removal took place, unless the want of jurisdiction is fundamental. 2. That the objection that the removal may be had after a mistrial in the State court is not fundamental, and hence cannot be made by such party. "The first reason," said Mr. Justice Bradley, "has no foundation in fact. The plaintiff's petition demanded the recovery of the land and $500 damages. This was certainly a demand for more than $500, unless it can be supposed that the land itself was worth nothing at all, which will hardly be presumed. The second reason is more serious. plication for removal was beyond question too late according to the act of 1875, though not so under the act of 1866 as codified in Rev. Stat. § 639, cl. 2, which allows the petition for removal to be filed 'at any time before the trial or final hearing of the cause.' This language has been held to apply to the last and final hearing. A mistrial by disagreement of the jury did not take away the right of removal. But we have held that this clause of

35 U. S. C. Repr. 641.

The ap

* See Insurance Co. v. Dunn, 19 Wall. 214; Stevenson v. Williams, Id. 572; Vannevar v. Bryant, 21 Wall. 41; Railroad Co. v. McKinley, 99 U. S. 147.

§ 639 was superseded and repealed by the act of 1875.5 We are compelled, therefore, to examine the effect of the act of 1875 upon the jurisdiction of the court when the application is made at a later period of time than is allowed by that act.

"By § 2 of the act of 1875 any suit of a civil nature, at law or in equity, brought in a State court, where the matter in dispute exceeds the value of $500, and arising under the Constitution or laws of the United States, or in which the United States is plaintiff, or in which there is a controversy between citizens of different States, or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign States, citizens or subjects, either party may remove said suit into the Circuit Court of the United States for the proper district; and when in any such suit there is a controversy wholly between citizens of different States, which can be fully determined as between them, one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the Circuit Court of the United States for the proper district. This is the fundamental section, based on the constitutional grant of judicial power. The succeeding sections relate to the forms of proceeding to effect the desired removal.

"By § 3 it is provided that a petition must be filed in the State court before or at the term at which the cause can be first tried, and before the trial thereof, for the removal of the suit into the circuit court, and with such petition a bond, with condition, as prescribed in the act. The second section defines the cases in which a removal may be made; the third prescribes the mode of obtaining it, and the time within which it should be applied for. In the nature of things, the second section is jurisdictional, and the third is but modal and formal. The conditions of the second section are indispensable, and must be shown by the record; the directions of the third, though obligatory, may, to a certain extent, be waived. Diverse State citizenship of the parties, or some other juris

5 Hyde v. Ruble, 104 U. S. 407, 410; King v. Cornell, 106 U. S. 395; s. c., 1 Sup. Ct. Rep. 312; Holland v. Chambers, 110 U. S. 59; s. C., 3 Sup. Ct. Rep. 427.

dictional fact prescribed by the second section, is absolutely essential, and cannot be waived, and the want of it will be error at any stage of the cause, even though assigned by the party at whose instance it was committed. Application in due time, and the proffer of a proper bond, as required in the third section, are also essential if insisted on, but, according to the ordinary principles which govern such cases, may be waived, either expressly or by implication. We see no reason, for example, why the other party may not waive the required bond, or any informalities in it, or informalities in the petition, provided it states the jurisdictional facts; and if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly stated. So, as it seems to us, there is no good reason why the other party may not also waive the objection as to the time within which the application for removal is made. It does not belong to the essence of the thing; it is not, in its nature, a jurisdictional matter, but a mere rule of limitation. In some of the older cases the word 'jurisdiction' is often used somewhat loosely, and no doubt cases may be found in which this matter of time is spoken of as affecting the jurisdiction of the court. We do not so regard

government of common schools. The first is the decision of the Supreme Court of Missouri in the case of Derkins v. Goss, stated in our "digest" last week. This case related to the power of the teacher, and holds that a teacher has power to make a rule, and to enforce it by flogging, prohibiting the boys from swearing, quarrelling or fighting on their way home from school, and before the parental authority over them has been resumed. The second is the decision of the Supreme Court of Wisconsin in State, ex rel. v. Board of Education of Fond du Lac.9 This case relates to the power of a board of education of a city, and holds that a regulation made by such a board that each scholar, when returning to school after recess, shall bring into the schoolroom a stick of wood for the fire, is not "needful for the government of the schools," within the meaning of the statute clothing the board with its powers. Cole, C. J., says: "School boards and boards of education have important duties to discharge, and we have no disposition, as our decisions show,10 to circumscribe their powers in too narrow a compass. The statute clothes them with power to make all needful rules for the government of the schools established within their respective jurisdiction, and to suspend any pupil from the privileges of the school for noncompliance with the rules established by them, or by the teacher with their consent. While from the necessity of the case much discretion must be left to these boards as to the nature of the rules which are prescribed, yet it cannot fairly be claimed that the boards are uncontrolled in the exercise of their discretion and judgment upon the subject. The rules and regulations made must be reasonable and proper, or, in the language of the statute, 'needful,' for the government, good

will best advance the pupils in their studies, tend to their education and mental improvement, and promote their interest and welfare. But the rules and regulations must relate to these objects. The boards are not at liberty to adopt rules relating to other subjects ac

8 20 C. L. J. 419, pl. 21.

9 23 N. W. Rep. 102.

10 Morrow v Wood, 35 Wis. 59; State v. Burton, 45 Wis. 150.

11 § 439, Rev. St. Wis. subc. 15, (§ 10, c. 152, Wis. Laws, 1883, p. 426).

cording to their humor or fancy, and make a disobedience of such a rule by a pupil, cause for his suspension or expulsion. We therefore think the rule or regulation requiring the pupil to bring up wood for use in the schoolroom was one which the board had no right to make and enforce."

FALSE IMPRISONMENT-ARRESTS AT THE REQUEST OF OFFICIALS IN OTHER STATES.-A frequent practice of the police of American cities is to arrest persons supposed to have committed crime in other States, on letters or telegrams, from sheriffs, marshals, or chiefs of police in such other States, before any warrant has been sworn out in such other State charging the person with the commission of the crime. Persons thus arrested are put in a prison called in police slang the "holdover," and are held for such time as the police deem discreet, or until a writ of habeas corpus comes, to await formal proceedings of extradition. When necessary to hold the prisoner, a fictitious charge is sometimes trumped up against him, such as vagrancy, or the like. The exercise of such a power is undoubtedly beneficial to society in many cases; but innocent men who have had the misfortune to fall under police suspicion, have sometimes felt its oppressive force. It is a power which police officials exercise at their peril, as the recent decision of the Supreme Court of Michigan in Malcomson v. Scott1 quite clearly shows. A person living at Alpena, Michigan, was there arrested by the marshal of the town and detained by the sheriff of the county for two or three days, on a letter and a subsequent telegram, purporting to come from the chief of police of Philadelphia, stating that he had absconded with the funds of a certain benevolent society, of which he was a member, and requesting his detention. The telegram promised to send an officer and a requisition for him at an early date. But neither the letter nor the telegram showed that any prosecution had been commenced against him in Pennsylvania, nor whether the offense charged was a crime under the laws of Pennsylvania, nor at what date it was committed. It was held

12 23 N. W. Rep. 166.

that the sheriff was liable for damages for a false imprisonment. Campbell, J., said: "The habit, which is by a very singular abuse of language called official courtesy, of making illegal arrests in one jurisdiction in the hope that similar violations of law may be reciprocated, is one which cannot be tolerated. The law places private liberty at a much higher value than official favors; and violations of law by those who are appointed to protect, instead of destroy private security, deserve no favor. Fundamental rules of constitutional immunity cannot be relaxed.

The extradition of criminals who are claimed to be fugitives from other States, is governed entirely by the constitution and laws of the United States. No State can deal with other States, under the express terms of the constitution, without the approval of Congress, and what the State cannot do its policemen cannot do. An arrest here without compliance with the United States laws cannot be maintained. Michigan cannot treat foreign offenses as domestic, and there is nothing in our statutes which contemplates an arrest without warrant for purposes of extradition. Under the Constitution and Acts of Congress it is for the governor of the one State to determine whether he desires extradition, and for the governor of the other to decide whether he will grant it. Congress will not allow the demand to be made until the offender has either been indicted or otherwise complained of in the regular course of justice. There can be no demand before com

plaint.13 Our statute in aid of such proceedings only allows an arrest where a complaint is made on oath, setting forth such matters 'as are necessary to bring the case within the provisions of law,' and on a full showing the person may be recognized to appear again before the magistrate at some future day, 'allowing a reasonable time to obtain the warrant of the governor,' and in default of bail there may be a commitment.14 But the statute further requires that the complainant shall be liable for costs and charges, and for the weekly support of the prisoner, and that the jailor may discharge him on default thereof. The arrest, therefore, cannot be justified under

13 Rev. St. U. S. § 5278.

14 How. Mich. St. §§ £623, 9624-9626.

this act, and the order of the commissioner was in clear violation of it, and could justify no further holding."

THE LATE DECISIONS ON THE KANSAS LIQUOR LAW.

An foreigner reading the decisions of American courts on questions of constitutional law and generalizing what he finds, would come to the conclusion that constitutional law in America is a kind of law devised by the vicious, unruly and disorderly minority, to prevent the virtuous, orderly and peace-loving majority from punishing crime and preserving the peace of society. No better illustration of this could be given than two recent decisions in Kansas, one by Judge Crozier, of the Kansas District Court, at Leavenworth, and the other by Judge Foster, of the United States District Court for the District of Kansas. The question related to the constitutionality of the eighth section of a statute of Kansas enacted, March 7, 1885, for the enforcement of the constitutional and statutory law of the State against the traffic in intoxicating liquors. The text of the section is not before us; but, as stated in the opinion of Judge Foster, elsewhere printed, its essential provision is that, it clothes the county attorney with power to summon persons before him to be interrogated as to whether they know of any violation of the Liquor Law, and gives him power, in case they refuse to answer his questions, to imprison them for contempt. Judge Crozier holds that the law is unconstitutional, on what ground we are unable to state, because we have not seen his opinion.1 Judge Foster also holds that it is unconstitutional, in an opinion which we print on another page, on the ground that an imprisonment for contempt under such a law is an imprisonment without due process of law, and therefore contrary to the inhibition of the Fourteenth Amendment to the Federal Constitution. Judge Foster is a learned and temperate-minded judge, and writes a good opinion; but we apprehend

Since the above has been printed, the decision of Judge Crozier has come to hand, and will be given by us next week.

that this opinion will be read and re-read in vain for any solid ground for the conclusion that the Kansas statute is not "due process of law." The only reason for holding that it is not due process of law which we can extract from his opinion, is that it is novel and unusual to give to an officer, whose vocation is to prosecute, and for the purpose of enabling him to prosecute, those inquisatorial powers which are usually confided to grand juries. This, it is perceived, is all that the statute does. Thegrand jury cannot, indeed, imprison a recusant witness for refusing to answer questions; but the court can. The conclusion of Judge Foster cannot, therefore, be vindicated, unless the principle is to be laid down that an act of the legislature, which vests in one officer powers which have hitherto been vested in another officer, and which have been exercised without question from time immemorial, is not due process of law. We think that no lawyer will go so far as to claim this. Judge Foster disclaims it in his argument, but we submit that he necessarily asserts it in his conclusion. It would not be contrary to the Four. teenth Amendment for a State to abolish grand juries altogether, and to lodge all their inquisatorial powers in its prosecuting attorneys; and the Supreme Court of the United States has lately so held.2 This reason being disposed of, we can discover no other reason in Judge Foster's opinion for the conclusion at which he arrives, than the impression of a very learned and excellent judge that the inquisatorial power thus confided to a prosecuting officer might be oppressively exercised. This can be said of all governmental power; ministerial or judicial: it must be lodged somewhere, and there must be a finality somewhere, and the tribunal which must finally decide may decide unlawfully, and the enforcement of its decision may be oppressive. But this result is not to be presumed, and does not afford a reason for refusing to clothe any officer or magistracy with necessary governmental powers. The gist of Judge Foster's opinion therefore is, that the Kansas statute is unreasonable; though, of course, he does not put it upon this ground, and this calls up the pertinent question, which the American people must face and solve,

2 Hurtado v. People of California, 110 U. S. 516.

whether the Federal courts are judges of the reasonableness of the acts of the State legislatures. Some of them are of the opinion that they are.

For

Judge Foster is too learned and discreet a judge to assert the possession of such a jurisdiction; but other Federal District judges do assert it, and do exercise it. tunately their decisions in these cases, when proceeding under the writ of habeas corpus are no longer final. The people of the States now have an appeal to the Supreme Court of the United States, for what it is worth.3 An appeal on such a queston to a tribunal, a majority of whose judges assume, in the face of the 11th Amendment to the Constitution, to compel the States, by compulsory process emanating from the Federal Courts and directed to the ministerial officers of the States, to perform specifically their contracts, is not worth what it would be worth if more of the judges of the court were sound constitutional lawyers; and it is safe to predict that it is not worth as much now as it will be worth hereafter. But the recent decision of that court in Robb v. Connolly, shows that it is worth something.

How a

But we cannot see upon what ground the statute could be pronounced unreasonable as matter of law. It is not stated that it requires a witness so summoned to give evidence which would criminate himself, or to disclose confidential communications, or even to give evidence which would not be admissible on the trial of an indictment or information. witness can be oppressed by being compelled to tell the truth, or by being compelled to tell it by a county attorney, instead of by a court having a grand jury in session; or how a statute becomes dangerous to society, because it affords the means of discovering and punishing crime, are matters about which the public still wait for information.

3 The Topeka Commonwealth is mistaken in its supposition, that the bill granting an appeal did not become a law. We have a letter of Judge Poland, the ather of the bill, written after the adjournment of Congress, stating that it passed the Senate and became a law.

44 Sup. Ct. Repr. 544.

CONTRACTS BY LETTER OR TELEGRAPH.

HAAS V. MYERS.*

Supreme Court of Illinois, Ottawa, Nov. 17, 1884.

Rule where Dispatch of Acceptance does not Reach Destination.-A contract by letter is completed the instant the letter accepting the offer is mailed, and is valid and binding whether the letter of acceptance is received or not. But where anything else is left to be settled in respect of an offer by mail or telegraph, the acceptance of the offer by telegraphing will not complete the contract where the dispatch does not reach its destination.

Appeal from the Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook County; the Hon. George Gardner, Judge, presiding.

This was a bill in equity, filed by Andrew Haas, to have himself declared a partner with Alfred Myers in respect to a certain lot of cattle, and for an accounting.

The material facts appearing are, that during 1882, Haas business was buying cattle, and shipping them to sell in the Chicago market; that during the same time, Alfred and Benjamin Myers, and William H. and James E. Martin, were engaged in the same business,-Alfred and Benjamin Myers as partners under the firm name of A. Myers & Bro., and the Martins as partners under the name of Martin & Bro., and during that time the Myers and Martins were jointly engaged in the same business. Prior to September 20, 1882, Haas and Alfred Myers had, respectively, been negotiating for the purchase of a lot of cattle in Montana, known as the "Murphy herd," and on that day, Alfred Myers being about to visit the range where the cattle were kept, the two agreed that Myers would ascertain at what price the cattle could be purchased, and buy them if he saw fit; that in case he bought, he should telegraph Haas at Chicago, indicating the price per head; that thereupon Haas was to reply by telegraph, at once and without delay, saying "Yes," or "No;" that if he replied "yes," Myers, on receipt of the telegram, was to telegraph back to Haas the estimated amount required to pay for one-third interest in the cattle, which amount Haas was at once to place to the credit of A. Myers & Bro., at the First National Bank of Chicago, in order that Myers & Bro., could immediately draw for the same to pay toward the cattle, and Haas was to cause the bank to telegraph such credit to A. Myers & Bro., at Billings, Montana, which being done, Haas was to have one-third interest in the cattle. Myers proceeded to the range, and on September 26 made a trade with Joseph Murphy for the cattle, at $45 per head all around, the cattle to be taken at the ranch, Myers paying $5,000 cash down as earnest money to bind the bargain and agreeing to pay $15,000 more before the cat

*S. C., 111 Ill. 421 (adv. sheets).