Opinion of the court. custody of the jails was intrusted to the marshal of the District, and he was made accountable for the safe keeping of the prisoners.* Congress, however, on the twenty-ninth of February, 1864, created the office of warden of the jail, and enacted that he should have all the power and should discharge all the duties previously exercised and discharged over the jail and the prisoners by the marshal.f Supervisory power over the accounts of marshals is given by the act of Congress upon the subject to the Secretary of the Interior, and the express provision is that the warden shall annually, in the month of November, make a detailed report to the Secretary of the Interior.‡ Judgment was rendered for the claimant, and the court below made the following finding of facts: (1.) That the claimant was employed as watchman or guard at the jail in this city for one year, at a salary of twelve hundred dollars per year, paid to him monthly by the disbursing officer of the Department of the Interior, and it is conceded by the appellants that the pay of such employés was fixed at that rate by the secretary of that department. (2.) That he made application to the first comptroller of the treasury for the additional compensation, which is the subject of controversy, and that his application was refused. 1. Objection is made in this case, as in those previously decided, that the claimant does not show that he was an employé in any one of the departments, or in any bureau or division thereof, or in any office named in the joint resolution. His appointment, it is said, is not authorized by statute, nor is his compensation prescribed by any appropri ation act; and the argument is, that inasmuch as neither his employment nor his compensation is directly known to any act of Congress, he cannot be regarded as an employé in the civil service of the United States; but the court is entirely of a different opinion, as the office of warden is an * 2 Stat. at Large, 106. † 18 Id. 12. 13 Id. 12; 9 Id. 395. Opinion of the court. office created by law, and the appointee of the office is required to report to the Secretary of the Interior. Guards at the jail are selected by the warden, but their compensation is fixed by the Secretary of the Interior, and they are paid by him, and it makes no difference whether the pay is charged to the appropriation for the department or to the judiciary fund, as the fact remains that the whole subject is under the supervision of the head of that department; whether their pay is charged to the one fund or to the other, the charge for their services must be approved by the warden, and must be included in his report to the Secretary of the Interior, where the same is subject to a further revision. Evidently they are employés in a bureau or division of the Interior Department, as their compensation is fixed by the head of that department, and the officer by whom they are employed is required annually to make a detailed report to that department of all his official acts. Persons employed in a bureau or division of a department are as much employés in the department, within the meaning of the joint resolution, as the messengers and others rendering service under the immediate supervision of the secretary, or those specially named in the provision as entitled to its benefits. Unquestionably guards of the jail are employés of the. warden, and the office of warden of the jail is a bureau or division of the Department of the Interior. Viewed in that light, as the case must be, it is clear that the claim is well founded, and we are all of the opinion that the judgment should be AFFIRMED. Statement of the case. BLYEW ET AL. v. UNITED STATES. Under the act of 9th April, 1866 (14 Stat. at Large, 27), sometimes called "The Civil Rights Bill," which gives jurisdiction to the Circuit Court of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts of the State or locality where they may be, any of the rights given by the act (among which is the right to give evidence, and to have full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens), a criminal prosecution is not to be considered as “affecting” mere witnesses in the case, nor any person not in existence. United States v. Ortega (6 Wheaton, 467), affirmed. ERROR to the Circuit Court for the District of Kentucky; the case being this: By the Revised Statutes of Kentucky, published A.D. 1860, it is enacted: "That a slave, negro, or Indian, shall be a competent witness in the case of the commonwealth for or against a slave, negro, or Indian, or in a civil case to which only negroes or Indians are parties, but in no other case." This enactment being in force in Kentucky, the thirteenth amendment to the Constitution was proclaimed as having been duly ratified, and a part of it, December 18th, 1865,† is in these words: "SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. "SECTION 2. Congress shall have power to enforce this article by appropriate legislation." In this state of things, Congress on the 9th April, 1866, passed an act entitled "An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication." The first section of that act declared all * Section 1, chapter 107, vol. 2, p. 470. † 13 Stat. at Large, 774. ‡ 14 Id. 27. Statement of the case. persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States, and it enacted that: "Such citizens, of every race and color, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inberit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding." The second section enacted: "That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the depriva tion of any right, secured or protected by this act, or to different punishment, pains, or penalties, on account of such person having at any time been held in a condition of slavery, or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, or by reason of his color, or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished," &c. Then followed the third section, which contains this enactment: "That the District Courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also concurrently with the Circuit Courts of the United States, of all causes, civil and criminal, affecting persons who are denied, or cannot enforce in the courts or judicial tribunals of the State, or locality, where they may be, any of the rights secured to them by the first section of the act." The section then provided for removal into the Federal courts of any suit or prosecution, civil or criminal, which Statement of the case. had been, or might hereafter be, commenced against any such person for any cause whatever. The sixth section rendered liable to fine and imprisonment any person who should obstruct an officer or other person in execution of process under the act, or should aid a person arrested to escape, or conceal a person for whose arrest a warrant had been issued. In this state of things, two persons, Blyew and Kennard, were indicted October 7th, 1868, in the Circuit Court for the District of Kentucky, for the murder, on the 29th of August preceding, within that district, of a colored woman named Lucy Armstrong.* The indictment contained three counts, all of them charging the murder in the usual form of indictments for that offence, and with sufficient certainty. But, in order to show jurisdiction in the Circuit Court of the United States, an averment was made in the first count that the said Lucy Armstrong was a citizen of the United States, having been born therein, and not subject to any foreign power; that she was of the African race, and was above the age of seventy-five years; that Blyew and Kennard (the persons indicted) were white persons, each of them at the time of the alleged killing and murder above the age of eighteen years; that the said killing and murder, done and committed, as averred, were seen and witnessed by one Richard Foster, and one Laura Foster, citizens of the United States, having been born therein and not subject to any foreign power, both of the African race; and that the said Lucy Armstrong, Richard Foster, and Laura Foster were then and there denied the right to testify against the said Blyew and Kennard, or either of them, concerning the said killing and murder, In the courts and judicial tribunals of the State of Kentucky, solely on account of their race and color. The second and third counts contained substantially the same averments. To this indictment the defendants pleaded specially that before it was found they had been in custody of the author *The murder and indictment were, it seems, after the ratification of the fourteenth amendment, which was proclaimed July 20th, 1868. (15 Stat. at Large, 708.) |