201 U. S.

Argument for Commonwealth.

courts, as well as through its legislature, the claim, on account of action by a state court, cannot be made, in advance of the trial, on the allegation that the circumstances requiring protection arise during the trial, and that when they arise the court will deny the protection.

Protection against action by a State, through its courts, has never been accorded except on writ of error after the state court has acted.

If there is no writ of error from this court to the Court of Appeals of Kentucky, or to the Circuit Court of Scott County, to review the rulings of that court in connection with the impaneling of the jury, that might furnish a ground for writ of habeas corpus after conviction, but it does not justify the removal of the prosecution into the Federal court in advance of trial.

The statute will not be enlarged by construction. Virginia v. Paul, 148 U. S. 107, 114; Tennessee v. Davis, 100 U. S. 257; Virginia v. Rives, 100 U. S. 313; Davis v. South Carolina, 107 U. S. 597; In re Neagle, 135 U. S. 1; Huntington v. Attrill, 146 U.S. 657.

The right to trial by an impartial jury in a state court is not guaranteed by the Constitution or laws of the United States. Brooks v. Missouri, 124 U. S. 394; Central Land Co. v. Laidley, 159 U. S. 103; Morrow v. Brinkley, 129 U. S. 178; Howard v. Fleming, 191 U. S. 126; In re Converse, 137 U. S. 624.

Section 281 of the Criminal Code of Kentucky, providing that decisions upon challenges shall not be subject to exception, is not repugnant to the Constitution of the United States and does not authorize a removal, in advance of trial.

The right of appeal in a criminal case is left entirely to the discretion of the State, and is not guaranteed by the Federal Constitution. Kohl v. Lehlback, 160 U. S. 293; Mallett v. Nort Carolina, 181 U. S. 589; Missouri v. Lewis, 101 U. S. 2 Andrews v. Swartz, 156 U. S. 272.

If any right of a defendant in a criminal case, under the Constitution or laws of the United States, in connection with a VOL. CCI-2

challenge to a panel, or upon motion to set aside an indictment, or upon motion for a new trial, is denied by a state court, the remedy is by writ of error from this court, as in Carter v. Texas, 177 U. S. 442, and Rogers v. Alabama, 192 U. S. 226, or by writ of habeas corpus from a Federal court, after conviction, under section 753 of the Revised Statutes.

Due process of law and equal protection of the laws do not require that there shall be right of appeal from a criminal prosecution in the state court. Andrews v. Swartz, 156 U. S. 272.

The State of Kentucky, without violating the Federal Constitution, might provide that there should be no appeal in any criminal case. For nearly a century there was no appeal in criminal cases in the Federal courts.

Mr. Frank S. Black and Mr. E. L. Worthington, with whom Mr. Richard Yates, Mr. H. Clay Howard, Mr. James C. Sims and Mr. R. C. Kinkead were on the brief, for defendant in No. 15 and for appellee in No. 393:

The uncontroverted allegations of the first paragraph of the petition for removal are that an absolute, unconditional, valid pardon was issued, delivered to, and accepted by, appellee for the identical offense herein charged; that said pardon has been thrice denied by the highest court in Kentucky; that, therefore, he is denied or cannot enforce, in the judicial tribunals of said State, the equal civil rights secured to him, as a citizen of the United States, by the laws thereof.

Unless there is a record contradiction, the sworn allegations of a petition for removal, which are not traversed, must be taken as true. Dishon v. C., N. O. & T. P. Ry. Co., 133 Fed. Rep. 471; Toledo Traction Co. v. Cameron, 137 Fed. Rep. 48; 18 Ency. Pl. and Pr. 372. Section 641 is constitutional. Ex parte Virginia, 100 U. S. 339; Strauder v. West Virginia, 100 U. S. 303; Neal v. Delaware, 103 U. S. 370; Bush v. Kentucky, 107 U. S. 110; Gibson v. Mississippi, 162 U. S. 565; Smith v. Mississippi, 162 U. S. 592; Murray v. Louisiana, 163 U. S. 101;

Williams v. Mississippi, 170 U. S. 213; Virginia v. Rives, 100 U. S. 313; Tennessee v. Davis, 100 U. S. 257.

The view was taken for some years after the Fourteenth Amendment was promulgated, that its restrictions applied exclusively to prevent discrimination by the States against the negro on account of his race or color, and the Slaughter House Cases, 16 Wall. 36; Strauder v. West Virginia, 100 U. S. 303; Ex parte Virginia, 100 U. S. 339, were erroneously construed by many of the state courts, as actually holding that the Amendment was so restricted.

And indeed, Congress, too, for many years, must have believed that the application of the Amendment would be limited as stated in the opinion in the Slaughter House Cases. See sec. 16, act of May 31, 1870, 16 Stat. 144; act of March 1, 1875, 18 Stat. 335, and last clause of act of June, 1879, 21 Stat. 43, and sec. 17 of the act of May 31, 1870 now sec. 5510, Rev. Stat.

This court has long since discarded that view, and has held, without qualification, that its provisions apply to every form of state action, legislative, political or judicial, regardless of race or color, and to the official acts of every state officer, as well, and to the benefit of all persons within the jurisdiction of any State.

For definition of equal civil rights and equal protection of the laws as guaranteed by the Amendment, see Kentucky Railroad Tax Cases, 155 U. S. 321; Holden v. Hardy, 169 U. S. 366.

A State, by its judicial tribunals, cannot deny to a citizen of the United States "a right secured to him by any law providing for the equal civil rights of citizens of the United States." Bowman v. Lewis, 101 U. S. 22; Pace v: Alabama, 106 U. S. 583; Moore v. Missouri, 159 U. S. 673; Guthrie, Fourteenth Amendment, pp. 107, 108.

The petition for removal under § 641, Rev. Stat., may be filed at any time before final hearing, though there have been previous trials and reversals. Bush v. Kentucky, 107 U. S. 110;

Parker v. Vanderbilt, 136 Fed. Rep. 246; Detroit v. Detroit City Ry., 54 Fed. Rep. 10.

The cases of Strauder v. West Virginia, Virginia v. Rives, Ex parte Virginia, Neal v. Delaware and Gibson v. Mississippi, hold that the Amendment is much broader than 8 641; that many rights are protected by the Amendment, a denial of which by the State during the trial cannot constitute grounds for removal. These cases seem to hold that, as the cause for removal must under the act exist before the trial or final hearing of the cause, that that cause must necessarily be a denial of equal civil rights by either a law or a constitutional provision of the State. The first paragraph of the petition for removal fully meets, as we believe, all the requirements of these decisions, even though they do require a law or constitutional amendment to justify the removal. It alleges that certain laws of Kentucky stand between appellee and the courts of the State, and force the latter to deny the former the equal protection of the laws secured by this Amendment.

The several decisions of the highest court of Kentucky have become the law of the case and have become binding upon all the courts of the Commonwealth. Rowland v. Craig, Sneed, 330; Morgan v. Dickerson, 1 T. B. Monroe, 20; Sims v. Reed, 12 B. Mon. 51; Gray v. Dickerson, 11 Ky. Law Rep. 890; L. & N. R. R. Co. v. Survant, 19 Ky. Law Rep. 1576; Commonwealth v. L. & N. R. R. Co., 20 Ky. Law Rep. 351; L. & N. R. R. Co. v. Ricketts, 21 Ky. Law Rep. 662; Breashears v. Letcher County, 21 Ky. Law Rep. 1250; Wilson's Assignees v. Louisville Nat. Bk., 25 Ky. Law Rep. 1065; Booth & Co. v. Bethel, 25 Ky. Law Rep. 747; Brown v. Crow, Hardin, 451; Bryan v. Bekley, Litt. Sel. Cas. 91; Lewis v. Lewis, 11 Ky. Law Rep. 413.

Equal civil rights are denied by state decisions no less than by state statutes. Neal v. Delaware, Bush v. Kentucky, supra. When the common law of England was adopted as a part of our jurisprudence, the pardoning power, as exercised by the British Crown and Parliament, was well understood. Before the Revolution it was exercised in those parts of this country

which were British colonies. The same power in its essential elements, has been conferred upon the Executive of our States and Nation. United States v. Klein, 13 Wall. 128.

When the validity and effect of a pardon are to be determined the established principles of the common law will control in state and Federal courts, in the absence of enactment to the contrary. United States v. Wilson, 7 Pet. 150.

When a citizen of the United States is arrested and tried for a state offense notwithstanding he holds a valid pardon which is denied recognition in the highest state court, in legal contemplation, an innocent man is thrown in prison, and the Federal courts can restore his liberty, either by habeas corpus or removal proceedings. In the latter, a trial can be had upon the merits of the charge, and the pardon, heard upon its merits, can be offered in arrest of judgment, if need be, from any cause. Ex parte Wells, 18 How. 310. See also Ex parte Slauson, 73 Fed. Rep. 666; Whitten v. Tomlinson, 160 U. S. 231; Iasigi v. Van de Carr, 166 U. S. 391.

Taylor having lawfully been inducted into office, and holding actual possession thereof, claiming title by virtue of a certificate of election, his authorized official acts until legally and actually ousted are binding upon the State and third persons regardless of the alleged determination of a contest. His powers continue, as originally invested, pending any litigation that may properly ensue, and it is his duty to hold said office until title thereto is finally adjusted. United States v. Mitchell, 136 Fed. Rep. 896; Brady v. Levitt, 17 Kansas, 471; Kansas v. Durkee, 12 Kansas, 308; Ex parte Powers, 129 Fed. Rep. 985; Taylor v. Beckham, 178 U. S. 548.

Title to an office cannot be determined by an ordinary civil suit between private individuals. It must be by quo warranto. People v. Olds, 58 Am. Dec. 398; Marke v. Wright, 13 Indiana, 548; Cochran v. McCleary, 22 Iowa, 75; Updegraff v. Crane, 47 Pa. St. 103. The decision of the Court of Appeals of Kentucky that Taylor was not Governor is therefore of no effect.

If appellee was pardoned, no court had jurisdiction to arrest