The, privileges and immunities of citizens of the United States,
protected by the Fourteenth Amendment, are privileges and
immunities arising out of the nature and essential character of the
federal government, and granted or secured by the Constitution.
Due process of law and the equal protection of the laws are
secured if the laws operate on all alike, and do not subject the
individual to an arbitrary exercise of the powers of
government.
An
ex post facto law is one which imposes a punishment
for an act which was not punishable at the time it was committed,
or an additional punishment to that then prescribed, or changes the
rules of evidence by
Page 152 U. S. 378
which less or different testimony is sufficient to convict than
was then required, or, in short, in relation to the offense or its
consequences, alters the situation of a party to his
disadvantage.
The prescribing of different modes of procedure, and the
abolition of courts and creation of new ones, leaving untouched all
the substantial protections with which the existing law surrounds
the person accused of crime, are not considered within the
constitutional prohibition.
To give this Court jurisdiction over a judgment of the highest
court of a state, the title, right, privilege, or immunity relied
on must be specially set up or claimed at the proper time and in
the proper way, and the decision must be against it, whereas in
this case, the question was not suggested until after judgment, and
after an application for rehearing had been overruled, and only
then in the form of a motion to transfer the cause.
Motion to dismiss. Under the Constitution of Missouri, in force
at the time of the commission of the homicide to which this case
relates, the judicial power of that state was vested in a Supreme
Court and other inferior courts as therein mentioned, the Supreme
Court consisting of five judges, any three of whom constituted a
quorum. Constitution of Missouri, 1875, Art. VI.
In 1889, the General Assembly of Missouri passed a concurrent
resolution submitting to the qualified voters of the state an
amendment to the constitution concerning the judicial department,
to be voted upon at the general election to be held on the Tuesday
next following the first Monday in November, A.D. 1890, which vote
was had accordingly, and the amendment ratified and adopted. This
amendment provided, among other things, as follows:
"Section 1. The Supreme Court shall consist of seven judges,
and, after the first Monday in January, 1891, shall be divided into
two divisions, as follows: one division to consist of four judges
of the court and to be known as division number one; the other to
consist of the remaining judges and to be known as division number
two. The divisions shall sit separately for the hearing and
disposition of causes and matters pertaining thereto, and shall
have concurrent jurisdiction of all matters and causes in the
Supreme Court, except that division number two shall have exclusive
cognizance of all criminal cases pending in said court,
provided that a cause therein may be
Page 152 U. S. 379
transferred to the court as provided in section four of this
amendment. The division of business of which said divisions have
concurrent jurisdiction shall be made as the Supreme Court may
determine. A majority of the judges of a division shall constitute
a quorum thereof, and all orders, judgments, and decrees of either
division, as to causes and matters pending before it, shall have
the force and effect of those of the court."
"SEC. 4. When the judges of a division are equally divided in
opinion in a cause, or when a judge of a division dissents from the
opinion therein, or when a federal question is involved, the cause,
on the application of the losing party, shall be transferred to the
court for its decision; or when a division in which a cause is
pending shall so order, the cause shall be transferred to the court
for its decision."
Laws Missouri, 1889, p. 322.
All provisions of the constitution of the state and all laws
thereof not consistent with the amendment were declared rescinded
upon its adoption.
In accordance with the amendment, the Supreme Court became
thereafter composed of seven members, two being added as provided,
divided into divisions 1 and 2.
Harry Duncan was indicated at the January term, 1891, of the St.
Louis Criminal Court for the murder of one James Brady October 6,
1890, and, after he had been arraigned and pleaded not guilty, the
cause was removed, on his application, to the Circuit Court of St.
Louis County, wherein it was tried at September term, 1892, and
resulted in his conviction, and sentence to death. From this
judgment he prosecuted an appeal to the Supreme Court, where the
cause was heard by Division No. 2. The errors assigned on Duncan's
behalf embraced the various points which had been saved upon the
trial, but no federal question was raised either in the appellate
or the trial court. The Supreme Court, Division No. 2, on May 16,
1893, delivered an opinion discussing the errors relied on
(reported in advance of the official series, 22 S.W. 699), and
affirmed the judgment. On May 26th, Duncan applied for a for a
rehearing, which was denied May 30th. No
Page 152 U. S. 380
reference to any federal question was made in the opinion or in
the application for a rehearing.
Thereupon, June 7, a motion was filed on behalf of Duncan for
the transfer of the cause to the Supreme Court in banc upon the
grounds that the cause was determined solely by a minority of the
Supreme Court; that a federal question was involved in that the
amendment to the Constitution of Missouri was in conflict with the
Constitution of the United States; that the offense with which
Duncan stood charged was committed October 6, 1890, and before the
adoption of the amendment, and that said amendment and the
proceedings thereunder were in violation of Section 10, Article I,
of the Constitution of the United States, inhibiting the passage of
ex post facto laws, and in contravention of the Fourteenth
Amendment in that thereby the privileges and immunities of
appellant were abridged, he was denied the equal protection of the
laws, and would be deprived of life without due process of law, and
that such amendment and proceedings were in conflict with
fundamental principles. The motion was denied, and subsequently
this writ of error was allowed by THE CHIEF JUSTICE, and now comes
before the Court on a motion to dismiss.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
The amendment to the Constitution of the State of Missouri
provided for the separation of the Supreme Court into two divisions
for the transaction of business, and that, when a federal question
was involved, the cause, on the application of the losing party,
should be transferred to the full court for decision. Doubtless the
particular division would direct, of its own motion, the transfer
of cases involving a federal question
Page 152 U. S. 381
without a hearing in the first instance, as was also allowed by
the amendment, but to justify transfer, whether before or after
judgment, the question must be involved in the sense of arising for
decision.
But it is conceded that the record in this cause as it came into
the Supreme Court, Division No. 2, disclosed no federal question to
be determined, thereby inviting the division to transfer the cause,
or, after the disposal of which, the losing party would be entitled
to such transfer. On the contrary, the contention is in effect that
Division No. 2 had no jurisdiction whatever, because the amendment,
if operative on Duncan, was unconstitutional, and this involved the
conclusion that there was no appellate court to which the case
could be taken, as the prior provision in that regard had been
repealed. Yet the objection was not raised before or at the hearing
on the merits, nor on the application for rehearing, but was first
taken, after judgment affirmed and application denied, on a motion
to transfer the cause, and as a reason for the transfer, although
that motion, in respect of the question sought to be raised, could
derive no force from the amendment whose validity was denied.
Indeed, if the motion had been granted and the judgment of the
circuit court had thereupon been affirmed by the full bench, it is
difficult to see why plaintiff in error might not as well then have
questioned the jurisdiction of the Supreme Court, as constituted
with seven judges, under the amendment, as he now does the power of
Division No. 2 with three judges.
A writ of error from this Court to review a final judgment in
any suit in the highest court of a state in which a decision in the
suit could be had can only be maintained under the circumstances
defined in section 709 of the Revised Statutes.
The judgment brought up by the writ in this case is the judgment
of the Supreme Court of Missouri, entered by Division No. 2, and it
is obvious that the validity of the constitutional amendment was
not drawn in question in the cause on the ground of repugnancy to
the Constitution of the United States, and its validity sustained
by that decision, but the question of validity arises, if at all,
in connection with the
Page 152 U. S. 382
claim that a right, title, privilege, or immunity under the
Constitution of the United States was specially set up by plaintiff
in error and denied.
The argument seems to be that the Constitution secured to
plaintiff in error the right to have his case adjudicated on appeal
by a Supreme Court of five judges, as provided by the state
constitution at the time of the commission of the offense with
which he stood charged, although his motion accepted the
jurisdiction of a bench of seven, and he objects that that right
was denied to him in the adjudication of his case by a court
composed of three judges in accordance with the amendment, and he
insists that the amendment is, as to him, obnoxious to the
objections that it denies due process and the equal protection of
the laws and abridges his privileges and immunities in
contravention of the Fourteenth Amendment. But the privileges and
immunities of citizens of the United States protected by the
Fourteenth Amendment are privileges and immunities arising out of
the nature and essential character of the federal government, and
granted or secured by the Constitution, and due process of law and
the equal protection of the laws are secured if the laws operate on
all alike, and do not subject the individual to an arbitrary
exercise of the powers of government, and there is no suggestion of
deprivation in these regards except as covered by the point really
pressed -- that the amendment to the state constitution was, as to
Duncan,
ex post facto and therefore void.
It may be said, generally speaking, that an
ex post
facto law is one which imposes a punishment for an act which
was not punishable at the time it was committed, or an additional
punishment to that then prescribed, or changes the rules of
evidence by which less or different testimony is sufficient to
convict than was then required, or, in short, in relation to the
offense or its consequences, alters the situation of a party to his
disadvantage,
Cummings v.
Missouri, 4 Wall. 277;
Kring v. Missouri,
107 U. S. 221, but
the prescribing of different modes of procedure, and the abolition
of courts and creation of new ones, leaving untouched all the
substantial protections with which the existing law surrounds the
person accused of
Page 152 U. S. 383
crime, are not considered within the constitutional inhibition.
Cooley Const.Lim. (5th ed.) 329.
Accordingly, in
State v. Jackson, 105 Mo. 196, the
precise questions sought to be raised here were decided by the
Supreme Court of Missouri at April term, 1891, of that court,
adversely to the position taken by plaintiff in error, the case
having been transferred to the court in banc in order that these
questions, which were raised by motion for rehearing in Division
No. 2, where the judgment of the lower court had been affirmed, 106
Mo. 174, might be considered by full bench. The case had been
before the Supreme Court on two former occasions, 95 Mo. 623, 99
Mo. 60, and the constitutional amendment in question was adopted
after the appellant took his last appeal. The Supreme Court held
that it could not
"be doubted that it was entirely competent for the people to
adopt such a change in their organic law as to take away from this
court as a whole all cognizance of criminal causes, and to confer
such jurisdiction on a portion or division of this court, though
less in numbers and different in personnel from this court as
organized when the crime in question was committed,"
and that the amendment was not contrary to the Fourteenth
Amendment, nor to Section 10 of Article I of the federal
Constitution, as applied to one convicted of murder, who had
appealed before the amendment took effect.
But we are not called on to place our decision upon concurrence
in that view, since we are of opinion that the plaintiff in error
did not bring himself within the provisions of section 709 of the
Revised Statutes. To give jurisdiction to this Court, the title,
right, privilege, or immunity relied on must be specially set up or
claimed at the proper time and in the proper way, and the decision
must be against it, whereas in this case, the question was not
suggested until after judgment, and after an application for
rehearing had been overruled, and only then in the form of a motion
to transfer the cause. Whether that motion was held to come too
late for the purposes of transfer we are not informed, but its
denial was in no aspect equivalent to a decision against a right
under the Constitution of the United States specially set up or
claimed at the proper
Page 152 U. S. 384
time and in the proper way.
Texas & Pacific Railway v.
Southern Pacific Co., 137 U. S. 48;
Caldwell v. Texas, 137 U. S. 692,
137 U. S. 698;
Butler v. Gage, 138 U. S. 52;
Leeper v. Texas, 139 U. S. 462.
The writ of error is
Dismissed.
