There are three writs of error to the Supreme Court of the Territory of Utah to review judgments of that court affirming judgments of the District Court of the First Judicial District of that Territory, rendered on convictions of the plaintiff in error on indictments founded on § 3 of the Act of March 22, 1882, 22 Stat. 31, for cohabiting with more than one woman. Each of the judgments imposed imprisonment for six months and a fine of $300.
The question of the jurisdiction of this court over these writs of error presents itself at the threshold. It was not suggested by the counsel for the United States at the argument, nor referred to by the counsel for the plaintiff in error, for the reason, as the court has been advised by both parties since the argument, that a decision on the merits was desired; and for the further reason, that this court, at the present term, in Cannon v. United States, 116 U.S. 55, took cognizance of a writ of error in a like case. But the question has presented itself to the court, and, since the argument, we have been furnished with a brief, on the part of the plaintiff in error, in support of the jurisdiction.
Section 702 of the Revised Statutes provides as follows: "The final judgments and decrees of the Supreme Court of any Territory, except the Territory of Washington, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party, or of other competent witnesses, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a Circuit Court. In the Territory of Washington, the value of the matter in dispute must exceed two thousand dollars, exclusive of costs. And any final judgment or decree of the Supreme Court of said Territory in any cause [when] the Constitution or a statute or treaty of the United States is brought in question may be reviewed in like manner."
So much of this § 702 as relates to the Territory of Utah was carried into the section from § 9 of the Act of September 9,
So much of § 702 as provides for the review of "any final judgment or decree" of the Supreme Court of the Territory of Washington "in any cause when the Constitution or a statute or treaty of the United States is brought in question," is taken from the Act of March 2, 1853, establishing a territorial government for Washington, 10 Stat. 175, which, after providing that writs of error and appeals from the final decisions of the Supreme Court of the Territory should be allowed and might be taken to the Supreme Court of the United States, "where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witness," should exceed $2000, went on in these words, which were not found in the prior act of 1850 in regard to Utah: "and in all cases where the Constitution of the United States, or Acts of Congress, or a treaty of the United States, is brought in question."
It is plain, that § 702, so far as Utah is concerned, does not cover the present cases, and that the provision in it in regard to cases where the Constitution, or an Act of Congress, or a treaty, is brought in question, has reference only to Washington and not to Utah.
Section 1909 of the Revised Statutes provides that writs of error and appeals from the final decisions of the Supreme Court of any one of eight named Territories, of which Utah is one, "shall be allowed to the Supreme Court of the United States, in the same manner and under the same regulations as from the Circuit Courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by
Section 1911 relates exclusively to writs of error and appeals from Washington Territory, and contains a provision that they shall be allowed "in all cases where the Constitution of the United States, or a treaty thereof, or Acts of Congress, are brought in question." That provision exists only in regard to Washington, and is not found in § 1909 in regard to the eight other Territories.
Section 709 of the Revised Statutes applies only to a writ of error to review a final judgment or decree in a suit in the highest court of a State.
There being thus no statute in force on December 1, 1873, to which time the enactments in the Revised Statutes related, giving to this court jurisdiction of a writ of error to the Supreme Court of Utah in a case like those before us, an act was passed on June 23, 1874, 18 Stat. 253, entitled "An Act in relation to Courts and judicial officers in the Territory of Utah," § 3 of which contained this provision: "A writ of error from the Supreme Court of the United States to the Supreme Court of the Territory shall lie in criminal cases, where the accused shall have been sentenced to capital punishment or convicted of bigamy or polygamy." The writ of error in Reynolds v. United States, 98 U.S. 145, was brought under that statute, the conviction being for bigamy under § 5352 of the Revised Statutes. This § 5352 was taken from § 1 of the Act of July 1, 1862, 12 Stat. 501, entitled "An Act to punish and prevent the practice of polygamy in the Territories of the United States and other places, and disapproving and annulling certain Acts of the Legislative Assembly of the Territory of Utah," which § 1 declares that every person having a husband or wife living, who shall marry any other person, whether married or single, in a Territory of the United States, shall (with certain exceptions) be adjudged guilty of bigamy. The act then proceeds to disapprove and annul all acts and
Then came the act of March 22, 1882, 22 Stat. 30, § 1 of which amended § 5352 of the Revised Statutes, the original and new § 5352 (leaving out the exceptions) being as follows, the parts in each which differ from the other being in italic:
Original. | New. | "Every person having a | "Every person who has a husband or wife living, who | husband or wife living, who in marries another, whether married | a Territory or other place over or single, in a Territory | which the United States have or other place over which the | exclusive jurisdiction, hereafter United States have exclusive | marries another, whether jurisdiction, is guilty of bigamy, | married or single, and any and shall be punished by | man who hereafter simultaneously, a fine of not more than five | or on the same day, marries hundred dollars, and by imprisonment | more than one woman, in a for a term not | Territory or other place over more than five years." | which the United States have | exclusive jurisdiction, is guilty | of polygamy, and shall be punished | by a fine of not more | than five hundred dollars, and | by imprisonment for a term of | not more than five years."
Section 3 of the act of 1882 is the one on which the indictments in these cases were founded. It is in these words: "If
On the 3d of March, 1885, the following act was passed, 23 Stat. 443: "No appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the Supreme Court of the District of Columbia, or in the Supreme Court of any of the Territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars." Sec. 2. "The preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or value in dispute."
This act is relied on by the plaintiff in error as covering the present cases. The first section of it applies solely to judgments
The peculiar language of § 2 is to be noted. In § 709 of the Revised Statutes, allowing a writ of error to review a final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, the language is, "where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity." This language is taken from § 2 of the act of February 5, 1867, 14 Stat. 386, where it is reproduced verbatim from section 25 of the Judiciary Act of September 24, 1789, 1 Stat. 85. In § 2 of the act under consideration the words "and the decision is against their validity" are not found. In § 1911 of the Revised Statutes, in regard to Washington Territory, the language, adopted substantially from the act of March 2, 1853, 10 Stat. 175, is, "in all cases where the Constitution of the United States, or a treaty thereof, or acts of Congress, are brought in question;" and is not limited to the case of a decision against the validity of the act. Section 2 of the act of 1885 applies not where merely an act of Congress is brought in question, but only where the validity of a statute of the United States is drawn in question, or where the validity of an authority exercised under the United States is drawn in question; but this is not limited by the requirement that the decision shall have been against such validity.
In the present cases, the validity of a statute of the United States is not drawn in question. No such question is presented by the bills of exceptions, or the requests for instructions, or the exceptions to the charges, or anywhere else in the records. Nor is the validity of an authority exercised under the United States drawn in question. The plaintiff in error contends that
There is a decision of this court on this point in Bethell v. Demaret, 10 Wall. 537. The 25th section of the Judiciary act of 1789 allowed a writ of error from this court to the highest court of a State, "where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of such their validity." The case referred to was a writ of error to the highest court of a State, and it was contended that that court, in rendering the decision complained of, acted under the authority of the State, and so there was drawn in question an authority exercised under the State, which, in the particular
In the recent case of Kurtz v. Moffitt, 115 U.S. 487, 498, it was said by this court, speaking by Mr. Justice Gray, as the result of the examination of numerous cases which are there cited, that "a jurisdiction conferred by Congress upon any court of the United States, of suits at law or in equity, in which the matter in dispute exceeds the sum or value of a certain number of dollars, includes no case in which the right of neither party is capable of being valued in money." In each of the present cases the pecuniary value involved does not exceed $300, even if the fine could be called a "matter in dispute," within the statute. As to the deprivation of liberty, whether as a punishment for crime or otherwise, it is settled by a long course of decisions, cited and commented on in Kurtz v. Moffitt, ubi supra, that no test of money value can be applied to it, to confer jurisdiction.
We conclude, therefore, that we have no jurisdiction of these writs of error, and that they must be dismissed for that reason.
It is urged, however, that this court took jurisdiction of the writ of error in Cannon v. United States, 116 U.S. 55, and affirmed the judgment on a conviction under the same § 3 of the act of 1882. The question of jurisdiction was not considered in fact in that case, nor alluded to in the decision, nor presented to the court by the counsel for the United States, nor referred to by either party at the argument or in the briefs. Probably both parties desired a decision on the merits. The question was overlooked by all the members of the court. But, as the case was decided at the present term, and the want of jurisdiction in it is clear, we have decided to vacate our judgment, and recall the mandate and dismiss the writ of
Dismissed for want of jurisdiction.