A law of Nebraska permitting the prosecution of felonies by
information is not in violation of the Constitution of the United
States.
Whatever be the limitations upon the power of a territorial
government, it becomes entitled, upon the admission of such
territory as a state, to all the rights of dominion and sovereignty
belonging to the original states, and stands upon an equal footing
with them in all respects.
An objection that a defendant was denied due process of law in
being refused a jury trial upon a plea in abatement cannot be
raised here when no violation of the Fourteenth Amendment was set
up until after the cause had been decided by the supreme court of
the state.
This is a writ of error to review a judgment of the Supreme
Court of Nebraska affirming a conviction of the plaintiff in error
by the District Court of Douglas County for the crime of
embezzlement.
The proceedings in the case, so far as they are disclosed by the
record before us, which was agreed upon under subdivision nine of
rule ten of this Court, are as follows:
On April 2, 1896, an information was filed by the County
Attorney for the County of Douglas against the plaintiff in error,
both as City Treasurer of the City of Omaha and as treasurer of the
board of education, for embezzling moneys belonging to the city, as
well as moneys belonging to the school district.
On April 4, a motion to quash was filed upon four grounds: (1)
that there was no authority of law to file an information for a
felony; (2 and 3) because the prosecution was in contravention of
the constitution of the state, and (4) because it was in
contravention of Article Fourteen of the Constitution of the United
States, and was without due process of law.
On the same day, a paper was filed, entitled a plea in
abatement, which prayed judgment that the information might be
quashed for the same reasons, and in precisely the words of the
motion to quash.
Page 176 U. S. 84
On the same day, a demurrer was filed to the "eighteen
paragraphs" of the plea in abatement, upon the ground that these
paragraphs did not state facts sufficient to constitute a defense
or to raise an issue upon the plea.
Upon the same day, an order was entered overruling the motion to
quash, to which the defendant excepted.
On April 6, another order was entered sustaining the demurrer as
to the eighteen "reasons therein set forth," except the ninth, and
"the court doth overrule the said demurrer as to the ninth reason
therein set forth, with leave to the state to reply instanter." The
state duly excepted to the ruling as to the ninth reason.
On the same day, a "reply to the ninth paragraph of the
defendant's plea in abatement" was filed by the state, admitting
that the defendant had had "no preliminary examination for said
crime referred to in said ninth paragraph," but alleging that he
waived such preliminary examination and his right thereto, as shown
by the records of the court.
On April 8, 1896, a demurrer was filed to the information, and
upon the same day both parties appeared in court and announced
their readiness to proceed to trial upon the ninth paragraph in
defendant's plea in abatement. Thereupon the defendant demanded a
trial by jury, and the court, on consideration, overruled the
demand, to which ruling the defendant duly excepted. After
introduction of evidence pro and con and upon due consideration,
the court found that the defendant had waived a preliminary
examination, and therefore found against him and overruled the
ninth paragraph of the plea in abatement. By the same order, the
demurrer was also overruled. The defendant, being arraigned,
refused to plead, whereupon the court entered a plea of not guilty,
and the trial proceeded, and resulted in a verdict finding the
defendant guilty upon the fourth count of embezzling $2,500, upon
the ninth count of embezzling $3,000, and upon the eleventh count
of embezzling $100,000.
Motion for a new trial being overruled, defendant was sentenced
to fine and imprisonment upon the fourth, ninth, and eleventh
counts.
Page 176 U. S. 85
The case was carried to the Supreme Court of Nebraska and the
judgment affirmed. The court delivered an opinion in which it
stated that
"a plea in abatement was filed, to which the county attorney
interposed a demurrer, which was overruled as to the ninth ground
of the plea and sustained as to the other seventeen grounds therein
set forth."
The petition in error, it was stated, contained 279 assignments,
the only ones of which could be said to involve a federal question
being first that the state had no authority to prosecute by
information, and second the refusal of the court to call a jury to
pass upon the issue tendered by the ninth paragraph of the plea in
abatement, that the defendant waived a preliminary examination
before the magistrate. This opinion was filed May 18, 1897. 51 Neb.
581.
On September 20, 1897, plaintiff in error filed in the supreme
court of the state assignments of error which appear to have been
intended for this Court, and on September 18, 1899, served upon the
attorney general a petition to this Court for the allowance of a
writ of error upon the ground first that the plaintiff was
convicted upon an information, and second because he had been
denied a jury trial upon the issue tendered by special plea, that
he had had no preliminary examination and had not waived the
same.
MR. JUSTICE BROWN delivered the opinion of the Court.
Two questions were raised in the briefs and argument of the
plaintiff in error: first, that a proceeding by information for a
felony was not, so far as the State of Nebraska is concerned, due
process of law under the Fourteenth Amendment to the Constitution
of the United States. Second, that the trial by the court without a
jury of the issue raised by the ninth plea in abatement, whether
the defendant had waived a preliminary examination, was not due
process of law.
Page 176 U. S. 86
1. The first question, so far as it applies to states in
general, was settled adversely to the insistence of the plaintiff
in error in
Hurtado v. California, 110 U.
S. 516, in which it was held that a prosecution for
murder did not necessarily require an indictment by a grand jury
where the constitution of the state authorized prosecutions for
felonies by information. Subsequent cases have done nothing to
weaken or qualify the force of this decision. Its principle was
applied in
In re Kemmler, 136 U.
S. 436, to a law of New York providing for the
punishment of death by electricity; in
Dent v. West
Virginia, 129 U. S. 114, to
a statute subjecting physicians to punishment who practiced
medicine without a certificate as to their competency; in
Caldwell v. Texas, 137 U. S. 692, to
a statutory indictment for murder under the laws of Texas, and in
Hallinger v. Davis, 146 U. S. 314, to
a state statute conferring upon one charged with crime the right to
waive a trial by jury, and to elect to be tried by the court. It
was also cited with approval in
Baldwin v. Kansas,
129 U. S. 52;
Leeper v. Texas, 139 U. S. 462;
McNulty v. California, 149 U. S. 645;
Holden v. Hardy, 169 U. S. 383,
and in
Hagar v. Reclamation District, 111 U.
S. 701.
It is insisted, however, that under the Act of Congress of April
19, 1864, 13 Stat. 47, enabling the people of Nebraska to form a
constitution and a state government for admission into the union,
the power given to that state is restricted in that particular.
After authorizing the inhabitants to form for themselves a
constitution and state government, and providing for a
constitutional convention, the fourth section of the act
required
"that the members of the convention . . . shall declare, on
behalf of the people of said territory, that they adopt the
Constitution of the United States, whereupon the said convention
shall be, and it is hereby, authorized to form a constitution and
state government."
We are informed, however, as a matter of history, in
Brittle
v. People, 2 Neb. 198, that the people of the territory being
at that time opposed to becoming a state, the convention adjourned
sine die without taking action beyond its own
organization.
Subsequently, however, the territorial legislature, without
Page 176 U. S. 87
calling a convention, framed a Constitution which was submitted
to and adopted by the people at an election held June 21, 1866.
This constitution contained the following provision (schedule, sec.
6):
"This constitution is formed, and the State of Nebraska asks to
be admitted into the Union on an equal footing with the original
states on the condition and faith of the terms of the proposition
stated and specified in an Act of Congress approved April
nineteenth, 1864, authorizing the people of the territory to form a
constitution and state government; the people of the State of
Nebraska hereby accepting the conditions in said act
specified."
At its following session and on February 9, 1867, 14 Stat. 391,
c. 36, Congress passed another act admitting the State of Nebraska
into the Union "upon an equal footing with the original states in
all respects whatsoever," though the second section of this act
declared
"that the said State of Nebraska shall be, and is hereby
declared to be, entitled to all the rights, privileges, grants, and
immunities, and to be subject to all the conditions and
restrictions, of an act entitled"
"An Act to Enable the State of Nebraska to Form a Constitution
and State Government, and for the Admission of Such State into the
Union on an Equal Footing with the Original States."
The argument of the plaintiff in error in this connection is
that, by these acts, the people of Nebraska
adopted the
Constitution of the United States, and thereby the first eight
amendments containing the Bill of Rights became incorporated in the
constitution of the state, and that the right to proceed for
felonies, other than by an indictment of a grand jury (as required
by the Fifth Amendment), was taken away from such state.
But conceding all that can be claimed in this connection, and
that the State of Nebraska did enter the union under the condition
of the Enabling Act, and that it adopted the Constitution of the
United States as its fundamental law, all that was meant by these
words was that the state acknowledged, as every other state has
done, the supremacy of the federal Constitution. The first section
of the act of 1867, admitting the state into the union, declared
"that it is hereby admitted
Page 176 U. S. 88
into the union upon an equal footing with the original states in
all respects whatsoever." It is impossible to suppose that, by such
indefinite language as was used in the Enabling Act, Congress
intended to differentiate Nebraska from her sister states, even if
it had the power to do so, and attempt to impose more onerous
conditions upon her than upon them, or that in cases arising in
Nebraska, a different construction should be given to her
constitution from that given to the constitutions of other states.
But this Court has held in many cases that whatever be the
limitations upon the power of a territorial government, they cease
to have any operative force, except as voluntarily adopted after
such territory has become a state of the Union. Upon the admission
of a state, it becomes entitled to and possesses all the rights of
dominion and sovereignty which belonged to the original states,
and, in the language of the act of 1867 admitting the State of
Nebraska, it stands "upon an equal footing with the original states
in all respects whatsoever."
Escanaba Company v. Chicago,
107 U. S. 678;
Cardwell v. American Bridge Co., 113 U.
S. 205;
Willamette Iron Bridge Co. v. Hatch,
125 U. S. 1;
Ward v. Racehorse, 163 U. S. 504.
Indeed, the legislation of Congress connected with the admission of
Nebraska into the Union, so far as it bore upon the question of
citizenship, was fully considered by this Court in the case of
Boyd v. Thayer, 143 U. S. 135, and
the conclusion reached that, upon its admission into the union, the
citizens of what had been the territory became citizens of the
United States and of the state.
This Court has also repeatedly held that the first eight
amendments to the Constitution applied only to the federal courts,
and it certainly could never have been intended that these
amendments should be imposed upon Nebraska, and thereby a hard and
fast rule made for that state that would forever preclude
amendments inconsistent with the Bill of Rights of the federal
Constitution, and which this Court has held to be applicable only
to federal courts. As we have repeatedly held, the Fourteenth
Amendment was not intended to curtail the powers of the states to
so amend their laws as to make them conform to the wishes of their
citizens, to
Page 176 U. S. 89
changed views of administration, or to the exigencies of their
social life. It may be readily supposed that the inhabitants of
each state understand perfectly their own local needs and
interests, and, with the facilities with which the constitutions of
the several states may be amended, it is scarcely possible that any
evil which might be occasioned by an improvident amendment would
not be readily redressed. Not only did Congress in the act of 1867
declare that Nebraska was admitted upon an equal footing with the
original states, but the whole federal system is based upon the
fundamental principle of the equality of the states under the
Constitution. The idea that one state is debarred, while the others
are granted, the privilege of amending their organic laws to
conform to the wishes of their inhabitants is so repugnant to the
theory of their equality under the Constitution that it cannot be
entertained even if Congress had power to make such discrimination.
We are therefore of opinion that the provision of the Constitution
of Nebraska permitting prosecutions for felony by information does
not conflict with the Fourteenth Amendment to the Constitution of
the United States.
2. We do not find it necessary to consider the question whether
the court denied to the defendant due process of law in refusing a
jury trial upon the question whether he had waived a preliminary
examination before the magistrate. The statute of Nebraska
providing for the prosecution of offenses by information requires
that
"no information shall be filed against any person for any
offense until such person shall have had a preliminary examination
therefor, . . . unless such person shall waive his right to such
examination."
A plea in abatement is said to have been filed upon that ground,
but the only plea in abatement which appears in the transcript of
the record before us sets forth but four grounds: first, that there
was no authority of law for the filing of an information charging
the defendant with a felony; second, because the defendant, under
the state constitution, was granted immunity from answering to a
criminal charge, except upon presentment or indictment by a grand
jury; third, because this prosecution is in contravention of the
state constitution,
Page 176 U. S. 90
guaranteeing that no person shall be deprived of life or liberty
without due process of law; fourth, because this prosecution is in
contravention of the Fourteenth Amendment of the Constitution of
the United States. It is true that, in the demurrer to this plea
and in the order sustaining such demurrer, it would appear that
there were eighteen grounds for the plea in abatement, and that, as
to the ninth ground, the demurrer was overruled with leave to the
state to reply instanter. From the reply to the plea in abatement,
it would appear that the ninth paragraph of the plea set up the
fact that the defendant did not have a preliminary examination as
required by law, the reply alleging that he waived it; but nowhere
in the plea in abatement does it appear what this ninth paragraph
was, although the judgment of the court was
"that the defendant waived a preliminary examination before the
examining magistrate, and therefore finds against the defendant,
and overrules the said ninth paragraph of the said plea in
abatement."
As the opinion of the Supreme Court also discusses the ruling of
the court below denying to the defendant a jury trial upon this
ninth paragraph, we may, perhaps, be at liberty to take notice of
it, although in subdivision nine of rule ten, under which this
record was printed, it is said that the court will consider nothing
but those parts of the record designated by the parties, and the
errors so stated.
But, without expressing a decided opinion upon this point, we
are confronted by another difficulty in the fact that it is nowhere
alleged in the record that a denial to the defendant of a jury
trial of this issue was violative of the Constitution of the United
States. It is true that, in the fourth paragraph of the plea in
abatement, it is said that "this prosecution is in the
contravention" of the Fourteenth Amendment, but this evidently
refers to the prior paragraphs, which deal only with a prosecution
by indictment. In the opinion of the court discussing this
question, no allusion is made to the denial of this jury trial
being in conflict with the Fourteenth Amendment, and it is only in
the assignments of error filed in the supreme court of the state
four months after its judgment of affirmance that the defendant
sets it up as the denial
Page 176 U. S. 91
of a federal right. Indeed, it nowhere appears in the record or
in the opinion of the supreme court that the denial of a jury trial
of this issue was claimed to be in contravention even of the state
constitution. The question is discussed by the court as one of
general law, and it is only the prosecution by information that the
court discusses as a constitutional question.
On November 10, 1899, the Chief Justice of the Supreme Court of
Nebraska certifies that the only reference made by the plaintiff in
error to the Constitution of the United States is set forth in
certain language quoted from his brief. From this brief it would
appear that the denial of the right of trial by jury upon the
question of waiver of preliminary examination was set up as a
violation of the constitutional provision of Nebraska that "the
right of a trial by jury shall remain inviolate," but it nowhere
appears that it was claimed to be in violation of any other
provision of the constitution, or of the Fourteenth Amendment to
the Constitution of the United States.
Upon this state of the record, we are unable to say that the
decision of the court below was against a title, right, privilege,
or immunity specially set up or claimed by either party under the
constitution of the United States.
We have repeatedly decided that an appeal to the jurisdiction of
this Court must not be a mere afterthought, and that if any right,
privilege, or immunity is asserted under the Constitution or laws
of the United States, it must be specially set up and claimed
before the final adjudication of the case in the court from which
the appeal is sought to be maintained. It is true that this Court
has sometimes held that if a federal question appear in the record
and was decided, or such decision was necessarily involved in the
case, and that such case could not have been determined without
deciding such question, the fact that it was not specially set up
and claimed is not conclusive against a review here, but such cases
have usually, if not always, arisen under the first or second
clauses of section 709, and have involved the validity of a treaty,
statute, or authority exercised under the United States, or the
validity of a statute or authority exercised under a state,
Page 176 U. S. 92
where such statute or authority is alleged to be repugnant to
the Constitution or the laws of the United States.
Columbia
Water Power Co. v. Columbia Electric Street Railway &c.
Co., 172 U. S. 475. In
the case under consideration, the right to a trial by jury is
claimed under the Constitution of the United States, but as it was
never set up or claimed prior to the decision of the supreme court
of the state, it is too late to raise the question here.
The fact that the defendant did set up in his plea in abatement
his immunity from prosecution upon an information of the county
attorney clearly appears, but we are not at liberty to consider
other constitutional questions which might have been involved if
they had been properly set up and claimed. The observations of this
Court in
Dewey v. Des Moines, 173 U.
S. 193, are conclusive against our consideration of this
question.
The judgment of the Supreme Court of the Nebraska is
therefore
Affirmed.
MR. JUSTICE HARLAN dissented.
