the defendant is denied the equal civil rights of citizens secured to him by the constitution and laws of the United States does not operate to absolutely devest the state court of all jurisdiction of the offense, and after that indictment is quashed by the federal court it remains for the state court to determine whether the accused shall be again indicted or the prosecution abandoned. Bush v. Commonwealth (1882) 107 U. S. 110, 1 Sup. Ct. 625, 27 L. Ed. 354. Where it appears from the affidavit of a colored person charged with a capital offense that he cannot have the full benefit of the laws to the extent enjoyed by white citizens, and that his rights cannot be enforced in the state courts, a state court can proceed no further in the prosecution until certi fied of the action of the circuit court of the United States. State v. Dunlap (1871) 65 N. C. 491, 6 Am. Rep. 746. Cited without definite application, Nashville v. Cooper (1867) 6 Wall. 247, 251, 254, 18 L. Ed. 851; Beard v. Burts (1877) 95 U. S. 434, 437, 24 L. Ed. 485; Parks v. Booth (1880) 102 U. S. 96, 26 L. Ed. 54; Tennessee v. Union & Planters' Bank (1894) 14 Sup. Ct. 654, 657, 152 U. S. 454, 38 L. Ed. 511; Hunt v. U. S. (1897) 17 Sup. Ct. 609, 610, 166 U. S. 424, 41 L. Ed. 1063; Capital Traction Co. v. Hof (1899) 19 Sup. Ct. 580, 584, 174 U. S. 1, 43 L. Ed. 873; Barney v. New York (1904) 24 Sup. Ct. 502, 193 U. S. 430, 48 L. Ed. 737; Goddard v. Mailler (C. C. 1897) 80 Fed. 422, 423; In re Barnesville & M. Ry. Co. (D. C. 1880) 4 Fed. 10, 12. § 1014. (Jud. Code, § 32.) When petitioner is in actual custody of State court. When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petitioning for such removal is in actual custody on process issued by said State court, it shall be the duty of the clerk of said district court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the defendant into his custody, to be dealt with in said district court according to law and the orders of said court, or, in vacation, of any judge thereof; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ. R. S. § 642. Act March 3, 1911, c. 231, § 32, 36 Stat. 1097. Notes of Office of writ.-The writ of habeas corpus is not required to effect the removal; it is issued to bring the defendant before the federal court and to notify the state court that no further proceedings may be had therein. Abranches v. Schell (C. C. 1859) Fed. Cas. No. 21. Cited without definite application, Nashville v. Cooper (1867) 6 Wall. 247, 251, 254, 18 L. Ed. 851; Parks v. Decisions Booth (1880) 102 U. S. 96, 26 L. Ed. 54; Tennessee v. Union & Planters' Bank (1894) 14 Sup. Ct. 654, 657, 152 U. S. 454, 38 L. Ed. 511; Capital Traction Co. v. Hof (1899) 19 Sup. Ct. 580, 584, 174 U. S. 1, 43 L. Ed. 873; Kentucky v. Powers (1906) 26 Sup. Ct. 387, 393, 201 U. S. 1, 50 L. Ed. 633, 5 Ann. Cas. 692; Goddard v. Mailler (C. C. 1897) 80 Fed. 422, 423; Kentucky v. Powers (C. C. 1905) 139 Fed. 452. § 1015. (Jud. Code, § 33, as amended, Act Aug. 23, 1916, c. 399.) Suits and prosecutions against revenue officers, etc. When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer and affects the validity of any such revenue law, or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal prosecution is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such House, the said suit or prosecution may at any time before the trial or final hearing there of be removed for trial into the district court next to be holden in the district where the same is pending upon the petition of such defendant to said district court and in the following manner: Said petition shall set forth the nature of the suit or prosecution and be verified by affidavit and, together with a certificate signed by an attorney or counselor at law of some court of record of the State where such suit or prosecution is commenced or of the United States stating that, as counsel for the petitioner, he has examined the proceedings against him and carefully inquired into all the matters set forth in the petition, and that he believes them to be true, shall be presented to the said district court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the district court and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. When the suit is commenced in the State court by summons, subpoena, petition, or any other process except capias, the clerk of the district court shall issue a writ of certiorari to the State court requiring it to send to the district court the record and the proceedings in the cause. When it is commenced by capias or by any other similar form of proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court or left at his office by the marshal of the district or his deputy or by some other person duly authorized thereto; and thereupon it shall be the duty of the State court to stay all further proceedings in the cause, and the suit or prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the district court, and any further proceedings, trial, or judgment therein in the State court shall be void. If the defendant in the suit or prosecution be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law and the order of the district court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prosecution, it is made to appear to the district court that no copy of the record and proceedings therein in the State court can be obtained, the district court may allow and require the plaintiff to proceed de novo and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said district court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for the defendant. R. S. § 643. Act March 3, 1875, c. 130, § 8, 18 Stat. 401. Act Feb. 8, 1894, c. 25, § 1, 28 Stat. 36. Act March 3, 1911, c. 231, § 33, 36 Stat. 1097. Act Aug. 23, 1916, c. 399, 39 Stat. This section, as enacted in the Judicial Code, was amended by Act Aug. 23, 1916, c. 399, cited above, to read as set forth above. Said amendment consisted in substituting for the phrase "or when any suit is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty, in executing any order of such House," the following: "or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal prosecution is commenced against any person for or on account of anything done by him while an officer of either House of Congress in the discharge of his official duty in executing any order of such House." Notes of Decisions 1. Decisions under prior statute allowing removal of suits and prosecutions against officers acting under the laws relating to the elective franchise. 2. Decisions as to the effect and relation of the various acts for removal of suits and prosecutions against officers acting under the revenue laws. 19. Procedure after removal. 1. Decisions under prior statute allowing removal of suits and prosecutions against officers acting under the laws relating to the elective franchise. -Ex parte Anderson (C. C. 1878) Fed. Cas. No. 349; State of Illinois v. Fletcher (C. C. 1884) 22 Fed. 776. 2. Decisions as to the effect and relation of the various acts for removal of suits and prosecutions against officers acting under the revenue laws.-City of Philadelphia v. Collector (1866) 72 U. S. (5 Wall.) 720, 18 L. Ed. 614; Venable v. Richards (1881) 105 U. S. 636, 26 L. Ed. 1196 (affirming [C. C. 1876] Fed. Cas. No. 16,913); Peyton v. Bliss (C. C. 1868) Fed. Cas. No. 11,055; Salt Co. of Onondaga v. Wilkinson (C. C. 1870) Fed. Cas. No. 12,269; Ex parte Carson (C. C. 1873) Fed. Cas. No. 2,459. 3. Constitutionality.-This section is constitutional. Tennessee V. Davis (1879) 100 U. S. 257, 25 L. Ed. 648; Findley v. Satterfield (C. C. 1877) Fed. Cas. No. 4,792; State v. Hoskins (1877) 77 N. C. 530. 4. Construction in general. This act was passed in consequence of an attempt by one of the states to make penal the collection by United States officers within the state of duties under the tariff laws. Tennessee v. Davis (1879) 100 U. S. 257, 25 L. Ed. 648; People's United States Bank v. Goodwin (C. C. 1908) 162 Fed. 937. Its purpose is to protect the revenue officers of the government in the line of their official duties, and those who are employed to act under them in the performance of such duties; but, further than providing this necessary protection to the administration of its revenues, the federal government has no interest in the business affairs of the people incidentally brought within range of its tariff system. The statute must be interpreted with reference to its manifest spirit and general purpose, and a word or phrase should not be extended beyond its proper relation to give jurisdiction where the jurisdiction does not appear to have been intended. Johnson v. Wells, Fargo & Co. (C. C. 1899) 98 Fed. 3, 8; Virginia v. De Hart (C. C. 1902) 119 Fed. 626, 629. Jurisdiction of an action to recover back duties exacted under the Foraker Act of April 12, 1900, and paid under protest, upon goods brought from Porto Rico, is given to a federal court of the United States by R. S. § 629, subd. 4, ante, § 991 (5), vesting it with jurisdiction "of all suits at law or equity arising under any act providing for a revenue from imports or tonnage," when construed with this section. Downes v. Bidwell (1901) 21 S. Ct. 770, 182 U. S. 244, 45 L. Ed. 1088. Under Act March 3, 1887, ante, § 1010, forbidding appeal or error from an order remanding a cause from a federal to a state court, and which originally provided that nothing therein contained should be held to repeal or affect any jurisdiction or right mentioned in this section, the contention of the plaintiff in a suit brought in a state court that his right to removal was founded on this section, and therefore he had a right to bring error from an order of the federal court remanding the cause, was idle, since right to removal under this section is limited to a defendant. Cole v. Garland (1901) 107 Fed. 759, 46 C. C. A. 626. This section seems to indicate the classes of cases thought to come within the designation of cases arising under the revenue laws. Eaton v. Calhoun (C. C. 1880) 15 Fed. 155, 157. The section must be liberally construed as part of the revenue system. North Carolina v. Sullivan (C. C. 1892) 50 Fed. 593. Section 3 of Act March 2, 1833, furnished the original text from which R. S. § 643, incorporated in this section, was drawn. As to the portion of said original section embraced in it, section 643 became the law in force, as provided by R. S. § 5596, post, § 10593, and resort can be had to the original act only to interpret anything left in doubt by the language of the revisers. Johnson v. Wells, Fargo & Co. (C. C. 1899) 98 Fed. 3, 7. This section must be read in connection with section 1017, post. Whether congress intended that it or section 1584, post, should govern the practice in removals is open to doubt, but the issues should, it seems, be submitted to the jury, subject to the right of the court to direct a verdict when proper. Virginia v. Felts (C. C. 1904) 133 Fed. 85. This provision does not extend to all government officers, and had its origin in a revenue law within the constitutional limitation. Twin Falls Canal Co. v. Foote (C. C. 1911) 192 Fed. 583. 5. Suits or prosecutions removable.This section provides for removal of criminal prosecutions for offenses against state laws when a claim of federal right or authority arises. Tennessee v. Davis (1879) 100 U. S. 257, 262, 25 L. Ed. 648. It applies to every case of a federal revenue officer indicted in a state court for an act done under color of the United States revenue laws, but charged to be in violation of the criminal law of the state, and are not restricted to cases where an attempt is made by a state legislature to nullify a law of the United States. Findley v. Satterfield (C. C. 1877) Fed. Cas. No. 4,792. Where an informer sues the collector of a port in a state court, for a part of the proceeds of goods condemned as forfeited for a breach of the revenue laws, the collector may remove the case. Van Zandt v. Maxwell (C. C. 1852) Fed. Cas. No. 16,884. The collector may, if served with a foreign attachment, remove the suit. Fischer v. Daudistal (C. C. 1881) 9 Fed. 145. A rule upon a federal internal revenue collector, granted by a state court to show cause why an attachment should not issue against him for contempt of the process of such court is a "civil suit" removable into the United States court under this section. McCullough v. Large (C. C. 1884) 20 Fed. 309, 310. This section does not apply to suits brought against such officers in the territories. (1871) 13 Op. Atty. Gen. 584. 6. Commencement of prosecution.-A prosecution is not "commenced," so as to be removable, when the officer is merely held under a warrant of arrest for preliminary examination before a magistrate. Virginia v. Paul (1893) 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386, overruling Georgia v. Port (C. C. 1880) 3 Fed. 117, 4 Woods, 513; Same v. Bolton (C. C. 1882) 11 Fed. 217; North Carolina v. Kirkpatrick (C. C. 1890) 42 Fed. 689. But the rule that a prosecution has not been commenced in a state court until accused has been indicted does not apply where the offense can be tried without an indictment. Commonwealth of Virginia v. Bingham (C. C. 1898) 88 Fed. 561; Virginia v. Felts (C. C. 1904) 133 Fed. 85. 7. Officers entitled to remove suits or prosecutions.--Although a marshal or deputy marshal is not an officer appointed under a revenue law, when engaged officially in lawful attempts to enforce a revenue law, he is an officer acting under that law. Davis v. South Carolina (1882) 2 Sup. Ct. 636, 107 U. S. 597, 27 L. Ed. 574. This section does not apply to commissioners appointed by the federal circuit court and acting as examining and committing magistrates for offenses against the laws of the United States. Benchley v. Gilbert (C. C. 1871) Fed. Cas. No. 1,291. 8. "Revenue laws" construed.-Any law providing for the assessment and collection of a tax to defray the ex penses of the government is a revenue law. Legislation designed to effect this end is commonly referred to under the general term "revenue measures." Any definition of a government revenue must include all the money raised by any form of taxation. Peyton v. Bliss (C. C. 1868) Fed. Cas. No. 11,055. Post office laws are "revenue laws." Warner v. Fowler (C. C. 1859) Fed. Cas. No. 17,182. So are acts imposing direct taxes on the states. Peyton v. Bliss (C. C. 1868) Fed. Cas. No. 11,055. But the reclamation act is not. Twin Falls Canal Co. v. Foote (C. C. 1911) 192 Fed. 583; City of Stanfield v. Umatilla River Water Users' Ass'n (C. C. 1911) 192 Fed. 596. 9. Acts under or by authority of revenue laws. The language of the statute does not authorize a removal of every prosecution against a revenue officer; but the words "under color of" and "right of authority claimed" show clearly that the act for which the prosecution is commenced need not be one done strictly in pursuance of a federal revenue statute in order to justify removal. Virginia v. De Hart (D. C. 1902) 119 Fed. 626, 629. Suits against revenue officers of the United States to recover sums which it is alleged they illegally collected may be removed. Venable v. Richards (C. C. 1876) Fed. Cas. No. 16,913, affirmed (1881) 105 U. S. 636, 26 L. Ed. 1196. So is an indictment for murder committed by a noncommissioned officer in the United States army while detailed as a guard in aid of the marshal, and acting as one of his posse comitatus, in arresting an illicit distiller, and the forfeiture of his recognizance by the state court after removal is void and of no effect. Davis v. State (1882) 107 U. S. 597, 2 Sup. Ct. 636, 27 L. Ed. 574. Although Act June 10, 1880, § 10, post, § 5667, requiring a collector of customs, when notified of a carrier's lien, to give the carrier reasonable notice of delivery to the consignee, does not authorize the collector to receive payment of the carrier's lien for freight, yet, in a suit by a carrier against a collector to recover the amount so paid, the act of receiving payment is one done "under color of office," and, as such, removable. Cleveland, C., C. & I. R. Co. v. McClung (1886) 119 U. S. 454, 7 Sup. Ct. 262, 30 L. Ed. 465, affirming judgment (C. C. 1883) 15 Fed. 905. A corporation, in the performance of a contract made with the secretary of the treasury for the building of an addition to a post office authorized by an act of congress, is a person acting by authority of a revenue officer of the United States, given under color of his office; and a suit in a state court against the corporation to enjoin the building of such addition is removable. Ward v. Congress Const. Co. (1900) 99 Fed. 598, 39 C. C. A. 669. A suit against a United States officer to recover the value of bonds issued to a state by the United States, and which, having been allowed by the plaintiff to go into defendant's hands, were retained by him on the ground that they were unlawfully put into circulation as against the state, cannot be removed. Victor v. Cisco (C. C. 1862) Fed. Cas. No. 16,934. But an action on the case, begun in a state court, to recover damages for alleged slanderous words spoken by a United States collector of customs while in the discharge of his official duty, and explanatory of it, can. Buttner v. Miller (C. C. 1871) Fed. Cas. No. 2,254. A summary proceeding by a landlord to recover premises used as a bonded warehouse, to which the collector of internal revenue and a United States storekeeper are made parties, and described as undertenants holding over, is removable. Galatin v. Sherman (C. C. 1896) 77 Fed. 337. A cause involving the question whether an express company or its customer must furnish the stamp required by the war revenue act of.1898 to be affixed to a receipt given by the company is one arising under a law providing internal revenue, within R. S. § 629, and is removable. Crawford v. Hubbell (C. C. 1898) 89 Fed. 1. CONTRA, Johnson v. Wells, Fargo & Co. (C. C. 1899) 98 Fed. 3. A United States marshal, sued for trover in a state court by a citizen of the same state for the seizure of property under process issued by a federal district court in a private cause, cannot have such action removed into the federal court under this section, but it can only be removed on petition filed in the state court, and upon some ground provided for by the general removal act. Mayo v. Dockery (C. C. 1901) 108 Fed. 897. A criminal prosecution for an assault committed by defendant, in repelling an attack made upon him while acting as a posseman under appointment by a deputy United States marshal, and while assisting in an effort to find and arrest a person charged with a violation of the revenue laws, is removable. Commonwealth of Virginia v. De Hart (C. C. 1902) 119 Fed. 626. To render an action against an officer of the United States removable under this section, the acts which constitute the cause of action must have some rational connection with official duties under a "revenue law," and in some way affect the revenue of the government, and such fact must appear on the face of the complaint in the action or the petition for the writ. An action for libel against the Assistant Attorney General for the Post Office Department and an inspector of such department, based on the promulgation by them of a fraud order against the plaintiff, does not meet such require ments and is not removable under said section. People's United States Bank v. Goodwin (C. C. 1908) 162 Fed. 937. A deputy United States marshal, having been informed that two men were selling whisky in the neighborhood in violation of the revenue laws, met them a few minutes later in the highway, carrying a keg. He asked what was in the keg, and they replied, "A little whisky." One of them said, "Who the hell are you?" and he replied, "A deputy marshal." The former then said that no deputy marshal should arrest him, and drew his pistol, whereupon the deputy shot and killed him. Held, that the deputy was justified in presuming that they had the whisky for the purpose of selling the same in violation of the revenue laws; and that whether it was his intention to arrest them, or to make further inquiries as to whether they had been engaged in violating the revenue laws, he was acting within the scope of his authority; and, a prosecution having been commenced against him in the state court for murder, he was entitled to have the same removed to the federal court. Carico v. Wilmore (D. C. 1892) 51 Fed. 196. An indictment for being a common seller of intoxicating liquors, or one for keeping and maintaining a tenement used for the illegal sale and keeping of intoxicating liquors by one holding a license to sell such liquors under the internal revenue laws of the United States, cannot be removed. State v. Elder (1866) 54 Me. 381. Nor can an indictment under Gen. St. Mass. c. 87, for maintaining a tenement used for the illegal sale and keeping of intoxicating liquors by one holding a license to sell such liquors under the internal revenue laws of the United States. Commonwealth v. Casey (1866) 94 Mass. (12 Allen) 214. 10. Original jurisdiction of federal court. Though suits to recover back moneys illegally exacted as internal revenue taxes cannot, under existing laws, be commenced in the circuit courts, except where the taxpayer and the assessor or collector sued are citizens of different states, and such suits under other circumstances must be commenced in the state courts, defendant, if he sees fit, and seasonably takes the proper steps, may remove the case into the circuit court for trial. Collector v. Hubbard (1870) 79 U. S. (12 Wall.) 1, 20 L. Ed. 272; Cincinnati Brewing Co. v. Bettman (C. C. 1900) 102 Fed. 16. CONTRA, State v. Davis (1879) 12 S. C. 528. 11. Waiver of right to remove.Where a state court proceeds with a prosecution against a United States marshal after he has effected a removal to a federal court, he does not lose his right of trial in the latter court by defending in the former. North Caro |