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sation for an increased price paid by it, increased cost of transportation, and loss of anticipated profits, caused by the delay, all as damages for the breach of the contract, or, alternatively, the market value of the hay less the amount paid by the United States. The answer is a general denial.

test or attempt to reserve any rights at that time. The last payment was made on July 24, 1899. On May 11, 1899, however, the claimant wrote to the quartermaster, claiming damages on account of the government not taking the hay at the rate of one sixtieth per day, and on June 28, and later, the quartermaster approved the claim. Although, no doubt, both parties supposed their agreement binding, the court of claims held, and it is not disputed, that the contract was within Rev. Stat. § 3744 (U. S. Comp. Stat. 1901, p. 2510), and not having been "reduced to writing, and signed by the contracting parties with their names at the end thereof," could not have been sued upon if it had not been performed. Clark v. United States, 95 U. S. 539, 24 L. ed. 518; South Boston Iron Co. v. United States, 118 U. S. 37, 30 L. ed. 69, 6 Sup. Ct. Rep. 928. See Monroe v. United States, 184 U. S. 524, 46 L. ed. 670, 22 Sup. Ct. Rep. 444. It is argued by the claimant on this ground that it is entitled to maintain a quantum valebat.

The court of claims finds that during the late war with Spain an advertisement was published by a quartermaster for 9,000,000 pounds of hay, among other things, seemingly for use in Camp George H. Thomas, Georgia, and that in connection with it the following information was furnished: "The foregoing are the estimated quantities which will be required, but bids will be accepted in whole or in part and awards made under accepted bids will provide that the quantities awarded may be increased or decreased at the option of the United States, not exceeding 20 per centum thereof and further, that if the troops should be wholly or in part withdrawn, the awards shall become inoperative to the extent of such reduction. Hay and straw. . . Deliveries of the supplies to begin On the facts stated it is evident that the within five days from date of award, and claimant has no case. The invalidity of the proceed at daily rates of at least one sixtieth contract is immaterial after it has been perof amount, or in such quantities and at such formed. When a lawful transfer of proptimes afterwards, as may be designated by erty is executed, it does not matter whether the chief quartermaster," etc. A bargain the terms of the execution were void or valid was made on these terms on July 12, 1898. while executory; the transfer cannot be reShipments were made, amounting, on Au- voked or the terms changed. A promise to gust 27, 1898, to 4,685,949 pounds. On make a gift does not bind, but a gift cannot August 28 the quartermaster telegraphed to be taken back, and a transfer in pursuance the claimant not to ship any more hay until of mutual promises is not made less effecnotified to do so. This suspension of orders tual by those promises or by the fact that was due to the withdrawal of troops. The money was received in exchange. The conclaimant then had 100 carloads in transit, tract may be void, as such, but it expresses which it was obliged to sell for what it the terms on which the parties respectively could get, and protested against the stop- paid their money and delivered their goods. page. At different dates between September See Savage v. United States, 92 U. S. 382, 12 and May 18 following the quartermaster 23 L. ed. 660. The proposition does not telegraphed orders for hay, which were need to be argued or explained more at filled. Hay meantime had risen in value, length. Of course, different considerations and cost the claimant more than it would would come in if the claimant had been subhave cost in the summer. Accordingly, the jected to a motive from which it had a right claimant asked to be relieved from delivery, to be free, as, for instance, by fraud or dubut the quartermaster refused, holding ress. But there was nothing which the law back money due to the claimant as security to compel performance. The claimant went on with deliveries, and in December was asking for orders "on our contract;" on April 27 returned a voucher "covering hay on our contract;" on May 27 sent a bill of lading and invoice "ordered upon our contract to-day;" and on June 24, 1899, wrote "We would like to know how soon you expect us to put in the balance of the hay due upon the contract, as we are anxious to get it all cleaned up." It would seem that no hay was ordered after June 13. The claimant delivered the hay, and received full pay ment for it under the contract, without pro

could recognize as duress, and the sugges tion that it was peculiarly the duty of the officers of the government to see that the contract was put in binding form is very far from making out an analogy to fraud. The claimant was bound to know the law at its peril. The agent of the United States made no representation, and the claimant in no way purported to submit its judgment to his, if that would have bettered its case.

But it is said that this is not the simple case of mutual performance of a void contract, but that the United States, although it has paid the price, has broken the contract in respect of time. It may be said that

as we have said, and the claimant must be Argucd October 27, 1903. Decided Novem

J. L. HOWARD, alias Frank Thompson, A. State of North Carolina to review a judg

STATE OF NORTH CAROLINA. (No. 45.) Habeas corpus-conclusiveness of decisions of state courts-cruel and unusual punishment-equal protection of the laws-years, and the other two for ten years each. due process of law-error to state courtFederal question.

All appealed to the supreme court of the state. by which court the judgment was affirmed (129 N. C. 584, 40 S. E. 71), and

A decision of the highest state court that thercupon the writ of error in the last case 24 S. C.-4.

*134

4

was issued. A writ of habeas corpus was also sued out from the circuit court of the United States for the eastern district of North Carolina, directed to the warden of the state prison, which, after hearing, was dismissed, and from such dismissal an appeal was taken to this court; and that is the first of the above cases.

usual, in that two were given ten years' and the third only seven years' imprisonment, and also in that they were sentenced to inprisonment in the penitentiary instead of to hard labor on the public roads. No case of a similar offense is cited from the judicial reports of North Carolina, and the supreme court in its opinion refers to the crime as “a fashion of swindling which has doubtless Messrs. Frank P. Blair, Leslie A. Gil- been little practiced in this state." That more, J. L. Howard, and H. D. Hawley for for other offenses, which may be considered Howard et al. by most, if not all, of a more grievous charMessrs. Thomas B. Womack and Rob-acter, less punishments have been inflicted, ert D. Gilmer for appellee and defendant in does not make this sentence cruel. Undue

error.

*Mr. Justice Brewer delivered the opinion

of the court:

Although these are separate cases, coming from different courts, we shall consider them together, for the same proceedings are challenged in each.

We premise that the trial was had in a state court, and therefore our range of inquiry is not so broad as it would be if it had been in one of the courts of the United States. The highest court of the state has affirmed the validity of the proceedings in that trial, and we may not interfere with its judgment unless some right guaranteed by the Federal Constitution was denied, and the proper steps taken to preserve for our consideration the question of that denial.

leniency in one case does not transform a reasonable punishment in another case to a cruel one. Swindling by means of a pretended gold brick is no trifling crime, and a conspiracy to defraud by such means does not commend itself to sympathy or leniency. But it is unnecessary to attempt to lay down any rule for determining exactly what is necessary to render a punishment cruel and unusual, or under what circumstances this court will interfere with the decision of a state court in respect thereto. It is enough to refer to Re Kemmler, 136 U. S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930, in which these questions were discussed, and to say that a sentence of ten years for an offense of the nature disclosed by the testimony, especially after it has been sustained by the supreme court of a state, does not The first contention demanding notice is seem to us deserving to be called cruel. If that the indictment charged no crime. As the effect of this sentence is to induce like found it contained three counts, but the two criminals to avoid its territory, North Carolatter were abandoned, and therefore the in-lina is to be congratulated, not condemned. quiry is limited to the sufficiency of the Doubtless there were sufficient reasons for first. That charged a conspiracy to de-giving to one of the conspirators a less term fraud. There is in North Carolina no statute defining or punishing such a crime, but the supreme court held that it was a common-law offense, and as such cognizable in the courts of the state. In other words, the supreme court decided that a conspiracy to defraud was a crime punishable under the laws of the state, and that the indictment sufficiently charged the offense. Whether there be such an offense is not a Federal question, and the decision of the supreme court is conclusive upon the matter. Neither are we at liberty to inquire whether the indictment sufficiently charged the offense. Caldwell v. Texas, 137 U. S. 692, 698, 34 L. ed. 816, 818, 11 Sup. Ct. Rep. 224; Davis v. Texas, 139 U. S. 651, 652, 35 L. ed. 300, 301, 11 Sup. Ct. Rep. 675; Berge mann v. Backer, 157 U. S. 655, 39 L. ed. 845, 15 Sup. Ct. Rep. 727.

|

than the others. At any rate, there is no such inequality as will justify us in setting aside the judgment against the two.

So far as respects the sentence of the defendants to the penitentiary instead of to work on the public roads, § 4, chap. 355, p. 631, N. C. Laws 1887, in terms warrants it, for that provides that when the judge presiding is satisfied that there is good reason to fear an attempt to release or injure any person convicted of any of the offenses for which sentences to work on the public roads may be imposed, it shall be lawful for him to sentence to imprisonment in the penitentiary. It is true there is no recital of any such reason to fear, but we cannot hold, in the face of the decision of the supreme court of the state, that the omission of such recital invalidates the judgment.

Again, it is said that there was not due Again, it is contended that the defend- process, because the trial judge refused to ants were denied the equal protection of the instruct the jury on the presumption of inlaws, in that the sentence was more severe nocence. He did charge that the guilt of than ever before inflicted in North Carolina the accused must be shown beyond a reasonfor a like offense, and was cruel and un-able doubt, and that on a failure in this

*138

A county auditor does not have a personal interest entitling him to a writ of error from the United States Supreme Court to review the judgment of a state court requiring him to deduct from the assessed valuation of certain real estate the amount of a mortgage thereon, in accordance with a statute of such state, even though a judgment personal in form has been rendered against him for costs, where he did not move for a modification of the judgment in that particular.

respect it was the duty to acquit. He also | 2. explained what is meant by the term "reasonable doubt." The supreme court sustained the charge. Of course, that is a decision of the highest court of the state that in a criminal trial it is sufficient to charge correctly in reference to a reasonable doubt, and that an omission to refer to any presumption of innocence does not invalidate the proceedings. In the face of this ruling as to the law of the state, the omission in a state trial of any reference to the presumption of innocence cannot be regarded as a Argued October 22, 23, 1903. Decided Nodenial of due process of law.

These are the principal matters presented by counsel. Some of them were argued elaborately both in brief and orally; especially that in reference to the absence of any statute providing for the punishment of conspiracy, and the alleged absence of any common-law offense of that nature. We have not deemed it necessary to review the various authorities, or enter upon any discussion of the matter, because we are of opinion that the decision of the supreme court of the state in reference thereto is conclusive upon us.

It does not appear that the Federal character of the questions was presented to the supreme court of the state, although in the opinions of the supreme court the questions themselves were fully discussed. But in the absence of any claim to protection under the Federal Constitution, we are compelled to hold that we have no jurisdiction in the case coming from the supreme court of the state, and the writ of error will be dismissed.

The same questions were presented in the habeas corpus case, and as that comes to us from a Federal court, we have jurisdiction, and in that case the judgment will be affirmed.

The motions in respect to change of custody of the defendants will, in view of the conclusion on the merits of the cases, be denied.

[No. 81.]

vember 16, 1903.

Statement by Mr. Justice Brown:

This was a petition filed in the circuit court of Marion county by the state, upon the relation of Martha and Benjamin Lewis, against the auditor of Marion county, for a writ of mandamus to compel the defendant, in his official capacity, to allow an exemp tion of a mortgage of $500 upon a lot of land in Indianapolis owned by the relators, and that the same be deducted from the value of such lot.

The petition was based upon an act passed by the general assembly March 4, 1899, the first section of which declares: "That any person being the owner of real estate liable for taxation within the state of Indiana, and being indebted in any sum, secured by mortgage upon real estate, may have the amount of such mortgage indebtedness, not exceeding $700, existing and unpaid upon) the first day of April of any year, deducted from the assessed valuation of mortgage

Mr. Justice Harlan concurs in the result. premises for that year, and the amount of

(191 U. S. 138)

HARRY B. SMITII, Auditor of Marion
County, Indiana, Plff. in Err.,

v.

such valuation remaining after such deduction shall have been made shall form the basis for assessment and taxation for said real estate for said year." [Horner's Anno. Stat. (Ind.) § 6272a.]

An alternative writ having been issued, STATE OF INDIANA, on the Relation of defendant interposed a general demurrer,

148

formal return to the writ, alleging the unconstitutionality of the act, both under the state and Federal Constitutions, to which relators demurred. The demurrer was sustained, and a judgment entered for a peremptory mandamus commanding the defendant to allow the exemption, and to deduct from the assessed valuation of the real estate the amount of the mortgage, $500, and also that relators recover from the defendant their costs, which, however, appear never to have been taxed. This judgment was subsequently affirmed by the supreme court upon the authority of its opinion upon the previous appeal, and a writ of error sued out from this court:

to the jurisdiction of this court, which we have recently held can only be invoked by a party having a personal interest in the litigation. It follows that he cannot sue out a writ of error in behalf of third persons. Tyler v. Registration Court Judges, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206; Clark v. Kansas City, 176 U. S. 114, 44 L. ed. 392, 20 Sup. Ct. Rep. 284; Turpin v. Lemon, 187 U. S. 51, 47 L. ed. 70, 23 Sup. Ct. Rep. 20; Lampasas v. Bell, 180 U. S. 276, 45 L. ed. 527, 21 Sup. Ct. Rep. 368; Ludeling v. Chaffe, 143 U. S. 301, 38 L. ed. 313, 12 Sup. Ct. Rep. 439; Giles v. Little, 134 U. S. 645, 33 L. ed. 1062, 10 Sup. Ct. Rep. 623. These authorities control the present case. It is evident that the auditor

Messrs. Horace E. Smith and Roscoe O. had no personal interest in the litigation. Hawkins for plaintiff in error.

Messrs. Cassius C. Hadley, L. G. Rothschild, and William C. Geake for defendant in error.

*Mr. Justice Brown delivered the opinion

of the court:

The constitutionality of the exemption law of Indiana was apparently the only question raised by the parties. It was argued elaborately, both in the circuit and supreme court of the state, and was finally affirmed by a majority of the latter court. The power of the county auditor, who is charged by law with the duty of making the assessment, to refuse to allow the relators their exemption upon the ground of the unconstitutionality of the act, does not appear to have been raised in the state courts, and is not noticed in either opinion of the supreme court. In fact, the celerity of the proceedings and the admissions of counsel indicate that the suit was begun and carried on for the purpose of testing the constitutionality of the law, and that the litigation was, at least, not an unfriendly one.

We have no doubt of the power of state courts to assume jurisdiction of the case if they chose to do so, although there are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that, in his opinion, it is repugnant to the Constitution.

It is but just to say, however, that the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist. In any event, it is a purely local question, and seems to have been so treated by this court in Huntington v. Worthen, 120 U. S. 97, 101, 30 L. ed. 588, 7 Sup. Ct. Rep.

469.

Different considerations, however, apply

He had certain duties as a public officer to perform. The performance of those duties was of no personal benefit to him. Their nonperformance was equally so. He neither gained nor lost anything by invoking the advice of the supreme court as to the proper action he should take. He was testing the constitutionality of the law purely in the interest of third persons, viz., the taxpayers, and in this particular the case is analogous to that of Caffrey v. Oklahoma, 177 U. S. 346, 44 L. ed. 799, 20 Sup. Ct. Rep. 664. We think the interest of an appellant in this court should be a personal, and not an official, interest, and that the defendant, having sought the advice of the courts of his own state in his official capacity, should be content to abide by their decision.

It is true there seems to have been a personal judgment in form against the defendant for costs, the amount of which, however, has never been taxed, and when taxed and paid would probably be reimbursed to him. It was formerly held, under the practice which disqualified interested witnesses, that a liability for costs was sufficient to render a witness incompetent. 1 Greenl. Ev. §§ 401, 402. But it seems to be well settled that even if the fact that costs are awarded against a party gives him an appealable interest, of which there appears to be consid erable doubt (Travis v. Waters, 12 Johns. 500; Reid v. Vanderheyden, 5 Cow. 719,736), it does not give him an appealable interest in the judgment upon the merits, but limits him to the mere question of costs. Studa. baker v. Markley, 7 Ind. App. 368, 34 N. E. 606; Hone v. Van Schaick, 7 Paige, 221; Card v. Bird, 10 Paige, 426; Cuyler v. Moreland, 6 Paige, 273. If plaintiff in error objected to this judgment for costs, he might have moved to modify it in that particular. Not having done so, his appeal is presumptively from the judgment on the merits (American Ins. Co. v. Gibson, 104 Ind. 336, 342, 3 N. E. 892), and as his individual rights were