and if the said clerk refuses or neglects to furnish such copies, the petitioner may thereupon docket the case in the circuit court, and the said court shall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit, and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy, But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the circuit court as herein provided, a certificate, under the seal of the circuit court, stating such failure, shall be given, and upon the production thereof in said. State court, the cause shall proceed therein as if no petition for a removal had been filed. (Rev. Stats. sec. 641; 16 U. S. Stats. 144; 14 id. 27; 12 id. 756; 14 id. 46.)

Note. This section is not in conflict with the Constitution of the United States. (Strander v. West Va., 100 U. S. 304; Fitzgera d v. Allman, 22 Alb, L. J. 218; State v. Dunlap, 65 N. C. 491; Capehart v. Stewart, 80 N. C. 101.) Under the Acts of 1863 and 1866, it is indispensable that the petition filed be properly verified. (Florence v. Butler, 9 Abb. Pr. N. S. 63.) That the Act of March 3, 1863, embodied in this section is constitutional, see McCormick v. Humphrey, 27 Ind. 144; McCormick v. Mayfield, 27 Ind. 143; State v. Common Pleas, 15 Ohio St. 377; Hodgson v. Millward, 3 Grant, 412; Kulp v. Ricketts, 3 Grant, 420.)

§ 101 a. Denial of civil rights.-The Constitution and laws of the United States make the rights and responsibilities, civil and criminal, of the white and col

ored races exactly the same; and Congress has power under the Fourteenth Amendment to secure the rights of the colored race, and enforce their recognition, by providing for the removal of causes into the Federal courts, where these rights will be acknowledged if denied to them in the State courts;2 and this section was intended as a protection to them against State action, and against that alone. It is only when some State law, ordinance, regulation, or custom hostile to these rights is alleged to exist, that a removal can be had under the first clause of this section. A colored person cannot remove his cause, unless he can show that the denial of his civil rights arises from an act of the civil government of the State. This section does not apply where the denial of equal rights, or an inability to enforce them, results from the action of the judiciary; it must be a denial or inability resulting from the constitution or laws of the State; and it refers to legal disabilities and legal impediments, and not to private infringements by prejudice or otherwise, when the laws themselves are impartial and sufficient. After the decision of the court of appeals of Kentucky, that the statute of that State excluding from a grand or a petit jury citizens of African descent, because of their race or color, was unconstitutional, a second indictment for the same offense was not removable into the Federal court for trial, under section 641. If any right of the accused under the Constitution or laws of the United States was denied by the State court on the trial, his remedy was through the revisory power of the highest court of the State, and ultimately through that of this court.9

1 Virginia v. Rives, 100 U. S. 313. 2 Virginia v. Rives, 100 U. S. 313. 3 Virginia v. Rives, 100 U. S. 313

4 In re Wells, 3 Woods, 128.

5 Fowlkes v. Fowlkes, 8 Ch. L. N. 41.

6 Ex parte Virginia, 100 U. S. 339.

7 Ex parte Virginia, 100 U. S. 339.

8

8 Strauder v. West Virginia, 100 U. S. 303; State v. Gaines, 3 Woods, 342; In re Wells, 3 Woods, 128; Thomas v. State, 58 Ala. 365; State v. Gleason, 12 Fla. 190; Fitzgerald v. Allman, 82 N. C. 492; State v. Small, 11 Rich (S. C.) 262; State v. Dubuclet, 10 Ch. L. N. 132; Le Grand v. United States, 12 Fed. Rep. 577, note, 583. Contra: State v. Dunlap, 65 N. C. 491. 9 Bush v. Kentucky, 107 U. S. 110.

4

§ 101 b. In criminal cases.—A criminal case cannot be removed prior to finding an indictment.1 If indicted for an offense, a colored person may remove the cause if the State law allows none but white men to serve as jurors; but the mere fact that a grand or petit jury is not a mixed jury does not give the right to a removal;3 but a statute singling out colored persons, and denying them the right to act as jurors, denies them the equal protection of the laws. Color of office is an apparent or prima facie right, an appearance of right or authority; and authority means a proper legal and constitutional authority." An officer who is acting in good faith under a warrant is acting under color of authority.' An action for an arrest by the officer of a municipal corporation cannot be removed. Although the petition states that he was an officer, yet it must also state the wrong charged, and that it was done by virtue of authority derived from the law." A person who denies participation in the arrest, and charges it upon a Federal soldier, cannot remove. Where a negro indicted for a felony petitions on the ground that persons of African descent were excluded from the jury, the petition may be denied. The trial of a cause for rape is removable. 12 A prosecution against a Chinaman for having in his possession a lottery ticket in violation of a law which applies to all persons is not removable on the ground of local prejudice or maladministration of the law, under this section. 13 Where the State enacts a statute in conflict with the Fourteenth Amendment, or where its judicial tribunals repudiate it, the indictment on the ground of African descent would be removable under this section.14 1 Com. v. Artman, 3 Gratt. 436. See People v. Murray, 5 Parker Cr. C. 577.

2 Strauder v. West Virginia, 100 U. S. 393.

10

3 Ex parte Virginia, 100 U. S. 339. Contra: Ex parte Burwell, 8 Hughes, 559.

4 Strauder v. West Virginia, 100 U. S. 303. See Cases of County Judges, 3 Hughes, 576.

5 Hodgson v. Millward, 3 Grant, 412; Kulp v. Ricketts, 3 Grant, 420. 6 State v. Bliss, 3 Grant, 427.

7 State v. Common Pleas, 15 Ohio St. 377; Hodgson v. Millward, 3 Grant, 418.

8 Woodson v. Fleck, Chase, 305.

9 Short v. Wilson, 1 Bush, 350; Skeen v. Huntington, 25 Ind. 510

10 Elfort v. Bevins, 1 Bush, 460.

11 Neal v. Delaware, 103 U. S. 370.

12 Neal v. Delaware, 103 U. S. 379; Strauder v. West Virginia, 100 U. S. 303; Virginia v. Rives, 100 U. S. 313; Ex parte Virginia, 100 U. S. 339. 13 State v. Chue Fan, 43 Fed. Rep. 865.

14 Neal v. Delaware, supra.

§ 101 c. In general-Proceedings.-Under this section each defendant may alone remove the cause.1 Upon filing a verified petition the party is entitled to a removal as of course; but the petition must show which of the rights secured under the civil rights bill have been denied by the State court; it must affirmatively show that the case is of a class described in the statute as removable.1 The act provides for removing the whole suit, no matter who the parties are, nor what relief is sought.5 To entitle defendant to the order of removal, there must be some color of substance in the questions raised; and if counter affidavits are admitted without objection, he is not entitled to remove if the legal results of the case presented show that he has no rights." It is not necessary to obtain the assent of the State court under this section. The jurisdiction of the circuit court under this section was not taken away by the Act of 1867.9 On petition filed, the Federal court is entitled to assert its jurisdiction by proper process, and it is the duty of the State court to yield obedience thereto;10 and if the State court proceeds to try a party in a criminal case after the filing of the petition, the sentence will be void. The removal authorized is before trial or final hearing, but judicial infractions of constitutional rights, after trial commenced, are left to the revisory power of the Federal court. 12 A suit to try title to a State office cannot be removed on the alleged grounds that by bribery and threats colored voters were prevented from voting. 13 An action of ejectment is not within the provisions of this section.1

Under this

section, Rev. Stats. sec. 641, the party must set forth, under oath, the facts upon which he bases his claim to have his case removed; not merely his belief that he cannot enforce his rights at a subsequent stage of the proceedings.15 The petition must be presented before trial or final hearing. Defendants under this section must present a petition "at any time before the trial or final hearing,” verified by oath, and praying for a removal for trial to the

16

next circuit court for the district where the case is pending. 17

1 State v. Common Pleas, 15 Ohio St. 377.

2 Siebrecht v. Butler, 2 Abb. Pr. N. S. 361; State v. Common Pleas, 15 Ohio St. 377. '

3 State v. Gleason, 12 Fla. 190.

4 Patrie v. Murray, 43 Barb. 323; Hodgson v. Millward, 3 Grant. 412.

5 Fisk v. Union Pac. R. Co., 6 Blatchf. 362.

6 Jones v. Seward, 40 Barb. 563.

7 Short v. Wilson, 1 Bush, 350.

9 Gazaway v. Dana, 10 Blatchf. 34.

10 In re Wells, 3 Woods, 128.

11 Ex parte Reynolds, 3 Hughes, 559.

12 Virginia v. Rives, 100 U. S. 313.

13 Dubuclet v. State, 103 U. S. 550; 2 Morr. Trans. 559.

14 Bigelow v. Forrest, 9 Wall. 339; Martin v. Snowden, 18 Gratt. 100.

15 Ex parte Virginia ("Virginia v. Rives"), 100 U. S. 313.

16 Ex parte Virginia ("Virginia v. Rives"), 100 U. S. 313.

17 See Strauder v. West Virginia, 100 U. S. 303; (Civil Rights Cases, 109 U. S. 3); Gaughran v. North West Fert. Co., 3 Biss. 485.

§ 102. 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 proceeding 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 circuit 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 circuit court according to law, and the orders of said court, or, in vacation, of any judge therein; and the marshal shall file with or deliver to the clerk of said State court a duplicate copy of said writ. (Rev. Stats. sec. 642, 14 U. S. Stats. 385; 12 id. 756; 14 id. 46; 14 id. 27.)