§ 102 a. Habeas corpus.--The writ of habeas corpus must be allowed by the judge before it can be issued. It may be issued by the circuit court for the purpose of securing jurisdiction. A duty imposed upon a United States marshal is a law within the meaning of the statute providing for the writ of habeas corpus, and United States courts should grant such writ to persons imprisoned for any act done in pursuance of a law of the United States. 2 1 Re Wells, 3 Woods, 128.

2 Cunningham v. Neagle, 135 U. S. 1; affirming Re Neagle (Cal.), 39 Fed. Rep. 833.

§ 103. Removal of suits and prosecutions against revenue officers and officers acting under registration laws.-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 is commenced against any officer of the United States or other person, on account of any act done under the provisions of Title XXVI, "The Elective Franchise," or on account of any right, title, or authority claimed by any such officer or other person under any of the said provisions-the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition

of such defendant to said circuit 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 circuit 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 circuit 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 other process except capias, the clerk of the circuit court shall issue a writ of certiorari to the State court requiring it to send to the circuit court the record and 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 some 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 circuit court, and any further proceedings, trial, or judgment therein in the State court shall be void. And 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 circuit 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 circuit court that no copy of the record and proceedings therein in the State court can be obtained, the circuit 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 circuit court. On failure of the plaintiff so to proceed, judgment of non prosequitur may be rendered against him, with costs for defendant. (Rev. Stats. sec. 643; 4 U. S. Stats. 633; 14 id. 171; 16 id. 438.

NOTE. This section is not in conflict with the Constitution. (Venable v. Richards, 1 Hughes, 326; Tennessee v. Davis, 100 U. S. 257; State v. Port, 3 Fed. Rep. 119; Findley v. Satterfield, 3 Woods, 504; State v. Hoskins, 77 N. C. 530; State v. Deaver, 77 N. C. 555.) And is not superseded by the Act of March 3, 1875. (Venable v. Richards, 105 U. S. 636.) Similar provisions are to be found in act of 1886 for internal taxation, and of 1883 concerning collection of duties. It applies to marshals when engaged in enforcing revenue laws. (Davis v. S. C., 107 U. S. 597.) Suits against collectors of customs in State courts are removable. (119 U. S. 454.)

§ 103 a. In general. This section contemplates a change of tribunal, and not of prosecuting officers,1 the object being to take from the State court jurisdiction of all cases that fall within its terms as soon as they are commenced. The jurisdiction of the circuit court in original suits between citizens of the same State in internal revenue cases conferred by the Act of June 30, 1864, was taken away by the Act of July 13, 1866,3 but it is saved by the latter act, if the justice of the circuit court is of opinion that the cause would be removable under such act. This section was previously held to be in force as to the removal of revenue causes, except those arising under the internal revenue laws. A removal under this section does not bring with it the State law as to costs. They are subject to the twelfth section of the Judiciary Act. The government is responsible for clerks' charges for necessary services, on the removal of election cases." Where plaintiff appeals, defendant cannot remove. The act extends to an action in the State court against the postmaster for wrongful refusal to deliver a letter. Where the parties to an action to recover illegally assessed internal revenue taxes are citizens of the same State, the action must be brought in the State court, but the defendant may remove the cause into the circuit court for trial. 1

1 State v. Emerson, 8 Fed. Rep. 411.

2 State v. Port, 3 Fed. Rep. 121.

3 Ins. Co. v. Ritchie, 5 Wall. 541.

4 City of Philadelphia v. The Collector, 5 Wall. 720.

5 Peyton v. Bliss, 1 Woolw. 170; Stevens v. Mack, 5 Blatchf. 514.

6 Wood v. Matthews, 2 Blatchf. 370.

7 In re Clerks' Charges, 5 Fed. Rep. 440.

8 Price v. Sommers, 8 Ch. L. N. 230.

9 Warner v. Fowler, 4 Blatchf. 211.

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10 Gates v. Osborne (The Assessor v. Osbornes"), 76 U. S. 567; Philadelphia v. Diehl, 72 U. S. 720; Brainard v. Hubbard ("The Collector v. Hubbard "), 79 U. S. 1.

§ 103 b. Suits removable.-Any law which provides for the assessment and collection of a tax to defray the expenses of the government is a revenue law.1 So an act that imposes a direct tax is a revenue law. The duty paid for the carriage of letters by the agency of the gov ernment is a branch of the public revenue.3 A suit

DESTY BEYO

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against an officer may be removed, although he is sued individually, and is sought to be held as a wrong-doer; so an action of slander against a revenue officer is removable; or an action against a collector of internal revenue to recover money alleged to have been illegally exacted;6 or against a postmaster for a wrongful refusal to deliver a letter. The right to remove is given in any case provided for without regard to the amount in controversy,8 and without regard to the expense or inconvenience of the parties. A suit by an informer against a collector to recover a share of a forfeiture may be removed. 10 A commissioner, sued for fees illegally exacted, cannot remove the suit. 11 A member of a returning board is a State officer. 12 A marshal sued for trespass in taking goods on execution cannot remove. The circuit court has jurisdiction under section 2 of the Act of 1833 of suits to recover back moneys illegally collected by collectors of internal revenue. 14 Suits for acts done during the late rebellion under Federal authority are removable under the Act of 1863. But an action is not removable under section 5 of that act, after judgment, as so much of that section as provides for such a removal is unconstitutional, 16 A suit against a collector of customs for the money received by him for carriers' charges on imported goods under color of office is removable under this section. 17

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1 Peyton v. Bliss, 1 Woolw. 170. See Warner v. Fowler, 4 Blatchf. 311. 2 Peyton v. Bliss, 1 Woolw. 170.

3 Warner v. Fowler 4 Blatchf. 311.

4 Van Zandt v. Maxwell, 2 Blatchf. 421.

5 Buttner v. Miller, 1 Woods, 620.

6 Philadelphia v. Collector, 5 Wall. 720: Salt Co. v. Wilkinson, 8 Blatchf. 30. Contra: Stevens v. Mack 5 Blatchf. 514.

7 Warner v. Fowler, 1 Blatchf. 311.

8 Wood v. Matthews, 2 Blatchf. 370.

9 Wood v. Matthews, 2 Blatchf. 370. 10 Van Zandt v. Maxwell, 2 Blatchf. 421. 11 Benchley v. Gilbert, 8 Blatchf. 147. 12 Ex parte Anderson, 3 Woods, 124.

13 McKee v. Rains, 10 Wall. 22.

14 Philadelphia v. Diehl, 72 U. S. 720.

15 Milligan v. Hovey, 3 Biss. 13; 3 Chic. L. N. 321. See Clark v. Dick, 1 Dill. 8; Woodson v Fleet, 2 Abb. U. S. 15.