This statute was before the Supreme Court of | par value, and countersign the same when ne- And see, Clark v. Des Moines, 19 Iowa, 199; error: There is nothing before the court for determination. Guild v. Frontin, 18 How., 135 (59 U. S., The Circuit Court had jurisdiction. With those statutes in force there was issued The Independent School District of Ackley, This bond is issued by the Board of School Directors by authority of an election of the voters of said school district, held on the 23d day of August, 1869, in conformity with the provisions of chapter 98, Acts 12 General Assembly of the State of Iowa. Under the very terms of the statute authoriz- White v. R. R. Co., 21 How., 575 (62 U. S., XVI., 221); Mfg. Co. v. Bradley, 105 U. S., 175 (XXVI., 1034). The Act under which these bonds were issued is constitutional. State v. Co. Judge, 2 Iowa, 280; Santo v. State, 2 Iowa, 165; Morford v. Unger, 8 lowa, 82; Davis v. Woolnough, 9 Iowa, 104; Whiting v. Mount Pleasant, 11 Iowa, 482; Duncombe v. Prindle, 12 Iowa, 1; McAunich v. R. R. Co., 20 Iowa, 338; Porter v. Thomson, 22 Iowa, 391; Ins. Co. v. Highsmith, 44 Iowa, 330; State v. Wells, 46 Iowa, 662; State v. Shroeder, 51 Iowa, 197. Mr. Justice Harlan delivered the opinion of the court: (Signed) F. Eggert, Treasurer School District." Treasurer of Independent School District, (Signed) W. H. Roberts, President. S. S. Lockwood, Secretary.' payees. The district made defense upon various By an Act of the General Assembly of the The defendant in error, plaintiff below, who State of Iowa, approved April 6, 1868, it is pro- is averred to be a citizen of New York, became vided that independent school districts shall the holder of eight of these obligations, with have power and authority to borrow money for interest coupons attached, each one being inthe purpose of erecting and completing school dorsed in blank by Foster Brothers, the origi [136] houses, “By issuing negotiable bonds of the in-nal payees. This suit was brought to recover dependent district to run any period not exceed the amount due thereon, without any averment ing ten years, drawing a rate of interest not ex-in the pleadings as to the citizenship of the ceeding ten per centum, which interest may be paid semi-annually; which indebtedness shall be binding and obligatory on the independent school district for the use of which said loan shall have been made." The Act prescribes the mode in which the school board shall submit to the voters of the district the question of issuing bonds, and declares that "If a majority of the votes cast on that question be in favor of such loan, then said school board shall issue bonds to the amount voted * ** due not more than ten years after date, and payable at the pleasure of the district, at any time before due, which said bonds shall be given in the name of the independent district issuing them and shall be signed by the president of the board and delivered to the treasurer, taking his receipt therefor, who shall negotiate said bonds at not less than their The jurisdiction of the court below is questioned, upon the ground that the bonds in suit are not promissory notes negotiable by the law merchant, within the meaning of the 1st section of the Act of March 3, 1875, determining the jurisdiction of the Circuit Courts of the United States; and, consequently, that the court could not take cognizance of the case unless it appeared affirmatively that a suit could have been [137] that this option of the district to discharge the debt, in advance of its maturity, did not affect the complete negotiability of the bonds; for, by their terms, they were payable at a time which must certainly arrive; the holder could not exact payment before the day fixed in the bonds; the debtor incurred no legal liability for non-payment until that day passed. The author Byles, Bills, Sharswood's ed., ch. 7; 1 Dan. Neg. brought therein by the original payees, Foster [139] Brothers, had they not parted with the bonds. In this proposition we do not concur. The recital, on their face, that they were issued on the authority of a popular election, held in conformity with a local statute, does not take from them the qualities and incidents of commercial securities. Indeed, the statute evidently contemplated that the bonds issued under its pro-ities bearing upon this question are cited in visions should be negotiable instruments that wouldd o the work of money in financial circles. They are described as "negotiable bonds," to be used for the purpose of borrowing money to be applied in the erection and completion of school houses for the district. Its treasurer was directed to negotiate them at not less than their par value, and purchasers were assured by the statute that the indebtedness so incurred "Shall be binding and obligatory on the independent school district, for the use of which said loan shall have been made." And this special enact-present case, counsel for the district insists that, ment is in accord with the general law of Iowa; for, by the Code of that State, "Notes in writing made and signed by any person, promising to pay to another person or his order or bearer, or to bearer only, any sum of money, are negotiable by indorsement or delivery, in the same manner as inland bills of exchange, according to the custom of merchants;" while the transfer of "bonds, bills and all instruments in writing, by which the maker promises to pay to another without words of negotiability, a sum of money," is declared to be subject to any defense or counterclaim which the maker or debtor had against any assignor thereof before notice of assignment; thus showing, that, equally in respect of negotiable promissory notes and negotiable bonds, the rights of the parties are determinable by the law merchant. Iowa Code of 1873, sec. 2082, 2083, 2084. er. as these bonds may be open to such a defense The assignments of error present another But it is contended that the word "negotiable," in the Iowa Statute, is qualified by that clause, in the same enactment, which provides that bonds issued under it shall "be payable at the pleasure of the district at any time before due. These words were not incorporated into the bond. But if the holder took, subject to that provision, as we think he did, it is clear School Orders Draw Six Per Cent Interest in money to build school houses in independent | Territory for habeas corpus only raised the ques- We are not referred to any adjudication by the Supreme Court of Iowa which sustains the [142] point here made. On the contrary, the princi [143] ples announced in State v. County Judge, 2 Other questions have been discussed by coun- Judgment affirmed. James H. McKenney, Clerk Sup. Court, U. S. RUDGER CLAWSON, Appt., v. UNITED STATES. (See S. C., Reporter's ed., 143-149.) Bail in criminal cases, when matter of discretion Argued Jan. 5, 1885. of Utah. Decided Jan. 19, 1885. APPEAL from the Supreme Court of the TerThe history and facts of the case appear in the opinion of the court. Messrs. Franklin S. Richards and Wayne MacVeagh, for appellant: It is submitted that the decision of the Supreme Court of Utah, in refusing to admit the prisoner to bail pending his appeal, was based upon mistaken views of the law, and should be corrected by this court. It is believed that the nature of the offense of which the prisoner was convicted, the practice of courts as to bail in offenses of that grade, and the proper interpretation of the laws of the Territory of Utah relating thereto, unite to support the position of the appellant. In the first place, it is clear that there is nothing in the nature of the prisoner's alleged offense which precludes his being admitted to bail. Polygamy is defined and punished by Act of Congress of March 22, 1882 (Stat. of U. S., 1881-2 p. 30), where it was made a penal of fense, but is not declared to be felony. Felony has been authoritatively defined as "Any of fense which, by the statutes or by the common law, is punishable by death, or to which the old English law attached the total forfeiture of lands or goods or both, or which a statute expressly declares to be such." 1 Bish. Crim. Law, 6th ed., secs. 615-622. The American doctrine is that bail should be allowed generally if the appearance of the defendant can be thereby secured. 1 Bish. Crim. Proc., 2d ed., sec. 262. This of course, entitles to bail a prisoner whose offense is a misdemeanor, since, by all authorities, bail can in such a case be made sufficient in amount to guard against the temptation to escape. The reasoning which forms the basis of the above rule, applies as well to bail after conviction and pending appeal, for until final judg ment it cannot be known that the prisoner is guilty. Bail after sentence is allowed in England by recent statutes and by many if not most of our States. 1 Bish. Crim. Proc., 254. By the Utah Statute, offenses punishable by a fine, however large, are bailable as of right, and in this case the certificate of probable cause for the appeal modifies the effect of the judgment, and should itself entitle the appellant to bail. Bail in all, except capital cases, has been the universal practice in Utah, and the usual practice in New York and in California, until some recent decisions. 1. Where a territorial statute provides that in criminal actions, a defendant who has appealed from a judgment imposing a fine may be admitted to bail as a matter of right, and as a matter of dis-bee, cretion in all other cases, on an appeal from a judgment inflicting both fine and imprisonment, he is not entitled to be admitted to bail, as matter of right but only in the discretion of the court. 2. A certificate of probable cause under the statute did not, necessarily, carry with it the right to bail nor deprive the court of all discretion in the premises. 3 The application to the Supreme Court of the 113 U. S. U. S., BооK 28. Ex parte Hoge, 48 Cal., 3; People v. Folms60 Barb., 480. If it be said that the Utah Statute is borrowed from California, it may likewise be said that the Statute of California is borrowed from New York, and the Supreme Court of New York has construed the provision now under consideration in favor of the right to bail after conviction. 60 957 People v. Folmsbee, 60 Barb., 480. Mr. S. F. Phillips, Solicitor-Gen., for ap- That the court which had tried Clawson would not admit to bail because no extraordinary reason was shown therefor, does not indicate that it refused to exercise its official discretion upon that application, but that it did exercise it and had a certain rule therefor. With such rule, unless plainly unreasonable, no superior tribunal can interfere. Mr. Justice Harlan delivered the opinion of the court: By the laws of Utah regulating the mode of procedure in criminal cases, it is provided, among other things, that the defendant in a [147] criminal action may appeal to the Supreme Court of the Territory, from any order made after judgment, affecting his substantial rights. Laws of Utah, 1878, title VIII., ch. 1, sec. 360. To that class belonged the order made by the court of original jurisdiction, refusing bail and remanding the accused to the custody of the marshal. But no appeal was taken from that order. And as the accused sued out an original writ of habeas corpus from the Supreme Coun of the Territory, we cannot, upon the present appeal, consider whether the court of original jurisdiction properly interpreted the local stat utes in holding that the accused ought not to be The appellant having been found guilty by admitted to bail, after conviction and sentence, a jury in the District Court for the Third Ju- unless some extraordinary reason therefor is dicial District of Utah, of the crimes of polyg-shown. There is nothing before us for review amy and unlawful cohabitation, charged in except the order of the Supreme Court of the separate counts of the same indictment, he Territory, which discloses nothing more than was sentenced on the conviction for polygamy, the denial of the application to it for bail, and to pay a fine of $500, and to be imprisoned the remanding of the prisoner to the custody of for the term of three years and six months; the marshal. That order, in connection with and, on the conviction for unlawful cohabita- the petition for habeas corpus-assuming all of tion, to pay a fine of $300, and be imprisoned six months. From the whole of the judgment an appeal was taken to the Supreme Court of the Territory, and the Judge before whom the trial was had gave a certificate that, in his opinion, there was probable cause therefor. The appeal was perfected and the certificate was filed in the proper office. The defendant, thereupon, applied to the court in which he was sentenced to be let to bail pending his appeal. The application was denied, the order reciting that "The court being of the opinion that the defendant ought not to be admitted to bail, after conviction and sentence, unless some extraordinary reason therefor is shown, and there being no sufficient reason shown in this case, it is ordered that the motion and application for bail be and the same is hereby denied, and the defendant be remanded to the custody of the United States Marshal." The accused then sued out an orig[144] inal writ of habeas corpus from the Supreme Court of the Territory. In his petition therefor he stated that he was then imprisoned and in the actual custody of the United States Marshal for the Territory at the penitentiary in the County of Salt Lake. He also averred that, upon the denial of bail by the court in which he was tried, "he was remanded to the custody of the said United States Marshal, who from thenceforth has imprisoned and still imprisons him" under said order of commitment, which "is the sole and only cause and authority" for his "detention and imprisonment;" that "his said imprisonment is illegal" in that "he has been and is able and now offers to give bail pending his appeal in such sum as the court may reasonably determine;" and that, "as a matter of right, and in the sound exercise of a legal discretion, the petitioner is entitled to bail pending the hearing and determination of said appeal." The Supreme Court of the Territory overruled the application for bail, and remanded the petitioner to the custody of the marshal. From that order the present appeal has been prosecuted. the allegations of fact contained in it to be trueonly raises the question whether, under the laws of the Territory, the accused, upon perfecting his appeal and filing the required certificate of probable cause, was entitled, as matter of right and without further showing, to be let to bail, pending his appeal from the judgment of conviction. Upon the part of the Government it is insisted that the court below had, by the statute, a discretion in the premises which, upon appeal, will not be reviewed. By the laws of the Territory it is provided that "An appeal to the Supreme Court from a judgment of conviction stays the execution of the judgment upon filing with the clerk of the court in which the conviction was had a certificate of the judge of such court, or of a Justice of the Supreme Court, that in his opinion there is probably cause for appeal, but not otherwise;" also, that if this certificate is filed, "the sheriff must, if the defendant is in his custody, upon being served with a copy thereof, keep the de fendant in his custody without executing the judgment, and detain him to abide the judg ment on appeal." Laws of Utah, 1878, p. 138. Upon the subject of bail, the same laws provide that "A defendant, charged with an offense punishable with death, cannot be admitted to [148] bail when the proof of his guilt is evident or the presumption thereof great;" also, that "If the charge is for any other offense, he may be admitted to bail before conviction as a matter of right;" further, that "After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: 1, as a matter of right when the appeal is from a judgment imposing a fine only; 2, as a matter of discretion in all other cases;" still further, that "In the cases on which the defendant may be admitted to bail upon an appeal, the order admitting him to bail may be made by any magistrate having the power to issue a writ of habeas corpus." Ib., pp. 142, 146. These statutory provisions so clearly indicate the legislative intent that no room is left for interpretation. As the judgment did not impose upon the appellant a fine only, his admission to of state authority, only when the subjects upon 2. The commercial power of Congress is exclusive which it is exerted are national in their character, and admit and require uniformity of regulations affecting alike all the States. bail, pending the appeal from that judgment, may authorize the construction of bridges over question of bail as to prevent the court from considering every circumstance which should fairly and reasonably control or affect its discretion. Whether the Supreme Court of the Territory abused its discretion in the present case is a question not presented by the record before us; for it does not contain any finding of facts nor the evidence (if there was any, apart from the record of the trial and of the proceedings upon the first application for bail) upon which the court below acted. Its judgment denying bail cannot, therefore, be reversed, unless, as contended by appellant, the certificate of prob[149] able cause necessarily carried with it the right to bail and deprived the court of all discretion in the premises. But that construction of the statute is not, we think, admissible. At the argument, counsel for appellant laid stress upon the fact, averred in the last petition for habeas corpus, that the order committing him to the custody of the marshal had been executed by confining him at the penitentiary. The return of the officer is that the accused is in his custody under and by virtue of the order of commitment. It is not claimed that he is treated as a convict in the penitentiary, undergoing the sentence pronounced in pursuance of the judgment appealed from; but only that the officer uses that institution as a place for the confinement of the accused while the latter is in his custody. Whether that action of the officer be legal is a question that does not now arise; for the application to the Supreme Court of the Territory for habeas corpus only raised the question of the right of the accused to be discharged, on bail, from all custody whatever; and the present appeal is from the order, in that court, refusing such discharge and remanding him to the custody of the marshal. in their nature or operation, or constitute mere aids [No. 855.] Submitted Jan. 6, 1885. Decided Jan. 19, 1885. APPEAL from the Circuit Court of the United for appellant: in the case, involves the construction of section congressional legislation is to withdraw the to use as such, involves the capacity to be pracTo be a common highway or to be free to all tically used as a highway, and such capacity is wanting where there is an impassable barrier or obstruction. Pa. v. Wheeling, etc., Bridge Co.,13 How., 565. The provision in the Act of admission is a law of Congress, and it is valid, not as a com There is no error in the record, and the judg-pact between the United States and the State of ment is affirmed. Dissenting: Mr. Justice Miller and Mr. tice Field. True copy. Test: Jus California but as a law of Congress passed by virtue of the constitutional power of Congress to regulate commerce among the States and with foreign Nations, and to establish post James H. McKenney, Clerk, Sup. Court, U. S. roads. Pollard v. Hagan, 3 How., 224; Wheel ing Bridge Case, 13 How., 566; Mining Débris Case, 1 West Coast Rep., 212. The precise question now under consideration was also fully considered and passed upon NOTE.-Bridges; different kinds; legislature may grant right to erect; duty to repair. See note to Weightman v. Washington, 66 U. S. (1 Black), Power of States over navigable streams-power of XVII., 52. Navigable waters; what are, in the United States; streams and inland waters as highways. See note to The States within which navigable streams lie U. S. v. The Montello, 87 U. S. (20 Wall.), XXII., 391. 113 U. S. |