CAMMEYER v. DURHAM HOUSE DRAINAGE Co. et al. (Circuit Court, N. D. Illinois. May 16, 1888.) REPLEVIN-JUDGMENT-AMENDMENT-RETURN OF PPOPERTY. 2 Starr & C. St. Ill. p. 2016, c. 119, § 22, provides that "if the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a nonsuit or discontinuance, * * judgment shall be given for the return of the property and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall in the mean time have become entitled to the possession of the property, when judgment may be given against him for costs and damages," etc. Held where, upon the case being called for trial, plaintiff dismissed the suit, and the usual order was entered simply adjudging that the cause be dismissed, and that defendant recover his costs and have execution therefor, that the court had no power, after two full statute terms had passed, to enter judgment for a return of the property. At Law. On motion to amend judgment. J. E. Sleeper, for the motion. Mr. Defrees, contra. BLODGETT, J. This was an action of replevin commenced in this court for a quantity of iron pipe, etc. The plaintiffs gave the usual bond to the marshal, conditioned for the due prosecution of the suit and return of the property, if return should be awarded; and the writ was duly executed by taking the property from the possession of the defendant and delivering it to the plaintiff. On the 14th day of April, 1886, when the case was called for trial, the plaintiff's attorney dismissed the case, and the usual order was entered when a plaintiff dismisses his own case, simply adjudging that the cause be dismissed, and that defendant recover his costs from the plaintiff, and that he have execution therefor. Illinois statute provides (chapter 119, § 22:1) The "If the plaintiff in an action of replevin fails to prosecute his suit with effect, or suffers a nonsuit or discontinuance, or if the right of property is adjudged against him, judgment shall be given for the return of the property, and damages for the use thereof from the time it was taken until a return thereof shall be made, unless the plaintiff shall in the mean time have become entitled to the possession of the property, when judgment may be given against him for costs and damages. No judgment for a return of the property was rendered, and the defendant now comes and moves the court for such judgment, and a writ of retorno habendo, on notice duly served on the attorneys who brought the suit. The attorneys so served protest that they are no longer attorneys in the case, and submit that inasmuch as two full statute terms have passed since the judgment of dismissal was entered, the court has lost control of the record, and cannot now make any substantial change in it, or render a judgment for return of the property. The case seems to be fully covered by the case of Lill v. Stookey, 72 12 Starr & C. St. Ill. p. 2016. Ill. 495, where a cause was dismissed on the defendant's motion because no declaration had been filed by the first day of the second term, the court awarding to defendant a judgment for costs, but giving no judgment for return of the property. About two years thereafter, and after the lapse of the term at which the cause was dismissed, defendant moved to amend the judgment, as is done in this case, by the addition of a judgment for return of the property. Such motion was allowed, and on appeal the supreme court reversed the action of the court, holding that the court had no supervisory power over the judgment after the expiration of the term at which it was rendered; that the amendment made was a matter of substance, and not a mere matter of form; and that although the court on the dismissal of the case had the right to render a judgment for return of the property, it by no means followed that it could several years afterwards review its own judgment and enter the judgment that should have been entered in the first instance. And to the same effect are Troutman v. Hills, 5 Bradw. 396; Becker v. Sauter, 89 Ill. 596; Jones v. Randolph, 104 U. S. 110; Linder v. Lewis, 1 Fed. Rep. 378. The statute, it will be seen, provides for just such a judgment as was entered in this case, if it shall appear that the plaintiff since the commencement of the suit has become entitled to the possession of the property in question; and, in the absence of proof to the contrary, the court will presume that the judgment was in accordance with the proof before the court. But even if proof was now offered showing conclusively that at the time the judgment of dismissal was entered there was nothing before the court which would authorize the court to deny the judgment for return of the property, such proof could not now be heard, as that would be in effect correcting the error of the court after the term had closed. The motion must be overruled. Ex parte KINNEBREW. (Circuit Court, N. D. Georgia. March 19, 1988.) 1. INTOXICATING LIQUORS-CONSTITUTIONALITY OF ACTS-REGULATION OF COMMERCE-GEORGIA LOCAL OPTION LAW. The Georgia local option act of September 18, 1885, which, after prohibiting the sale of intoxicating liquor, provides, "that nothing in this act shall be so construed as to prevent the manufacture, sale, and use of domestic wines or cider, " etc., in excepting domestic wines from the prohibition must be taken as also excepting other wines, and so construed is not in violation of Const. U. S. art. 1, § 8, giving to congress the power to regulate interstate commerce. 2. COURTS-FEDERAL JURISDICTION-FEDERAL QUESTION. Whether the objectionable part of the Georgia local option act of September 18, 1885, being separated, the rest may stand alone, is not a question arising under the United States constitution, or a law or treaty of the United States. 8. SAME-DUE PROCESS OF LAW. When a defendant has been indicted for violation of the Georgia local option act of September 18, 1885, the validity of which is for the state court to determine, has been tried by a jury according to the usual forms, and been heard in the supreme court of the state, and the case, for want of any federal question, has been rejected at the United States supreme court, his imprisonment is not "without due process of law. "1 Petition for Writ of Habeas Corpus. The relator's case is thus stated in his petition: "The petition of Columbus D. Kinnebrew, who alleges that he is a citizen of the United States and of the state of Georgia, respectfully showeth that he is illegally restrained of his liberty in violation of article first, section eight, and paragraph third of the constitution of the United States by being deprived of his liberty by L. P. Thomas, the sheriff of Fulton county, in the Northern district of Georgia, by virtue of an alleged accusation, with the verdict and judgment of the court, or sentence, rendered thereon, which was depending in, tried, and said verdict and sentence rendered by the city court of Atlanta, of said Fulton county; a copy of which said accusation, verdict, and sentence is hereto attached as a part of this petition, and is marked Exhibit A.' Petitioner shows that he was accused on said accusation, tried, and found guilty, and sentenced by said court as and at the times stated in said Exhibit A, (said conviction, verdict, and sentence being had and pronounced on 6th day of July, A. D. 1887,) for an alleged violation of what is known as the General Local Option Liquor Law,' which said alleged law is a pretended act of the general assembly of Georgia, approved by the governor 18th day of September, 1885, entitled an Act to provide for preventing the evils of intemperance, by local option in any county in this state, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county; to provide penalties for its violation, and for other purposes.' The case made by the testimony and submitted to the jury being that petitioner had bartered and sold for a valuable consideration, alcoholic, spirituous, malt, and intoxicating liquors to one R. S. Ogborn, and other persons, on the 26th day of April, 1887, and other days since 1st day of July, 1886; said liquor not being domestic wines, nor wines sold for sacramental purposes, nor pure alcohol. Petitioner shows that the jury were instructed that the law which petitioner was charged with violating was said general local option liquor law, as appears from the charge of the court, which is a part of the record of said case in said city court of Atlanta, and is as follows: The jury is instructed that it is unlawful for any person, within the limits of any county of this state in which what is known as the "General Local Option Liquor Law" is of force, to sell or barter for valuable consideration, either directly or indirectly, or to give away to induce trade at any place of business, or furnish at any other public places, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters or other drinks, which, if drank to excess, will produce intoxication.' Petitioner shows that the provisions of the said general local option liquor law which relate to the prohibition of or rendering illegal the sale of liquor, and to what liquors, bitters, or drinks are prohibited to be sold or given away, are the sixth and eighth sections of said act. All of the other provisions of said pretended act relate to the method of invoking the exercise of the local option provided for therein, of holding an election, canvassing, and declaring the result, with penalties for fraud in such an election, or for the violation of the hereinafter recited sections of said act. Said sixth and eighth sections are as follows: 1 Respecting the constitutional guaranty of due process of law, see Hutson v. Protection Dist., (Cal.) 16 Pac. Rep. 549, and note; People v. Haug, (Mich.) 37 N. W. Rep. 21; Savage v. Com., (Va.) 5 S. E. Rep. 565; School-Dist. v. Seminary, (Pa.) 12 Atl. Rep. 857. "Section Sixth. That if a majority of the votes cast at any election held as by this act provided shall be "Against the sale," it shall not be lawful for any person within the limits of such county to sell or barter for valuable consideration, either directly or indirectly, or give away to induce trade at any place of business, or furnish at other public places, any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating or other drinks which, if drank to excess, will produce intoxication.' "Section Eighth. That nothing in this act shall be so construed as to prevent the manufacture, sale, and use of domestic wines or cider, or the sale of wines for sacramental purposes: provided such wines or cider shall not be sold in bar-room by retail; nor shall anything herein contained prevent licensed druggists from selling or furnishing pure alcohol for medicinal, art, scientific, and mechanical purposes.' "Petitioner shows that it was for an alleged violation of this pretended act as above set forth-for the alleged sale or barter of liquors, bitters, or drinks not for sacramental purposes, and the same not being domestic wine or cider or pure alcohol-that petitioner was tried as aforesaid, and is now retained and deprived of his liberty. Petitioner further shows that the various steps necessary to be done to have the election spoken of in section sixth of said act, above quoted, called and ordered for the county of Fulton aforesaid, were duly carried out as prescribed in said pretended act. Petitioner shows that a petition as prescribed in said act, asking that such election be held for Fulton county aforesaid, was presented to the ordinary of said county, and that an election as prayed was ordered thereunder, and said election held on the 26th day of November, 1885, and that said election resulted in a majority Against the sale,' of 228 voters, and that said result had been proclaimed and published under the requirements of said act, and that said act, if valid and constitutional, had gone into effect, and was of force, on and after 1st day of July, 1886. But petitioner alleges that said law is unconstitutional and void as in violation of the paragraph, section, and article of the constitution of the United States first aforesaid, in this: that said act above quoted attempts to discriminate in favor of domestic wines and ciders, as specified in the eighth section thereof, and against all other wines or liquors of every sort not domestic; said discrimination being contrary to said article, section, and paragraph of the constitution of the United States. Petitioner shows that his said case on said accusation has been carried by him to the supreme court of Georgia, and that said court has affirmed said sentence and judgment of said city court of Atlanta in his case; that said judgment of affirmance has been made the judgment of the said city court; that no further appeal, writ of error, or any other way of escaping said sentence and judgment remains which can now be had or taken in any state court, nor of reviewing the same. Petitioner shows that he is now restrained of his liberty, and deprived of the same, by said L. P Thomas, sheriff of Fulton county aforesaid, under said judgment and sentence of said city court; that said judgment, and sentence and said restraint and deprivation of petitioner's liberty thereunder are in violation of said article first, section eighth, paragraph third of the constitution of the United States, and are void, and petitioner's restraint and deprivation of liberty without color of law,-unconstitutional as aforesaid,-null and void. Petitioner shows that said general local option liquor act has not been declared to be unconstitutional by the supreme court of Georgia." A writ of habeas corpus having issued, the case is submitted on the following agreed statement of facts: (1) "That this matter be heard before the Honorable DON A. PARDEE, judge of said court, at New Orleans, La., on Monday, the 13th day of February, 1888. (2) That the statements contained in the petition for writ of habeas corpus are true. (3) That in addition to said statements the following are also true, viz. After the said judgment of the said city court was affirmed by the supreme court of Georgia, an application for the allowance of a writ of error to the judgment of the said supreme court, accompanied by a full and complete transcript of the record in said case, was presented to one of the judges of the supreme court of the United States, to-wit, Mr. Justice FIELD, and the same was by him handed to another judge of said court, to-wit, Mr. Justice HARLAN, who, upon an inspection of said application, and examination of said record, refused to allow said writ, as follows: "SUPREME COURT OF THE UNITED STATES. 66 6 WASHINGTON, December 2, 1887. "GENTLEMEN: Mr. Justice FIELD handed me the record and your brief in Kinnebrew v. State of Georgia for an examination in connection with application by your client for the allowance of a writ of error to the supreme court of the state of Georgia. The allowance of the writ must be denied. I am unable to find in the record even any intimation that a federal question was raised or decided, or that there was any claim upon the part of your clients of rights under the constitution of the United States. The claim in the grounds for a new trial in the court of original jurisdiction, that "the verdict is against the law," is insufficient to show that a federal question was raised, or that a right under the constitution of the United States was asserted, within the meaning of the statutes giving the supreme court of the United States power to review the judgments of the highest court of a state. I return the papers by mail. Res'py, your obdt. servant, JOHN M. HARLAN, Circuit Justice assigned to 5th circuit. "To Messrs. Arnold & Arnold, Attorneys at Law.'" Howell C. Glenn and C. D. Hill, for the State. PARDEE, J. The general "local option" act of the legislature of the state of Georgia, approved September 18, 1885, as set forth in the agreed statement of facts on file, in so far as it discriminates in favor of domestic wines, and against the importation and sale of wines manufactured in other states and foreign countries, is in violation of the constitution of the United States. Welton v. Missouri, 91 U. S. 275; Tiernan v. Rinker, 102 U. S. 123; Webber v. Virginia, 103 U. S. 344; Salzenstein v. Maris, 91 Ill. 391; Vines v. State, 67 Ala. 73; McCreary v. State, 73 Ala. 481. The domestic wines mentioned in the eighth section of the act are such wines as are made within the state, and probably from fruits grown therein. See Com. v. Giltinan, 64 Pa. St. 100; Laws Ga. 1887, p. 21. If it is considered that the sixth section of the act prohibits the sale of imported wines, and wines made in other states, under the head of intoxicating liquors, or other drinks which, if drank to excess, will produce intoxication, while the eighth section permits the sale of domestic wines, then the unconstitutional discrimination is apparent on the face of the act, and it can only be eliminated by striking from the act the exception in favor of domestic wines; or, by construction, inserting in the act an exception in favor of imported wines and wines from other states. The one means to strike out something the legislature did enact, and the other is to insert something that the legislature did not enact, in terms, but is |