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decided: March 5, 1894.



Author: Fuller

[ 152 U.S. Page 380]

 MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The amendment to the constitution of the State of Missouri provided for the separation of the Supreme Court into two divisions for the transaction of business, and that when a Federal question was involved, the cause, on the application of the losing party, should be transferred to the full court for decision. Doubtless, the particular division would direct, of its own motion, the transfer of cases involving a Federal question

[ 152 U.S. Page 381]

     without a hearing in the first instance, as was also allowed by the amendment, but to justify transfer, whether before or after judgment, the question must be involved in the sense of arising for decision.

But it is conceded that the record in this cause as it came into the Supreme Court, Division No. 2, disclosed no Federal question to be determined, thereby inviting the division to transfer the cause, or, after the disposal of which, the losing party would be entitled to such transfer. On the contrary, the contention is in effect that division number two had no jurisdiction whatever, because the amendment, if operative on Duncan, was unconstitutional; and this involved the conclusion that there was no appellate court to which the case could be taken, as the prior provision in that regard had been repealed. Yet the objection was not raised before or at the hearing on the merits, nor on the application for rehearing, but was first taken, after judgment affirmed and application denied, on a motion to transfer the cause and as a reason for the transfer, although that motion, in respect of the question sought to be raised, could derive no force from the amendment whose validity was denied. Indeed, if the motion had been granted, and the judgment of the Circuit Court had thereupon been affirmed by the full bench, it is difficult to see why plaintiff in error might not as well then have questioned the jurisdiction of the Supreme Court, as constituted with seven judges under the amendment, as he now does the power of division number two with three judges.

A writ of error from this court to review a final judgment in any suit in the highest court of a State in which a decision in the suit could be had can only be maintained under the circumstances defined in section 709 of the Revised Statutes.

The judgment brought up by the writ in this case is the judgment of the Supreme Court of Missouri, entered by Division No. 2, and it is obvious that the validity of the constitutional amendment was not drawn in question in the cause on the ground of repugnancy to the Constitution of the United States, and its validity sustained by that decision. But the question of validity arises, if at all, in connection with the

[ 152 U.S. Page 382]

     claim that a right, title, privilege, or immunity under the Constitution of the United States was specially set up by plaintiff in error, and denied.

The argument seems to be that the constitution secured to plaintiff in error the right to have his case adjudicated on appeal by a Supreme Court of five judges, as provided by the state constitution at the time of the commission of the offence with which he stood charged, although his motion accepted the jurisdiction of a bench of seven, and he objects that that right was denied to him in the adjudication of his case by a court composed of three judges in accordance with the amendment. And he insists that the amendment is as to him obnoxious to the objections that it denies due process and the equal protection of the laws, and abridges his privileges and immunities in contravention of the Fourteenth Amendment. But the privileges and immunities of citizens of the United States, protected by the Fourteenth Amendment, are privileges and immunities arising out of the nature and essential character of the Federal government, and granted or secured by the Constitution; and due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government; and there is no suggestion of deprivation in these regards, except as covered by the point really pressed, that the amendment to the state constitution was, as to Duncan, ex post facto, and therefore void.

It may be said, generally speaking, that an ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offence or its consequences, alters the situation of a party to his disadvantage; Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri, 107 U.S. 221; but the prescribing of different modes of procedure and the abolition of courts and creation of new ones, leaving untouched all the substantial protections with which the existing law surrounds the person accused of

[ 152 U.S. Page 383]

     crime, are not considered within the constitutional inhibition. Cooley Const. Lim. (5th ed.) 329.

Accordingly, in State v. Jackson, 105 Missouri, 196, the precise questions sought to be raised here were decided by the Supreme Court of Missouri, at April term, 1891, of that court, adversely to the position taken by plaintiff in error, the case having been transferred to the court in banc in order that these questions, which were raised by motion for rehearing in division number two, where the judgment of the lower court had been affirmed, (106 Missouri, 174,) might be considered by a full bench. The case had been before the Supreme Court on two former occasions, (95 Missouri, 623; 99 Missouri, 60,) and the constitutional amendment in question was adopted after the appellant took his last appeal. The Supreme Court held that it could not "be doubted that it was entirely competent for the people to adopt such a change in their organic law as to take away from this court as a whole all cognizance of criminal causes, and to confer such jurisdiction on a portion or division of this court, though less in numbers and different in personnel from this court as organized when the crime in question was committed;" and that the amendment was not contrary to the Fourteenth Amendment nor to section ten of article one of the Federal Constitution as applied to one convicted of murder, who had appealed before the amendment took effect.

But we are not called on to place our decision upon concurrence in that view, since we are of opinion that the plaintiff in error did not bring himself within the provisions of section 709 of the Revised Statutes. To give jurisdiction to this court, the title, right, privilege, or immunity relied on must be specially set up or claimed at the proper time and in the proper way, and the decision must be against it; whereas, in this case, the question was not suggested until after judgment, and after an application for rehearing had been overruled, and only then in the form of a motion to transfer the cause. Whether that motion was held to come too late for the purposes of transfer we are not informed, but its denial was in no aspect equivalent to a decision against a right under the Constitution of the United States specially set up or claimed at the proper

[ 152 U.S. Page 384]

     time and in the proper way. Texas & Pacific Railway v. Southern Pacific Co., 137 U.S. 48; Caldwell v. Texas, 137 U.S. 692, 698; Bulter v. Gage, 138 U.S. 52; Leeper v. Texas, 139 U.S. 462.

The writ of error is



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