Page:Federal Reporter, 1st Series, Volume 5.djvu/917

 IN BE AH LEE. 9U5 �ture to provide for distinct judgeB for the supreme and circuit courts authorized it to do so by election, but not àppointnient, and therefore, at least, section 10 of said act, the one under ■which these persons were appointed judges, is unconstitu- tional and void ; and (3) the subject of appointing judges is not expressed in the title, and therefore. it is so far. void as being passed eontrary to section 20, art. 4, of the constitution, which provides : "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title," and declares that, as to àny sub- ject not so "expressed, the act shall be void; and that, there- fore, the persons appointed under said act as judges were not judges, but intruders and usurpers, and the petitiouer is in custody and adjudged to die without due process of loiW. What is due process of law, or the want of it, under the four- teenth amendment may, in some cases, be a diffieult question to answer. The power ponferj-ed upon the United States to relieve against the acts of the state on this account was not intended to reach mere errors or defeets in a proceeding, but only extends to cases in which there has been a palpable and Bubstantial disregard of the law applicable thereto. For instance, the constitution of this state (section 11, art. 1) guar- anties to a defendant in a criminal action the right of trial by jury. Now, if the legislature should provide that a cer- tain person or class of persons who were obnoxious to the public should be tried without a jury, there can be no doubt that a conviction under such an act would be without due process of law, and the party affected by it might be relieved from it by the power of the United States. �Chancelier Kent, in his Commentaries, (vol. 1, p. 612,) says : "The better and larger definition of due process oflaw is that it means law in its regular course of administration through courts of justice." �Since the adoption of the fourteenth amendment two cases have been before the supreme court of the United Statea involving this question. �Thfe first was Kennard v. Louisiana, 92 U. S. 481. There- was a contest between Kennard and Morgan for a state judge- ����