Page:The Green Bag (1889–1914), Volume 18.pdf/62

 NOTES OF RECENT CASES CONSTITUTIONAL LAW. (Equal Protec tion of Laws — Discrimination in Selection of a Jury — Removal to Federal Court.) U. S. C. C. for E. D. of Ky. — A case which in its various phases in the state courts has attracted national attention makes its appearance in the federal courts in Commonwealth of Kentucky v. Powers, 139 Federal Reporter, 452. The facts of this case are so thoroughly known that no reference to them is regarded as necessary, and it is impossible within the limits of a note to give more than the barest outline of the decision of the Federal Court or the grounds thereof. The case arose on motion for a writ of habeas corpus cum causa. The decision is really based upon a holding that a person charged with crime in a state court has the right to be tried by a jury selected from per sons possessing the statutory qualifications of jurors without discrimination against those who belong to the same political party as himself, be cause they belong to such party, and that such right is one secured to him by the clause of the 1 4th Amendment of the Federal Constitution prohibiting a state from denying to any person within its jurisdiction the equal protection of the laws. It is also declared that U. S. Rev. St. Section 641 (U. S. Comp. St. 1901, p. 520), which provides for the removal of any civil suit or crimi nal prosecution against any person who is denied, or cannot enforce in the judicial tribunals of the state any rights secured to him by any law, pro viding for equal civil rights, while not as broad as the provision of the I4th Amendment because confined to the action of judicial tribunals is, nevertheless, not restricted to cases where civil rights are denied by legislative action of the state, but applies as well where, by rulings in other cases, or in the same case prior to final hearing, a rule of judicial decision has been established which will presumably so affect the judicial tribunals of the state as to cause a denial of civil rights to a defendant, or prevent their enforcement. It is also held that this right of removal is not affected by the fact that such rights might be enforced ultimately by proceedings in error in the Supreme Court of the United States. The petitioner in the present case showed that he had been tried three times in Kentucky; that he had been convicted each time, and that each judg ment of conviction had been reversed by the State Court of Appeals. It was also shown that the •crime charged grew out of a political contest, that on the second and third trials petitioner had been discriminated against in the selection of the jurors by the officers having charge of the drawing of the panel, with the result that all the jurors were members of the opposite political party, and that objections to the panel and jury

43

on that ground had been overruled by the court on the ground that as the jurors chosen pos sessed the statutory qualifications defendant had no right to object. Such discrimination is held .by the Federal Court to deny the equal protec tion of the laws and to entitle the petitioner to the right of removal under the statute cited. CONSTITUTIONAL LAW. (Eminent Domain — Public Purpose.) Me. — A state of facts furnish ing an unusually clear illustration of the principle that a corporation, though chartered to perform a public service, cannot exercise the power of emin ent domain for a purpose which is purely private is to be found in Brown v. Gerald, 61 Atlantic Reporter, 785. Under its charter a corporation was empowered to manufacture, generate, sell, distribute, and supply electricity for lighting, heat ing, traction, manufacturing, or mechanical pur poses. It was authorized to build a dam or dams on a certain river and to take as for public use any water-rights or land, and to transmit electric power within certain towns in such manner as might be expedient, and to erect poles and wires for that purpose. The towns and the corporation were authorized to make contracts for public lighting. The corporation constructed a dam, erected a station, and prepared to install an elec tric plant. It contracted to deliver to a manu facturing corporation the entire electrical current or the energy developed by its plant for a period of ten years. The company, under its charter, proceeded to condemn land for the purpose of erecting its line of poles and wires to convey the current to the point where it was to be delivered. In commenting upon this situation, the court says that when the legislature grants the right of eminent domain for several purposes, for some of which the grant would be constitutional, and for others not, with discretion in the grantee to exer cise the right when and where it chooses, within a large territory, that discretion must be used in good faith, arid the taking must actually be for a constitutional purpose in order to be valid. Under the circumstances of the present case, it is held that land which was condemned for the line transmit ting the power was taken for a private purpose. A subsidiary point raised in behalf of the corpora tion is disposed of by the holding that a corpora tion 'empowered by its charter to .generate and transmit power for lease or sale, and having granted to it the right of eminent domain, does not, by accepting the provisions of its charter, become a quasi public corporation, and does not thereby become invested with the right to exercise the power of eminent domain for the purpose of supplying electric power for manufacturing pur poses.