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short or sectional bands are concerned; where the patentee waited until the defendants produced their continuous band collar, and then applied for such enlarged claims as to embrace the defendants' collar, which was not covered by the claim of the original patent; and where it is apparent, from a comparison of the two patents, that the reissue was made to enlarge the scope of the original. As the rule is expressed in the recent case of Mahn v. Harwood, 112 U. S. 354, S. C. ante, 174, a patent “cannot be lawfully reissued for the mere purpose of enlarging the claim, unless there has been a clear mistake, inadvertently committed, in the wording of the claim, and the application for a reissue is made within a reasonably short period after the original patent was granted." But a clear mistake, inadvertently committed, in the wording of the claim, is necessary, without reference to the length of time. In the present case there was no mistake in the wording of the claim of the original patent. The description warranted no other claim. It did not warrant any claim covering bands not short or sectional. The description had to be changed in the reissue, to warrant the new claims in the reissue. The description in the reissue is not a more clear and satisfactory statement of what is described in the original patent, but is a description of a different thing, so ingeniously worded as to cover collars with continuous long bands and which have no short or sectional bands. The*drawings show no continuous band; and the statement in the original patent that "the use of the short or sectional bands produces a saving of material, as compared to the old style of continuous band," shows that the patentee was drawing a sharp contrast between the only bands he contemplated-short or sectional bands—and a continuous band, of one piece of material, as long as the collar. The original patent industriously excluded from its scope a continuous band. In the reissue, to cover a continuous graduated band, the two bands, B, B, are converted into a single band composed of the parts, B, B, and, while that is described as extending along the top or body of the collar, the "shorter graduated bands" are described as saving material, as compared with an old-style continuous band, of uniform width.

While we are of opinion that the views of the circuit court, as before recited, were erroneous, we presume that if this case had been decided after January, 1882, the decree would not have been for the plaintiff.

The decree of the circuit court is reversed, and the case is remanded to that court, with a direction to dismiss the bill, with costs.

(113 U. S. 328)

Ex parte BIGELOW, Petitioner.

(February 2, 1885.)

1. JURISDICTION SUPREME COURT OF DISTRICT OF COLUMBIA CONSTITUTION OF THE UNITED STATES.

The act of congress has made the judgment of the supreme court of the District of Columbia conclusive as to the question whether, under the circumstances of the case, a prisoner has or has not, for "the sanie offense, been twice put in jeopardy of life or limb .. or been deprived of life, liberty, or property, without due process of law." Amendment 5, Const. U. S.

· FIFTH AMENDMENT TO

2. SAME JUDGMENT A NULLITY, when-RULE.

In regard to the question as to what matters go to the jurisdiction of a court so as to make its action, when erroneous, a nullity, the general rule is that when the court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities.

On Petition for Writs of Habeas Corpus and Certiorari.

Robert Christy, for petitioner.

MILLER, J. This is an application for a writ of habeas corpus to release the petitioner from imprisonment in the jail of the District of Columbia, where he is held, as he alleges, unlawfully by John S. Crocker, the warden of said

jail. He presents with the petition the record of his conviction and sentence in the supreme court of the district to imprisonment for five years, under an indictment for embezzlement; and this record and the petition of the applicant present all that could be brought before us on a return to the writ, if one were awarded. We are thus, on this application for the writ, placed in possession of the merits of the case.

The single point on which petitioner relies, arises out of the following facts which occurred at the trial. There were pending before the court 14 indictments against the petitioner for embezzlement as an officer of the Bank of the Republic, and an order of the court had directed that they be consoli dated under the statute and tried together. A jury was then impaneled and sworn, and the district attorney had made a statement of his case to the jury, when the court took a recess. Upon reconvening a short time afterwards, the court decided that the indictments could not be well tried together; directed the jury to be discharged from further consideration of them; and rescinded the order of consolidation. The prisoner was thereupon tried before the same jury on one of those indictments and found guilty. All of this was against his protest and without his consent. The judgment was taken by appeal to the supreme court in general term, where it was affirmed.

It is argued here, as it was in the court in general term, that the impaneling and swearing the jury, and the statement of his case by the district attorney, put the prisoner in jeopardy with regard to all the offenses charged in the consolidated indictments, within the meaning of the fifth amendment of the constitution, so that he could not be again tried for any of those offenses. That amendment declares, among other things, that no person "shall be subject for the same offense to be twice put in jeopardy of life or limb, nor be deprived of life, liberty, or property without due process of law." If the transaction, as thus stated, brings the prisoner's case within this principle of the constitution, the court committed an error. On account of this error, among others assigned, the case was carried by appeal to the court in general term, where the matter was heard by other judges, and, after full consideration, the judgment of the trial court was affirmed.

**

No appeal or writ of error in such case as that lies to this court. The act of congress has made the judgment of that court conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain. It is said, however, that the court below exceeded its jurisdiction, and that this court has the power, in such case and for that reason, to discharge the prisoner from confinement under a void sentence. The proposition itself is sound if the facts justify the conclusion that the court of the district was without authority in the matter. But that court had jurisdiction of the offense described in the indictment on which the prisoner was tried. It had jurisdiction of the prisoner, who was properly brought before the court. It had jurisdiction to hear the charge and the evidence against the prisoner. It had jurisdiction to hear and to decide upon the defenses offered by him. The matter now presented was one of those defenses. Whether it was a sufficient defense was a matter of law on which that court must pass so far as it was purely a question of law, and on which the jury under the instructions of the court must pass if we can suppose any of the facts were such as required submission to the jury.

If the question had been one of former acquittal—a much stronger case than this the court would have had jurisdiction to decide upon the record whether there had been a former acquittal for the same offense, and if the identity of the offense were in dispute, it might be necessary on such a plea to submit that question to the jury on the issue raised by the plea. The same principle would apply to a plea of a former conviction. Clearly, in these cases the court not only has jurisdiction to try and decide the question raised, but it is its imperative duty to do so. If the court makes a mistake on such trial it is er

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*331

ror which may be corrected by the usual modes of correcting such errors, but that the court had jurisdiction to decide upon the matter raised by the plea, both as matter of law and of fact, cannot be doubted. This article 5 of the amendments, and articles 6 and 7, contain other provisions concerning trials in the courts of the United States designed as safeguards to the rights of parties. Do all of these go to the jurisdiction of the courts? And are all judgments void where they have been disregarded in the progress of the trial? Is a judgment of conviction void when a deposition has been read against a person on trial for crime because he was not confronted with the witness, or because the indictment did not inform him with sufficient clearness of the nature and cause of the accusation? It may be confessed that it is not always very easy to determine what matters go to the jurisdiction of a court so as to make its action when erroneous a nullity. But the general rule is that when the court has jurisdiction by law of the offense charged, and of the party who is so charged, its judgments are not nullities. There are exceptions to this rule, but when they are relied on as foundations for relief in another proceeding, they should be clearly found to exist.

The case of Ex parte Lange, 18 Wall. 166, is relied on here. In that case the petitioner had been tried, convicted, and sentenced for an offense for which he was liable to the alternative punishment of fine or imprisonment. The court imposed both. He paid the fine, and made application to the same court by writ of habeas corpus for release on the ground that he was then entitled to his discharge. The circuit court, on this application, instead of releasing the prisoner, set aside its erroneous judgment, and sentenced him to further imprisonment. This court held that the prisoner, having been tried, convicted, and sentenced for that offense, and having performed the sentence as to the fine, the authority of the circuit court over the case was at an end, and the subsequent proceedings were void.

In the present case no verdict nor judgment was rendered, no sentence enforced, and it remained with the trial court to decide whether the acts on which he relied were a defense to any trial at all. We are of opinion that what was done by that court was within its jurisdiction; that the question thus raised by the prisoner was one which it was competent to decide,-which it was bound to decide; and that its decision was the exercise of jurisdiction. Ex parte Watkins, 3 Pet. 202; Ex parte Parks, 93 U. S. 23; Ex parte Yarbrough, 110 U. S. 653; S. C. 4 SUP. CT. REP. 152; Ex parte Crouch, 112 U. S. 178; S. C., ante, 96.

Without giving an opinion as to whether that decision was sound or not, we cannot grant the writ now asked for, and it is therefore denied.

(113 U. S. 332)

MAYOR AND ALDERMEN OF THE CITY OF QUINCY . UNITED STATES ex rel. JACKSON.

(February 2, 1885.)

TAXATION-LAWS OF ILLINOIS LIMITING APPLICABILITY TO EXTRAORDINARY OCCASIONS-JUDGMENT ON MUNICIPAL BONDS.

Neither the act of the legislature of Illinois of 1869, from which the city of Quincy derived authority to issue bonds in payment of its subscription to the stock of the Missouri & Mississippi Railroad Company, nor any general law of the state, forbids, expressly or by necessary implication, taxation to the extent necessary to meet the obligations thus incurred.

2. SAME-APPLICATION OF PROVISION LIMITING TAXATION IN A CHARTER.

The limitation as to taxation imposed by the charter of the city of Quincy had reference to its ordinary municipal debts and expenses.

In Error to the Circuit Court of the United States for the Southern District of Illinois.

Geo. A. Anderson, for plaintiff in error. Carl E. Epler, for defendant in

error.

*HARLAN, J. The relator, Jackson, recovered a judgment in the court below against the city of Quincy, Illinois, for the sum of $9,546.24, with costs of suit. There are no funds in its treasury out of which the judgment can be paid, and its corporate authorities have refused, upon demand of the relator, to satisfy it, in the only way in which it can be paid, by a levy of taxes for that specific purpose. The judgment in the present action, which was commenced by a petition for mandamus, requires the city council of Quincy to levy and collect a special tax sufficient to discharge the amount thereof, with interest from the date of its rendition, and also the costs of this and the former action. We have only to inquire whether the corporate authorities of the city have the power under the laws of Illinois to levy and collect such a tax.

By an act of the general assembly of Illinois, amendatory of the special charter of the city, approved February 14, 1863, it is provided that "the city council of said city shall have power to levy and collect, annually, taxes

* * on all real and personal property within the limits of said city, to pay the debts and meet the general expenses of said city, not exceeding fifty cents on each one hundred dollars per annum on the annual assessed value thereof."

By an act, approved March 27, 1869, it was declared that "the acts of the city council of the city of Quincy, from June 2, 1868, to August 28, 1868, in ordering an election on the proposition to subscribe the sum of $100,000 to the capital stock of the Mississippi & Missouri River Air-line Railroad Company, and the subscription to said stock, and all other acts of said council therewith, are hereby legalized and confirmed." Under the authority conferred by this act, negotiable bonds of the city were issued, and the judgment in the first action was for the amount of certain coupons of bonds embraced in that issue. The authority of the city, after the passage of the act of March 27, 1869, to execute bonds in payment of stock subscriptions therein referred to, was sustained in City of Quincy v. Cooke, 107 U. S. 549; S. C. 2 Sup. CT. REP. 614.

988.

*Subsequently, by an act approved May 30, 1881, it was provided that all cities, villages, and incorporated towns in Illinois not then having, by their respective charters, the power to levy and collect as high a rate of taxation as 1 per cent. annually upon their taxable property, should thereafter have power to assess, levy, and collect annually upon the taxable property within their re spective limits for all corporate purposes-in addition to all taxes which any such city, town, or village was then, or might thereafter be, authorized by law to levy and collect to support and maintain schools, erect school buildings, and for all other school purposes, and to pay interest on its registered bonded indebtedness-such an amount as their respective corporate authorities might prescribe, not exceeding in any year the rate of one per cent. of the assessed valuation of such taxable property, as equalized by the state board of equalization for the preceding year; the said rate to be in lieu of all other rates and items of taxation then provided and authorized in such charters, for all purposes other than for schools, the erection of school buildings, and all other school purposes, and for paying interest on the registered bonded indebtedness of such city, town, or village. Laws Ill. 1881, p. 59.

It is conceded by the case before us that the revenue of the city for its fiscal year ending March 31, 1885, to accrue from the taxes it could levy under the act of 1881, after meeting its necessary current expenses and other demands prior to that of the relator Jackson, will be insufficient to pay his judgment interest, and costs.

On behalf of the city it is contended that when these bonds were issued, the act of 1863 prohibited any annual levy of taxes "to pay the debts and v.5s-35

888.

meet the general expenses of the city," in excess of 50 cents on each $100 of the assessed value of its real and personal property. To this it may be replied, as was done in Quincy v. Cooke in reference to similar language in the original charter of the city, that the act of 1863 related to debts and expenses incurred for ordinary municipal purposes, and not to indebtedness arising from railroad subscriptions, the authority to make which is not implied*from any general grant of municipal power, but must be expressly conferred by statute. When the legislature in 1869 legalized and confirmed what the city council had previously done touching the subscription to the stock of the Mississippi & Missouri River Air-line Railroad Company, and thereby authorized bonds in payment thereof to be issued, it could not have been contemplated that indebtedness thus created would be met by such taxation as was permitted for ordinary municipal purposes. In giving authority to incur obligations for such extraordinary indebtedness, the legislature did not restrict its corporate authorities to the limit of taxation provided for ordinary debts and expenses. In Loan Ass'n v. Topeka, 20 Wall. 660, the court, after observing that the validity of a contract, which can only be fulfilled by a resort to taxation, depends on the power to levy the tax for that purpose, said: "It is therefore to be inferred that, when the legislature of the state authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference." So, in U. S. v. New Orleans, 98 U. S. 393: "When authority to borrow money or incur an obligation, in order to execute a public work, is conferred upon a municipal corporation, the power to levy a tax for its payment, or the discharge of the obligation, accompanies it; and this, too, without any special mention that such power is granted. This arises from the fact that such corporations seldom possess-so seldom, indeed, as to be exceptional-any means to discharge their pecuniary obligations except by taxation." The same question arose in Ralls Co. v. U. S. 105 U. S. 735, where it was said: "It must be considered as settled in this court that when authority is granted by the legislative branch of the government to a municipality, or a subdivision of a state, to contract an extraordinary debt by the issue of negotiable securities, the power to levy taxes sufficient to meet at maturity the obligations to be incurred is conclusively implied, unless the law which confers the authority, or some general law in force at the time, clearly manifests a contrary legislative intention." Again: "If what the law requires to be done can only be done through taxation, then taxation is authorized to the extent that may be needed, unless it is otherwise expressly declared. The power to tax in such cases is not an implied power, but a duty growing out of the power to contract. The one power is as much express as the other." See, also, Parkersburg v. Brown, 106 U. S. 501; S. C. 1 SUP. CT. REP. 442. The doctrine announced in these cases is sustained by U. S. v. County of Macon, 99 U. S. 582, upon which the plaintiff in error relies; for, in that case, the very act, conferring upon the county authority to make a subscription to the stock of a railroad corporation, made special provision for a tax to meet the subscription, and thus negatived the inference that the legislature intended to permit any taxation beyond that allowed by that special act and the general laws of the state.

These decisions cover the present case; for, in the first place, neither the act of 1869, from which the city derived authority to issue negotiable bonds in payment of its subscription, nor any general law of the state, forbids, expressly or by necessary implication, taxation to the extent necessary to meet the obligations thus incurred; and, in the second place, the limitation imposed by the city's charter upon its power of taxation had reference to its ordinary municipal debts and expenses.

In reference to the act of 1881, it is only necessary to say that, if it refers