*253 *252 soning contained in the opinion of the court and the decree based on it, but also because the court has not decided a question which is necessarily involved in the cause, and which it is essential, in my opinion, to dispose of now in order that justice may be adequately administered. The case is this: The act of Congress of 1898 fixed the rate to be charged for telephone service in the District of Columbia. The plaintiff in error, by whom alone the business of affording telephone facilities was carried on in the District of Columbia, refused to comply with the act of Congress. In other words, the corporation,*though it continued to use the public streets and places, without the use of which it could not carry on its business, asserted its right to disregard the act of Congress and to exact from the public rates largely in excess of the limit fixed by Congress. This the corporation claimed the right to do under the assumption that the rates fixed by Congress, if enforced, would prevent it from reaping adequate remuneration, and hence the result would be the confiscation of its right to use its plant, thereby giving rise to the taking of its property without due process of law. Concerning this proposition, in the trial court, voluminous testimony was introduced, and after an elaborate hearing the court held that the enforcement of the rates fixed by the act of Congress would deprive the company of the right to remuneratively use its plant, and therefore the act of Congress was repugnant to the Constitution. The court of appeals of the District reversed the trial court, and held that it was the duty of the corporation, if it continued in business, to conform to the rates fixed by Congress. In reaching this conclusion the court did not pass on what would be the effect of the rates fixed by Congress if they were put in force, because the court concluded even although the rates established by the act of Congress would prevent the corporation from reaping adequate reward for the use of its plant, nevertheless the corporation was under the obligation, if it continued its business, to comply with the act of Congress. In effect, the court held although the corporation was not bound to continue in the business of furnishing telephone facilities, yet if it elected to do so, and therefore used the public ways and streets, the corporation could not lawfully set at defiance the act of Congress. And, reaching this conclusion, as previously stated, the court found it unnecessary to determine what would be the operation of the rates fixed by Congress, and abstained from so doing. The duty which the court thus held rested upon the company was deduced, not from general considerations, but from the particular relation of the company to the District of Columbia and the express conditions imposed by Congress in granting to the corporation the use of the streets or in legalizing such use. The finding of the court on this subject was stated in its opinion as follows, and the accuracy of this statement was not controverted in the argument at bar. The court said: "Congress has passed no act incorporating the defendant, or giving it license to carry on its business in the District of Columbia. "The only recognition that it claims is to be found in certain items and clauses of appropriation bills, beginning with that of July, 1888. In that act it was provided, after an appropriation for telephone serv ice, that the Commissioners of the District might authorize the wires of any existing telegraph, telephone, or electric-light company now operating in the District of Columbia,' to be laid under the streets, alleys, etc., 'wherever in their judgment the public interest may require the exercise of such authority-such privileges as may be granted hereunder to be revocable at the will of Congress without compensation. 25 Stat. at L. 323, 324, chap. 676. "An item continuing this authority for another term of Congress under the same condition was contained in the act of March 2, 1889. Id. 804. "The act of August 7, 1894, authorized the erection and use of telephone poles in the public alleys, but the privilege was made subject to revocation at the will of Congress without compensation. 28 Stat. at L. 256, chap. 232. "The act of March 3, 1897, provided that hereafter no wires shall be strung on any alley pole at a height of less than 50 feet from the ground at the point of attachment to said pole; and it was declared that notherection of any additional pole upon any ing herein contained shall authorize the street, avenue, or reservation. "The usual condition of revocation at will without compensation was again added. 29 Stat. at L. 678, chap. 387." Now this court, in reversing the decree of the court of appeals, and remanding the case for a new trial, does not consider or decide the only question upon which the court of appeals rested its decree, but, on the contrary, that question is passed by upon the theory that it can be more appropriately decided after a further investigation of the facts to be had on the new trial which the court orders. The action of the court is sustained in its opinion upon several propositions. Let me briefly consider them. | 1st. As it is shown, there are various kinds of telephone service, some more complete and more expensive than others, and as the act of Congress does not contain a classification and a fixing of rates embracing all classes of such service, therefore it is decided that the case is not in a condition to be now disposed of finally, but must be remanded for a new trial in order that further testimony on this subject may be taken. But this involves a non sequitur. Conceding in the fullest degree that there are various kinds of telephone service, some more costly than others, and that the classification of the act of Congress does not em 254 *255 brace all kinds of such service, it is sub- after the new trial, when the record again mitted that it should be now decided that comes here, the rates as fixed by Congress the act of Congress applies to that which is will be found to be so low that they will comcustomary and reasonable, and as to such pel the corporation to abandon the use of the customary and reasonable service compli- public ways, and hence go out of business. ance by the corporation with the act of Con-What will be the duty of the court then? gress should be commanded. If it be that the decree below went further than thiswhich in my opinion it did not-then the decree should not be reversed, but should be modified so as to cause it to conform to the act of Congress, and as thus modified it should be affirmed. Will it not be compelled to decide the question which is now left undecided? Let me further assume that then the opinion of this court will be in accord with that expressed on the case now here by the court of appeals. Will it not necessarily follow that the corporation will be held during all the 2d. As the court finds that there are cer- intervening time to have wrongfully vio tain classes of telephones furnished by thelated the act of Congress, and to have unlawcompany which are for private use and the fully imposed upon the public? And yet all charge for which Congress has no power to this wrong and all this abuse which must regulate, and as the court considers the arise under the hypothesis which has been proof as to the revenue derived from this stated can be absolutely prevented if the character of telephone is not clear, therefore court now decides the question it will neces it is held the case must be remanded to take sarily be called upon to decide hereafter. To testimony on this subject. But the testimony in the record on the subject of these me it seems clear that it is no answer to this private telephones is as full as it can be proposition to say that it may be, when the case hereafter is presented for decision, the made on the new trial. The number of such telephones is shown, the revenue received court may conclude that the principle upfrom them is established, and the influence held by the court of appeals was erroneous. to be produced upon the result of the rates Concede this, and yet the duty of now decidfixed by Congress by the elimination of ing the question appears to me to be equally charges for such telephones is as clear on manifest. I submit whatever may be the this record as it can be made in any record conclusion as to the correctness of the prinwhich may hereafter come before us for con- ciple announced by the court of appeals, that sideration. It follows then, even under the principle can never be overthrown upon the &ssumption that the limitation upon the theory that there was no power in Congress power of Congress as to such telephones be to deprive the corporation of the use of the well taken, in my opinion no adequate rea-public streets and property without compenson is thereby afforded for not deciding the controversy now presented by the record. This is said, of course, under the assumption, arguendo only, that the rule as to private telephones announced by the court is correct. sation, since in unequivocal and express terms the various permissions granted by Congress to the corporation to use the public streets provide in language, leaving no room for construction, that the power was reserved to Congress to revoke at its will and pleasure the right of the corporation to use the streets. It necessarily follows that the view announced by the court of appeals can in any event be disregarded only upon the theory that while power is in Congress to take away the right of the corporation to use the streets without giving it compensation, that an act fixing rates is not the exercise by Congress of such power. But if such be the correct view, then that interpretation, in the interest of a sound administration of But putting out of view all these considerations, and conceding that what has been previously said is erroneous, in my judgment the case ought not to be reversed and remanded without deciding the fundamental question which the cause presents which was decided by the court of appeals, and which, if the view taken by that court be sound, is controlling. Now that question lies at the very threshold of the case. It is wholly independent of, and cannot, in the slightest degree, be influenced by, any further investigation | the law and for the protection of the public, of fact which may be made on the new trial should be now declared. The reason for this which is now ordered. I do not know how is apparent, because, if such a principle to more aptly illustrate the duty which ex- were now announced, admonished by the ists to decide this question than by taking opinion of this court, Congress will more into view the situation as disclosed by this advisedly be able to exert such further acrecord. Certainly since the act of Congress tion as will prevent the corporation from uswas passed in 1898 the corporation has, ining the public property in disregard of law, defiance of that act, continued to use for its benefit the public streets and property, and has in doing so imposed upon the public burdens which the corporation had no right to exact if the act of Congress was lawful. Beyond all question, this condition of things must now continue for a long period of time during the progress of the new trial which the court now orders. Let me suppose that, and save the public from extortion if it results from charging higher rates than those fixed by the law now under consideration. While I am not authorized to say that Mr. Justice Harlan and Mr. Justice McKenna concur in the reasons which I have just given for my dissent, they request me to state that they also dissent from the opinion and decree of the court. 1. 2. 8. examination voluntary admis It was not an abuse of discretion for the district court for the district of Alaska to refuse a continuance to a defendant charged with a capital crime, on a showing by his affidavit of the absence of witnesses who would testify that he was not at the scene of the crime at the time named in the indictment as the date of its commission and would also explain the possession of money found on his person, when nothing had been disclosed to indicate that the possession of such money by the defendant had any significance in connection with the charge, and the falsity of some of the statements in defendant's affidavit clearly appeared from the affidavits offered by the government in opposition to the motlon. Permitting the district attorney to ask a Juror whether he has any conscientious scruples which would preclude him from rendering a verdict of guilty on circumstantial evidence, "in a case where the penalty prescribed by law is death," is not error on the theory that the question should state, "where the penalty prescribed by law may be death," because of a statutory provision which permits a jury finding a party guilty of murder In the first degree to add, "without capital punishment." Voluntary statements made by a defendant before and after his preliminary examination are not inadmissible in evidence against him, because the provisions of 30 Stat. at L. 1319, chap. 429, §§ 307-311, with respect to statements pending an examination, were not complied with, although made to the magistrate who in fact conducted the preliminary examInation. [No. 502.] purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question." Isaacs v. United States, 159 U. S. 487, 489, 40 L. ed. 229, 230, 16 Sup. Ct. Rep. 51, 52, and authorities there cited. See also Goldsby v. United States, 160 U. S. 70, 40 L. ed. 343, 16 Sup. Ct. Rep. 216. but it is contended that abuse of discretion This proposition of law is not disputed, is shown. The pertinent facts are as follows: The indictment charged the murder of Con Sullivan on June 7, 1901. The killing took place on Unimack island. The defendant filed in support of his motion his affidavit stating that he had been in custody since July 27; that at the time of his arrest he had $685 upon his person, which was taken from him by the arresting officer; that one Captain Mackintosh, and one John Johnson, captain and mate respectively of the schooner Arago, upon which affiant came as a sailor from San Francisco to Unimack island, would testify that he remained on that vessel continuously from the time it left San Francisco until June 11; that the schooner, with the captain and mate on board, left Alaska prior to the finding of the indictment against him, but that he believed and had been informed that the vessel would probably return within a reasonable time, and if not that the depositions of the captain and mate could be obtained in San Francisco, the place of their residence. The affidavit further stated that two witnesses, whose names were unknown, who were both in the employ of the government on a boat named the Pathfinder, plying in the waters of the Northern Pacific ocean and the Behring sea, and which frequently called at Dutch Harbor-within 1 mile of the place where court was being heldwould testify that they knew affiant in San Submitted April 28, 1902. Decided June 2, Francisco from about March 26 to April 15, 1902. and then saw him in possession of a large amount of money, an amount in excess of N ERROR to the District Court of the $1,500, a part of which was the money taken United States for the District of Alaska from him when arrested. The affidavit also to review a conviction of murder. Affirmed. stated that one Major Whitney, a paymas The facts are stated in the opinion. ter of the United States Army, at San FranMr. Joseph F. Gould for plaintiff in er-cisco, would testify that on or about March ror. Solicitor General Richards for defendant in error. Mr. Justice Brewer delivered the opin ion of the court: On September 10, 1901, in the district court for the district of Alaska, second division, Fred Hardy, plaintiff in error, was found guilty of the crime of murder, and sentenced to be hanged. Thereupon he sued out this writ of error. In the record appear thirty-two assignments of error, but in the brief filed by his counsel only three are pressed upon our attention. First, it is claimed that the court erred in refusing the defendant a continuance. "That the action of the trial court upon an application for a continuance is 28 affiant, on his return from the Philippine islands as a soldier in the United States Army, was mustered out of the service at San Francisco; that said Whitney at that time paid affiant $1,875; that the deposition of said Whitney could be obtained, as he was permanently stationed at San Francisco. By these witnesses defendant sought to show that he was on the schooner at the time the murder was charged to have been committed, and also to explain the possession of the money found on his person. But the date named in an indictment for the commission of the crime of murder is not an essential averment. Proof that the crime was committed days before or days after the date named is no variance. Again, accounting satisfactorily for the money found on his person made no defense. It is *227 not stated in the affidavit that the deceased had money in his possession. There is nothing in the indictment to suggest that he had, and nothing had at that time been disclosed to indicate that the fact that the defendant was in possession of SO much money had any significance in connection with the charge. So that upon this presentation alone it could not be said that an abuse of discretion was clearly shown. the right of the court to consider all thesematters, and when it appeared clearly from the testimony that some of his statements were false the court might well have concluded that no reliance was to be placed on the others. The second assignment of error presented by counsel is that the court erred in permitting the district attorney to propound to juror Hayden the following question: "Q. But, further, the government offered the Have you any such conscientious scruples affidavits of several parties, which were re- or opinions as would prevent or preclude ceived without objection, three of whom tes- you from rendering a verdict of guilty in a tified that they had been soldiers in the case where the penalty prescribed by law is United States Army, doing service in the death, upon what is known as circumstanPhilippine islands, were convicted of some tial evidence ?" It is insisted that the dismilitary offense, and sentenced to imprison-trict attorney should have been compelled to ment at Alcatraz island military prison, San modify the question by striking out the Francisco; that when they arrived at the words "where the penalty prescribed by law prison, in the fall of 1900, the defendant is death" and insert "where the penalty preHardy was there as a military prisoner; scribed by law may be death," and this be that he was discharged therefrom the lat- cause of a provision in the statute which ter part of February or the first of March permits a jury finding a party guilty of following, and one of them added that the murder in the first degree to add "without defendant said that he had been sentenced capital punishment." We see no objection for a term of five years and a forfeiture of to the question. The defendant was not all pay and allowances. Another witness, prevented from asking the question in the George Aston, testified that he came with qualified form which is suggested, nor was the defendant from San Francisco on the any question propounded by him ruled out. schooner Arago; that affiant left the schoon- There was no impropriety in permitting the er on June 2, and that on June 20 he met government to search the mind of the juror the defendant Hardy, who told him that he to ascertain if his views on circumstantial; had left the schooner three or four days evidence were such as to preclude him from after affiant; also that Hardy showed him finding a verdict of guilty with the extrema roll of paper money which he said est penalty which the law allows. was about $1,200, and added: "You know this is more money than I had when I was on board the Arago." Another witness testified that the defendant told him that he left the schooner the day after the witness Aston. Another, that Hardy made a statement to him, which was afterward reduced to writing and signed by Hardy, that he left the schooner Arago about June 9, but could not tell the exact date. Some of these witnesses also testified to the defendant's being in possession of a gold watch and other articles, which he did not have when on the Arago, and which were afterward shown to have belonged to the deceased, and also to Hardy's contradictory statements as to how he obtained possession of those articles, statements which in themselves were, to say the least, singular, and tended to create strong doubts as to the truthfulness of his affidavit. Under these circumstances it seems to us clear that the court did not abuse its discretion in refusing a continuance. It is true the trial was held in a remote part of the nation, and where facilities for securing the attendance of witnesses were not as great as in more thickly settled portions; but it is also true that many of the witnesses for the government were engaged in prospecting, men without settled abodes, and whose attendance at subsequent terms it might have been difficult to secure, and it must have been perfectly obvious to defendant and his counsel that the longer he could postpone the trial the greater the probability of the absence of witnesses against him. It was Finally, it is insisted that the court erred in permitting the government to introduce in evidence a statement made by the defendant to one R. H. Whipple, United States commissioner, before whom the preliminary examination was had a statement reduced to writing and signed by the defendant. Sections 307 to 311 inclusive of chap. 429 (30 Stat. at L. 1319) are relied upon to sustain this assignment of error. Those sections provide that on a preliminary examination, after the government's witnesses have been examined, the magistrate must inform the defendant that it is his right to make a statement in relation to the charge against him, that the statement is designed to enable him, if he sees fit, to answer the charge and explain the facts alleged against him, that he is at liberty to waive making a statement, and that such waiver cannot be used against him on the trial; they further provide that if he does waive his right to make a statement a memorandum thereof shall be made by the magistrate, but the fact of the waiver cannot be used at the trial; that if he chooses to make a statement the magistrate must take it in writing, propounding only certain specified questions; that his answer to each of the questions must be read as taken down, and he given liberty to make any corrections that he desires, and that such statement, so reduced to writing, must be authenticated in the following form. It must set forth that the defendant was informed of his rights in respect to making or waiving a statement; it need not contain the questions, but must ⚫230 +229 * (186 U. S. 193) CHIN BAK KAN, Appt., v. UNITED STATES. Aliens-Chinese exclusion-jurisdiction of United States commissioner appeal concurrent findings of fact. 1. A lack in the complaint of positive aver ments of the facts and as to the official character of the person making it does not deprive a United States commissioner of his jurisdiction to determine the right of a Chinese laborer to remain in the United States. contain the answers, with the corrections or he insisted on making, prior to the examinaadditions made by the defendant, it may be tion, a statement which was reduced to writsigned by him, but if he refuses to sign his ing and by him signed and sworn to, and reason therefor must be stated, as he gives after the examination was over and he had it; and the whole must be signed and certi- been placed in jail, he had an interview with fied by the magistrate. The magistrate tes- the magistrate and volunteered a further tified that before the preliminary examina- statement. Affirmatively and fully it aption was commenced the defendant volunta- pears that all that he said in the matter rily and without any suggestion insisted was said voluntarily, without any induceupon making a statement. Whereupon he, ment or influence of any kind being brought the magistrate, informed him that he was to bear upon him. Indeed, it is not claimed entitled to counsel, that he was under no by counsel that there was any improper inobligations and need not make any state- fluence, his contention being only that the ment, but that if he did it would be used provisions of the statute with respect to a against him on the trial, and also that if statement pending an examination were not he waited an opportunity would be given complied with in respect to these statements. to him to make a statement at the proper The statements were properly admitted in time; that notwithstanding this he insisted evidence. These are the only matters called on making a statement, and it was then re- to our attention. No errors appear in them, duced to writing by the clerk of the court nor do we perceive any plain error otherand signed and sworn to by the defendant; wise in the record. The proof of defendant's that after the examination had commenced guilt is clear and satisfactory, and the judgand the testimony of witnesses for the gov-ment is affirmed. ernment had been taken the statutory questions were put to him, and he was advised that he could then make a statement if he desired, but he refused to say anything. Upon this showing the statement was admitted in evidence. The magistrate also testified that after the examination was over and the defendant had been placed in jail the latter sent word that he wanted to talk with him about the case, and in an interview stated orally that his former statement was untrue, and volunteered a different account of the transactions. There was no contradiction of the testimony as to the circumstances under which these two statementsone written and the other oral-were made, except that in reference to the last statement defendant, when on the witness stand, testified that the magistrate "came up to the jail and ordered me to return to his office for the purpose of securing some information to arrest some other fellows, or get some points of me of other parties." From this testimony it clearly appears that the statements were not made pending the examination or under the provisions of the statute, but voluntarily one before and the other after the examination; that the provision of the statute as to giving him notice pending the examination was complied with, and that at that time he declined to make any statement. So the question is whether voluntary statements made by a defendant before and after a preliminary examination are inadmissible in evidence because made to the magistrate who in fact conducted the preliminary examination. We know of no rule of evidence which excludes such testimony. Of course, statements which are obtained by coercion or threat or promise will be subject to objection. Bram v. United States, 168 U. S. 532, 42 L. ed. 568, 18 Sup. Ct. Rep. 183. But, so far from anything of that kind appearing, the defendant was cautioned that he was under no obligations to make a statement; that it would be used against him if he made one, and that there was a proper time for him to make one if he so desired. Without even a suggestion, 2. 3. The provision in the Chinese exclusion act of 1892, 6 (27 Stat. at L. 25, chap. 60), that Chinese laborers without certificates may be "taken before a United States judge," is satisfied by a proceeding before a "justice, judge, or commissioner," which are the words used in 12 of the act of 1882 (22 Stat. at L. 58, chap. 126), § 12 of the act of 1884 (23 Stat. at L. 115, chap. 220), § 13 of the act of 1888 (25 Stat. at L. 476, chap. 1015), and 3 of the act of 1892, while the act of March 3, 1901, § 1 (31 Stat. at L. 1093, chap. 845), expressly authorizes the district attor ney to designate the commissioner before whom a Chinese person may be brought. The mere assertion of citizenship cannot deprive a United States commissioner of his statutory jurisdiction to adjudge a Chinese person to be unlawfully within the United States unless he "shall establish by affirmative proof, to the satisfaction of such justice, judge, or commissioner, his lawful right to remain in the United States." 4. A re-examination of the facts bearing upon the question whether a Chinese person is unlawfully in the United States, which was decided in the affirmative by a United States commissioner and by a judge of the district court on appeal from the commissioner's decision, will not be entered upon by the Supreme Court on appeal, although such appeal was taken under the act of March 3, 1891, § 5, on the ground that the construction of a treaty with China was drawn in question, and the Supreme Court has, therefore, juris diction to dispose of the entire case. [No. 525.] |
