[Appointment.] The order appointing such commissioners shall be in writing and shall be spread upon the records of one of the courts of the district for which they are appointed; and such order shall designate, by metes and bounds, the portion of the district for which they are appointed. [Powers.] They shall have all the powers of commissioners of the circuit courts of the United States. They shall be ex officio notaries public and ex officio justices of the peace within and for the portion of the district for which they are appointed, and shall have the power as such to solemnize marriages. [28 Stat. L. 695.] Removal of commissioners. The provisions of the statutes authorizing the United States courts to appoint commissioners do not have the effect to put the commissioners in the place of justices of the peace in Arkansas, in such a way that the causes prescribed by law for the removal of justices of the peace must be taken as prescribed by law as causes for the removal of commissioners. Justices of the peace in Arkansas by state constitution and laws hold office for two years, and cannot be removed except for cause, and on notice and hearing, but the commissioners ap pointed under this statute hold office neither for life, nor for any specified time, and are within the rule which treats the power of removal as incident to the power of appointment, unless otherwise provided. Reagan v. U. S., (1901) 182 U. S. 419, affirming (1900) 35 Ct. Cl. 90. Commissioners appointed prior to this Act and continued in office by the proviso to this section, were removable by the appointing judge at his pleasure for such cause as he deemed sufficient. Reagan . U. S., (1901) 182 U. S. 419, affirming (1900) 35 Ct. Cl. 90. [Arkansas criminal law and procedure in force.] The provisions of chapter forty-five of Mansfield's Digest of the General Laws of Arkansas, entitled "Criminal law," except as to the crimes and misdemeanors mentioned in the proviso of this section, and chapter forty-six of said laws of Arkansas, contained in said digest, entitled "Criminal procedure," and chapter ninety-one of said general laws, regulating the jurisdiction and procedure before justices of the peace in civil cases, be, and they are hereby, extended to and put in force in the Indian Territory; and the jurisdiction to enforce said provisions is hereby conferred upon the United States court in the Indian Territory: [In conflicting cases United States laws to prevail, larceny excepted.] Prorided, That in all cases where the laws of the United States and the said criminal laws of Arkansas have provided for the punishment of the same offenses the laws of the United States shall govern as to said offenses, except for the crime of larceny, the punishment for which shall be that prescribed by the laws of the State of Arkansas, any law in force in said Indian Territory to the contrary notwithstanding. [28 Stat. L. 696.] In capital and other felony cases the provisions of section 2239 of Mansfield's Digest, which allow the execution ten peremptory challenges, are put in force in the Indian Territory by this section. Watkins v. U. S., (1897) 1 Indian Ter. 364. The Arkansas statute relating to murder is not put in force in the Indian Territory by this section. Brown v. U. S., (1899) 2 Indian Ter. 582, decided upon consideration of R. S. sec. 2145, supra, p. 387, and R. S. sec. 5339, supra, p. 231. Assault with intent to kill." By section 34 of the Act of Congress approved May 2, 1890, it is provided that 'original jurisdiction is hereby conferred upon the United States court in the Indian Territory to enforce the provisions of title twenty-eight, chapters three and four of the Revised Statutes of the United States, except the offenses defined and embraced in sections twenty-one hundred and forty-two and twenty-one hun dred and forty-three.' Section 2142 is the one relating to assaults with intent to kill, and, as the statutes of Arkansas had not at that time been extended over the Indian Territory, our courts were without any jurisdiction to try this class of cases, that jurisdiction at that time being vested in the United States district courts at Ft. Smith, Ark., and Paris, Tex. It was by the Act of March 1, 1895, that these courts for the first time acquired this jurisdiction." Jennings v. U. S., (1899) 2 Indian Ter. 670, 53 S. W. Rep. 462. Larceny. The United States court in the Indian Territory had jurisdiction, after the passage of this Act, of a prosecution for larceny under the Arkansas statute, though the offense was committed prior to September 1, 1896, and notwithstanding the provisions of section 9 of this Act. Oats v. U. S., (1897) 1 Indian Ter. 152. In Williams v. U. S., (Indian Ter. 1902) 69 held, upon considera tion of the Arkansas constitution and statutes, and the federal statutes, that as to larcenies of a general nature Congress intended this section to adopt the definition and method of procedure provided for in Mansfield's Digest, chapters 45 and 46, and therefore that such offense could not be prosecuted by information. [Commissioners' civil jurisdiction exclusive under $100.] The original jurisdiction of such commissioners as justices of the peace in civil cases shall, in all those classes of cases where jurisdiction is by this Act conferred upon the United States court in the Indian Territory, be exclusive where the amount or value of the demand or of the property or thing in controversy does not exceed one hundred dollars. [Criminal jurisdiction.] That said commissioners, acting as justices of the peace in criminal cases, shall have jurisdiction to hold preliminary examinations and discharge, hold to bail; or commit in cases of offenses which, under the laws applicable to the Territory, amount to felonies. [Appeals.] Appeals may be taken to the United States court in the Indian Territory, in said districts, respectively, from the final judgment of said commissioners, acting as justices of the peace, in all cases; and such appeals shall be taken in the manner that appeals may be taken from the final judgments of the justices of the peace under the provisions of said chapter ninety-one in civil cases and chapter forty-six in criminal cases of the laws of Arkansas: Provided, That no appeal shall be allowed in civil cases where the amount of the judgment, exclusive of cost, does not exceed twenty dollars. [Salaries, etc.] Each of said commissioners in said Territory shall receive a salary of one thousand five hundred dollars per annum, and all fees collected by him shall be paid over to the clerk of the district. [28 Stat.. L. 695, 696.] The amount in controversy essential to the jurisdiction of the commissioners will be deemed to be that claimed by the plaintiff in his declaration, where the claim is not evidently fictitious. The verdict does not furnish the true rule by which the sum in controversy is to be ascertained. Boyt r. Mitchell, (Indian Ter. 1901) 64 S. W. Rep. 610. A trial by jury before a commissioner is not a trial by jury within the meaning of the Seventh Amendment to the Constitution, as such a proceeding is not according to the course of the common law. This statute makes the amount of the judgment, and not the amount in controversy, as provided by the Constitution, the test. "If the statute is to be followed, then, in all cases where the amount in controversy is more than $20 and the judgment less than that amount, the parties will be deprived of an important constitutional right, to wit, the right of a trial by jury of a cause in which, by the Constitution, they are guaranteed that right." Luce v. Garrett, (Indian Ter. 1901) 64 S. W. Rep. 613, decided on the authority of Capital Traction Co. v. Hof, (1899) 174 U. S. 1. The limitation of the right of appeal in the last proviso violates the Seventh Amendment of the United States Constitution because the latter makes the right to trial by jury depend upon the amount in controversy, whereas the proviso makes it depend upon the amount of the judgment. Therefore where the amount in controversy exceeds $20, there is a right of appeal. Archard v. Farris, (Indian Ter. 1902) 69 S. W. Rep. 821; Dennee v. McCoy, (Indian Ter. 1902) 69 S. W. Rep. 858; Luce r. Garrett, (Indian Ter. 1901) 64 S. W. Rep. 613, overruling Shapleigh Hardware Co. v. Brittan, (1899) 2 Indian Ter. 242, 48 S. W. Rep. 1069; Baldwin v. Farris, (1899) 2 Indian Ter. 438, 51 S. W. Rep. 1077; Morrow v. Burney, (1899) 2 Indian Ter. 440, 51 S. W. Rep. 1078, and Butler v. Penn, (1901) 3 Indian Ter. 505, 61 S. W. Rep. 987. Waiver of a jury before the commissioner does not constitute a waiver of the appellant's right to trial by jury on appeal. Dennee v. McCoy, (Indian Ter. 1902) 69 S. W. Rep. 858. SEC. 5. [Constables — salary.] That the judge in each district may appoint a constable for each of said commissioners' districts so designated by the court, which appointments shall be in writing and spread upon the records of one of the courts in said district, and the constable so appointed shall perform all the duties required of constables by the laws of the State of Arkansas, chapter twenty-four of Mansfield's Digest. Each of said constables shall receive a salary of six hundred dollars per annum. [Accounts of fees, etc.] Each of said commissioners and constables shall keep a careful account of all fees, fines, and costs collected by him, and shall settle with and pay the same to the clerk of the district at the end of every quarter, who shall pay the same into the Treasury of the United States. [Bonds and oaths.] Said commissioners and constables, before entering upon the discharge of their duties, shall execute to the United States, for the security of the public, a good and sufficient bond in the sum of two thousand dollars, to be approved by the judge appointing him, conditioned that he will faithfully discharge the duties of his office and account for all moneys coming into his hands; and he shall take an oath to support the Constitution of the United States and to faithfully perform the duties required of him, which bond and oath shall be filed with the clerk in the district for which the appointment is made. Stat. L. 696.] A constable cannot appoint a deputy under this section, notwithstanding constables in [28 Arkansas have power to appoint deputies. SEC. 6. [Jurors.] That jurors for each term of said court in each district shall be selected and summoned in the manner provided by the statute laws of the State of Arkansas now in force in said Territory. [28 Stat. L. 697.] SEC. 7. [Prosecutions to be within district of offense.] That all prosecutions for crimes or offenses of which the United States court in the Indian Territory shall have jurisdiction, shall be had within the district in which said offense shall have been committed, and in the court nearest or most convenient to the locality where it is committed, to be determined by the judge on motion to transfer the trial of the case from one court to another. [Civil suits.] All civil suits shall be brought in the district in which the defendant or defendants reside or may be found; but if there are two or more defendants residing in different districts the action may be brought in any district in which either of the defendants may reside or be found; and if a resident, in the court nearest to his residence. [Change of venue.] All cases shall be tried in the court to which the process is returnable, unless a change of venue is allowed, in which case the court shall change the venue to the nearest place of holding court, within the district, and any civil cause may be removed to another district for trial if the court shall so order, on the application of either party. The words "in the court nearest his residence,” are merely directory and not jurisdictional; and if a case should be brought in a court which was not nearest to the place of the defendant's residence, the court is authorized to change the venue to the court nearest defendant's residence, but is not authorized or required to dismiss the suit for want of jurisdiction. Graham v. Stowe, (1896) 1 InIdian Ter. 405. New indictment on change of venue. Where a change of venue is properly made [28 Stat. L. 697.] SEC. 8. [Punishment for sale, etc., of liquors.] That any person, whether an Indian or otherwise, who shall, in said Territory, manufacture, sell, give away, or in any manner, or by any means furnish to anyone, either for himself or another, any vinous, malt, or fermented liquors, or any other intoxicating drinks of any kind whatsoever, whether medicated or not, or who shall carry, or in any manner have carried, into said Territory any such liquors or drinks, or who shall be interested in such manufacture, sale, giving away, furnishing to anyone, or carrying into said Territory any of such liquors or drinks, shall, upon conviction thereof, be punished by fine not exceeding five hundred dollars and by imprisonment for not less than one month nor more than five years. Stat. L. 697.] The constitutionality of this section was affirmed in U. S. v. Cohn, (1899) 2 Indian Ter. 474. The sale of non-intoxicating malt liquor is a violation of this section. U. S. v. Cohn, (1899) 2 Indian Ter. 474, where it was so held notwithstanding the use of the word "other" before the words "intoxicating drinks." But see as to the effect of the word other " in such a connection, the preliminary article in this work, vol. 1, p. lxviii. The establishment of a distillery on lands in the Indian Territory is unlawful even [28 though the Indian title may have been extinguished or the Indians may have been removed. (1898) 22 Op. Atty. Gen. 232, where Attorney-General Griggs, pointing out the difference between the "Indian Territory and "Indian country" in general, said: "Although the Indian title had become extinct as to every foot of land in the territory, and although there was no longer an Indian there, still the laws applicable to that territory would continue in force as before until repealed or changed, except, of course, those relating to the Indians." SEC. 9. [Criminal, civil, and appellate jurisdiction.] That the United States court in the Indian Territory shall have exclusive original jurisdiction of all offenses committed in said Territory, of which the United States court in the Indian Territory now has jurisdiction, and after the first day of September, eighteen hundred and ninety-six, shall have exclusive original jurisdiction of all offenses against the laws of the United States, committed in said Territory, except such cases as the United States court at Paris, Texas, Fort Smith, Arkansas, and Fort Scott, Kansas, shall have acquired jurisdiction of before that time; and shall have such original jurisdiction of civil cases as is now vested in the United States court in the Indian Territory, and appellate jurisdiction of all cases tried before said commissioners, acting as justices of the peace, where the amount of the judgment exceeds twenty dollars. [Jurisdiction of courts in States repealed - pending cases.] All laws heretofore enacted conferring jurisdiction upon United States courts held in Arkansas, Kansas, and Texas, outside of the limits of the Indian Territory, as defined by law, as to offenses committed in said Indian Territory, as herein provided, are hereby repealed, to take effect on September first, eighteen hundred and ninety-six; and the jurisdiction now conferred by law upon said courts is hereby given from and after the date aforesaid to the United States court in the Indian Territory: Provided, That in all criminal cases where said courts outside of the Indian Territory shall have, on September first, eighteen hundred and ninety six, acquired jurisdiction, they shall retain jurisdiction to try and finally dispose of such cases. Every case, civil or criminal, pending in the United States court in the Indian Territory shall be tried and disposed of by the court where the same is pending, unless the venue therein be changed, as herein provided. [28 Stat. L. 697.] See for the jurisdiction taken away by the above provision, sections 17, 18 of the Act of March 1, 1889, ch. 333 (supra, p. 400), and the Act of Jan. 6, 1883, ch. 13. "This section had three purposes: First, to enable the United States court in the Indian Territory to retain the jurisdiction it then had under the fifth section of the Act of March 1, 1889, of all offenses against the laws of the United States, not punishable by death or by imprisonment at hard labor; second, to give it jurisdiction after Sept. 1, 1896, of all offenses whatever, except of such cases as the courts in Texas, Arkansas, and Kansas had acquired jurisdiction of before that time; third, to repeal all laws conferring SEC. 10. [Court rooms, etc. - prisons to be provided.] duty of the marshals appointed under this act to provide, That it shall be the under the direction and with the approval of the judge of the district, suitable buildings and rooms for holding said courts in their respective districts. They shall also procure suitable offices for the clerks and marshals. Any contract for these purposes shall be approved by the judge only after personal inspection of the premises leased, and any contract for a period longer than six months shall be reported to the Attorney-General for his approval. Said marshals shall also provide suitable prisons in each district at the places of holding said court for the confinement and safe-keeping of all prisoners committed by said court and the commissioners appointed under this act, and all other prisoners in legal custody. [28 Stat. L. 697.] SEC. 11. [Court of appeals - jurisdiction criminal appeals and writs of error.] That the judges of said court shall constitute a court of appeals, to be presided over by the judge oldest in commission as chief justice of said court; and said court shall have such jurisdiction and powers in said Indian Territory and such general superintending control over the courts thereof as is conferred upon the supreme court of Arkansas over the courts thereof by the laws of said State, as provided by chapter forty of Mansfield's Digest of the Laws of Arkansas, and the provisions of said chapter, so far as they relate to the jurisdiction and powers of said supreme court of Arkansas as to appeals and writs of error, and as to the trial and decision of causes, so far as they are applicable, shall be, and they are hereby, extended over and put in force in the Indian Territory; and appeals and writs of error from said court in said districts to said appellate court, in criminal cases, shall be prosecuted under the provisions of chapter forty-six of said Mansfield's Digest, by this act put in force in the Indian Territory. [Judge not to sit on appeal from his own decision.] But no one of said judges shall sit in said appellate court in the determination of any cause in which an appeal is prosecuted from the decision of any court over which he presided. [Quorum, etc. - equal division, effect.] In case of said presiding judge being absent, the judge next oldest in commission shall preside over said appellate court, and in such case two of said judges shall constitute a quorum. In all cases where the court is equally divided in opinion, the judgment of the court below shall stand affirmed. [Appeals, etc., to circuit court of appeals.] Writs of error and appeals from the final decision of said appellate court shall be allowed, and may be taken to the circuit court of appeals for the eighth judicial circuit in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States. [Clerk to court of appeals -marshal-terms.] Said appellate court shall appoint its own clerk, who shall hold his office at the pleasure of said court, and who shall receive a salary of one thousand two hundred dollars per annum. The marshal of the district wherein such appellate court shall be held shall be marshal of such court. Said appellate court shall be held at South McAlester, in the Choctaw Nation, and it shall hold two terms in each year, at such times and for such periods as may be fixed by the court. [28 Stat. L. 698.] Appeals to the Supreme Court. This statute created a Court of Appeals in the Indian Territory, with such superintending control over the courts in that territory as the Supreme Court of Arkansas possessed over the courts of that state by the laws thereof, and an appeal cannot be taken to the Unitel States Supreme Court from the judgments of United States trial courts in the Indian Territory, even in a case involving the constitutionality of an Act of Congress. The question whether or not an appeal would lie to the Supreme Court from the Court of Appeals in the Indian Territory was not decided, as not arising on the record. Ansley t. Ainsworth, (1901) 180 U. S. 253. |