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McGuire v. The Commonwealth, 70 U.S. 3 Wall. 382 382 (1865)

McGuire v. The Commonwealth

70 U.S. (3 Wall.) 382


1. Where a party is indicted in a state court for doing an act contrary to the statute of the state, and sets up a license from the United States under one of its statutes, and the decision of the state court is against the right claimed under such last-mentioned statute, this Court has jurisdiction under the 25th section of the Judiciary Act of 1789.,

2. A writ of error from this Court is properly directed to the court in which the final judgment was rendered and by whose process it must be executed and in which the record remains, although such court may not be the highest court of the state and although such highest court may have exercised a revisory jurisdiction over points in the case and certified its decision to the court below. The omission in the record of these points and the action in the highest court upon them make no ground for certiorari on account of diminution.

3. Circumstances under which the inability of leading counsel to prepare for argument within a time previously fixed by the court and the sickness of his associate do not make a sufficient ground for continuance of a cause.

4. Where the counsel of a plaintiff in error withdraw their appearance, the defendant in error, under the 16th rule, has the right either to have the plaintiff called and the suit dismissed or to open the record and pray an affirmance.

A statute of Massachusetts makes it an indictable offense, punishable with heavy fine and imprisonment, to keep any building for the sale of intoxicating liquors. Under this

Page 70 U. S. 383

statute and for a violation of it a certain McGuire was indicted in January, 1864, at Salem, Massachusetts, in the Superior Court for the Transaction of Criminal Business of Essex County in that state. He set up as his defense a license from the federal government granted to him under the Internal Revenue Act of July 1, 1863, which license was, in terms, "to carry on the business or occupation of a wholesale dealer in liquors" at the place for carrying it on at which he had been indicted.

The record of the said superior court certified that these acts of sale and keeping alleged were admitted to have been illegal and in violation of the law of Massachusetts unless the defendant was authorized to keep and sell intoxicating liquors by the license granted to him conformably to the provision of the act of Congress, which license he produced in evidence, the same being set out in the record; that the court ruled that this license gave the defendant no right to sell intoxicating liquors in violation of the laws of Massachusetts; that the jury found a verdict of guilty, and that the defendant excepted; that the case, on the exceptions, was continued for the judgment of the supreme judicial court for the commonwealth, and that the exceptions were "overruled by the supreme judicial court, as by the rescript on file." Judgment passed accordingly against McGuire, and a writ of error issued from this Court to the superior court of Massachusetts.

The case excited considerable interest in Massachusetts, and the excitement was increasing. Vast numbers of persons had taken out and paid for licenses under the federal government, and all of them were indicted by the state, the singular spectacle having been presented, it was said, of several people being arrested and put in jail by the state in the morning, for selling liquor under a federal license while in the afternoon an equal number of other persons were arrested and sent to the same jail on behalf of the United States for attempting to sell it without one.

At the last term, a motion to advance the case upon the docket was made by Mr. Cushing, the counsel for the plaintiff

Page 70 U. S. 384

in error (McGuire). It was then denied because the attorney-general declined to state that the case was one in which the interests of the public revenue were concerned, because the Attorney-General of Massachusetts, though consenting to an early hearing, did not ask for it, and because, in the opinion of the court, the importance of the result to the plaintiff in error was not sufficient to warrant the preference asked for over suitors having prior cases on the docket.

At this term, another motion was made to advance the case. This motion was made by the Attorney-General of Massachusetts, with whom the Attorney-General of the United States joined. Both united in representing that the litigation growing out of the question presented by the record had so increased and had assumed such a character that the public interests both of Massachusetts and of the United States required an early hearing and decision of it.

This motion was now opposed by Messrs. Cushing and Richardson counsel for the plaintiff in error, but having been fully considered by the Court, it was allowed and an order was made on the 13th of January, by which the cause was assigned for hearing on the following 20th, or, at the option of the counsel, immediately after the close of the arguments in the cause then being heard.

After this order was made, the plaintiff in error, by his counsel, submitted three motions.

First. That in case it should appear to the Court on inspection of the record that the cause ought not to be dismissed for want of jurisdiction, a certiorari should be issued from this Court to the Supreme Judicial Court of Massachusetts, or else to the superior court, to bring up the whole of the record; the ground of this motion being, that the judgment of the Supreme Court constituting, apparently (as was said), the decision of the highest court of law or equity in the state in which a decision could be had, was not set forth in the record as returned, but was merely referred to as remaining "on file" in the superior court.

Second. For leave to discontinue the writ of error, and

Page 70 U. S. 385

that the same be dismissed with costs to the State of Massachusetts, the ground for this being, that the counsel making the motion could not prepare and argue the case within the time prescribed in the order of the 13th instant, and that Mr. Gillet, his associate, was disabled by sickness.

Third. For leave that all the counsel might withdraw their appearances in the suit, and the plaintiff in error be called, in conformity with Rule No. 16, prescribing that

"Where there is no appearance for the plaintiff when the case is called for trial, the defendant may have the plaintiff called and dismiss the writ of error, or pray for an affirmance."

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