was in Harlan County by virtue of the sale on execution hereinbefore stated. Everson, asserting, as the plaintiff here asserts, that the execution sale passed no title, attacked the judgment upon which it was issued upon two grounds:

First, that the law under which it was rendered was repealed by a subsequent provision of the Constitution of the State.

Second, that it was unconstitutional in inflicting a double punishment, in that the fine was added to imprisonment. In overruling these two contentions the court described the statute as one giving a fixed sum "in the nature of liquidated damages to one who has suffered injury by the wrongful act of a public officer," and said: “We do not care to put ourselves on record as holding that the return of the property or the value of the property which the thief has embezzled or stolen, either voluntarily or by compulsory process, should be considered any part of his punishment within the meaning of our Bill of Rights," p. 158. Seizing hold of this language, the plaintiff in error in this case argues that by an interpretation of the statute binding upon us it authorizes a mere civil judgment for damages, against which the defendant has been denied the right to defend, by showing that his civil liability for the embezzlement had been discharged, and that therefore the judgment was wanting in due process of law. But this argument misinterprets the decision of the Supreme Court of Nebraska by giving to its language a meaning not expressed or intended.

As part of the consequences of a conviction of the crime of embezzlement by a public officer, the law of Nebraska provides that a fine double the amount embezzled shall be inflicted, which shall operate as a judgment against the estate of the convict. It is not of the slightest importance whether this fine is called a penalty, a punishment, or a civil judgment. Whatever it is called, it comes to the convict as the result of his crime. The amount of the judginent is fixed by the amount of the embezzlement, and not by the amount re

maining due on account of the embezzlement, and the only question left open to the accused is the fact and amount of the embezzlement. It is provided that the judgment shall issue for double that amount, entirely irrespective of the question whether restitution has been made in whole or in part. Upon the only question therefore open to him Whitney had an opportunity to be heard, and, in point of fact, was heard. Upon his appeal, 53 Nebraska, 287, the amount of the embezzlement was expressly affirmed by the court (p. 304), and the claim that the restitution of the stolen property relieves the offender from criminal liability was pronounced "a monstrous doctrine," and it was said: "Whether or not Harlan County has been successful in collecting or securing the payment of the money which the defendant is charged with having embezzled, is of no consequence in this case." Whitney had full opportunity to present every defense allowed to him by the law of the State. The law itself was justified by the plenary power of the State, and neither it nor its administration in this case discloses any violation of a right secured by the Constitution of the United States, and the judgment of the Circuit Court is therefore

Affirmed.

204 U.S.

Opinions Per Curiam, Etc.

OPINIONS PER CURIAM, ETC., FROM JANUARY 7 TO FEBRUARY 25, 1907.

No. 13. Original. Ex parte: IN THE MATTER OF THE MONTANA MINING COMPANY, LIMITED, PETITIONER. Petition for a writ of mandamus. Argued November 6 and 7, 1906. Decided January 14, 1907. Stricken from the docket. Mr. Charles J. Hughes, Jr., Mr. W. E. Cullen, Mr. Aldis B. Browne and Mr. Alexander Britton for petitioner. Mr. Arthur Brown, Mr. J. H. Ralston, Mr. M. S. Gunn, Mr. F. L. Siddons and Mr. T. C. Bach for respondent.

No. 150. ABEL P. BORDEN ET AL., PLAINTIFFS IN ERROR, V. THE TRESPALACIOS RICE AND IRRIGATION COMPANY. In error to the Supreme Court of the State of Texas. Submitted January 11, 1907. Decided January 14, 1907. Per Curiam: Judgment affirmed with costs. Strickley v. Highland Boy Mining Company, 200 U. S. 527, 531; Clark v. Nash, 198 U. S. 361. Mr. Venable B. Proctor for plaintiffs in error. Mr. Henry C. Coke for defendant in error.

No. 160. THE UNITED STATES, APPELLANT, v. BENJAMIN H. HOWELL, SON & Co. Appeal from the Circuit Court of the United States for the Southern District of New York. Confession of error and motion to reverse and remand submitted January 14, 1907. Decided January 15, 1907. Per Curiam: Decree reversed on confession of error by appellees, and case remanded for further proceedings according to law. The Attorney General for appellant. Mr. Bronson Winthrop for appellees.

No. 3. THE STATE OF SOUTH CAROLINA EX RELATIONE O. W. BUCHANAN, PLAINTIFF IN ERROR, v. R. H. JENNINGS

Opinions Per Curiam, Etc.

204 U. S.

ET AL., ETC. In error to the Supreme Court of the State of South Carolina. Submitted October 10, 1906. Decided January 21, 1907. Per Curiam: Dismissed for the want of jurisdiction. French v. Taylor, 199 U. S. 274; Leonard v. Railroad Company, 198 U. S. 416; Murdock v. Memphis, 20 Wall. 590; Eustis v. Bolles, 150 U. S. 361. Mr. Levi H. David and Mr. Charles A. Douglass for plaintiff in error. Mr. Duncan C. Ray for defendants in error.

No. 182. SUM GAY ALIAS SAM LEE, APPELLANT, v. THE UNITED STATES. Appeal from the District Court of the United States for the Northern District of California. Submitted by appellee January 25, 1907. Decided January 28, 1907. Per Curiam: Decree affirmed. The Attorney General and Mr. Assistant Attorney General Cooley for the appellee. No brief filed for appellant.

No.-. Original. Ex parte: IN THE MATTER OF HARRISON BOYNTON, PETITIONER. Submitted January 28, 1907. Decided February 4, 1907. Per Curiam: Motion for leave to file petition for a writ of habeas corpus and to proceed in forma pauperis denied. Mr. A. B. Browne for petitioner.

No. 136. THE UNITED STATES ET AL., APPELLANTS, v. WILLIAM B. KIRK. Appeal from the United States Circuit Court of Appeals for the Second Circuit. Argued January 25, 1907. Decided February 25, 1907. Decree affirmed by a divided court, and cause remanded to the Circuit Court of the United States for the Northern District of New York. The Attorney General, The Solicitor General, Mr. Robert A. Howard and Mr. Henry C. Lewis for appellants. Mr. Abram J. Rose and Mr. Alfred C. Petté for appellee.