the

purpose of restraining it within the limits thus established. One of the limitations upon the power of the State, imposed by the Fourteenth Amendment, is that the State shall not deprive any person of life, liberty or property without due process of law. The plaintiff contends that the sentence awarded against Whitney violated this prohibition, in that Whitney had no opportunity to be heard upon and defend against that part of the sentence which imposed a fine and authorized a judgment against his estate for its collection. The plaintiff therefore insists that the sale on execution of Whitney's land was bad, because the execution issued upon a judgment which was void. The short and conclusive answer to the whole contention is, that it is not true in fact. Whitney was given an opportunity to be heard and to defend. The information charged him with embezzling $11,190, the property of Harlan County. The trial was had upon this information and the jury returned a verdict in the following terms: "We, the jury, duly empanelled and sworn in the aboveentitled cause, do find the defendant guilty, as charged in the information, and we further find the sum so embezzled to be $11,190." Thereupon it became the duty of the court to impose a sentence of imprisonment of not less than one year nor more than twenty-one years, and of a fine that should be equal to double the amount of the money embezzled. This was done. The case was then appealed to the Supreme Court of Nebraska, argued by counsel and the conviction affirmed. It is idle to say that Whitney was denied a hearing, or an opportunity for every defense, permitted to him by the laws of Nebraska.

The plaintiff in error rests his contention upon some language used by the Supreme Court of Nebraska in Everson v. State, ub. sup. In that case Everson was convicted of a trespass upon the land in dispute. He defended against the charge by claiming title through the deed from Whitney, under which, as Everson's grantee, the plaintiff in this case claims title. The State on the other hand contended that the title

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First, that the law under which it was rendered was repealed by a subsequent provision of the Constitution of the State.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