Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-06-27
in the one case Is the same person
convicted in the other case. It is

N(ll xxN lV ! CdoC, 81 III ~ 10
common knowledge that many prison
ers take assumed names. Who is to
determine whether the various names
represent one and the same person?
And il one Of the convictions was in
another state, the question will arise
whether it was for a felony. These
are inquiries that must be held in the
open, with full opportunities to pre-
sent evidence and argument for and
against. To uphold this statute it
must be affirmed that the board Of
parole or prison physician must hear
the evidence and examine laws of 9th.
er states without notice and in tho
prisoners absence and determine
these questions. And if determined
adversely, the prisoner has no remedy
but must submit to the operation.
In the case at bar, the hearing was
a private hearing, and the prisoner
first knew Of it when advised of the
order. Due process of law means that
every person must have his day in
court, and this is as old as magma
charta; that some time in the pro-
ceedings he must be confronted by his
accuser and given a public hearing. Or
as was stated in Leeper VS.. Texas, 139
U. S., 462:
Law in its regular course of admin.
istration through courts of justice is
due process, and when secured by the
law of the state the constitutional re-
quirement is satisfied"
Under the habitual criminal laws OF
the state, if a prior conviction is relied
on, the same be pleaded and estab-
lished by the evidence. But we have
cases, this one included, in which the
prior conviction has not been judicial
ly established. But in Hayes VS.. Mis-.
souri,, 100 U. s., IS, it vas said that
due process Of law and the equal pro-
lection of the laws was secured If the
laws operated on all alike and that an
persons subject toYthe laws are treat
ed alike under the limitations impos-
cd. And the same holding was made
in Duncan VS.. Missouri, 1872 y. s., 377.
The cases are numerous and without
conflict as to such holdings, and fur
Their citations need not be made.
But assuming that the prior convic-
tons all appear Of record, and assum-
ing there is no conflict in the testi-
mony and no difficulty in reaching the
conclusion, but little or no advance is
made in determining the question. ! I
it be said that the statute automati-
cally decides the question and nothing
remains for the prison physician to do
but to execute that which is already
of record, then the statute becomes a
bill of attainder. One of the rights of
every man of sound mind is to enter
into the marriage relation. Such is
one of his civil rights, and deprivation
or suspension OF. any civil right for
past conduct is punishment for such
conduct, and this fulfills the defini-
ton of a bill of attainder, because a
bill of attainder is a legislative act
which inflicts punishment without a
jury trial, as is fully discussed and
held in the case of Cummings VS.. Mis-.
souri,, II U. s., 277. the Federalist, No.
A, by Madison; Justine Samuel F..
Miller on the Constitution, 534; Wat.
son on the Constitution, 733.738.
We hold the statute to be void, and
unite in holding that a temporary writ
Of Injunction should be issued as pray
cd.
Keokuk, ID, June "a, 1914.
Smith, Circuit Judge, concurring.
The foregoing opinion is supported
by a wealth of historical and other
references and I do not wish to dis
sent from any portion of it. But the
Iowa law does not provide for a judi
cial Investigation ofthe identity Of the
prisoner with the one previously con
vtcted of a felony as did the law in
Washington construed in State VS.