Two questions were raised in the briefs and argument of the plaintiff in error: First, that a proceeding by information for a felony was not, so far as the state of Nebraska is concerned, due process of law, under the Fourteenth Amendment to the Constitution of the United States. Second, that the trial by the court without a jury, of the issue raised by the ninth plea in abatement, whether the defendant had waived a preliminary examination, was not due process of law.
1. The first question, so far as it applies to states in general, was settled adversely to the insistence of the plaintiff in error, in Hurtado v. California, 110 U.S. 516, 28 L. ed. 232, 4 Sup. Ct. Rep. 111, 292, in which it was held that a prosecution for murder did not necessarily require an indictment by a grand jury, where the Constitution of the state authorized prosecutions for felonies by information. Subsequent cases have done nothing to weaken or qualify the force of this decision. Its principle was applied in Re Kemmler, 136 U.S. 436, 34 L. ed. 519, 10 Sup. Ct. Rep. 930, to a law of New York providing for the punishment of death by electricity; in Dent v. West Virginia, 129 U.S. 114, 32 L. ed. 623, 9 Sup. Ct. Rep. 231, to a statute subjecting physicians to punishment who practised medicine without a certificate as to their competency; in Coldwell v. Texas, 137 U.S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224, to a statutory indictment for murder under the laws of Texas; and in Hallinger v. Davis, 146 U.S. 314, 36 L. ed. 986, 13 Sup. Ct. Rep. 105, to a state statute conferring upon one charged with crime the right to waive a trial by jury, and to elect to be tried by the court. It was also cited with approval in Baldwin v. Kansas, 129 U.S. 52, 32 L. ed. 640, 9 Sup. Ct. Rep. 193; Leeper v. Texas, 139 U.S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; McNulty v. California, 149 U.S. 645, 37 L. ed. 882, 13 Sup. Ct. Rep. 959; Holden v. Hardy, 169 U.S. 383, 42 L. ed. 788, 18 Sup. Ct. Rep. 383, and in Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663.
It is insisted, however, that under the act of Congress of April 19, 1864 (13 Stat. at L. 47, chap. 59), enabling the people of Nebraska to form a Constitution and a state government for admission into the Union, the power given to that state is restricted in that particular. After authorizing the inhabitants to form for themselves a Constitution and state government, and providing for a constitutional convention, the 4th section of the act required 'that the members of the convention . . . shall declare, on behalf of the people of said territory, that they adopt the Constitution of the United States; whereupon the said convention shall be, and it is hereby, authorized to form a Constitution and state government.' We are informed, however, as a matter of history, in Brittle v. People, 2 Neb. 198, that the people of the territory being at that time opposed to becoming a state, the convention adjourned sine die without taking action beyond its own organization.
Subsequently, however, the territorial legislature, without calling a convention, framed a Constitution which was submitted to and adopted by the people at an election held June 21, 1866. This Constitution contained the following provision (schedule, § 6): 'This Constitution is formed, and the state of Nebraska asks to be admitted into the Union on an equal footing with the original states, on the condition and faith of the terms of the proposition stated and specified in an act of Congress approved April 19th, 1864, authorizing the people of the territory to form a Constitution and state government; the people of the state of Nebraska hereby accepting the conditions in said act specified.'
At its following session and on February 9, 1867 (14 Stat. at L. 391, chap. 36), Congress passed another act admitting the state of Nebraska into the Union 'upon an equal footing with the original states in all respects whatsoever,' though the 2d section of this act declared 'that the said state of Nebraska shall be, and is hereby declared to be, entitled to all the rights, privileges, grants, and immunities, and to be subject to all the conditions and restrictions, of an act entitled 'An Act to Enable the People of Nebraska to Form a Constitution and State Government, and for the Admission of Such State into the Union on an Equal Footing with the Original States."