18A strong dissenting opinion, concurred in by Justice Harlan, was filed in this case by Justice Day.

So, also, it is held that the proper petition and bond having -been filed, a case is considered removed even though the state court may refuse to make an order of removal, and may in fact proceed with the trial of the cause.20 In such cases the defendant may, if he choose, defend the case in the state court, and after final judgment obtain a writ of error from the United States Supreme Court, and in so doing he does not forfeit his right to defend in the lower federal court. The circuit court can issue a writ of certiorari to the state court demanding a copy of the record in case and the clerk refusing to furnish it becomes liable under a federal act to fine or imprisonment.21

19 Hyde v. Stone (20 How. 170; 15 L. ed. 874); Smyth v. Ames (169 U. S. 466; 18 Sup. Ct. Rep. 418; 42 L. ed. 819); Mercer Co. v. Cowles (7 Wall. 118; 19 L. ed. 86); Lincoln Co. v. Liming (133 U. S. 520; 10 Sup. Ct. Rep. 363; 33 L. ed. 766); Chicot Co. v. Sherwood (148 U. S. 520; 13 Sup. Ct. Rep. 695; 37 L. ed. 546); Barrow S. S. Co. v. Kane (170 U. S. 100; 18 Sup. Ct. Rep. 526; 42 L. ed. 964).

20 Home L. Insurance Co. v. Dunn (19 Wall. 214; 22 L. ed. 68); Marshall v. Holmes (141 U. S. 589; 12 Sup. Ct. Rep. 62; 35 L. ed. 870) and cases there cited.

21 Act of Mch. 8. 1875. Whether Congress has the power thus to punish the refusal of the state official to perform this duty has not received judicial determination. If, however, we judge by analogy from the decision in Ex parte Siebold (100 U. S. 371; 25 L. ed. 717), and if the act required is a purely ministerial one, Congress has the power. In Ex parte Virginia (100 U. S. 339;25 L. ed. 676) a judge of a Virginia court had been indicted for a violation of the federal Civil Rights Act of 1875 in that he had excluded negroes from grand and petit juries. The selection of jurors the majority of the court declared to be a purely ministerial act, and, as to the fact that the accused was a state official, said: "We do not perceive how holding an office under a State and claiming to act for the state can relieve the holder from obligation to obey the Constitution of the United States, or to take away the power of Congress to punish his disobedience." Justice Field, in a dissenting opinion concurred in by Justice Clifford, strongly urged that the act of 1875 was unconstitutional in so far as it attempted to govern the selection of jurors in state courts. He argued that the selection of jurors is a judicial and not a merely ministerial act (quoting Kentucky v. Dennison), and that Congress had no authority over judicial officers of the States in discharge of their duties under State laws. For a fuller discussion of this case see post, p. 189.

In the recently- decided case of W. U. Telegraph Co. v. Kansas22 the court takes a position which it is somewhat difficult to harmonize with that assumed in the insurance cases. In this case the court held unconstitutional as an interference with interstate commerce a state law exacting from a foreign telegraph corporation, as a condition of being permitted to continue to do a local business within the State, a charter fee of a given per cent of its entire authorized capital stock. The court declare: "The vital difference between the Prewitt case and the one now before us is that the business of the insurance company, involved in the former case, was not, as this court has often adjudged, interstate commerce, while the business of the telegraph company was primarily and mainly that of interstate commerce." This is true enough, but the essential fact still remains that the Prewitt case permitted the State to exact of the foreign corporation as a condition to its being permitted to do business within the State that it should forego the exercise of a federal constitutional right, whereas, in the later case it was held that the State might not as a condition impose burdens upon the exercise by the foreign corporation of federal right, that of carrying on interstate commerce, which can scarcely be said to be a more important privilege than that involved in the Prewitt case. It would seem, therefore, that the suggestion made by Justice White in his concurring opinion in the later case was a stronger one, namely, that the company having been permitted to enter the State and construct its plant there, the onerous conditions attempted to be imposed by the State as a condition to its remaining there were confiscatory and, therefore, wanting in due process of law.

22 30 Sup. Ct. Rep. 190.