SAME

®.

SAME.

(See S. C. Reporter's ed. 101-108.)

Power of circuit courts — dismissal of habeas corpus — equal protection of the laics— . .commitment for contempt — lien on prop- . . erty, when a defense — jury trial.

not, except in urgent eases, relieve from cus¬ tody, b.v habeas corpus, persons held under state authority in violation of a Federal right, but should leave them to their remedy by re¬ view.

by the highest court of (lie state having juris¬ diction of the case is reviewable by this court on writ of error, if it denies the prisoner any right specially set up and claimed by him un¬ der the Constitution, laws, or treaties of the United States.

by a law or course of procedure which would have been applied to any other person in the state under similar circumstances and condi¬ tions.

prive a person of liberty without due process of law, unless the commitment was void.

held by an oflicer of a corporation to secure a debt to himself does not defeat the jurisdic¬ tion of a court which has appointed a receiver

Note. — When habeas corpus may issue, and when not; and from tvhat courts and by what judges; what may be inquired into by writ of, —see note to United States v. Hamilton, 1 :

As to what questions may be considered on habeas corpus, — see note to Re Carl], 27 : 288.

As to suspension of writ of habeas corpus, — see note to Luther v. Borden. 12 : 581.

As to what is due process of law, — see note to Pearson v. Yewdall, 24 : 43G.

91

Supreme Court op the United States.

Oct. Term,

for the corporation In a suit to which the offi¬ cer is a party, after hearing on due notice and appearance, to order him to turn over such property to the receiver.

of law on an inquiry for contempt.

[Nos. 632, 633.]

Argued May 5, 6, 1898. Decided May 31,

APPEAL from a judgment of the Circuit Court of the United States for the Northern District of Texas dismissing a writ of habeas corpus to inquire into the cause of the im¬ prisonment of Thomas Tinsley for a con¬ tempt; and in error to the Court of Criminal Appeals of the State of Texas to review a judgment dismissing a writ of habeas corpus and remanding said Tinsley, to the custody of the sheriff for the same contempt of court, which was disobeying the order of the Dis¬ trict Court of the County of Harris in said

State, requiring him to deliver to the re¬ ceiver of the Houston Cemetery Company certain books and property of that company. Judgments of the Circuit Court and of the Court of Criminal Appeals affirmed.

See same case below (Tex. Civ. App.) 36

S. W. Rep. 802, 37 Tex. Crim. Rep. - , 40

S. W. 300.

The facts are stated in the opinion.

Mr. James L. Bishop for appellant and plaintiff in error :

The commitment and the order on which it was made were void.

Distinct and incompatible proceedings were blended, in one judgment.

Re Chiles, 22 Wall. 157 (22:819); Peo¬ ple, Muns ell, v. NewYork County Ct. of Oyer & Terminer, 101 N. Y. 245, 54 Am. Rep. G9#l.

Regarding the order as made in the pro¬ ceeding as a civil remedy directing the appel¬ lant to deliver the property specified to the receiver, or in default of delivery that he be

As to powers of court to punish for contempt, — see note to Ex parte Robinson, 22 : 205.

That there is no review of decree punishing for contempt; limits to rule, — see note to New Orleans v. New York Mail S. S. Co. 22 : 354.

As to powers and duties of receivers, — see note to Davis v. Gray, 21 : 447.

As to presumption of innocence in habeas cor¬ pus proceedings, — see note to State v. Jones (N. C.) 22 L. It. A. 678.

As to jurisdiction of United States courts, to issue writs of habeas corpus, — see note to Re Reinitz (C. C. S. D. N. Y.) 4 L. R. A. 236.

Habeas corpus; power of Federal courts to is¬ sue; in what cases; when discharge granted;

review of decisions; contempt proceedings.

The circuit courts of the United States have jurisdiction to issue a writ of habeas corpus in l'avor of a person unlawfully restrained of his liberty by state officers under a statute in vio¬ lation of the Constitution of the United States. Baker v. Grice, 169 U. S. 284 (42: 748).

Error in submitting to the jury only the question of murder in the tirst degree, while the evidence is sufficient at the most to convict of murder in the second degree, does not con¬ stitute such a jurisdictional defect in a con¬ viction for murder in the first degree as to sus¬ tain a writ of habeas corpus. Crossley v. Cal¬ ifornia, 168 U. S. 640 (42:610).

The action of the circuit court of the United States in refusing to grant appeals in habeas corpus cases in favor of a prisoner under judg¬ ment of a state court cannot be revised on ap¬ plication to the Supreme Court of the United States for such a writ. Re Boardman, 169 U. S. 39 (42 : 653).

A determination by a state court that judg¬ ment of conviction in a capital case shall not be stayed, notwithstanding the pendency of an appeal which is alleged to present Federal questions, will not be interfered with by the Supreme Court of the United States on a writ of habeas corpus. Re Boardman, 169 U. S. 39 (42 : 653).

A Federal court will not on habeas corpus discharge a prisoner charged with a violation of the criminal laws of one state and appre¬ hended in another, where it appears by the re¬ citals contained in the warrant under which he was arrested and the record of the extradi¬ tion proceedings, that no right, privilege, or immunity secured to him by the Constitution and laws of the United States will be violated by remanding him to the custody of the agent of the d°manding state. Dawson v. Rushin, 49 U. S. App. 674, 83 Fed. Rep. 306, 28 C. C. A.

The regular course of justice in a state court wlil not be interfered with by habeas corpus In a Federal court, unless the case is of an ex-

92

ceptional nature. Baker v. Grice, 169 U. S. 284 (42 : 748).

Habeas corpus will lie to prevent the execu¬ tion of the petitioner under order of a state court, pending an appeal in previous habeas corpus proceeiiiags instituted by him in a Fed¬ eral court, th^^fect of which is to stay pro¬ ceedings in th&JFfte court. Re Ebanks, 84 Fed. Rep. 311.

Federal officers arrested under a charge made in state courts will be discharged by a Federal court on habeas corpus where there is no ground for a criminal charge under the state laws. Re Lewis, 83 Fed. Rep. 159.

The finding of a commissioner holding a prisoner for removal to another Federal dis¬ trict, as to probable cause to believe that he has been guilty of a crime, will not be disturbed where the testimony, though not strong, tends to show the commission of the offense charged. Re Price, 83 Fed. Rep. 830.

A writ of habeas corpus will not be granted by a Federal court to investigate the detention of a person for selling cigarettes without a license, under a plain statute making no dis¬ criminations against foreign goods or foreign citizens, but simply requiring every person en¬ gaged in the business of selling cigarettes to pay a special license tax. Re Mav, 82 Fed. Rep. 422.

The court cannot upon habeas corpus review a judgment of deportation made bv a United States commissioner in respect to a Chinese person upon the facts. Re Tsu Tse Mee, 81 Fed. Rep. 702.

a compiamt in naoeas corpus alleging invalid¬ ity of process or proceedings under which the party is held In custody must set out copies of such process or proceedings, or the essential parts thereof; and mere averments of conclu¬ sions of law are inadequate. Craemer v Wash¬ ington, 168 U. S. 124 (42:407).

Writ of habeas corpus cannot perform the office of a writ of error to review proceedings in extradition before an officer authorized to entertain such proceedings. It is efficient only to reach error fatal to the Jurisdiction of the officer over the person accused, or over the sub¬ ject-matter of the accusation. Sternaman v. Peck, 51 U. S. App. 312, 80 Fed. Rep. 883, 26 C. C. A. 214.

Habeas corpur wti< He to review an imprison¬ ment under otic sentence of a state court, where the question is whether such court had jurisdiction to hear and determine the charge. Re Waite, 81 Fed. Rep. 359.

Federal courts will not, except in extreme cases, if at all, interfere by habeas corpus with confinement of insane person, because steps pro¬ vided for by the state statute have not been followed, but the proper redress is bv applica¬ tion to the state courts. Re Huse,'48 U S App. 318. 79 Fed. Rep. 305, 25 C. C. A. 1.

One held for extradition upon charge of for¬ gery should not be released upon habeas corpus.

171 TJ. S.

Tinsley v.

committed until he make delivery, it was void for the reason that the court had no authority in a proceeding to punish for con¬ tempt to determine the right of possession of property claimed adversely to the receiver or give judgment for the payment of a debt.

Ex parte Eollis, 59 Cal. 405; Parker v. Browning, 8 Paige, 388, 35 Am. Dec. 717; Havemeyer v. San Francisco City <C- County Super. Ct. 84 Cal. 385, 10 L. R. A. 627; Davis v. Gray, 16 Wall. 218 (21: 452) ; Baldwin v. IT ayne County Circuit Judge, 101 Mich. 119; State, Boardman, v. Ball, 5 Wash. 387; Re Muehlfeld, 16 App. Div. 401; Ex parte Grace, 12 Iowa, 208, 79 Am. Dee. 534; State v. Start, 7 Iowa, 501, 74 Am. Dec. 278; Ex parte Hardy, 68 Ala. 303.

The uniform rule is that where a receiver has been appointed he cannot compel the de¬ livery of property in the possession of third persons, who claim title or right to posses¬ sion adverse to the judgment debtor by pro¬ ceedings for contempt.

where there was legal, though circumstantial, evidence before the commissioner which he deemed sufficient to sustain the charge of for¬ gery under the provisions of the treaty. Be Bryant, SO Fed. Kep. 282.

While the general rule is that parties under prosecution in state courts will not be released by a Federal court on habeas corpus, but will be left to reach the United States Supreme Court by writ of error, the Federal court has the power to do so if special circumstances re¬ quire. Re Grice, 79 Fed. Kep. 627.

Courts of the United States may exercise a discretion in determining the question of the discharge of a person on habeas corpus who has been arrested as a fugitive in a state proceeding in aid of a prosecution for the violation of the laws of another state. Iasigi v. Van De Carr, 16C U. S. 3bl (41 : 1045;.

A writ of habeas corpus cannot be made use of to perform the functions of a writ of error or an appeal. Re Uennon, 166 U. S. 548 (41 : 1110) ; Re Rowe, 40 U. S. App. 516, 77 Fed. Rep. 161. 23 C. C. A. 103.

A conviction on a verdict which fails to spec¬ ify the degree of the crime, when the law divides it into degrees, with punishment vary¬ ing according to the degree, although it is er¬ roneous, is not a jurisdictional defect for which the convict can be released on habeas corpus. Re Eckart, 166 U. S. 481 (41 : 1085).

Habeas corpus in contempt proceedings : Ex parte Smith. 177 Ill. 63 ; Ex parte Terry, 1^8 U. S. 2S9 (32 : 405) ; Ex parte Ah Men, 77 Cal. 198 ; Re Morris, 39 Kan. 28 ; Ex parte Robert¬ son, 27 Tex. App. 628 ; Ex parte Wilson 73 Cal. 97 : Re Burrus, 136 U. S. 586 (34 : 500) : Langenberg v. Decker, 131 Ind. 471, 16 L. R. A. 108 ; Com. v. Bell, 145 Pa. 374 ; Ex parte Brown, 97 Cal. 83 ; Re Whetstone. 9 Utah, 156 ; Re Taylor. 8 Misc. 159 ; Re McMaster, 2 Okla. 435 ; Ex parte Wright, 32 N. B. 54 : Re Pfir- man, 1 Ohio N. P. 127 ; Re Rosenberg, 90 Wis. 581 ; Ex parte Lennon, 22 U. S. App. 561, 64 Fed. Rep. 320. 12 C. C. A. 134 ; Ex parte O'Brien, 127 Mo. 477.

The question of error in an order consolidat¬ ing indictments cannot be re-examined by writ of habeas corpus, as error in that respect would not make the judgment and sentence void as without jurisdiction and authority. Howard v. United States. 43 U. S. App. 678. 75 Fed. Rep. 386, 21 C. C. A. 586. 34 L. R. A. 509.

After a decision of a state court of competent jurisdiction when it is still contended that the Federal Constitution has been violated, a Fed¬ eral court has the power, and it is its duty, to interfere by habeas corpus for the protection of the rights violated, but not unless there is a plain case requiring it. Re Krug, 79 Fed. Rep.

An executive warrant for the arrest of a fugi¬ tive from justice will be upheld on habeas cor¬ pus when the foreign indictment or affidavit on

171 U. S.

Anderson.

Rodman v. Henry, 17 N. Y. 482; Barnard v. Iiobbe, 54 N. Y. 516; West Side Panic v. Pugsley, 47 N. Y. 368; Krone v. Klota, 3 App. Div. 587 ; Re Havlilc, 45 Neb. 747 ; Ed- garton v. Hanna, 11 Ohio St. 323.

Jurisdiction means something more than that a party lias been brought before the court, or that the court has a general juris¬ diction of the subject-matter — it requires that the particular subject-matter shall have been brought into issue in the particu¬ lar action before the court.

Reynolds v. Stockton, 140 U S. 254 (35 : 464); Bigelow v. Forrest, 9 Wall. 339 (19: 696) Seamster v. Blaclcstock, 83 Va. 232; Risley v. Phoenix Bank, 83 N. Y. 318, 38 Am. Rep. 421 ; Shaw v. Broadbent, 129 N. Y. 114; Stannard v. Hubbell, 123 N. Y. 520; Allen v. Farmers’ Loan d T. Co. 18 App. Div.

The title of the receiver related only to the date of his appointment. He took the property as of that date subject to such

which it is based is properly authenticated and charges an offense committed within the for¬ eign state with reasonable fullness and accur¬ acy, and will not be pronounced void because of some technical defect in the foreign indictment or affidavit, if the offense is substantially al¬ leged or described. Webb v. York, 49 U. S. App. 163, 79 Fed. Rep. 616.

An excess or abuse in the mode of detention of an accused person does not, except in a very grave and unusual case, entitle him to a dis¬ charge, by a writ of habeas corpus, from all confinement, and the rule applies where the ar¬ rest is under military law. Closson v. United States, Armes, 7 App. D. C. 460.

A letter from the commissioner of internal revenue to a collector, stating that a state court has no right to compel the production of the records of the officers, and that the com¬ munications of taxpayers are privileged, is not a regulation having the force of a statute wThich will entitle a Federal court to review on habeas corpus the imprisonment of a collector for re¬ fusal to produce such records in compliance with the order of a state court. Re Ilirsch, 74 Fed. Rep. 928.

One held under process legally issued by the courts of a state is not entitled to discharge upon habeas corpus because of illegal or fraudu¬ lent extradition proceedings by which he was brought into the jurisdiction. Re Moore, 75 Fed. Rep. 821.

Habeas corpus cannot be extended so as to enable the Federal court to assume the func¬ tions of an appellate tribunal to review the de¬ cisions of state courts, because the petitioner is poor and unable to bear the expense incident to a hearing in the appellate courts of the state. Re Nelson, 69 Fed. Rep. 712.

The decision of a state court denying a writ of error to a person convicted of crime or refus¬ ing to make it effectual cannot be revised by habeas corpus proceedings in a Federal court. Kohl v. Lehlbaek. 160 U. S. 293 (40: 432).

The insufficiency of an indictment in a state court will not be a ground for interposition by the counts of the United States by writ of ha¬ beas corpus. Whitten v. Tomlinson, 160 U. S. 231 (40 : 406).

Habeas corpus will lie In a Federal court to review the commitment by a state court of a deputy collector of internal revenue for con¬ tempt in refusing to disclose communications made to him by an applicant for a retail liquor dealer's tax stamp, for the purpose of making the office records of the application. Re Hutt- man, 70 Fed. Rep. 699.

A dispute in regard to the true boundary be¬ tween the state of California and the territory of Arizona cannot be created or determined upon a petition for a writ of habeas corpus in behalf of one convicted and sentenced and im¬ prisoned by the territorial government in a

93

Supreme Court op the United States.

Oct. Term,

rights of action as the corporation had, or as he was clothed with by statute.

Re Schuyler’s Steam Tow Boat Co. 130 N. Y. 169, 20 L. R. A. 391 ; Connecticut River Bkg. Co. v. Rockbridge Co. 73 Fed. Hep. 709; Storm v. Waddell, 2 Sandf. Ch. 494; Re Muehlfeld, 12 App. Div. 492.

A complete departure from the prescribed formalities, even though the parties were ac¬ tually present in court, would devest the court of jurisdiction to render any judgment.

Ex parte Lange, 18 Wall. 163* (21: 872) ; Ex parte Bain, 121 U. S. 1 (30: 849) ; Eopt v. Utah, 110 U. S. 574 (28: 262) ; Edrington v. Pridham, 65 Tex. 617.

Tlie petition in the United States circuit court contained the averment that petitioner had not then and never had possession or control, since the application for the re¬ ceivership was made, of certain of the notes mentioned in the judgment. This averment was not controverted and it must be taken as true in this court.

Kohl v. Lehlback, 160 U. S. 296 (40:432) ; Whitten v. Tomlinson, 160 U. S. 231 (40: 406).

In effect, the appellant was sentenced to

prison claimed to stand within the boundaries i of such state. Re Chavez, 72 Fed. Rep. 1000.

A habeas corpus is properly granted in the case of an army officer arrested for selling liquor on a military reservation in violation of a state statute, involving the question whether such statute is operative within the limits of the reservation. Re Ladd, 74 Fed. Rep. 31.

Persons held for deportation as alien immi¬ grants coming into the country in violation of the contract labor laws will be released on ha¬ beas corpus, where the warrant of deportation does not contain their names or any name or names idem souans, and there is no evidence tending to identify them with any name or names recited in the warrant. United States v. Amor, 39 U. S. App. 302, 68 Fed. Rep. 885, 16 C. C. A. CO.

The circuit court of the United States should not, except in cases of urgency, discharge upon habeas corpus, from custody under warrants issued by a state court, one charged with the offense, committed while president of a national bank, of forgery by making false entries in the books of the bank with intent to defraud, where he is not indicted in any court of the United States for such offense. New York v. Eno, 155 U. S. 89 (39 : 80).

The United States district court should not sustain a writ of habeas corpus to discharge a person convicted in a state court, where the validity of the sentence can be tested by the supreme court of the state, or a writ of error from the Supreme Court of the United States may be applied for. Pepke v. Cronan, 155 U. S. 100 (39 : 84).

A dismissal by a state court of a petition for a writ of habeas corpus to release a person from a lunatic asylum, although incidentally accom¬ panied by a direction that he should remain in the asylum, will not preclude a Federal court from taking jurisdiction of a subsequent peti¬ tion for the same purpose. King v. McLean Asylum, 21 U. S. App. 481, 04 Fed. Rep. 331, 12 C. C. A. 145, 20 L. R. A. 7S4.

A writ of habeas corpus will not be granted to release a prisoner under indictment in the District of Columbia, until his case has reached a final determination in the district court. Re Chapman, 156 U. S. 211 (39:401).

A B’ederal marshal and his deputies, when ar¬ rested under process from a state court because to save their own lives they killed a person whom they were lawfully attempting to arrest under process of a Federal court, "will be re¬ leased by the latter court on habeas corpus. Kelly v. Georgia, 68 Fed. Rep. 652.

The repugnancy of a state statute to the state Constitution does not authorize a writ of ha- 94

> an indefinite imprisonment. An order of that character was beyond the power of the . court to make.

Ex parte Kearby, 35 Tex. Crim. Rep. 531; Edrington v. Pridham, 65 Tex. 617 ; Ex parte Robinson, 19 Wall. 505 (22: 205) ; State v. Kaiser, 20 Or. 50, 8 L. R. A. 584.

The court anticipated the default and com¬ mitted the appellant in anticipation of the disobedience. The commitment was there- forevoid. A man cannot be convicted of an of¬ fense in anticipation of its being committed.

Re Chiles, 22 Wall. 157-169 (22:819- 823) ; Brinkley v. Brinkley, 47 N. Y. 40. 46; Rice v. Ehele, 55 N. Y. 518; First Nat. Bank v. Fitzpatrick, 80 Hun, 75; Fromme v. Jarecky, 19 Misc. 483.

The sentence imposed being without au¬ thority of law, it was void, and the prisoner was entitled to be discharged on habeas cor¬ pus.

Re Bonner, 151 U. S. 242 (38: 149) : Re Mills, 135 U. S. 263, 270 (34: 107, 110) ; Peo¬ ple v. Carter, 48 Hun, 166; People, Tv.eed, v. Liscomb, 60 N. Y. 559, 19' Am. Rep. 211; Com. v. Newton, 1 Grant, Cas. 453 ; Ex parte Degener, 30 Tex. App. 566.

| beas corpus from a court of the United States. Andrews v. Swartz. J56 U. S. 272 (39:422).

A defect in an indictment under state stat¬ utes which are not repugnant to the Federal Constitution does not give jurisdiction to a Fed- erai court to interfere with the execution of the sentence of a state court by writ of habeas cor¬ pus. Bergemann v. Backer, 157 U. S. 655 (39 : 845).

The violation of a provision in a state Con¬ stitution, limiting the time for reprieves, does not make an execution of the death sentence on a governor's warrant and after the time named in the sentence a violation of the prisoner's right to due process of law. or a deprivation of any right, privilege, or immunity granted by the Constitution of the United States, which will authorize interference by habeas corpus from a Federal court. Lambert v. Barrett, 157 U. S. 697 (39 : 865).

A prisoner is not entitled to discharge upon habeas corpus because he is a negro and citizens of his race were not summoned for qualification as grand jurors, where the state law directs the selection of jurors impartially from the citizens having the requisite qualifications as voters, and does not discriminate against men of the African race. Ex parte Murray, 66 Fed. Rep. 297.

A denial in a state court of the right to show that persons of the race of the accused were arbitrarily excluded by the sheriff from the panel of grand and petit juries solely be¬ cause of their race does not defeat the jurisdic¬ tion of that court so as to warrant a writ of habeas corpus. Andrews v. Swartz, 156 U. S. 272 (39 : 422).

While the decision of an inspecting officer touching the right of alien immigrants to land when adverse to such right, is made final by United States statute, the court upon habeas corpus may determine whether the person ex¬ cluded is or is not an alien immigrant. Re Maiola, 67 Fed. Rep. 114.

Habeas corpus will not lie to review proceed¬ ings by which an alien immigrant is excluded as likely to become a public charge, as Congress has constitutionally vested in the commissioner of immigration, exclusive of the courts, the final authority to determine whether an alien shall be excluded from admission to this coun¬ try. United States, Goldstein, v. Rogers, 65 Fed. Rep. 787.

The question whether one extradited from one state to another was a fugitive from justice is not so exclusively a Federal question that a Federal court will discharge him on habeas cor¬ pus, where the question has not been raised in the state court. Ex parte Whitten, 67 Fed. Rep. 230.

171 U. S.

Tinsley v. Anderson.

102, 103

The order and commitment being void, the appellant was deprived of his liberty by the state without due process of law, and was entitled to his discharge on habeas cor¬ pus.

Ex parte Virginia, 100 U. S. 339 (25: 676) ; Neal v. Delaware, 103 U. S. 370 (26: 567) ; Yick Wo v. Hopkins, 118 U. S. 356 (30: 220) ; Gibson v. Mississippi, _ 162 U. S. 565 (40: 1075) ; Scott v. McNeal, 154 U. S. 34 (38: 896).

Messrs. Presley K. Ewing and Henry F. Ring, for appellee and defendant in error:

In respect to the cause on error to the highest court of the state, this court appears to be without any jurisdictional right of re¬ view, since no Federal right was specially set up or claimed in the state court, the gen¬ eral averment of want of due process of law amounting to nothing.

Kohl v. Lehlback, 160 U. S. 293 (40: 432) ; Whitten v. Tomlinson, 160 U. S. 231 (40: 406) ; Oxley Stave Co. v. Butler County, 166 U. S. 64S (41: 1149) ; Leeper v. Texas,

139 U. S. 462 (35: 225).

In respect to the appeal cause, the circuit court properly exercised its discretion in re¬ fusing to interfere with the state court’s process, and in leaving the relator to his remedy in the state courts, and thence on er¬ ror to this court.

Ex parte Roi/all, 117 U. S. 241 (29: S68) ; Re F rederich, 149 U. S. 70 (37: 653) : Cook v. Hart, 146 U. S. 183 (36: 934) ; Re Wood,

140 U. S. 278 (35: 505) ; Whitten v. Tomlin¬ son, 160 U. S. 231 (40: 406) ; Pepke v. Cro- nan, 155 U. S. 100 (39: 84).

The claim of denial of due process of law appears utterly untenable.

Davis v. Beason, 133 U. S. 333 (33: 637) ; Tiennon v. Lake Shore cf M. 8. By. Co. 22 U. S. App. 561, 565, 64 Fed. Rep. 320, 12 C. C. A. 134.

A jury trial is not necessary to due process of law in a contempt inquiry.

Eilenbecker v. Plymouth County Dist. Ct. 134 U. S. 31 (33: 801) ; Walker v. Saurinet, 92 U. S. 90 (23: 678).

The claim of denial of equal protection of the law is without merit.

Walston v. Nevin, 128 U. S. 578 (32: 544) ; Missouri P. R. Co. v. Mackey, 127 U. S. 209 (32: 109).

Matters of fact adjudicated bv the commit¬ ting court cannot be tried anew on habeas corpus.

Lennon v. Lake Shore & M. S. R. Co. 22 U. S. App. 565, 64 Fed. Rep. 320, 12 C. C. A. 134; Davis v. Beason, 133 U. S. 333 (33: 637).

The claim by relator that he cannot com¬ ply as to part of the notes, if true, is conclu¬ sively met by his contumacious refusal to comply with the order, as far as he admits his ability to do so, the rule being well set¬ tled that until the relator does this, and then seeks in the committing court modifica¬ tion of the order in other respects, he cannot be relieved on habeas corpus.

Re Swan, 150 U. S. 637 (37: 1207).

171 U. S.

*Mr. Chief Justice Fuller delivered the

opinion of the court:

The object of both these proceedings is to obtain the discharge of Thomas Tinsley from imprisonment under an order com¬ mitting him for contempt, under the follow¬ ing circumstances :

On April 23, 1896, upon a petition for the appointment of a receiver of the Houston Cem¬ etery Company, a corporation of Texas, filed against the corporation, and against Tinsley,, who was its president, and the other officers of the corporation, both as such officers and individually, by some in behalf of all, of the owner of lots in the cemetery, the district court of the county of Harris in the state of Texas made an order appointing a receiver of all the property of the corporation, and re¬ quiring each of its officers, upon demand of the receiver, to deliver to him any books, papers, money, or properly, or vouchers for property, within their control, to which the corporation was entitled. Upon appeal by Tinsley and the other defendants from that order it was affirmed, on May 21, 1896, by the court of civil appeals of the state. 36 S. W. 802.

On February 2, 1897, the receiver made a motion to the district court to commit Tinsley for contempt in refusing to deliver to the receiver of a minute book, promissory notes of the amount of $1,440.50, and a trust fund, amounting to $492.52, belonging to the corporation. A rule to show cause was issued, in answer to which Tinsley averred that the notes and the minute book had been delivered by the corporation to him as col¬ lateral security for money advanced by him to the corporation, and that, he had made, at the expense to himself of $7.70, an investment of the trust fund in securities which he had offered, and was still ready, to deliver to the receiver upon payment of this sum.

On February 6, 1897, the district court, after taking evidence and hearing the parties, adjudged that Tinsley was guilty of a con¬ tempt in disobeying its former order by not delivering to the receiver the minute book, notes, and trust fund, *being the property of

the corporation and in his control; and ordered him to pay to the sheriff a fine of $100, and to deliver to the receiver the property aforesaid, and to be committed until he should pay the fine and should (being allowed by the sheriff reasonable opportunity to do so if he should so desire) deliver the property to the receiver, or until he should be dis¬ charged by further order of the court. And upon the same day he was accordingly com¬ mitted to the county jail. On March 17,

1897, he presented to the judge of the dis¬ trict court a petition for a writ of habeas corpus, setting forth the above proceedings, and alleging that the judgment and com¬ mitment for contempt were void, and his detention under them illegal for these reasons: That his claim to the notes, minute book, and trust fund was made in good faith, and that he had the right thereto until de¬ prived thereof by due course of law, and that the proceedings on said motion and said

95

103-106

Supreme Court of the United States.

Oct. Term,

judgment are not due process of law, and that he ought not and cannot be by such proceedings imprisoned or compelled to turn over said property and things, for that there¬ by he is deprived of a trial by due course of law; that the judgment and commitment were uncertain and indefinite, and did not limit the time of his confinement under them; that the statute of the state provided that the district court should not have the power to imprison any person for a longer period than three days for a contempt; and that the mat¬ ters set up in said motion and judgment did not and could not constitute a contempt. This petition for a writ of habeas corpus was denied by the judge of the district court, but on April 2, 1897, was granted by the presiding judge or the court of criminal ap¬ peals of the state of Texas, and a writ of habeas corpus issued, addressed to the sheriff, who, on April 8, returned that he held the prisoner under the commitment for contempt.

After full arguments by both parties, the court of criminal appeals entered judgment, dismissing the writ of habeas corpus, and re¬ manding him to the custody of the sheriff, on the ground that the order of commitment for contempt was within the power of the district court, at least so far as concerned the notes and minute book, because Tinsley was

a * party to the suit in which the receiver was appointed, and claimed no title, other than by way of lien, in the notes and minute book, and such lien, if genuine, would be preserved to him against the property in the hands of the receiver. 40 S. W. 306.

On April 26, 1897, Tinsley filed a motion to set aside that judgment and for a rehear¬ ing, which, after further written arguments in his behalf, was overruled on May 12, 1897.

On May 15, 1897, upon a petition alleging that by the order of commitment he “is de¬ prived of his liberty, and will be, if he sub¬ mits to the order, of his property, without due process of law, in violation of the Con¬ stitution of the United States,” he obtained from the circuit court of the United States for the eastern district of Texas a writ ol habeas corpus to the sheriff, which, after a hearing, was by the judgment of that court dismissed and the prisoner remanded to custody; and on January 21, 1898, he ap¬ pealed from that judgment to this court.

On January 31, 1898, he sued out a writ of error from this court to review the judg¬ ment of tlie court of criminal appeals of the State of Texas, and filed in that court an assignment of errors, one of which was that by the proceedings in that court “he was deprived of his liberty, and, if he submitted to the order of the trial court, would be de¬ prived of his property, without due process of law, in violation of the Constitution of the United States and the 5th and 14th Amend¬ ments thereto.” ,

The two cases now before us are the ap¬ peal from the judgment of the circuit court of the United States, and the writ of error to the court of criminal appeals of the state of Texas.

The dismissal by the circuit court of the

96

United States of its own writ of habeas corpus was in accordance with the rule, re¬ peatedly laid down by this court, that the circuit courts of the United States, wrhile they have power to grant writs of habeas corpus for the purpose of inquiring into the cause of restraint of liberty of any person in custody under the authority of a state in violation of the Constitution, a law or a treaty *of the

United States, yet, except in cases of peculiar urgency, ought not to exercise that jurisdiction by a discharge of the person in advance of a final determination of his case in the courts of the state, and, even after such final determination, will leave him to his remedy to review it by writ of error from this court. Ex parte Royall, 117 U. S. 241 [29:868]; Ex parte Fonda, 117 U. S. 516 [29: 994]; Re Frederick, 149 U. S. 70 [37:

653]; PepJce v. Cronan, 155 U S. 100 [39:

84] ; Bergemann v. Backer, 157 U. S. 655 [39: 845]; Whitten v. Tomlinson, 160 U. S.

231 [40: 406] ; Baker v. Grice, 169 U. S. 284 [42 L. ed. 748]. This case Allows no such <- i . - cumstances as to require departure from this rule.

It was argued in behalf of Tinsley that the judgment committing him for contempt was not reviewable by this court; citing the state¬ ment in Chetwood’s Case, 165 U. S. 443, 462 [41: 782, 788], that “judgments in proceed¬ ings in contempt are not reviewable here on appeal or error. Hayes v. Fischer, 102 U. S.

121 [26 : 95] ; Re Debs, 158 U. S. 564, 573 [39 : 1092,1095], and 159 U. S. 251 [mem.]” But that statement was made in regard to such judgments in independent proceedings for con¬ tempt in the circuit courts of the United States, and the reason is, as stated in cases re¬ ferred to in Hayes v. Fischer, above cited, that such judgments wrere considered as judg¬ ments in criminal cases, in which this court had no appellate jurisdiction from those courts. Ex parte Kearney, 7 Wheat. 38, 42 [5 : 391, 392] ; New Orleans v. New York Mail Steamship Company, 20 Wall. 387, 392 [22:

354, 357].

But the appellate jurisdiction of this court from the state court extends to a final judg¬ ment or decree in any suit, civil or criminal, in the highest court of a state where a deci¬ sion in the suit could be had, against a title, right, privilege, or immunity, specially set up and claimed under the Constitution or a treaty or statute of the United States. Rev.

Stat. § 709. Consequently, if the order of the count of criminal appeals of the state of Texas, being the highest court of the state having jurisdiction of the case, dismissing the writ of habeas corpus issued by one of its judges, and remanding the prisoner to cus¬ tody, denied to him any right specially set up and claimed by him under the Constitu¬ tion, law's, or treaties of the United States, it is doubtless reviewable by this court on writ of *error. Neioport Light Company v. Aeio-rjQoi port, 151 U. S. 527, 542 [38 : 259. 264] ; Prpke L 1

v. Cronan, J55 U. S. 100, 101 [39: S4, 85].

Wc perceive no reason for holding that any such rights were denied by the judgment of the court of criminal appeals, in view of the

171 U. S.

Central National Bank op Boston v. Stkvkns.

luo-lu8

iacts appearing in the record and the grounds on which that court proceeded as disclosed by its opinion.

Counsel asserts that the rights claimed ■under the Constitution ol the United States were the right to due process of law. and the Tight to the equal protection of the laws.

The right to the equal protection of the laws was certainly not denied, for it is appar¬ ent that the same law or course of procedure which was applied to Tinsley would have been applied to any other person in the state of Texas, under similar circumstances and conditions: and there is nothing in the rec¬ ord on which to base an inference to the con¬ trary.

Was the right to due process of law de¬ nied? If the committing court had jurisdic¬ tion of the subject-matter and of the person, and power to make the order for disobedience to which the judgment in contempt was ren¬ dered, and. to render that judgment, then the court of criminal appeals could not do other¬ wise than discharge the writ of habeas cor¬ pus and remand the petitioner. The writ cannot be availed of as a writ of error or an appeal, and if the commitment was not void petitioner was not deprived of his liberty without due process of law.

The district court of Harris county, Texas, was a court of general jurisdiction, and had jurisdiction in the suit against the Cemetery Company and its officers, including Tinsley, who was not a stranger, but a party, to the litigation, after hearing had on due notice and appearance by the defendants, to enter the order appointing a receiver and directing the company’s officers to deliver to him, on his demand tlierefor, the company’s property in their custody, including the books, notes, and moneys on band, and to determine on the facts that Tinsley was in contempt in refus¬ ing to deliver such property, and assuredly to adjudge this as to so much of the property as he conceded belonged to the company, but 107]the possession of which *he claimed the right to retain only in order to enforce an alleged lien.

The court of criminal appeals held that, as Tinsley did not claim the legal title in the notes and in the minute book, but merely an equity or lieu thereon to secure his debt; as the order to turn over the property to the re¬ ceiver was by no means an adjudication as to his lien, which if it was a genuine lien would be preserved to him in the hands of the receiver: and as the effect of the order was merely to place the articles in the hands of the receiver for administration under the orders of the court, — the district court un¬ questionably had the power to make the order as to these articles, and did not exceed its jurisdiction in so doing. So that even though the $492.52 was not a trust fund in his hands, as the district court had decided, but a mere debt due from him, because, as he alleged, that sum had been taken by another, and he had simply agreed to make k good, the ad¬ judication of the district court was neverthe¬ less sustainable apart from that item.

We concur in the view that it was un-

171 TJ. S. U. S.. Book 43.

doubtedly competent for the district court to compel the surrender of the minute book and notes in Tinsley’s possession, and that he could not be discharged on habeas corpus un¬ til he had performed or offered to perform so much of the order as it was within the power of the district court to impose, even though it may have been in some part in¬ valid! Re Swan, 150 U. S. 637 [37: 1207].

The other objections suggested require no special consideration. It is said that the im¬ prisonment for contempt was limited by the state statute to three days (art. 1101, Tex. Rev. Stat.), but the state court held that that statute had reference to a quasi¬ criminal contempt as a punishment, and not to a civil contempt, where the authority of the court is exercised by way of compelling obedience. Rapalje, Contempt, § 21. This is not a Federal question, and we accept the ruling of the state court in its construction of the statute. It is urged that the order ot commitment imposed an uncertain and in¬ definite term of imprisonment; but the order was that Tinsley should be confined until he complied, and the addition, “or *until he shall be discharged by the further order of the court,” was merely intended to retain the power to discharge him if the court should thereafter conclude to do so, it being within his own power to obtain his discharge at any time by obeying the order. Nor is there any force in the objection that no trial by jury was awarded, for such trial was not demand¬ ed, and a jury trial is not necessary to due process of law on an inquiry for contempt. Walker v. Sauvinet, 92 U. S. 90 [23 : 678]; Hilenbecker v. Plymouth County District Court, 134 U. S. 31 [33: 801] ; Rapalje, Con¬ tempt, § 112.

The judgments of the Circuit Court and of the Court of Criminal Appeals are severally affirmed.