court which is properly presented by the record is: Whether the persons and property which the Commission ordered the railroad company to carry were in interstate transportation when the order was made for the service between two stations in Arizona. If the shipment was then in interstate commerce the order was void, and if it was not the order was valid and thé judgment of the Supreme Court of Arizona must be affirmed. The evidence which was before the courts and the Commission was as follows: Early in February, 1914, an agent for the shows applied to the Southern Pacific Company for their transportation from El Paso, Texas, to various towns in Arizona where it was desired to exhibit, and ultimately to Cochise, Arizona, from which point another line would be taken into Tucson. Nothing came of this application and an arrangement was made for carriage to Tucson by another road. Before the shows arrived at Tucson the application out of which this suit arose was made. The agent for the shows testified that the tentative purpose of the management was to go from Tucson to Prescott, to Clarkdale, to Kingman, all in Arizona, and then to Needles, California, exhibiting in each town, but when testifying on March 23d, when his show was exhibiting in Tucson, he said that although he had made application to the Santa Fé Railroad Company for a contract for transportation beyond Phoenix, he had not at that time received a reply. The agent for the Santa Fé Company at Phoenix testified that about March 20th an application was made to him for a rate and contract for the transportation of the shows over his line from Phoenix to Prescott, "possibly to Clarkdale and to Needles, California." Two contracts with the Santa Fé Company were introduced in evidence, one dated April 3d, providing for the transportation of the shows from Phoenix to Prescott, to Kingman and to Needles, and the other dated April 16th, providing for transportation from Prescott direct to Bakersfield, California. The shows were actually carried by the Southern Pacific Company on March 29th or 30th from Tucson to Phoenix, but at an interstate rate insisted upon in *defiance of the Commission's order. At Phoenix the transportation ended so far as the Southern Pacific Company was concerned, and the contract with the Santa Fé Company to carry the shows beyond that city was not concluded, as we have seen, until April 3d-in its modified form not until April 16th. stituting the shipment of the shows here involved were in progress of interstate transportation when the Arizona Commission entered its order on March 25th that the company should accept the intrastate shipment from Tucson to Phoenix. For at that time the shows were in the exclusive possession and control of the owner, exhibiting for six days at Tucson, and the application to the Southern Pacific Company, which was refused shows, incontrovertibly, that the transportation to Tucson had terminated, and that no other transportation had then been contracted for. The company itself proved that interstate transportation was not subsequently arranged for until April 3d certainly and probably not until April 16th-and then was via another line from Phoenix, after two weeks for exhibition in that city. The mere intention of the shipper to ultimately continue his tour beyond the state of Arizona did not convert the contemplated intrastate movement into one that was interstate. The case is ruled by Coe v. Errol, 116 U. S. 517, 6 Sup. Ct. 475, 29 L. Ed. 715; Chicago, Milwaukee & St. Paul Ry. Co. v. State of Iowa, 233 U. S. 334, 34 Sup. Ct. 592, 58 L. Ed. 988; Gulf, Colorado & Santa Fé R. R. Co. v. Texas, 204 U. S. 403, 27 Sup. Ct. 360, 51 L. Ed. 540; Arkadelphia Milling Co. v. St. Louis Southwestern Railway Co., decided March 3d last, 249 U. S. 134, 39 Sup. Ct. 237, 63 L. Ed. 517. It is further argued by the plaintiff in error that the order of the State Commission deprived it of its right to make or refuse to make a contract as a private carrier for the transportation of traveling shows, and thereby deprived it of the equal protection of the laws and of its property without due process of law. [2, 3] It would be enough to say of this contention that no such claim was asserted in the answer of the company in the state court, or even in the assignments of error in this court, and that, therefore, it cannot be considered here. But this omission is not an oversight, for the record shows that it had been in prior practice of the plaintiff in error to transport such shows on application under special contract-a short time before it had transported another show and the year before it had accepted these same shows for transportation-and that the order of the Commission was: "It is understood ⚫ that the company may enter into a contract covering this transportation, the terms of which shall not be in substantial variance with the contract This statement of the case decides it. now existing between the Arizona & Eastern Whether a shipment was at a given time in Railroad Company and the Sells-Floto Shows interstate commerce is a question of fact, Company, with respect to details, as to the reRailroad Commission of Ohio v. Worthing-sponsibility, service, conditions and equipment" ton, 225 U. S. 101, 108, 32 Sup. Ct. 653, 56 L. Ed. 1004; and it is plainly impossible-which contract was on file with the Comto say that the property and persons con- mission, and was dated March 4, 1914. This form of contract was one also used by the (na D. Matters, the appellant, alleged to be a Southern Pacific Company. resident of the state of Illinois. Thus this second claim, obviously an afterthought, is so clearly without merit that it cannot be considered and the judgment of the Supreme Court of Arizona is Affirmed. (249 U. S. 375) MATTERS v. RYAN. The petition for habeas corpus charged that the said child was born to petitioner ten months before in a hospital in Ottawa, but shortly after the birth of the child she was kidnapped by the respondent, who secreted her until August, when she brought the child by railroad journey to Chicago from Ottawa and there illegally detained her. It was charged that the cause of action arose under the law of the United States, in that the (Submitted Jan. 16, 1919. Decided April 14, immigration laws of the United States for 1919.) No. 141. 1. HABEAS CORPUS 45(1) FEDERAL COURTS JURISDICTION IN HABEAS CORPUS -FEDERAL QUESTION. The controlling question on the face of the petition for habeas corpus being maternity, and consequent right of custody, of a child, averment that the case is governed by the immigration laws of the United States, the only basis therefor being an allegation that defendant, pretending to be the child's mother, brought her from Canada without complying with the administrative requirements of the immigration laws, does not make the case involve a federal question adequate to sustain the jurisdiction of a federal court, especially in the absence of power of petitioner to champion the enforcement of the immigration laws. bade the bringing of an alien child under 16 years of age from Canada into the United States without being accompanied by its father or mother, in the absence of permission by the immigration authorities of the United States. An order was entered allowing the prosecution of the habeas corpus proceedings in forma pauperis, and the writ issued. The respondent denied the averments of possession and kidnapping. She alleged that she had a child of her own about 10 months of age, and that if such child was the one referred to in the petition for habeas corpus, the *petitioner had no right to the custody of the same. The existence of any right in the petitioner to champion the enforcement of the immigration laws of the United States was denied, and the jurisdiction of the court to entertain the controverSy was expressly challenged. On the return, after hearing, jurisdiction was maintained, the return was held insufficient, and the petitioner was decreed to be entitled to the custody of the child and the appellant was commanded to deliver her. This direct appeal on the question of jurisdiction alone was then taken. Car [1] It is settled that "the jurisdiction of courts of the United States to issue writs of habeas corpus is limited to cases of persons alleged to be restrained of their liberty in violation of the Constitution or of some law or treaty of the United States, and cases arising under the law of nations." fer v. Caldwell, 200 U. S. 293, 296, 26 Sup. Ct. 264, 265, 50 L. Ed. 488; In re Burrus, 136 U. S. 5S6, 591, 10 Sup. Ct. 850, 34 L. Ed. 1500; Andrews v. Swartz, 156 U. S. 272, 275, 15 Sup. Ct. 389, 39 L. Ed. 422; Storti v. Massachusetts, 183 U. S. 138, 142, 22 Sup. Ct. 72, 46 L. Ed. 120. It is obvious that on the face of the petition the sole question at Mr. Chief Justice WHITE delivered the issue was the maternity and custody of the opinion of the Court. child, and as that question was in its naOn the 20th of May, 1916, Margaret Ryan, ture local and nonfederal there was noththe appellee, alleging herself to be a sub-ing to sustain the jurisdiction unless the ject of the King of Great Britain residing averment that the case was governed by in Ottawa, Canada, applied for a writ of the immigration laws of the United States habeas corpus to obtain the possession of had that effect. But when it is observed her alleged minor child, Irean, by taking that the only basis for that assertion rested her from the asserted illegal custody of An- upon the allegation that the defendant, pre For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Andrew D. Barbour was convicted of vi tending to be the mother of the infant child, [ In Error to the Supreme Court of the had brought her from Canada into the Unit- State of Georgia. ed States without complying with the administrative requirements of the immigra-olation of the liquor law of Georgia, and tion laws, we are of opinion that the case made involved no federal question adequate to sustain the jurisdiction, because of the unsubstantial and frivolous character of the contention made in that respect. We are constrained to this conclusion since we are unable to perceive the possible basis upon which it can be assumed that the local question of maternity, and consequent right to custody, which dominated and controlled the whole issue could be transformed and made federal in character by the assertion concerning the immigration laws. And this becomes all the more cogent when the absence of power on the part of the petitioner to champion the enforcement of the immigration laws is borne in mind. [2] Whether a case might arise where a court of the United States could take jurisdiction of a petition for habeas corpus upon averment of diversity of citizenship and pecuniary interest, without the assertion of a federal right, does not here arise (a) because the suit was brought exclusively under the assumption that it was governed by the law of the United States which requires a federal question to give jurisdiction, and (b) because, in any event, there is here no averment of jurisdictional amount. judgment was affirmed by the Supreme Coun of that state (146 Ga. 667, 92 S. E. 70), and to review the decision defendant brings error. Affirmed. Messrs. A. A. Lawrence and W. W. Os borne, both of Savannah, Ga., for plaintiff in error. Mr. Clifford Walker, of Monroe, Ga., for the State of Georgia. *Mr. Justice BRANDEIS delivered the opinion of the Court. The Georgia prohibitory liquor law was approved November 18, 1915, but, by its terms, did not become effective until May 1, 1916. Under it Barbour was convicted for having in his possession on June 10, 1916, more than one gallon of vinous liquor. Georgia Laws, Extraordinary Session 1915, part 1, title 2, No. 4, §§ 16 and 30, pp. 90, 99, 105. He asserted that the liquor had been acquired by him before May 1st, and contended that the statute, if construed to apply to liquor so acquired, was void under the Fourteenth Amendment. The Supreme Court of the state overruled this contention and affirmed the sentence. 146 Ga. 667, 92 S. E. 70. The case comes here on writ of error under section It follows that the decree below must be 237 of the Judicial Code. and it is Reversed and the case remanded with directions to dismiss the writ of habeas corpus. (249 U. S. 454) BARBOUR v. STATE OF GEORGIA. (Submitted Jan. 24, 1919. Decided April 14, 1919.) That a state which has enacted a prohibitory law may forbid the mere possession of liquor within its borders was decided in Crane v. Campbell, 245 U. S. 304, 38 Sup. Ct. 98, 62 L. Ed. 304; but it did not appear there when the liquor had been acquired. Whether the prohibition of sale may be constitutionally applied to liquor acquired before the enactment of the statute was raised in Bartemeyer v. Iowa, 18 Wall. 129, 21 L. Ed. 929, and Beer Co. v. Massachusetts, 97 U. S. 25, 32, 33, 24 L. Ed. 989, but was not decided. The question presented here, however, is simpler. For the exact date when Barbour acquired the liquor is not shown; and we must assume, as the Supreme Court of Georgia did, that it The application of Laws Ga. (Ex. Sess.) was acquired during the period of five 1915, pt. 1, tit. 2, §§ 16 and 30, making it illegal months and twelve days between the enactto have in possession more than one gallon of ment of the law and the date when it became vinous liquor, to the possession of liquor ac-effective. Does the Fourteenth Amendment. quired after the law was enacted, but before it became effective, does not render that act invalid as depriving of property without due process of law. No. 191. 1. CONSTITUTIONAL LAW 274-INTOXICATING LIQUORS 15-DUE PROCESS OF LAW -POSSESSION OF INTOXICATING LIQUORS. 2. COURTS 396(3)—Error TO STATE COURT -FEDERAL QUESTION-HOW RAISED. A federal question, first raised by defendant in an amended motion for new trial, which could not be considered by the state court under the state practice, does not present the question to the Supreme Court on writ of er ror. by its guaranty to property, prevent a state from protecting its citizens from liquor so acquired? [1] A state, having the power to forbid the manufacture, sale, and possession of liquor within its borders, may, if it concludes to exercise the power, obviously postpone the date when the prohibition shall become effective, in order that those engaged in the business and others may adjust themselves to the new conditions. Whoever acquires, after the en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *459 *458 $460 Petition by F. A. Wagner (trading as the American Mechanical Toy Company), the Strobel & Wilken Company, and the American Mechanical Toy Company, for mandamus to two federal courts. Rule discharged, and petition dismissed. actment of the statute, property thus declar- the order sought to be stayed cannot be reversed ed noxious, takes it with full notice of its on appeal or error. infirmity and that *after a day certain its possession will, by mere lapse of time, become a crime. It is well settled that the federal Constitution does not enable one to stay the exercise of a state's police power by entering into a contract under such circumstances. Diamond Glue Co. v. United States Glue Co., 187 U. S. 611, 615, 23 Sup. Ct. 206, 47 L. Ed. 328. Compare Calder v. Michigan, 218 U. S. 591, 599, 31 Sup. Ct. 122, 54 L. Ed. 1163. Nor can he do so by acquiring property. Messrs. H. A. Toulmin and H. A. Toulmin, Jr., both of Dayton, Ohio, for petitioners. Mr. Reeve Lewis, of Washington, D. C., for respondents. Mr. Justice CLARKE delivered the opinion of the Court. *466 [2] The defendant raised, in his amended motion for a new trial, the further objection that the law was unconstitutional as applied to him, because the liquor had been acquired The petitioners pray that a writ of manbefore the statute was enacted; but the trial damus shall issue out of this court requir- 19 judge denied the motion and declined to ap-ing the Circuit Court of Appeals for the prove any of the grounds on which it was Sixth Circuit and the judges thereof and based. In accordance with the state practice the United States District Court for the its Supreme Court therefore refused to con- Southern District of Ohio, Western Divisider the point. Dickens v. State, 137 Ga.sion, and the judge thereof, to stay further 523, 73 S. E. 826; Harris v. State, 120 Ga. 196, 197, 47 S. E. 573. Consequently the question is not before us (Louisville & Nashville Railroad Co. v. Woodford, 234 U. S. 46, 51, 34 Sup. Ct. 739, 58 L. Ed. 1202), and on it we express no opinion. The judgment of the Supreme Court of Georgia is Affirmed. (249 U. S. 465) Ex parte WAGNER et al. proceedings in a suit pending in the District Court, and the execution of a judgment against petitioners rendered therein by that court (Meccano v. Wagner, 234 Fed. 912) and affirmed by the Circuit Court of Appeals (Wagner v. Meccano, Limited, 246 Fed. 603, 158 C. C. A. 573). The answers of the courts and judges to the usual rule to show cause are before us. The facts upon which the prayer for this extraordinary remedy is based are as follows: The Meccano, Limited, a corporation, brought a suit, which we shall designate as the Ohio case, in the District Court for the (Argued March 17, 1919. Decided April 14, Southern District of Ohio against F. A. 1919.) INGS-PENDENCY OF CASE. It is a conclusive answer to petition for mandamus to a court to enter stay of proceedings in a case that the case was not, when the court refused stay, and is not now, pending in that court. Wagner, trading as the American Mechanical Toy Company, and the Strobel & Wilken Company, a corporation, charging: (1) The PROCEED-infringement of letters patent, which the plaintiff claimed to own, covering certain parts of a model builder or mechanical toy, known by the trade-name of "Meccano"; (2) the infringement of two copyrights which the plaintiff claimed to own upon the manual or book of instructions, which was sold with the toy and which was essential to the use of it; and (3) unfair competition. An accounting and permanent injunction were prayed for. The defendants denied the allegations of the bill and asserted a counterclaim. 2. MANDAMUS 45-STAY OF INTERLOCUTORY PROCEEDING. The Supreme Court will not issue mandamus to a District Court to stay accounting in a case remanded from Circuit Court of Appeals till determination by the Supreme Court of a case pending there from the Circuit Court of Appeals for another circuit, on the claim of the same issue being involved and being decided differently in the two circuits, as mandamus is to be resorted to for securing judicial action, not for determining in advance what that action will be, and not for controlling minor orders, though the result of the litigation may be such that interlocutory proceedings taken may be valueless, even though the cost of them cannot be recovered from the opposite party, or though Upon the trial on the merits the District Court found for the plaintiff on all of the issues, dismissed the counterclaim of defendants, and, granting an injunction, ordered an accounting. On appeal the Circuit Court of Appeals for the Sixth Circuit affirmed the decree of the District Court except as to the infringement of the patent, which was held to be invalid for want of invention, and remanded For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the case for a decree not inconsistent with [affidavits and exhibits before the District its opinion. Pursuant to this affirmance the District Court entered a decree, and appointed a master to take an account of *gains, profits, and damages and to report his conclusions to that court. Court were not sufficient to warrant its conclusion. For these reasons the order of the District Court allowing a temporary injunction was reversed. Following this decision by the Circuit Court of Appeals for the Second Circuit the Meccano, Limited, filed a petition in this court for a writ of certiorari, giving as the reasons relied upon to secure the writ that there was a conflict of opinion between the Courts of Appeals of the Second and Sixth Circuits upon the questions involved in the case, and that the cause should be brought before this court for review to determine: (1) The legal effect to be given to a prior decree in the Sixth circuit against the manufacturer as against a customer in the Second circuit. (2) Whether the preliminary injunction could be legally denied by the Circuit Court of Appeals for the Second Circuit after the prior adjudication of the same issues by the Circuit Court of Appeals for the Sixth Circuit. Thus was the Ohio case ripe for an accounting, which had been ordered, when the petition which we are considering was filed. After the decision by the District Court in the Ohio case, but before it was affirmed by the Circuit Court of Appeals, the Meccano, Limited, instituted a suit which we shall designate as the New York case, in the United States District Court for the Southern District of New York against John Wanamaker, a corporation, charging that the defendant, a customer of the defendants in the Ohio case and a retail dealer engaged in selling the toy manufactured by Wagner, was guilty of the same violations of complainant's rights as were alleged in the Ohio case. Upon "affidavits and exhibits" a motion for an injunction pendente lite was filed, which, upon hearing, was granted. (3) Whether or not the prior decree of the From this order allowing a temporary in- Circuit Court of Appeals for the Sixth Cirjunction an appeal was taken to the Circuit entitled the petitioner to a decision in cuit Court of Appeals for the Second Cir- its favor on the "motion for a decision on cuit, and after the appeal was argued, but the merits" filed in the later case in the before it was decided, the decree of the Dis- Second circuit. trict Court in the Ohio case was affirmed by the Circuit Court of Appeals for the Sixth Circuit. Thereupon the Meccano Company filed a "motion for a decision on the merits" in the New York case, then pending on appeal in the Circuit Court of Appeals for the Second Circuit, and in support of this motion were filed copies of the opinion of the Circuit Court of Appeals for the Sixth Circuit and of the decree entered by the District Court pursuant thereto. This motion for a judgment on the merits was bottomed on the claim that the two cases involved the same issues, that Wagner had assumed the defense in the New York case, and that the decree rendered by the Circuit Court of Appeals for the Sixth Circuit constituted an estoppel by judgment when pleaded in the case in the Second circuit, but the motion was denied. (4) Whether or not an unsuccessful defendant in a suit in one circuit, in which his product has been adjudged *unlawful, is to be permitted to relitigate the same issues with respect to the same product by assuming the defense of a subsequent suit in another circuit against one of his customers. Upon this petition a writ of certiorari was allowed and the case was brought to this court for review. Promptly upon the granting of the writ of certiorari by this court the petitioners herein moved the Circuit Court of Appeals for the Sixth Circuit to stay the accounting proceeding in the Ohio case pending a decision by this court in the New York case. The Circuit Court of Appeals for the Sixth Circuit denied this motion, and, in the answer of that court and of the judges thereof to the rule of this court to show cause, they give as their reason for so deciding that the had theretofore been remanded to the Dis- * Later on the appeal from the order grant-court was of the opinion that, as the case ing a preliminary injunction, which was argued before the motion for judgment on the merits was filed, was decided, and the District Court was reversed, the Circuit Court of Appeals for the Second Circuit holding with the Circuit Court of Appeals for the Sixth Circuit that the patent declared on was invalid for want of invention, but the court also held that a very clear case was necessary to justify a preliminary injunction for a claimed infringement of copyright or for unfair competition, the only remaining claims in the bill, and that the "That the motion to stay all proceedings herein * * presents a question which at this stage of the case, No. 2977, must be determined by the court below." |