V.

an actual interstate shipment, although done be stayed, and the custody of said appellant with a view of promoting the business in be retained pending this appeal.” 1 terests of the company. Even if a state

[No. 12, Original.] may not compel a railroad company to do business at a loss, and conceding that a Argued December 4, 5, 1906. Decided De. railroad company may insist, as against the

cember 24, 1906. power of the state, upon the right to estabTish such rates as will

afford reasonable com. INFORMATION charging, a contempt of pensation for the services rendered, yet,

court in murdering a prisoner under senwhen it voluntarily establishes local rates tence of death in the Criminal Court of for some shippers, it cannot resist the power Hamilton County, State of Tennessee, after

, of the state to enforce the same rates for his appeal to the Federal Supreme Court all

. The state may insist upon equality as from an order of the Circuit Court for the between all its citizens, and that equality Northern Division of the Eastern District cannot be defeated in respect to any local of Tennessee, denying relief by habeas corshipments by arrangements made with or to pus, had been allowed and a stay of proceed. favor outside companies.

ings ordered. Certain preliminary legal obWe see no error in the ruling of the Sujections overruled. preme Court of the State of Mississippi, and

The facts are stated in the opinion. its judgment is affirmed.

Solicitor General Hoyt and Attorney General Moody for complainant.

Messrs. Judson Harmon, Lewis Shepherd,

G. W. Chamlee, Robert B. Cooke, Martin UNITED STATES OF AMERICA

A. Fleming, T. P. Shepherd, Robert Pritch

ard, and Clift & Cooke for defendants. JOHN F. SHIPP et al.

Mr. Justice Holmes delivered the opinion

of the court: Contempt-disobeying order staying pro

This is an information charging a conceedings-jurisdiction.

1. Lack of jurisdiction in the Federal tempt of this court, and is to the following circuit court of a petition for habeas cor- effect. On February 11, 1906, one Johnson, pus, or in the Supreme Court of the appeal a colored man, was convicted of rape upon from the order denying the writ, does not a white woman, in a criminal court of Hamenable persons to disregard, without lia-ilton county, in the state of Tennessee, and bility to process for contempt, the order of was sentenced to death. On March 3 he the Supreme Court that “all proceedings presented a petition for a writ of habeas against the appellant be stayed, and the corpus to the United States circuit court, , custody of said appellant be retained pend-setting up, among other things, that all ing this appeal,” since that court necessarily has jurisdiction to decide whether the negroes had been excluded, illegally, from case is properly before it.*

the grand and petit juries; that his counsel Contempt-purging by sworn denials.

had been deterred from pleading that fact 2. Sworn answers denying any partici- or challenging the array on that ground, pation in the alleged murder of a prisoner and also from asking for a change of venue under sentence of death in a state court, to secure an impartial trial, or for a conpending his appeal to the Federal Supreme tinuance to allow the excitement to subCourt from an order of a circuit court de- side, by the fear and danger of mob vionying relief by habeas corpus, are not suf- lence; and that a motion for a new trial and ficient to purge the affiants of a charge of an appeal were prevented by the same fear. contempt of the Supreme Court by taking For these and other reasons it was alleged part in such murder after the appeal had that he was deprived of various constitubeen allowed and a stay of proceedings or- tional rights, and was about to be deprived dered.+

of his life without due process of law. Contempt-murder of prisoner pending his On March 10, after a hearing upon eviappeal.

dence, the petition was denied, and it was 3. Participation in the murder of a pris. ordered that the petitioner be remanded to oner under sentence of death in a state the custody of the sheriff of Hamilton councourt, with intent to prevent the delay at-ty, to be detained by him in his custody for tendant upon an appeal to the Federal Supreme Court from an order of the circuit the petitioner to prosecute an appeal, and,

a period of ten days, in which to enable court denying relief by habeas corpus, and in default of the prosecution of the appeal to prevent the hearing of such appeal, is a contempt of the Supreme Court, where such within that time, to be then further promurder was committed after the appeal had ceeded with by the state court under its been allowed and that court had ordered sentence. On March 17 an appeal to this that "all proceedings against the appellant court was allowed by Mr. Justice Harlan.

On the following Monday, March 19, a simi- , was without jurisdiction, and that its order lar order was made by this court, and it was might be contemned with impunity. And ordered further "that all proceedings against it is urged that an inspection of the evithe appellant be stayed, and the custody of dence before the circuit court, if not the face said appellant be retained pending this ap- of the petition, shows that the ground alpeal.”

leged for the writ was only a pretense. The sheriff of Hamilton county was noti- We regard this argument as unsound. It fied by telegraph of the order, receiving the has been held, it is true, that orders made news before 6 o'clock on the same day. The by a court having no jurisdiction to make evening papers of Chattanooga published a them may be disregarded without liability full account of what this court had done. to process for contempt. Re Sawyer, 124 And it is alleged that the sheriff and his U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. 482; deputies were informed, and had reason to Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, believe, that an attempt would be made that 5 Sup. Ct. Rep. 724; Ex parte Rowland, 104 night by a mob to murder the prisoner. U. S. 604, 26 L. ed. 861. But even if the Nevertheless, if the allegations be true, the circuit court had no jurisdiction to entersheriff, early in the evening, withdrew the tain Johnson's petition, and if this court had customary guard from the jail, and left no jurisdiction of the appeal, this court, only the night jailer in charge. Subse- and this court alone, could decide that such quently, it is alleged, the sheriff and the was the law. It and it alone necessarily other defendants, with many others un- had jurisdiction to decide whether the case known, conspired to break into the jail for was properly before it. On that question, the purpose of lynching and murdering at least, it was its duty to permit arguJohnson, with intent to show contempt for ment, and to take the time required for the order of this court, and for the purpose such consideration as it might need. See of preventing it from hearing the appeal and Mansfield, C. & L. M. R. Co. v. Swan, 111 Johnson from exercising his rights. In U. S. 379, 387, 28 L. ed. 462, 465, 4 Sup. Ct. furtherance of this conspiracy a mob, in- Rep. 510. Until its judgment declining cluding the defendants, except the sheriff, jurisdiction should be announced, it had auShipp, and the night jailer, Gibson, broke thority, from the necessity of the case, to into the jail, took Johnson out and hanged make orders to preserve the existing conhim, the sheriff and Gibson pretending to ditions and the subject of the petition, just do their duty, but really sympathizing with as the state court was bound to refrain and abetting the mob. The final acts as from further proceedings . until the same well as the conspiracy are alleged as a con- time. Rev. Stat. § 766; act of March 3, tempt.

1893, chap. 226, 27 Stat. at L. 751, U. S. The defendants have appeared and an-Comp. Stat. 1901, p. 597. The fact that the swered, and certain preliminary questions of petitioner was entitled to argue his case law have been argued which it is convenient shows what needs no proof, that the law and just to have settled at the outset before contemplates the possibility of a decision any further steps are taken. The first ques- either way, and therefore must provide for tion, naturally, is that of the jurisdiction of it. Of course, the provision of Rev. Stat. this court. The jurisdiction to punish for $ 766, that, until final judgment on the apa contempt is not denied as a general, ab- peal, further proceedings in the state court stract proposition, as, of course, it could not against the prisoner shall be deemed void, be with success. Ex parte Robinson, 19 applies to every case. There is no implied Wall. 505, 510, 22 L. ed. 205, 207; Ex parte exception if the final judgment shall happen Terry, 128 U. S. 289, 302, 303, 32 L. ed. 405, to be that the writ should not have issued 408, 9 Sup. Ct. Rep. 77. But it is argued or that the appeal should be dismissed. that the circuit court had no jurisdiction in It is proper that we should add that we the habeas corpus case, unless Johnson was are unable to agree with the premises upon in custody in violation of the Constitution which the conclusion just denied is based. (Rev. Stat. § 753, U. S. Comp. Stat. 1901, p. We cannot regard the grounds upon which 592), and that the appellate jurisdiction of the petition for habeas corpus was prethis court was dependent on the act of sented as frivolous or a mere pretense. The March 3, 1891, chap. 517, § 5, 26 Stat. at L. murder of the petitioner has made it impos827, U. S. Comp. Stat. 1901, p. 549 (Re Lensible to decide that case, and what we have non, 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. said makes it unnecessary to pass upon it Rep. 123), and by that act did not exist un- as a preliminary to deciding the question beless the case involved "the construction or fore us. Therefore we shall say no more application of the Constitution of the United than that it does not appear to us clear that States.” If the case did not involve the ap- the subject-matter of the petition was beplication of the Constitution otherwise than yond the jurisdiction of the circuit court, by way of pretense, it is said that this court and that, in our opinion, the facts that

might have been found would have required so far as it goes. We see no reason for the gravest and most anxious consideration emasculating the power given by that secbefore the petition could have been denied. tion, and making it so nearly futile as it

Another general question is to be an- would be if it were construed to mean that swered at this time. The defendants sev all contemners willing to run the slight risk erally have denied under oath in their of a conviction for perjury can escape. answer that they had anything to do with The question was touched, in argument, the murder. It is urged that the sworn whether the acts charged constitute a conanswers are conclusive; that if they are tempt. We are of opinion that they do, and false the parties may be prosecuted for per that their character does not depend upon a jury, but that in this proceeding they are nice inquiry whether, after the order made to be tried, if they so elect, simply by their by this court, the sheriff was to be regarded oaths. It has been suggested that the as bailee of the United States or still held court is a party and therefore leaves the the prisoner in the name of the state alone. fact to be decided by the defendant. But Either way, the order suspended further this is a mere afterthought, to explain proceedings by the state against the prissomething not understood. The court is not oner, and required that he should be fortha party. There is nothing that affects the coming to abide the further order of this judges in their own persons. Their con- court. It may be found that what created cern is only that the law should be obeyed the mob and led to the crime was the unwilland enforced, and their interest is no other ingness of its members to submit to the dethan that they represent in every case. On lay required for the trial of the appeal. this occasion we shall not go into the his- From that to the intent to prevent that detory of the notion. It may be that it was lay and the hearing of the appeal is a short an intrusion or perversion of the canon law, step. If that step is taken the contempt is as is suggested by the propounding of in- proved. terrogatories and the very phrase, “purga- These preliminaries being settled the trial tion by oath” (juramentum purgatorium). of the case will proceed. If so, it is a fragment of a system of proof which does not prevail in theory or as a

Mr. Justice Moody took no part in the whole; and the reason why it has not dis- decision. appeared perhaps may be found in the rarity with which contempts occur. It may be that even now, if the sole question were the intent of an ambiguous act, the proposi- ERNEST GATEWOOD, P/ff. in Err., tion would apply. But in this case it is a question of personal presence and overt acts. STATE OF NORTH CAROLINA. If the presence and the acts should be proved there would be little room for the Constitutional law-equal protection of the disavowal of intent. And when the acts al

laws--discrimination. leged consist in taking part in a murder it

1. The exception in favor of those encannot be admitted that a general denial gaged in the business of manufacturing or and affidavit should dispose of the case. N. C. Laws 1905, chap. 538, enacted to pre

wholesale merchandising, made by § 7 of The outward facts are matters known to vent dealing in futures, does not make that many and they will be ascertained by testi-act void, as repugnant to the equal protecmony in the usual way. The question was tion of the law clause of the 14th Amendleft open in Re Savin, 131 U. S. 267, 33 L. ment to the Federal Constitution, where ed. 150, 9 Sup. Ct. Rep. 699, with a visible such section is interpreted by the highest leaning toward the conclusion to which we

state court simply as a declaration that the come, and that conclusion has been adopted courts shall not so construe the act as to by state courts in decisions entitled to re- and selling, for future delivery, the neces

prevent persons thus engaged from buying spect. Huntington v. McMahon, 48 Conn.

sary commodities required in their ordinary 174, 200, 201; State v. Matthews, 37 N. H. business, and not as relieving them from 450, 455; Bates’s Case, 55 N. H. 325, 327; the operation of the provisions of the l'st Re Snyder, 103 N. Y. 178, 181, 8 N. E. 479; section of that act prohibiting the carryCrow v. State, 24 Tex. 12, 14; State ex rel. ing on of a "bucket shop" business, or from Mason v. Harper's Ferry Bridge Co. 16 W. the prohibitions of N. C. Laws 1889, chap. Va. 864, 873. See Wartman v. Wartman, 221, concerning the making of gambling conTaney, 362, 370, Fed. Cas. No. 17,210; Cart- | tracts for future delivery. wright's Case, 114 Mass. 230; Eilenbecker Error to state court-questions reviewable v. District Court, 134 U. S. 31, 33 L. ed. 801,

statutory construction. 10 Sup. Ct. Rep. 424. Whether or not Rev. est state court to a statute of that state is

2. The construction given by the highStat. § 725, U. S. Comp. Stat. 1901, p. 583, conclusive on the Supreme Court of the applies to this court, it embodies the law' United States - in determining, on writ of

V.

error to the state court, whether such stat. I leave) and Robert D. Gilmer for defendant ute is repugnant to the Federal Constitu- in error. tion.* Error to state court-questions reviewable. Mr. Justice White delivered the opinion

3. Any unconstitutional discrimination of the court: in N. C. Laws 1905, chap. 538, enacted to

North Carolina in 1889 enacted "An Act prevent dealing in futures, which may be produced by provisions raising

a prima fa- to. Suppress and Prevent Certain Kinds of cie presumption of guilt from the proof of Vicious Contracts.” Laws N. C. 1889, chap. certain acts when done by persons generally, 221. This law was thus summarized by the and not when done by those engaged in supreme court of that state in State v. Mcmanufacturing or wholesale merchandising, Ginnis, 138 N. C. 724, 51 S. E. 50: cannot be considered on writ of error from “Section 1 made void all contracts for the the Supreme Court of the United States to sale of articles therein named for future de. review a conviction under that act, where, livery, wherein (notwithstanding any terms from the state of the record, it cannot be affirmed that the finding of the jury as to used) it is not intended that the articles the keeping of a place for gambling in fu- agreed to be sold and delivered shall be actures was not based upon independent evi- tually delivered, but only the difference bedence, wholly irrespective of any presump-tween the contract price and the market tion authorized by that act.

value at the time stipulated shall be paid. Statutes-validity-invalid in part.

Section 2 enacted that when the defense 4. The validity of so much of N. C. provided by that act is set up in a verified Laws 1905, chap. 538, enacted to prevent answer the burden shall be upon the plaindealing in futures, as makes indictable the tiff to prove a lawful contract, but the carrying on of a “bucket shop” business, is not affected by any repugnancy to the due answer shall not be used against the defendprocess of law or equal protection of the ant on an indictment for the transaction. laws clause of the 14th Amendment to the Section 3 made the parties to such contract, Federal Constitution of the provisions of and agents concerned therein, indictable, and that act which raise a prima facie presump- $ 4 made persons, while in this state, contion of guilt from the proof of certain acts senting to become parties to such contract, when done by persons generally, and not made in another state, and all agents in when done by those engaged in manufactur. this state, aiding and furthering such coning or wholesale merchandising. I

tract, made in another state, indictable." Error to state court-questions reviewable. 5. The power of the state, consistently

In 1905 there was adopted “An Act with the due process of law clause of the

to Prevent the Dealing in Futures."

The first 14th amendment to the Federal Constitu- This law contains seven sections. tion, to enact the provisions of N. C. Laws and second made it "unlawful for any per. 1905, chap. 538, enacted to prevent dealing son, corporation, or other association of perin futures, which raise a presumption of sons, either as principal or agents, to esguilt on proof of the doing of certain acts tablish or open an office or other place of specified in that statute, cannot be con business .. for the purpose of carrysidered by the Supreme Court of the United ing on or engaging in any such business as viction under that act, where, from the is forbidden in this act or in chapter 221 state of the record, it cannot be affirmed of the Public Laws of North Carolina of that the finding of the jury as to the keep- 1889," and affixed a penalty for so doing. ing of a place for gambling in futures was the law of 1889, referred to, is the one of not based upon independent evidence, wholly which we have just previously given a sum. irrespective of any presumption authorized mary. by the statute.

The acts made punishable by the 1st and

2d sections of the act of 1905 were thus de[No. 105.]

fined in State v. McGinnis, supra: Argued November 16, 1906. Decided Decem

“The business forbidden by the act of ber 24, 1906.

1'905 is—to avoid a paraphrasis, and follow

ing the usual American method of describing N ERROR to the Supreme Court of the an act by a word or a phrase the business

State of North Carolina to review a con- of running a 'bucket shop,' which is defined viction in the Superior Court of Person by the Century dictionary as ‘an establishCounty, in that state, of carrying on a ment, nominally for the transaction of a "bucket shop" business. Affirmed.

stock exchange business, or business of a See same case below, 138 N. C. 749, 51 similar character, but really for the registraS. E. 53.

tion of bets or wagers, usually for small The facts are stated in the opinion. amounts, on the rise or fall of the prices of

Messrs. Robert W. Winston and Victor S. stocks, grain, oil, etc., there being no transBryant for plaintiff in error.

fer or delivery of the stock or commodities Messrs. Walter Clark, Jr. (by special' nominally dealt in.'"

.

IN

The 3d section provided that no person accused "unlawfully and wilfully did take should be excused from testifying in any and receive from E. T. Lea an order or conprosecution under the act of 1889, or its tract to purchase on margin 100 bales of amendments, on the ground of self-incrimi.cotton for future delivery, to wit, August nation, the section granting immunity to delivery, at 7 56.100 per pound, and that such persons so obliged to testify. It was said Lea did deposit with said defendant at declared by the 4th, 5th and 6th sections said time in said county the sum of $50.00 of the act that in all prosecutions for a vio- by way of margin fluctuations in said cotlation of the provisions of the act of 1889, ton, and that settlement between said paror the act of 1905, a prima facie presumption ties for said cotton was agreed to be made of guilt should arise from the proof of cer- upon the difference in value of said cotton tain facts stated in the sections in question. at said date and the date of its delivery, These sections are reproduced in the mar- contrary to the form of the statute in such gin.† The 7th and last section of the act cases made and provided, and against the contained provisions concerning dealing in peace and dignity of the state." The acts futures by those engaged in the business of thus charged being among those from which, manufacturing or wholesale merchandising, when proved, there would arise a prima which we do not presently reproduce, as facie presumption of a guilty violation of we shall hereafter consider the section. certain of the provisions of the act of 1889.

Gatewood, plaintiff in error, was indicted The case was tried to a jury, and, as for the offense of establishing and keeping stated in the record, after proof and hearing, , an office and place of business for the pur- a special verdict was returned.

By this pose of carrying on or engaging in the char- verdict it was separately found that the deacter of business made unlawful by the fendant had committed the several acts sep1st section of the act of 1905; that is, the arately charged in the indictment; that is, opening and carrying on a "bucket shop." in separate numbered paragraphs the jury The indictment, moreover, in an additional returned that the defendant had kept an paragraph, alleged the doing of certain acts office for the unlawful dealing in futures as though it was intended to charge them forbidden by the 1st section of the act of as distinct offenses from the one charged in 1905, that he had posted and published in the first paragraph. The two things thus such office the fluctuating prices of grain, alleged were as follows: First. That, on etc., and that he had made the contract for a date named, the accused "unlawfully and future delivery upon margin with Lea. The wilfully did post and publish, from infor- evidence at the trial upon which the jury mation received over his wires, the fluctua acted is not in the record. The court then tions in prices of grain, cotton, provisions, directed a general verdict of guilty, and stocks, bonds, and other commodities, con- judgment was entered thereon. A motion trary to the form of statute in such case for a new trial was made, “because the act made and provided,” the acts so charged be- of 1905, chapter —, is in conflict with the ing those from the proof of which it was 14th Amendment, g 1, of the Constitution provided in the 6th section of the act of of the United States, to wit, the guaranty of 1905 that a prima facie presumption of guilt equal protection of the laws." The new trial would arise as to the commission of the having been refused, and a fine of $5 and acts forbidden by the 1st section of that costs having been imposed, the case was act. Second. That, on a date named, the taken to the supreme court of North Caro

+ Sec. 4. That in all prosecutions under agreed to be sold and delivered was not said act and amendment, proof that the actually delivered at the time of making the defendant was a party to a contract, as agreement to sell and deliver, and that one of agent or principal, to sell and deliver any the parties to such an agreement deposited article, thing, or property specified or named or secured, or agreed to deposit or secure, in said act, chapter 221, Public Laws of what are commonly called "margins," shali 1889, or that he was the agent, directly or constitute prima facie evidence of a conindirectly, of any party in making, further-tract declared void by chapter 221 of the

, ing or effectuating the same, or that he Public Laws of 1889. was the agent or officer of any corporation

Sec. 6. That proof that any person, coror association, or person in making, further poration, or other association of persons, ing, or effectuating the same, and that the either principals or agents, shall establish article, thing, or property agreed to be sold an office or place where are posted or puband delivered was not actually delivered, lished from information received the fluctuand that settlement was made or agreed to ating prices of grain, cotton, provisions, be made, upon the difference in value of said stocks, bonds, and other commodities, or article, thing, or property, shall constitute of any one or more of the same, shall against such defendant prima facie evidence constitute prima facie evidence of being of guilt.

guilty of violating $ 1 of this act, and of Sec. 5. That proof that anything of value chapter 221 of the Public Laws of 1889.