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." + terests of the company. Even if a state may not compel a railroad company to do INF [No. 12, Original.] cember 24, 1906. business at a loss, and conceding that a Argued December 4, 5, 1906. Decided Derailroad company may insist, as against the power of the state, upon the right to establish such rates as will afford reasonable compensation for the services rendered, yet, when it voluntarily establishes local rates for some shippers, it cannot resist the power of the state to enforce the same rates for all. The state may insist upon equality as between all its citizens, and that equality cannot be defeated in respect to any local shipments by arrangements made with or to favor outside companies. We see no error in the ruling of the Supreme Court of the State of Mississippi, and its judgment is affirmed. UNITED STATES OF AMERICA JOHN F. SHIPP et al. Contempt-disobeying order staying proceedings-jurisdiction. NFORMATION charging a contempt of court in murdering a prisoner under sentence of death in the Criminal Court of Hamilton County, State of Tennessee, after his appeal to the Federal Supreme Court from an order of the Circuit Court for the Northern Division of the Eastern District of Tennessee, denying relief by habeas corpus, had been allowed and a stay of proceedings ordered. Certain preliminary legal objections overruled. The facts are stated in the opinion. Solicitor General Hoyt and Attorney General Moody for complainant. Messrs. Judson Harmon, Lewis Shepherd, G. W. Chamlee, Robert B. Cooke, Martin A. Fleming, T. P. Shepherd, Robert Pritchard, and Clift & Cooke for defendants. Mr. Justice Holmes delivered the opinion of the court: This is an information charging a con1. 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 case is properly before it.* Contempt-purging by sworn denials. 2. Sworn answers denying any participation in the alleged murder of a prisoner under sentence of death in a state court, pending his appeal to the Federal Supreme Court from an order of a circuit court denying relief by habeas corpus, are not sufficient to purge the affiants of a charge of contempt of the Supreme Court by taking part in such murder after the appeal had been allowed and a stay of proceedings ordered.† Contempt-murder of prisoner pending his appeal. 3. Participation in the murder of a prisoner under sentence of death in a state court, with intent to prevent the delay attendant upon an appeal to the Federal Supreme Court from an order of the circuit court denying relief by habeas corpus, and to prevent the hearing of such appeal, is a contempt of the Supreme Court, where such murder was committed after the appeal had been allowed and that court had ordered that "all proceedings against the appellant negroes had been excluded, illegally, from the grand and petit juries; that his counsel had been deterred from pleading that fact or challenging the array on that ground, and also from asking for a change of venue to secure an impartial trial, or for a continuance to allow the excitement to subside, by the fear and danger of mob violence; and that a motion for a new trial and an appeal were prevented by the same fear. For these and other reasons it was alleged that he was deprived of various constitutional rights, and was about to be deprived of his life without due process of law. On March 10, after a hearing upon evidence, the petition was denied, and it was ordered that the petitioner be remanded to the custody of the sheriff of Hamilton county, to be detained by him in his custody for a period of ten days, in which to enable the petitioner to prosecute an appeal, and, in default of the prosecution of the appeal within that time, to be then further proceeded with by the state court under its sentence. On March 17 an appeal to this court was allowed by Mr. Justice Harlan. *Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Contempt, §§ 65, 66. 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 notified by telegraph of the order, receiving the news before 6 o'clock on the same day. The evening papers of Chattanooga published a full account of what this court had done. And it is alleged that the sheriff and his deputies were informed, and had reason to believe, that an attempt would be made that night by a mob to murder the prisoner. Nevertheless, if the allegations be true, the sheriff, early in the evening, withdrew the customary guard from the jail, and left only the night jailer in charge. Subsequently, it is alleged, the sheriff and the other defendants, with many others unknown, conspired to break into the jail for the purpose of lynching and murdering Johnson, with intent to show contempt for the order of this court, and for the purpose of preventing it from hearing the appeal and Johnson from exercising his rights. In furtherance of this conspiracy a mob, including the defendants, except the sheriff, Shipp, and the night jailer, Gibson, broke into the jail, took Johnson out and hanged him, the sheriff and Gibson pretending to do their duty, but really sympathizing with and abetting the mob. The final acts as well as the conspiracy are alleged as a contempt. The defendants have appeared and answered, and certain preliminary questions of law have been argued which it is convenient and just to have settled at the outset before any further steps are taken. The first question, naturally, is that of the jurisdiction of this court. The jurisdiction to punish for a contempt is not denied as a general, abstract proposition, as, of course, it could not be with success. Ex parte Robinson, 19 Wall. 505, 510, 22 L. ed. 205, 207; Ex parte Terry, 128 U. S. 289, 302, 303, 32 L. ed. 405, 408, 9 Sup. Ct. Rep. 77. But it is argued that the circuit court had no jurisdiction in the habeas corpus case, unless Johnson was in custody in violation of the Constitution (Rev. Stat. § 753, U. S. Comp. Stat. 1901, p. 592), and that the appellate jurisdiction of this court was dependent on the act of March 3, 1891, chap. 517, § 5, 26 Stat. at L. 827, U. S. Comp. Stat. 1901, p. 549 (Re Lennon, 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. Rep. 123), and by that act did not exist unless the case involved "the construction or application of the Constitution of the United States." If the case did not involve the application of the Constitution otherwise than by way of pretense, it is said that this court We regard this argument as unsound. It has been held, it is true, that orders made by a court having no jurisdiction to make them may be disregarded without liability to process for contempt. Re Sawyer, 124 U. S. 200, 31 L. ed. 402, 8 Sup. Ct. Rep. 482; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Ex parte Rowland, 104 U. S. 604, 26 L. ed. 861. But even if the circuit court had no jurisdiction to entertain Johnson's petition, and if this court had no jurisdiction of the appeal, this court, and this court alone, could decide that such was the law. It and it alone necessarily had jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument, and to take the time required for such consideration as it might need. See Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 387, 28 L. ed. 462, 465, 4 Sup. Ct. Rep. 510. Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition, just as the state court was bound to refrain from further proceedings. until the same time. Rev. Stat. § 766; act of March 3, 1893, chap. 226, 27 Stat. at L. 751, U. S. Comp. Stat. 1901, p. 597. The fact that the petitioner was entitled to argue his case shows what needs no proof, that the law contemplates the possibility of a decision either way, and therefore must provide for it. Of course, the provision of Rev. Stat. § 766, that, until final judgment on the appeal, further proceedings in the state court against the prisoner shall be deemed void, applies to every case. There is no implied exception if the final judgment shall happen to be that the writ should not have issued or that the appeal should be dismissed. It is proper that we should add that we are unable to agree with the premises upon which the conclusion just denied is based. We cannot regard the grounds upon which the petition for habeas corpus was presented as frivolous or a mere pretense. The murder of the petitioner has made it impossible to decide that case, and what we have said makes it unnecessary to pass upon it as a preliminary to deciding the question before us. Therefore we shall say no more than that it does not appear to us clear that the subject-matter of the petition was beyond the jurisdiction of the circuit court, and that, in our opinion, the facts that might have been found would have required the gravest and most anxious consideration before the petition could have been denied. Another general question is to be answered at this time. The defendants severally have denied under oath in their answer that they had anything to do with the murder. It is urged that the sworn answers are conclusive; that if they are false the parties may be prosecuted for perjury, but that in this proceeding they are to be tried, if they so elect, simply by their oaths. It has been suggested that the court is a party and therefore leaves the fact to be decided by the defendant. But this is a mere afterthought, to explain something not understood. The court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they represent in every case. On this occasion we shall not go into the history of the notion. It may be that it was an intrusion or perversion of the canon law, as is suggested by the propounding of interrogatories and the very phrase, "purgation by oath" (juramentum purgatorium). If so, it is a fragment of a system of proof which does not prevail in theory or as a whole; and the reason why it has not disappeared 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 proposition would apply. But in this case it is a question of personal presence and overt acts. If the presence and the acts should be proved there would be little room for the disavowal of intent. And when the acts alleged consist in taking part in a murder it cannot be admitted that a general denial and affidavit should dispose of the case. The outward facts are matters known to many and they will be ascertained by testimony in the usual way. The question was left open in Re Savin, 131 U. S. 267, 33 L. ed. 150, 9 Sup. Ct. Rep. 699, with a visible leaning toward the conclusion to which we come, and that conclusion has been adopted by state courts in decisions entitled to respect. Huntington v. McMahon, 48 Conn. 174, 200, 201; State v. Matthews, 37 N. H. 450, 455; Bates's Case, 55 N. H. 325, 327; Re Snyder, 103 N. Y. 178, 181, 8 N. E. 479; Crow v. State, 24 Tex. 12, 14; State ex rel. Mason v. Harper's Ferry Bridge Co. 16 W. Va. 864, 873. See Wartman v. Wartman, Taney, 362, 370, Fed. Cas. No. 17,210; Cartwright's Case, 114 Mass. 230; Eilenbecker v. District Court, 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424. Whether or not Rev. Stat. § 725, U. S. Comp. Stat. 1901, p. 583, applies to this court, it embodies the law so far as it goes. We see no reason for emasculating the power given by that section, and making it so nearly futile as it would be if it were construed to mean that all contemners willing to run the slight risk of a conviction for perjury can escape. The question was touched, in argument, whether the acts charged constitute a contempt. We are of opinion that they do, and that their character does not depend upon a nice inquiry whether, after the order made by this court, the sheriff was to be regarded as bailee of the United States or still held the prisoner in the name of the state alone. Either way, the order suspended further proceedings by the state against the prisoner, and required that he should be forthcoming to abide the further order of this court. It may be found that what created the mob and led to the crime was the unwillingness of its members to submit to the delay required for the trial of the appeal. From that to the intent to prevent that delay and the hearing of the appeal is a short step. If that step is taken the contempt is proved. These preliminaries being settled the trial of the case will proceed. Mr. Justice Moody took no part in the decision. 1. The exception in favor of those engaged in the business of manufacturing or wholesale merchandising, made by § 7 of N. C. Laws 1905, chap. 538, enacted to prevent dealing in futures, does not make that act void, as repugnant to the equal protection of the law clause of the 14th Amendment to the Federal Constitution, where such section is interpreted by the highest state court simply as a declaration that the courts shall not so construe the act as to and selling, for future delivery, the necesprevent persons thus engaged from buying sary commodities required in their ordinary business, and not as relieving them from the operation of the provisions of the Ist section of that act prohibiting the carrying on of a "bucket shop" business, or from the prohibitions of N. C. Laws 1889, chap. 221, concerning the making of gambling contracts for future delivery. Error to state court-questions reviewablestatutory construction. 2. The construction given by the highest state court to a statute of that state is conclusive on the Supreme Court of the United States in determining, on writ of error to the state court, whether such stat- | 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 North Carolina in 1889 enacted "An Act to Suppress and Prevent Certain Kinds of Vicious Contracts." Laws N. C. 1889, chap. 221. This law was thus summarized by the supreme court of that state in State v. McGinnis, 138 N. C. 724, 51 S. E. 50: 3. Any unconstitutional discrimination of the court: in N. C. Laws 1905, chap. 538, enacted to prevent dealing in futures, which may be produced by provisions raising a prima facie presumption of guilt from the proof of certain acts when done by persons generally, and not when done by those engaged in manufacturing or wholesale merchandising, cannot be considered on writ of error from the Supreme Court of the United States to review a conviction under that act, where, from the state of the record, it cannot be affirmed that the finding of the jury as to the keeping of a place for gambling in futures was not based upon independent evidence, wholly irrespective of any presump-tween the contract price and the market tion authorized by that act.t Statutes-validity-invalid in part. "Section 1 made void all contracts for the sale of articles therein named for future delivery, wherein (notwithstanding any terms used) it is not intended that the articles agreed to be sold and delivered shall be actually delivered, but only the difference be value at the time stipulated shall be paid. 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 when done by persons generally, and not when done by those engaged in manufacturing or wholesale merchandising. Error to state court-questions reviewable. 5. The power of the state, consistently with the due process of law clause of the 14th amendment to the Federal Constitution, to enact the provisions of N. C. Laws 1905, chap. 538, enacted to prevent dealing in futures, which raise a presumption of guilt on proof of the doing of certain acts specified in that statute, cannot be considered by the Supreme Court of the United States on writ of error to review a conviction under that act, where, from the state of the record, it cannot be affirmed that the finding of the jury as to the keeping of a place for gambling in futures was not based upon independent evidence, wholly irrespective of any presumption authorized by the statute. † [No. 105.] Argued November 16, 1906. Decided December 24, 1906. IN N ERROR to the Supreme Court of the State of North Carolina to review a conviction in the Superior Court of Person County, in that state, of carrying on a "bucket shop" business. Affirmed. senting to become parties to such contract, The acts made punishable by the 1st and 2d sections of the act of 1905 were thus defined in State v. McGinnis, supra: "The business forbidden by the act of 1905 is to avoid a paraphrasis, and following the usual American method of describing an act by a word or a phrase the business of running a 'bucket shop,' which is defined by the Century dictionary as 'an establishment, nominally for the transaction of a stock exchange business, or business of a similar character, but really for the registration 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 nominally dealt in.” ” See same case below, 138 N. C. 749, 51 S. E. 53. Messrs. Walter Clark, Jr. (by special *Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 956, 957. 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. The case was tried to a jury, and, as stated in the record, after proof and hearing, a special verdict was returned. By this verdict it was separately found that the defendant had committed the several acts separately charged in the indictment; that is, in separate numbered paragraphs the jury returned that the defendant had kept an office for the unlawful dealing in futures forbidden by the 1st section of the act of 1905, that he had posted and published in such office the fluctuating prices of grain, etc., and that he had made the contract for future delivery upon margin with Lea. The evidence at the trial upon which the jury acted is not in the record. The court then directed a general verdict of guilty, and judgment was entered thereon. A motion for a new trial was made, "because the act of 1905, chapter, is in conflict with the 14th Amendment, § 1, of the Constitution of the United States, to wit, the guaranty of equal protection of the laws." The new trial having been refused, and a fine of $5 and costs having been imposed, the case was taken to the supreme court of North Caroagreed to be sold and delivered was not actually delivered at the time of making the agreement to sell and deliver, and that one of the parties to such an agreement deposited or secured, or agreed to deposit or secure, what are commonly called "margins," shall constitute prima facie evidence of a contract declared void by chapter 221 of the Public Laws of 1889. Gatewood, plaintiff in error, was indicted for the offense of establishing and keeping an office and place of business for the purpose of carrying on or engaging in the character of business made unlawful by the 1st section of the act of 1905; that is, the opening and carrying on a "bucket shop." The indictment, moreover, in an additional paragraph, alleged the doing of certain acts as though it was intended to charge them as distinct offenses from the one charged in the first paragraph. The two things thus alleged were as follows: First. That, on a date named, the accused "unlawfully and wilfully did post and publish, from information received over his wires, the fluctuations in prices of grain, cotton, provisions, stocks, bonds, and other commodities, contrary to the form of statute in such case made and provided," the acts so charged being those from the proof of which it was provided in the 6th section of the act of 1905 that a prima facie presumption of guilt would arise as to the commission of the acts forbidden by the 1st section of that act. Second. That, on a date named, the | Sec. 4. That in all prosecutions under said act and amendment, proof that the defendant was a party to a contract, as agent or principal, to sell and deliver any article. thing, or property specified or named in said act, chapter 221, Public Laws of 1889, or that he was the agent, directly or indirectly, of any party in making, furthering or effectuating the same, or that he 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 article, thing, or property agreed to be sold and delivered was not actually delivered, and that settlement was made or agreed to be made, upon the difference in value of said article, thing, or property, shall constitute against such defendant prima facie evidence of guilt. Sec. 5. That proof that anything of value either principals or agents, shall establish an office or place where are posted or published from information received the fluctuating prices of grain, cotton, provisions, stocks, bonds, and other commodities, or of any one or more of the same, shall constitute prima facie evidence of being guilty of violating § 1 of this act, and of chapter 221 of the Public Laws of 1889. |