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that reason the application for the writ of habeas corpus was granted. 139 Fed. 846. The order of commitment under which the appellee was held was adjudged by the circuit court to be illegal and void, but the judgment was without prejudice to any lawful proceeding to have the prisoner restrained, if he should be adjudged to be a dangerous person by reason of insanity. From that judgment the present appeal was prosecuted.
of the United States, he could have brought
It is the settled doctrine of this court that, although the circuit courts of the United States, and the several justices and judges thereof, have authority, under existing statutes, to discharge, upon habeas corpus, one held in custody by state authority in violation of the Constitution or of any treaty or law of the United States, the court, justice, or judge has a discretion as to the time and mode in which the power so conferred shall be exerted; and that, in view of the relations existing, under our system of government, between the judicial tribunals of the Union and of the several states, a Federal court or a Federal judge will not ordinarily interfere by habeas corpus with the regular course of procedure under state authority, but will leave the applicant for the writ of habeas corpus to exhaust the remedies afforded by the state for determining whether he is illegally restrained of his liberty. After the highest court of the state, competent under the state law to dispose of the matter, has finally acted, the case can be brought to this court for re-examination. The exceptional cases in which a Federal court or judge may sometimes appropriately interfere by habeas corpus in advance of final action by the authorities of the state are those of great urgency, that require to be promptly disposed of; such, for instance, as cases "in-nally discharged therefrom." volving the authority and operations of the Without now expressing any opinion as general government, or the obligations of this country to, or its relations with, foreign nations." The present case is not within any of the exceptions recognized in our former decisions. If the applicant felt that the decision, upon habeas corpus, in the supreme court of the state, was in violation of his rights under the Constitution or laws |
Ex parte Royall, 117 U. S. 241, 251, 29 L. ed. 868, 871, 6 Sup. Ct. Rep. 734; Ex part Fonda, 117 U. S. 516, 29 L. ed. 994, 6 Sup. Ct. Rep. 848; New York v. Eno, 155 U. S. 89, 39 L. ed. 80, 15 Sup. Ct. Rep. 30; Re Wood (Wood v. Brush) 140 U. S. 278, 35 L. ed. 505, 11 Sup. Ct. Rep. 738; Re Frederich, 149 U. S. 70, 37 L. ed. 653, 13 Sup. Ct. Rep. 793; Pepke v. Cronan, 155 U. S. 100, 39 L. ed. 84, 15 Sup. Ct. Rep. 34; Re Chapman, 156 U. S. 211, 39 L. ed. 401, 15 Sup. Ct. Rep. 331; Whitten v. Tomlin
to the constitutionality of the statute in question, or as to the mode in which it was administered in the state court, for the reasons stated the judgment of the Circuit Court must be reversed, with directions to set aside the order discharging the appellee, and to enter an order denying the application for a writ of habeas corpus, leaving son, 160 U. S. 231, 40 L. ed. 406, 16 Sup. Ct. Rep. 297; Baker v. Grice, 169 Ú. S. 284, 42 L. ed. 748, 18 Sup. Ct. Rep. 323; Tinsley v. Anderson, 171 U. S. 101, 104, 43 L. ed. 91, 96, 18 Sup. Ct. Rep. 805; Markuson v. Boucher, 175 U. S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76; Minnesota v. Brundage, 180 U. S. 499, 45 L. ed. 639, 21 Sup. Ct. Rep. 455; Riggins v. United States, 199 U. S. 547, 50 L. ed. 303, 26 Sup. Ct. Rep. 147; Re Lincoln, 202 U. S. 178, 50 L. ed. 984, 26 Sup. Ct. Rep. 602.
the appellee in the custody of the state, | Massachusetts, individually and as trustee with liberty to apply for a writ of error to to H. C. Long & Company, composed of H. review the above judgment of the Supreme C. Long and Frank A. Sanderson. Court of Washington.
It is so ordered.
ROBERT J. TRACY, Plff. in Err.,
ALBERT A. GINZBERG, Individually and as Trustee in Bankruptcy of H. C. Long & Company.
Constitutional law-due process of law.
The case made by the bill of complaint is as follows: On the 23d of December, 1902, the plaintiff sold to Long and Sanderson the personal property used in carrying on hotel business at a certain place in Boston, and assigned to them the lease of the realty occupied by the hotel. As partial payment therefor he took back a mortgage on the personal property for the sum of $7,500, running to the James Everard's Breweries, a corporation of New York. The 1. The police board of Boston, by is- mortgage covered not only a part of the suing a liquor license, on a vacancy created purchase price, but also $3,000 in cash, by bankruptcy, to the nominee of the which the plaintiff paid for the liquor litrustee in bankruptcy of the original license, which, on or about the above date, censees, does not deprive a co-licensee, to whom the original license had been assigned as security, of property without due process of law, where his so-called property right depends wholly upon the practice of the board to reissue licenses to the old holders until refused for cause, since such right, being of the board's creation, is subject to any limitations which the board may im
Constitutional law-due process of law.
2. The decision of a state court involving nothing more than the ownership of property, with all parties in interest before it, cannot be regarded by the unsuccessful party as a deprivation of property without due process of law, simply because its effect is to deny his claim of ownership in such property.
Argued February 26, 1907. Decided March 18, 1907.
ERROR to the Supreme Judicial Court of the State of Massachusetts to review a judgment which affirmed a decree of the trial justice of that court, dismissing a bill to recover from a trustee in bankruptcy moneys received from the sale of an unexpired liquor license to one desiring a renewal. Affirmed.
See same case below, 189 Mass. 260, 75 N. E. 637.
The facts are stated in the opinion. Messrs. Harry J. Jaquith and Thomas J. Barry for plaintiff in error.
Messrs. A. W. Putnam, William B. Sullivan, and Lourie & Ginsberg for defendant in
he procured to be assigned to Long and Sanderson and to himself, as joint owners, and also the sum of $1,400 in cash, which the plaintiff paid to the city of Boston as a fee for the liquor license issued by the board of police of that city to Long and Sanderson and to the plaintiff. That license expired by limitation on May 1st,
In consideration of the advance, by plaintiff's procurement, of the above sums of $3,000 and $1,400, Long and Sanderson, on the above date, by writing, assigned their right, title, and interest in said license to the plaintiff, covenanting and agreeing that all future applications for renewals of the license should be in the names of Long and Sanderson and the plaintiff, and that, upon such renewal being granted, they would assign, transfer, and set over any such license.
Long and Sanderson being without money for the purpose, the plaintiff paid $1.400 to the city as the renewal fee, and thereupon a new first and fourth-class license was is
sued by the board of police to Long and Sanderson and the plaintiff to sell intoxiThis license was taken by the plaintiff into cating liquors in the said hotel building. his possession, and he had it in his possession at the bringing of this suit.
On the payment of the license fee for 1903, 1904, Long and Sanderson, by an instrument of writing dated April 24th, 1903, assigned, transferred, and set over to the plaintiff their interest in that license, and further agreed to assign and set over to him their interest in any renewal of the license so long as they should be indebted to James Everard's Breweries. The plaintiff alleged
Mr. Justice Harlan delivered the opinion that that assignment was for present and
of the court:
This suit was instituted in the supreme judicial court of Massachusetts by the plaintiff in error, a citizen of New York, against the defendant in error, a citizen of
valuable consideration, and that by reason thereof he became the sole owner of the license.
Long and Sanderson were adjudged bankrupts on the 23d of July, 1903, being at the
time indebted, and are still indebted, to | plaintiff have such other and further relief James Everard's Breweries in a sum exceed-as may be just. ing $7,000.
Such is the case made by the bill. After answer and replication the evidence was taken by a special commissioner, to be reported to the full court. In its finding of facts the court said: "In the case at bar, the police commissioners were satisfied that the name of Tracy was inserted in the two licenses to secure to his principal the debt or part of the debt, due from the defendants Long and Sanderson; that he was not a partner in the liquor business, and for that reason the police commissioners gave a pref
The number of first and fourth-class licenses in Boston is limited by law, and are substantially all issued each year, so that a new license cannot be issued until an old license is canceled. Old licenses are of great value to persons who desire to engage in the liquor business in Boston. They sell from $3,000 to $5,000 to persons who present them for cancelation together with an application for a new license to themselves. Because of the large surrender value of old licenses and of the long-continued cus-erence to O'Hearn, who was nominated by tom of reissuing licenses to old holders until refused for cause, such licenses have been recognized by the courts of Massachusetts as property rights, and the powers of the board of police in dealing with them have been limited to the exercise of the sound discretion within the limits established by the laws of the commonwealth.
the trustee in bankruptcy, with [out] the consent, or against the objections, of Tracy, in deciding to whom a license should be issued on the vacancy caused by Long and Sanderson going out of business. The trustee received $3,000 for the nomination by him, and I find that it is, in fact, the value of such a nomination. It follows that the $3,000 received by the defendant was received for something which he had, and not for anything which the plaintiff had, and the defendant is entitled to have the bill dismissed with costs." By the final decree the bill was dismissed and the case carried before the full court, which affirmed the decree of the trial court.
The defendant, Ginzberg, having full knowledge of the above facts, procured the board of police, on or about the 1st of April, 1904, to cancel the plaintiff's license. This was done without notice to plaintiff or hearing on any charge of the violation of the terms of the license. With the assistance of the police board, prior to the cancelation of the license, Ginzberg sold the license for $3,000, which he refused to pay over to the plaintiff. He also collected from the city the sum of $200 as a rebate upon the plaintiff's license, and refused to account for any sum to the plaintiff whatever. In the matter complained of Ginzberg acted beyond his powers as trustee of the bankrupt estate, and, without warrant of law, disposed of [to one O'Hearn] a valuable privilege belonging to the plaintiff, and has procured the destruction and cancelation of the plain-police commissioners refuse to be bound by tiff's valuable rights.
The supreme judicial court of Massachusetts affirmed the judgment, holding that to sell intoxicating liquor was a personal privilege, valuable as property, in a certain sense, for the personal use of the holder, but not assignable or transferable by him in any way; and that "the value of the release is recognized as depending wholly upon the practice of the police commissioners, and because there is no legal right to assign the privileges of such a license, and the
assignments, or to recognize at all assignThe relief prayed was that the title of the ments for security, the court has decided plaintiff to the first and fourth-class liquor that a holder of an assignment for security license issued to Long and Sanderson and has no rights under the assignment." Furhimself be established; that Ginzberg be or- ther: "In the present case the release or dered to account for the sums received by assignment of the licenses by the bank. him as the proceeds of the plaintiff's license, rupts to one who wished to obtain licenses and be required to pay the same over to for the next year, induced [him] plaintiff; that the plaintiff's losses and dam- to pay the trustee in bankruptcy $3,000. ages by reason of the acts of defendant be The money so received was not for any established, and that he be ordered to pay property owned by the plaintiff. It was for the same; that execution issue against Ginz-a position before the police commissioner, berg, individually, for such sums as may be found due to the plaintiff by reason of his wrongful interference with plaintiff's property; that if, upon hearing, it should appear that defendant acted within his duties as trustee of the bankrupt estate, that the decree run against him as such trustee, but without execution thereon; and that the
from which the payer had reasonable ground to expect their favorable action. The plaintiff could not control this position, or do anything that would induce the payment by O'Hearn of the money which the defendant received. Upon the facts shown, the board of police commissioners did not consider the insertion of the plaintiff's name in the orig
inal license as affecting their right to issue | any treaty. Within the meaning of that new licenses. It is plain that they were Amendment, a deprivation of property withright as regards the licenses for the ensuing out due process of law occurs when it reyear. Whether they were right or not in sults from the arbitrary exercise of power, regard to the plaintiff's relation to the old inconsistent with "those settled usages and license is immaterial, for it is plain that the modes of proceeding existing in the commoney received by the defendant was not mon and statute law of England before the paid on account of the plaintiff's interest, emigration of our ancestors, and which are but on account of what the defendant did in shown not to have been unsuited to their enabling O'Hearn to obtain the new li- civil and political condition by having been censes." 189 Mass. 260, 75 N. E. 637. acted on by them after the settlement of this country." Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Bank of Columbia v. Okely, 4 Wheat. 235, 244, 4 L. ed. 559, 561. It cannot be said that the state court in this case, by its final judgment, departed from those usages or modes of proceeding. The judgment is affirmed.
UNITED STATES, Appt.,
DONN C. MITCHELL.
Claims-extra pay of Army officer-deduc
The plaintiff insists that the action of the police commissioners deprived him of property without due process of law. The answer to this contention is that the expectation called a right or property was of the board's creation, and therefore subject to the limitations which the board imposed. The plaintiff also insists that by the judgment of the supreme judicial court of Massachusetts he has been deprived of his property without the due process of law guaranteed by the 14th Amendment of the Constitution of the United States. This proposition is without merit. Within the meaning of that Amendment, the court, by its judgment, did not deprive the plaintiff of property without due process of law. He sought a decree adjudging that he was entitled to the money received by Ginzberg from O'Hearn. The court, proceeding entirely upon principles of general and local law, and giving all parties interested in the question an opportunity to be heard, decided that plaintiff had no right to that money. The decision of a state court, involving nothing more than the ownership of property, with all parties in interest before it, cannot be regarded by the unsuccessful party as a deprivation of property without due process of law, simply because its effect is to deny his claim to own such property. If we were of opinion, upon this record, that the money received by Ginzberg from O'Hearn really belonged to Tracy,-upon which question we express no opinion, still it could not be affirmed that the latter had, within the meaning of the Constitution, and by reason of the judgment below, been deprived of his property without due process of law. Under the opposite view every judgment of a state court involving merely Argued January 25, 1907.
1. Sums improvidently paid to an Army officer by the auditor for the War Department cannot be deducted from the extra pay sued for in the court of claims, where the United States filed no set-off or counter
the ownership of property could be brought here for review,—a result not to be thought
Army-extra pay-exercising higher com
and to confirm the appointment to the com 2. Special orders purporting to appoint mand of a cavalry troop, in the absence of its captain, of the senior subaltern present, on whom such command would regularly devolve, "unless otherwise specially directed," under the Army Regulations of 1895, § 253, can give such officer no right to the increased pay provided for by the act of April 26, 1898 (30 Stat. at L. 365, chap. 191, U. officer is exercising, "under assignment in S. Comp. Stat. 1901, p. 895), § 7, when an orders issued by competent authority," a command above that pertaining to his grade.
PPEAL from the Court of Claims to re
of. The 14th Amendment did not impair A view a judgment giving one month's extra the authority of the states, by their judi- pay of a captain of cavalry, mounted, to a cial tribunals, and according to their settled second lieutenant while in command, in the usages and established modes of procedure, absence of the captain and first lieutenant. to determine finally, for the parties before Reversed and remanded with directions to them, controverted questions as to the own-enter judgment for claimant for one month's ership of property, which did not involve extra pay of a second lieutenant of cavalry, any right secured by the Federal Constitu- mounted. tion, or by any valid act of Congress, or by
See same case below, 41 Ct. Cl. 36.
"By command of Major-General Coppin
Statement by Mr. Chief Justice Fuller: The court of claims filed the following ger: findings of fact and conclusions of law:
(Signed) Clarence K. Edwards,
Assistant Adjutant-General." Under these orders claimant exercised command of Troop E from August 26, 1898, to October 23, 1898, when he was mustered out with his regiment.
1. The claimant, Donn C. Mitchell, was enrolled in the Volunteer Army, during the Spanish war, as second lieutenant of Troop E. First Ohio Volunteer Cavalry, on the 3d day of May, 1898. He served in the grade So much of G. O. No. 86, A. G. O. of 1898, of second lieutenant until promoted to first as relates to the matter of pay for exercislieutenant October 20, 1898. He was mus-ing a higher command, is as follows: tered out as first lieutenant October 23, "General Orders, 1898. His entire service was within the limits of the United States.
"Headquarters of the Army, Adjutant General's Office, Washington, July 2, 1898. "1. In § 7 of the act 'For the Better Organization of the Line of the Army of the United States,' approved April 26, 1898 [30 Stat. at L. 365, chap. 191, U. S. Comp. Stat. 1901, p. 895], it is provided "That in time of war every officer serving with troops operating against an enemy who shall exercise, under assignment in orders issued by competent authority, a command above that pertaining to his grade, shall be entitled to receive the pay and allowances of the grade appropriate to the command so exercised.'
"The Attorney General has held that this clause 'was intended to apply to all instances where the troops of the United States are assembled in separate bodies, such as regiments, brigades, divisions, or corps, for the purpose of carrying on and bringing to a conclusion the war with Spain,' but that 'all service in the Army at the Present time is not to be considered as operating against an enemy.' Troops and their officers on the western frontiers, performing the same service as garrisons which is requisite in time of peace, and in no wise considered a part of the Army assembled to carry on the war with Spain, would not be within the meaning of the act.
"To entitle an officer to the pay of a grade above that actually held by him the assignment in orders under the clause cited "2. It appearing from evidence that the must be by the written order of the comfollowing-named officers of the First Ohio manding general in the field or the SecreVolunteer Cavalry have exercised the func-tary of War, and no pay or allowances of tions of commanders above that pertaining a higher grade than that actually held by to the grades held by them from and after an officer will be paid under this provision the dates set opposite their respective except when a certified copy, in duplicate, names, the assignment thereto contemplated of such order, with statement of service, is by General Order No. 86, current series, filed with the paymaster. Adjutant General's Office, is confirmed, namely:
General Orders No. 86 was amended by General Orders No. 155, dated September 27, 1898, by striking out the above portion of
“2d Lieut. Donn ̊C. Mitchell, as captain, the order, and, on the same date, Circular from August 24th, 1898.
No. 18, promulgating this order, was amended by striking out the portion above quoted