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that reason the application for the writ of, of the United States, he could have brought habeas corpus was granted. 139 Fed. 846. the ease by writ of error directly from

The order of commitment under which the that court to this court.f In Reid v. appellee was held was adjudged by the cir-Jones, 187 U. S. 153, 47 L. ed. 116, cuit court to be illegal and void, but the 23 Sup. Ct. Rep. 89, it was said that judgment was without prejudice to any law- one convicted for an alleged violation ful proceeding to have the prisoner re of the criminal statutes of a state, and strained, if he should be adjudged to be a who contended that he was held in violadangerous person by reason of insanity. tion of the Constitution of the United From that judgment the present appeal States, “must ordinarily first take his case was prosecuted

to the highest court of the state, in which It is the settled doctrine of this court the judgment could be reviewed, and thence that, although the circuit courts of the Unit- bring it, if unsuccessful there, to this court ed States, and the several justices and by writ of error; that only in certain exjudges thereof, have authority, under exist. ceptional cases, of which the present is not ing statutes, to discharge, upon habeas cor. one, will a circuit court of the United States, pus, one held in custody by state authority or this court, upon appeal from a circuit in violation of the Constitution or of any court, intervene by writ of habeas corpus in treaty or law of the United States, the advance of the final action by the highest court, justice, or judge has a discretion as court of the state.” So, in the recent case to the time and mode in which the power of United States ex rel. Drury v. Lewis, 200 so conferred shall be exerted; and that, in U. S. 1, 50 L. ed. 343, 26 Sup. Ct. Rep. 229, view of the relations existing, under our it was said that, in cases of the custody by system of government, between the judicial state authorities of one charged with crime, tribunals of the Union and of the several the settled and proper procedure was for states, a Federal court or a Federal judge a circuit court of the United States not to will not ordinarily interfere by habeas cor- interfere by habeas corpus, "unless in cases pus with the regular course of procedure of peculiar urgency, and that, instead of under state authority, but will leave the discharging, they will leave the prisoner to applicant for the writ of habeas corpus to be dealt with by the courts of the state; exhaust the remedies afforded by the state that, after a final determination of the case for determining whether he is illegally re- by the state court, the Federal courts will strained of his liberty. After the highest even then generally leave the petitioner to court of the state, competent under the his remedy by writ of error from this court. state law to dispose of the matter, has fi- | The reason for this course is apparent. It nally acted, the case can be brought to this is an exceedingly delicate jurisdiction given court for re-examination. The exceptional to the Federal courts by which a person uncases in which a Federal court or judge may der an indictment in a state court, and subsometimes appropriately interfere by ha-ject to its laws, may, by the decision of a beas corpus in advance of final action by the single judge of the Federal court, upon a authorities of the state are those of great writ of habeas corpus, be taken out of the urgency, that require to be promptly dis- custody of the officers of the state, and fiposed of; such, for instance, as cases “in- nally discharged therefrom.” volving the authority and operations of th Without now expressing any opinion as general government, or the obligations of to the constitutionality of the statute in this country to, or its relations with, for- question, or as to the mode in which it was eign nations.” The present case is not with administered in the state court, for the in any of the exceptions recognized in our reasons stated the judgment of the Circuit former decisions. If the applicant felt that Court must be reversed, with directions to the decision, upon habeas corpus, in the su- set aside the order discharging the appellee, preme court of the state, was in violation and to enter an order denying the applicaof his rights under the Constitution or laws ' tion for a writ of habeas corpus, leaving

+Ex parte Royall, 117 U. S. 241, 251, 29 | son, 160 U. S. 231, 40 L. ed. 406, 16 Sup. L. ed. 868, 871, 6 Sup. Ct. Rep. 734; Exct. Rep. 297; Baker v. Grice, 169 V. S. 284, part Fonda, 117 U. S. 516, 29 L. ed. 994, 42 L. ed. 748, 18 Sup. Ct. Rep. 323; Tins6 Sup. Ct. Rep. 848; New York v. Eno, 155 ley v. Anderson, 171 U. S. 101, 104, 43 L. U. S. 89, 39 L. ed. 80, 15 Sup. Ct. Rep. 30; ed. 91, 96, 18 Sup. Ct. Rep. 805; Markuson Re Wood (Wood v. Brush) 140 U. S. 278, v. Boucher, 175 U. S. 184, 44 L. ed. 124, 20 35 L. ed. 505, 11 Sup. Ct. Rep. 738; Re Sup. Ct. Rep. 76; Minnesota v. Brundage, Frederich, 149 U. S. 70, 37 L. ed. 653, 13180 U. S. 499, 45 L. ed. 639, 21 Sup. Ct. Rep. Sup. Ct. Rep. 793; Pepke v. Cronan, 155 U. 455; Riggins v. United States, 199 U. S. S. 100, 39 L. ed. 84, 15 Sup. Ct. Rep. 34; 547, 50 L. ed. 303, 26 Sup. Ct. Rep. 147; Re Chapman, 156 U. S. 211, 39 L. ed. 401, Re Lincoln, 202 U. S. 178, 50 L. ed. 984, 15 Sup. Ct. Rep. 331; Whitten v. Tomlin- | 26 Sup. Ct. Rep. 602.

V.

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.

The case made by the bill of complaint It is so ordered.

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 BosROBERT J. TRACY, Piff. in Err.,

ton, and assigned to them the lease of the

realty occupied by the hotel. As partial ALBERT A. GINZBERG, Individually and payment therefor he took back a mortgage

as Trustee in Bankruptcy of H. C. Long on the personal property for the sum of & Company

$7,500, running to the James Everard's Constitutional law-due process of law.

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 he procured to be assigned to Long and whom the original license had been assigned Sanderson and to himself, as joint owners, as security, of property without due process and also the sum of $1,400 in cash, which of law, where his so-called property right depends wholly upon the practice of the the plaintiff paid to the city of Boston as a board to reissue licenses to the old holders fee for the liquor license issued by the until refused for cause, since such right, be board of police of that city to Long and ing of the board's creation, is subject to Sanderson and to the plaintiff. That li. any limitations which the board may im. cense expired by limitation on May 1st, pose.

1903. Constitutional law-due process of law. In consideration of the advance, by plain

2. The decision of a state court involv. tiff's procurement, of the above sums of ing nothing more than the ownership of $3,000 and $1,400, Long and Sanderson, on property, with all parties in interest before the above date, by writing, assigned their it, cannot be regarded by the unsuccessful party as a deprivation of property without right, title, and interest in said license to due process of law, simply because its ef- the plaintiff, covenanting and agreeing that fect is to deny his claim of ownership in all future applications for renewals of the such property.

license should be in the names of Long and

Sanderson and the plaintiff, and that, upon [No. 204.]

such renewal being granted, they would as

sign, transfer, and set over any such license. Argued February 26, 1907. Decided March Long and Sanderson being without money 18, 1907.

for the purpose, the plaintiff paid $1,400 to IN N ERROR to the Supreme Judicial Court the city as the renewal fee, and thereupon

of the State of Massachusetts to review a new first and fourth-class license was is. a judgment which affirmed a decree of the Sanderson and the plaintiff to sell intoxitrial justice of that court, dismissing a bill to recover from a trustee in bankruptcy This license was taken by the plaintiff into

cating liquors in the said hotel building. moneys received from the sale of an unex. his possession, and he had it in his possespired liquor license to one desiring a re-sion at the bringing of this suit. newal. Affirmed. See same case below, 189 Mass. 260, 75 1903, 1904, Long and Sanderson, by an in

On the payment of the license fee for N. E. 637. The facts are stated in the opinion.

strument of writing dated April 24th, 1903, Messrs. Harry J. Jaquith and Thomas J. assigned, transferred, and set over to the Barry for plaintiff in error.

plaintiff their interest in that license, and Messrs. A. W. Putnam, William B. Sulli. further agreed to assign and set over to him van, and Lourie & Ginsberg for defendant in 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:

valuable consideration, and that by reason This suit was instituted in the supreme thereof he became the sole owner of the lijudicial court of Massachusetts by the cense. plaintiff in error, a citizen of New York, Long and Sanderson were adjudged bank. against the defendant in error, a citizen of rupts on the 23d of July, 1903, being at the

error.

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 The number of first and fourth-class li- answer and replication the evidence was censes in Boston is limited by law, and are taken by a special commissioner, to be resubstantially all issued each year, so that ported to the full court. In its finding of a new license cannot be issued until an old facts the court said: "In the case at bar, license is canceled. Old licenses are of great the police commissioners were satisfied that value to persons who desire to engage in the name of Tracy was inserted in the two the liquor business in Boston. They sell licenses to secure to his principal the debt from $3,000 to $5,000 to persons who pre- or part of the debt, due from the defendants sent them for cancelation together with an Long and Sanderson; that he was not a application for a new license to themselves. partner in the liquor business, and for that

Because of the large surrender value of reason the police commissioners gave a prefold licenses and of the long-continued cus- erence to O'Hearn, who was nominated by tom of reissuing licenses to old holders un- the trustee in bankruptcy, with(out] the til refused for cause, such licenses have been consent, or against the objections, of Tracy, recognized by the courts of Massachusetts as in deciding to whom a license should be is. property rights, and the powers of the board sued on the vacancy caused by Long and of police in dealing with them have been Sanderson going out of business. The truslimited to the exercise of the sound discretee received $3,000 for the noinination by tion within the limits established by the him, and I find that it is, in fact, the value laws of the commonwealth.

of such a nomination. It follows that the The defendant, Ginzberg, . having full $3,000 received by the defendant was reknowledge of the above facts, procured the ceived for something which he had, and not board of police, on or about the 1st of April, for anything which the plaintiff had, and 1904, to cancel the plaintiff's license. This the defendant is entitled to have the bill was done without notice to plaintiff or hear- dismissed with costs." By the final decree ing on any charge of the violation of the the bill was dismissed and the case carried terms of the license. With the assistance before the full court, which affirmed the of the police board, prior to the cancelation decree of the trial court. of the license, Ginzberg sold the license for The supreme judicial court of Massachu. $3,000, which he refused to pay over to the setts affirmed the judgment, holding that to plaintiff.

He also collected from the city sell intoxicating liquor was a personal privi. the sum of $200 as a rebate upon the plain- lege, valuable as property, in a certain tiff's license, and refused to account for any sense, for the personal use of the holder, sum to the plaintiff whatever. In the mat- but not assignable or transferable by him ter complained of Ginzberg acted beyond in any way; and that "the value of the rehis powers as trustee of the bankrupt es. lease is recognized as depending wholly upon tate, and, without warrant of law, disposed the practice of the police commissioners, of [to one O'Hearn] a valuable privilege be- and because there is no legal right to aslonging to the plaintiff, and has procured sign the privileges of such a license, and the the destruction and cancelation of the plain-police commissioners refuse to be bound by tiff's valuable rights.

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 [lim] 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 from which the payer had reasonable ground found due to the plaintiff by reason of his to expect their favorable action. The plainwrongful interference with plaintiff's prop- tiff could not control this position, or do erty; that if, upon hearing, it should ap- anything that would induce the payment by pear that defendant acted within his duties O'Hearn of the money which the defendant as trustee of the bankrupt estate, that the received. Upon the facts shown, the board decree run against him as such trustee, but of police commissioners did not consider the without execution thereon; and that the insertion of the plaintiff's name in the orig.

.

V.

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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 with. right 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 The plaintiff insists that the action of this country.” Den ex dem. Murray v. Hothe police commissioners deprived him of boken Land & Improv. Co. 18 How. 272, 15 property without due process of law. The L. ed. 372; Bank of Columbia v. Okely, 4 answer to this contention is that the ex-Wheat. 235, 244, 4 L. ed. 559, 561. It canpectation called a right or property was of not be said that the state court in this case, the board's creation, and therefore subject by its final judgment, departed from those to the limitations which the board imposed. usages or modes of proceeding.

The plaintiff also insists that by the judg- The judgment is affirmed. ment of the supreme judicial court of Massachusetts he has been deprived of his property without the due process of law guar. anteed by the 14th Amendment of the Con

UNITED STATES, Appt., stitution of the United States. This proposition is without merit. Within the mean

DONN C. MITCHELL. ing of that Amendment, the court, by its claims-extra pay of Army officer—deducjudgment, did not deprive the plaintiff of tions. property without due process of law. He 1. Sums improvidently paid to an Army sought a decree adjudging that he was en officer by the auditor for the War Departtitled to the money received by Ginzberg ment cannot be deducted from the extra from O'Hearn. The court, proceeding en- pay sued for in the court of claims, where tirely upon principles of general and local the United States filed no set-off or counterlaw, and giving all parties interested in the claim. question an opportunity to be heard, decided Army-extra pay—exercising higher com

mand. that plaintiff had no right to that money. The decision of a state court, involving and to confirm the appointment to the com

2. Special orders purporting to appoint nothing more than the ownership of prop- mand of a cavalry troop, in the absence of erty, with all parties in interest before it, its captain, of the senior subaltern present, cannot be regarded by the unsuccessful on whom such command would regularly departy as a deprivation of property without volve, “unless otherwise specially directed," due process of law, simply because its effect under the Army Regulations of 1895, $ 253, is to deny his claim to own such property. can give such officer no right to the in If we were of opinion, upon this record, that creased pay provided for by the act of April the money received by Ginzberg from 26, 1898 (30 Stat. at L. 365, chap. 191, U. O'Hearn really belonged to Tracy,-upon Officer is exercising, *under assignment in

S. Comp. Stat. 1901, p. 895), § 7, when an which question we express no opinion,still orders issued by competent authority,” a it could not be affirmed that the latter had, command above that pertaining to his within the meaning of the Constitution, and by reason of the judgment below, been deprived of his property without due process

[No. 180.] of law. Under the opposite view every judgment of a state court involving merely | Argued January 25, 1907. Decided March

18, 1907. the ownership of property could be brought here for review,-a result not to be thought PPEAL from the Court of Claims to reof. 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 months 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.

grade.

Statement by Mr. Chief Justice Fuller: “By command of Major-General Coppin

The court of claims filed the following ger: findings of fact and conclusions of law:

(Signed) Clarence K. Edwards,

Assistant Adjutant.-General.” 1. The claimant, Donn C. Mitchell, was Under these orders claimant exercised enrolled in the Volunteer Army, during the command of Troop E from August 26, 1898, Spanish war, as second lieutenant of Troop to October 23, 1898, when he was mustered E. First Ohio Volunteer Cavalry, on the 3d out with his regiment. day of May, 1898. He served in the grade So much of G. 0. 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 No. 86. S limits of the United States. 2. While on duty as second lieutenant of

“Headquarters of the Army, the First Ohio Volunteer Cavalry, at Hunts

Adjutant General's Office, ville, Alabama, during the Spanish war,

Washington, July 2, 1898. claimant received the following order:

"1. In § 7 of the act For the Better Or"Headquarters lst Ohio Volunteer Cavalry, ganization of the Line of the Army of the Camp Wheeler, Huntsville, Ala., August 24, United States,' approved April 26, 1898 [30 1898.

Stat. at L. 365, chap. 191, U. S. Comp. Stat. Special Orders,

1901, p. 895), it is provided "That in time of No. 44. S

war every officer serving with troops oper“1. 1st Lieut. William D. Forsyth, lst ating against an enemy who shall exercise, Ohio Volunteer Cavalry, having been ordered under assignment in orders issued by combefore a board of examination for appoint- petent authority, a command above that ment as second lieutenant in the Regular pertaining to his grade, shall be entitled to Army, is hereby relieved of the command of receive the pay and allowances of the grade Troop E. He will turn over the property, appropriate to the command so exercised.' funds, and records of the troop to his suc- “The Attorney General has held that this cessor.

clause ‘was intended to apply to all in“2. 2d Lieut. Donn C. Mitchell, 1st Ohio stances where the troops of the United Volunteer Cavalry, is hereby appointed to States are assembled in separate bodies, the command of Troop E. He will receipt such as regiments, brigades, divisions, or to Lieut. Forsyth for the property and corps, for the purpose of carrying on and funds pertaining to the troop.

bringing to a conclusion the war with Spain,' “By order of Lieut. Col. Day.

but that ‘all service in the Army at the (Signed)

A. C. Rogers, Captain and Regtl. Adj. Ist Ohio 'Vol. present time is not to be considered as op

erating against an enemy.' Troops and their Cav."

officers on the western frontiers, performThis order was approved by the commanding the same service as garrisons which is ing general in the field in the following or

requisite in time of peace, and in no wise ders:

considered a part of the Army assembled to "Headquarters Fourth Army Corps, Camp Wheeler, Huntsville, Ala., September carry on the war with Spain, would not be 2, 1898.

within the meaning of the act.

“To entitle an officer to the pay of a Special Orders, 2

grade above that actually held by him the No. 97.

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, General Orders No. 86 was amended by namely;

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

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