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particulars set forth; and that appellant, in and to property. Assuming that the trans"in order to protect its rights and property fer was not colorable or fraudulent, the federal in the premises," etc., procured an assign- statutes have always permitted the vendee ment to it from the land company of the or assignee to sue in the United States courts said lease. The specific relief prayed is a decree for "specific performance by the said defendant of her said several undertakings" and for an injunction against interferences with appellant under the lease.

[2, 3] The assignor, being a Michigan corporation, could not have prosecuted the suit in a federal court if no assignment had been made. The phrase "to recover upon any * * chose in action," under the decisions of this court, includes a suit to compel the specific performance of a contract or otherwise to enforce its stipulations. Corbin v. County of Black Hawk, 105 U. S. 659, 665, 26 L. Ed. 1136; Shoecraft v. Bloxham, 124 U.

*401

S. 730, 8 S. Ct. 686, 31 L. Ed. 574; Plant Investment Co. v. Key West Railway, 152 U. S. 71, 76, 14 S. Ct. 483, 38 L. Ed. 358; New Orleans v. Benjamin, 153 U. S. 411, 432, 14 S. Ct. 905, 38 L. Ed. 764. An examination of the bill of complaint discloses that the suit is primarily for a specific performance of the covenants of the lease. Additional relief sought is purely incidental to this main object. The case, therefore, falls within the doctrine of the foregoing decisions, and the court below was right in adjudging a dismissal. Kolze v. Hoadley, 200 U. S. 76, 83 et seq., 26 S. Ct. 220, 50 L. Ed. 377; Citizens' Savings Bank v. Sexton, 264 U. S. 310, 314, 44 S. Ct. 338, 68 L. Ed. 703.

The cases relied upon by appellant are not in point. Brown v. Fletcher, 235 U. S. 589, 35 S. Ct. 154, 59 L. Ed. 374. was a suit against a trustee by an assignee to recover an interest in an estate under an assignment by the cestui que trust. This court held that the relation between trustee and cestui que trust was not contractual; that the rights of the beneficiary depended upon the terms of the will creating the trust; and that a suit by the beneficiary or his assignee against the trustee for the enforcement of rights in and to the property held for the benefit of the beneficiary could not be treated as a suit on a contract or a chose in action. The court then said (page 599 [35 S. Ct. 157]): "The beneficiary here had an interest in and to the property that was more than a bare right and much more than a chose in action. For he had an admitted and recognized fixed right to the present enjoyment of the estate with a right to the corpus itself when he reached the age of fifty-five. His estate in the property thus in the possession of the trustee, for his benefit, though defeasible, was alienable to the same extent as though in his own possession and passed by deed. [Citing cases.] The instrument by virtue of which that alienation was evidenced-whether called a deed, a bill of sale, or an assignment-was not a chose in action payable to the assignee, but an evidence of the assignee's right, title, and estate

*402

to recover property or an interest in property when the requisite value and diversity of citizenship existed."

Crown Orchard Co. v. Dennis, 229 F. 652, 144 C. C. A. 62, was a suit by the grantee of standing timber to enjoin the cutting and conversion of the timber-in effect, a suit to prevent waste. There was no attempt to enforce any contractual obligation; and the court very naturally held that the case did not fall within the exception in section 24 of the Judicial Code. It was expressly assumed by the court that if the suit had been to enforce a contract or for specific performance, the rule would have been otherwise. arising out of the ownership or possession of property transferred by the assignment of a contract-in which case the remedy accrues to the person who has the right of property or of possession at the time-and a suit to enforce the obligations of the assigned contract. Deshler v. Dodge, 16 How. 622, 631, 14 L. Ed. 1084; Ambler v. Eppinger, 137 U. S. 480, 11 S. Ct. 173, 34 L. Ed. 765. The present suit falls within the latter class. brought, not to recover property or to redress an injury to property which appellant had acquired through an assignment of a lease, but to enforce contractual obligations of the lease. No direct relief is sought in respect of appellant's lands conveyed as security, and they are affected only collaterally and incidentally. See Kolze v. Hoadley, supra.

The distinction is between a cause of action

Judgment affirmed.

It is

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1. Habeas corpus 94-Habeas corpus calls in question only jurisdiction of court whose judgment is challenged.

Habeas corpus calls in question only jurisdiction of court whose judgment is challenged. 2. Habeas corpus 4-Habeas corpus may not be used as substitute for writ of error.

Habeas corpus may not be used as substitute for writ of error.

3. Habeas corpus 96-Sufficiency of indictment to charge offense cannot be reviewed in habeas corpus proceedings.

In habeas corpus proceedings in federal court after conviction in state court, sufficiency of indictment to charge offense cannot be reviewed, since jurisdiction to try an offense includes jurisdiction to determine wheth

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(45 S.Ct.)

er offense is charged, and since in habeas corpus proceedings jurisdiction only of court whose judgment is challenged can be called in question.

4. Habeas corpus 96-Sufficiency of indict

ment to sustain conviction in state court cannot be challenged on ground that it does not allege venue.

Failure of indictment to allege venue does not deprive state court of jurisdiction, and, in habeas corpus proceedings wherein only question reviewable is jurisdiction of court whose judgment is challenged, sufficiency of indictment failing to allege venue cannot be called in question.

5. Habeas corpus

92(1)-Conviction in state courts not reviewable in habeas corpus on ground that some right under federal Constitution has been denied.

Judgment of conviction in state courts is not reviewable in habeas corpus, on ground that some right under federal Constitution has been denied.

6. Habeas corpus 113(10)-Appeal not dismissible without consent of court, which will not be given where motion discloses collusive attempt to defeat justice.

Appeal in habeas corpus proceeding of which Supreme Court has acquired full jurisdiction cannot be withdrawn without its consent, which will not be given where motion to dismiss discloses an obviously collusive attempt to defeat justice.

7. Habeas corpus 113(4)-Substitution of parties appellant, and permission to state as real party in interest to intervene, held warranted.

Where county sheriff appealed from order discharging petitioner in habeas corpus proceedings in federal court after conviction of crime in state court, held, that state and successor in office of appellant were real parties in interest, and that state should be permitted to intervene, and that appellant's successor in office should be substituted as appellant.

Appeal from the District Court of the United States for the District of South Dakota.

Habeas corpus proceeding by George Egan against Vincent L. Knewel, as sheriff of Minnehaha County, S. D. From an order of the District Court discharging petitioner from custody, respondent appealed. Motions were made to dismiss appeal, for permission to State to intervene, and for substitution of appellant's successor in office as appellant. Motion to dismiss denied. Motions for substitution and intervention granted, and order discharging petitioner (298 F. 784) reversed, and cause remanded, with directions.

Mr. Byron S. Payne, of Pierre, S. D., for appellant.

Mr. George W. Egan, of Sioux Falls, S. D., pro se.

Mr. Justice STONE delivered the opinion of the Court.

This case comes here on appeal from the District Court of the United States for the

*443

District of South Dakota from *an order and

judgment of that court on writ of habeas corpus, discharging the appellee from the custody of the appellant as sheriff of Minnehaha county, S. D.

Appellee was charged, on information by the state's attorney of that county, with the presentation of a false insurance claim in violation of section 4271 of the Revised Code of 1919 of South Dakota. He was convicted of violation of the statute, after trial by jury, in the South Dakota circuit court in May, 1920, and was sentenced to serve a term in the state penitentiary. On appeal to the Supreme Court of the state, judgment of conviction was vacated and new trial granted. State v. Egan, 44 S. D. 273, 183 N. W. 652.

Egan was again brought to trial on the same charge in April, 1922, and was again found guilty, and sentenced to serve a term in the state penitentiary. Upon appeal to the Supreme Court of the state, the judgment of conviction was affirmed. State v. Egan (S. D.) 195 N. W. 642.

Before the District Court, the appellee urged, as he urges here, two principal grounds for granting the writ, namely, that the information on which the conviction was had did not describe a public offense; that in it no venue was laid; and that in consequence the trial court was without jurisdiction in

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do business in the state of South Dakota and in pursuance of this authority insured certain property of petitioner located in Minnehaha county, that the property was destroyed by fire, and that thereafter petitioner presented a false claim to its agents; the language of the information being:

"And that thereafter and on or about the 9th day of January, 1920, the said defendant, George W. Egan. then and there did willfully, unlawfully and feloniously present and cause to be presented to F. C. Whitehouse & Co.,

who were at that time acting as the agents for the Firemen's Insurance Company of Newark, N. J., a false and fraudulent claim and proof in support of such claim."

The circuit court of Minnehaha county, in which appellee's trial and conviction were

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*446

had, by the provisions of the Constitution of A person convicted of crime by a judgment South Dakota (section 14, art. 5) and the Re- of a state court may secure the review of vised Code of South Dakota, 1919, § 4653, is that judgment by the highest state court and given original jurisdiction of all actions and if unsuccessful there may then resort to this causes both at law and in equity and original court by writ of error if an appropriate fedjurisdiction to try and determine all cases of eral question be involved and decided against felony. It accordingly had plenary jurisdic- him, or if he be imprisoned under the judgtion to try the charge of violation of section | ment, he may proceed by writ of habeas cor4271 of the Revised Code which makes the pus on constitutional grounds summarily to presentation of false or fraudulent insurance determine whether he is restrained of his claims a crime punishable by imprisonment | liberty by judgment of a court acting without in the state penitentiary, which, by section 3573, is made a felony. The circuit court is jurisdiction. not limited in its jurisdiction by the statutes of the state to any particular county. Its jurisdiction extends as far as the statute law extends in its application, namely, throughout the limits of the state. The only limitation in this regard, contained in the statute, is found in section 4654, which provides in substance that the issue of fact in any criminal case can only be tried in the court in which it is brought, or to which the place of trial is changed by order of the court.

Section 4771 provides that defendant may demur to the information when it appears upon its face "that the court is without jurisdiction of the offense charged." Section 4779 provides that objections to which demurrers

*445

*See Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868. But if he pursues the latter remedy, he may not use it as a substitute for a writ of error. Ex parte Parks, 93 U. S. 18, 23 L. Ed. 787; In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274. It is fundamental that a court upon which is conferred jurisdiction to try an offense has jurisdiction to determine whether or not that offense is charged or proved. Otherwise every judgment of conviction would be subject to collateral attack and review on habeas corpus on the ground that no offense was charged or proved. It has been uniformly held by this court that the sufficiency of an indictment cannot be reviewed in habeas corpus proceedings. Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Yarbrough, may be interposed under section 4771 are 110 U. S. 651;1 Ex parte Parks, supra; In re waived, with certain exceptions not here ma- Coy, supra; Bergemann v. Backer, supra; terial, unless taken by demurrer. Howard v. Fleming, 191 U. S. 126, 24 S. Ct. Appellee pleaded "not guilty" to the indict-19, 48 L. Ed. 121; Dimmick v. Tompkins, 194 ment. His application, made later, to withdraw the plea and demur was denied, the court acting within its discretionary power. State v. Egan (S. D.) 195 N. W. 642. The Supreme Court of South Dakota, in sustaining the verdict and upholding the conviction, held that the information sufficiently charged a public offense under section 4271, State v. Egan, 44 S. D. 273, 183 N. W. 652, and it also held that the objection to the failure to state the venue in the information was waived by the failure to demur. From the foregoing it will be observed that what appellee is really seeking on this appeal is a review on habeas corpus of the determination of the Supreme Court of South Dakota that the information was sufficient as a pleading and a determination that the decision of the state court holding that under the Revised Code of 1919 (sections 4725, 4771, 4779) the appellee waived the objection that the information did not state the venue by not demurring, was a denial of his constitutional rights which can be reviewed on habeas corpus.

[1-3] It is the settled rule of this court that habeas corpus calls in question only the jurisdiction of the court whose judgment is challenged. Andrews v. Swartz, 156 U. S. 272, 15 S. Ct. 389, 39 L. Ed. 422; Bergemann v. Backer, 157 U. S. 655, 15 S. Ct. 727, 39 L. Ed. 845; In re Lennon, 166 U. S. 548, 17 S. Ct. 658, 41 L. Ed. 1110; Felts v. Murphy, 201 U. S. 123; Valentina v. Mercer, 201 U. S. 131, 26 S. Ct. 368, 50 L. Ed. 693; Frank v. Mangum, 237 U. S. 309, 35 S. Ct. 582, 59 L. Ed. 989.

U. S. 540, 24 S. Ct. 780, 48 L. Ed. 1110; In
re Eckart, 166 U. S. 481, 17 S. Ct. 638, 41 L.
Ed. 1085; Goto v. Lane, 265 U. S. 393, 44 S.
Ct. 525, 68 L. Ed. 1070.

with respect to the failure to allege venue
[4] Appellee stands in no better situation
in the information. A mere failure to allege
the crime was committed within the territo-
venue, and thus to show affirmatively that
rial jurisdiction of the court, does not deprive
the court of jurisdiction over the cause, and
the sufliciency of the indictment cannot be
called in question upon habeas corpus.
though an indictment thus drawn might have
been found defective upon demurrer or writ
of error, it is not so fatal, upon its face, as
to be open to collateral attack after trial and
U. S. 48, 59, 14 S. Ct. 746, 38 L. Ed. 631; and
conviction. United States v. Pridgeon, 153.
see State v. Egan, 44 S. D. 273, 277, 183 N. W.

652.

Even

in the state court, the ultimate, question pre[5] Moreover, as this case was conducted by the statutes of South Dakota providing sented is whether the procedure established that failure to allege venue in the information is waived, unless demurred to, is a denial of a constitutional right. With respect to that question, we hold, as *this court has repeatedly held, that the judgment of state courts in criminal cases will not be reviewed. on habeas corpus merely because some right

*447

14 S. Ct. 152, 28 L. Ed. 274.

(45 S.Ct.)

under the Constitution of the United States in this court as party appellant; the court is alleged to have been denied to the person has full jurisdiction of the appeal and it canconvicted. The proper remedy is by writ of not be withdrawn without its consent. The error. Markuson v. Boucher, 175 U. S. 184, real parties in interest in prosecuting the 20 S. Ct. 76, 44 L. Ed. 124. And see Baker v. appeal are the state and the present sheriff Grice, 169 U. S. 284, 18 S. Ct. 323, 42 L. Ed. who is a public officer representing the coun748, and Tinsley v. Anderson, 171 U. S. 101, ty and the state. The substitution of the 104, 18 S. Ct. 805, 43 L. Ed. 91. See, also, sheriff as appellant should be made (Thompwith respect to review, on habeas corpus, of son v. United States, 103 U. S. 480, 483, 26 L. judgments of United States District Courts, Ed. 521), and the state be allowed to interRiddle v. Dyche, 262 U. S. 333, 43 S. Ct. 555, 67 L. Ed. 1009, and Craig v. Hecht, 263 U. S. 255, 44 S. Ct. 103, 68 L. Ed. 293. The judgment of the District Court was without warrant under the decisions of this court and must be reversed.

The appeal in this case was applied for by counsel for the appellant; an assignment of errors was filed and the appeal was allowed conditional upon filing the usual appeal bond. The bond was executed by appellant, and was duly approved and filed.

vene.

The motion to dismiss the appeal is denied. The motions for substitution of the present sheriff for the appellant and for the intervention by the state are granted.

The order of the District Court discharging the appellee from custody is reversed and the case remanded to the District Court with direction to remand him to the custody of the present sheriff. So ordered.

(268 U. S. 325)

OF PORTLAND et al.

(Argued April 27, 1925. Decided May 25, 1925.)

Commerce

No. 417.

67-License tax imposed on solicitors taking orders for hosiery to be shipped to buyers from another state held burden on interstate commerce.

Later a motion was made to this court by other counsel appearing for appellant for REAL SILK HOSIERY MILLS, Inc., v. CITY that purpose, to strike from the record the brief and argument filed on his behalf by the counsel by whom the appeal was taken, on the ground that appellant never authorized the preparation or presentation of any brief in this proceeding, and that he never authorized any attorneys to appear in this court for him as appellant. Motion has also been made on the same ground by appellee to strike from the record the brief filed in beAn ordinance, imposing license tax on sohalf of appellant and to dismiss the appeal. licitors taking orders for hosiery to be shipped The affidavit of appellant in support of ap- to buyers by manufacturer in another state, pellee's motion purports to show that the ap-held to burden interstate commerce and void as peal was taken by members of the bar representing the Attorney General of South Dakota, and that the appeal was taken without appellant's unqualified approval, and states

that he is satisfied with the decision of the District Court in the premises and that he desires the appeal to be dismissed.

*448

*The attorneys who took the appeal have also filed a motion to substitute for the appellant one Boardman, who since the taking of the appeal has been duly elected sheriff in the place of appellant and who consents to the substitution. The state of South Dakota also has filed a motion by its Attorney General appearing by the counsel who took the appeal, to be allowed to intervene on this appeal. All the motions referred to are now pending. [6, 7] The affidavit of appellant in support of appellee's motion to dismiss discloses an obviously collusive attempt by appellant and appellee to defeat the ends of justice by dismissing the appeal without the consent of any officer representing either the state or the present sheriff, who are the real parties in interest as appellants. Appellant in his affidavit admits that while he was in office as sheriff, he took the present appeal and he executed the appeal bond. He is therefore

violating Const. art. 1, § 8, though expressed purpose was to prevent possible frauds.

Court of Appeals for the Ninth Circuit.
Appeal from the United States Circuit

Bill by the Real Silk Hosiery Mills, Inc., against the City of Portland, George L. Baker, Mayor, and others. Decree of dismissal was affirmed by the Circuit Court of Appeals (297 F. 897), and complainant appeals. Reversed and remanded.

*326

*Messrs. John G. Milburn, of New York City, and Joseph Simon and John M. Gearin, both of Portland, Or., for appellant.

*330

*Mr. Frank S. Grant, of Portland, Or., for appellees.

*334 *Mr. Justice McREYNOLDS delivered the opinion of the Court.

Appellant is an Illinois corporation engaged in manufacturing silk hosiery at Indianapolis, Ind., and selling it throughout the United States to consumers only. It employs duly accredited representatives in many states who go from house to house soliciting and accepting orders. When a willing purchaser is found, the solicitor fills out and signs in duplicate a so-called "or

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

der blank." This obligates appellant to| setts (May 4, 1925) 268 U. S. 203, 45 S. Ct. 477, make delivery of the specified goods and, 69 L. Ed. 916. among other things, states:

"The mills require a deposit of $1.00 [or other specified sum] on each box listed below. Your hosiery will be mailed you by parcel post c. o. d.. direct from the post office branch in our mills. Pay the balance to the postman. As the entire business of the Real Silk Hosiery Mills is conducted on the parcel post c. o. d. basis, our representative cannot accept your order unless the deposit is made. We do not accept full payment in advance. Do not pay more than printed deposit."

One of the copies is left with the purchaser; the other is first sent to the local sales manager and then forwarded to the mills at Indianapolis. In response thereto the goods are packed and shipped by parcel post c. o. d. direct to the purchaser. The solicitor retains the cash deposit, and this

constitutes his entire compensation.

The appellant employs 2,000 representatives who solicit in most of the important

*335

cities and towns *throughout the Union, and has built up a very large business-$10,000,000 per annum. Twenty operate in Portland, Or.

#336

"The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce." Manifestly, no license fee could have been required of appellant's solicitors if they had traveled at its expense and received their compensation by direct remittances from it. And we are unable to see that the burden on interstate *commerce is different or less because they are paid through retention of inite contracts negotiated by them. Nor can advance partial payments made under defwe accept the theory that an expressed purpose to prevent possible frauds is enough with the free flow of legitimate interstate to justify legislation which really interferes commerce. See Shafer v. Farmers' Grain Co. (May 4, 1925) 268 U. S. 189, 45 S. Ct. 481,

69 L. Ed. 909. The decree of the court below

must be reversed. The cause will be remanded to the District Court for further proceedings in harmony with this opinion.

(268 U. S. 373)

May 16, 1923, that city passed an ordi- RAY CONSOL. COPPER CO. v. UNITED nance which requires that every person who STATES. goes from place to place taking orders for goods for future delivery and receives pay- | (Argued Jan. 13, 1925. Decided May 25, 1925.) ment or any deposit of money in advance shall secure a license and file a bond. The

No. 443.

tion of "capital stock" in Revenue Act, stated.

license fee is $12.50 quarterly for each per- I. Internal revenue 9-Rule as to construcson on foot and $25 if he uses a vehicle. The bond must be in the penal sum of $500 and conditioned to make final delivery of ordered goods, etc.

By a bill filed in the United States District Court for Oregon, appellant challenged the ordinance and asked that its enforcement be restrained upon the ground, among others, that it interferes with and burdens interstate commerce and is repugnant to article 1, § 8, federal Constitution. The trial court upheld the enactment and sustained a motion to dismiss the bill. This was affirmed by the Circuit Court of Appeals. 297 F. 897.

Considering former opinions of this court, we cannot doubt that the ordinance materially burdens interstate commerce and conflicts with the commerce clause. Robbins v. Shelby Taxing District, 120 U. S. 489, 497, 7 S. Ct. 592, 30 L. Ed. 694; Brennan v. Titusville, 153 U. S. 289, 14 S. Ct. 829, 38 L. Ed. 719; Rearick v. Pennsylvania, 203 U. S. 507, 27 S. Ct. 159, 51 L. Ed. 295; Crenshaw

v. Arkansas, 227 U. S. 389, 33 S. Ct. 294, 57 L. Ed. 565; Texas Transport Co. v. New Orleans, 264 U. S. 150, 44 S. Ct. 242, 68 L. Ed. 611, 34 A. L. R. 907; Alpha Portland Cement Co. v. Commonwealth of Massachu

The term "capital stock," within Revenue Act, Feb. 24, 1919, § 1000, subd. a (1), being Comp. St. Ann. Supp. 1919, § 5980n, providing for payment by every domestic corporation of a special excise tax based on the fair average value of its "capital stock" for the preceding year, having no fixed significance, must be construed by reference to the context, the nature and the purpose of the statute, its history, and other aids to construction. 2. Internal revenue 9-Commissioner had discretion as to method of ascertaining value of capital stock of corporation in view of failure of statute to prescribe method.

Method of ascertaining value of capital stock under Revenue Act Feb. 24, 1919, § 1000, subd. a (1), being Comp. St. Ann. Supp. 1919, § 5980n, providing for payment by domestic corporation of excise tax based on fair average value of capital stock for preceding year, not having been prescribed by the statute, was left to the sound judgment and discretion of the commissioner, subject only to the obligation to consider every relevant fact. 3. Internal revenue 9 - Capital stock, net assets, and shares of stock are different things.

The capital stock of a corporation, its net assets, and its shares of stock are entirely different things, the value of one having no

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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