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the territories, but also by necessary implication as between the states and territories. Stoutenburgh v. Hennick, 129 U. S. 141, 32 L. ed. 637, 9 Sup. Ct. Rep. 256. Nothing is better settled than that the states cannot interfere with interstate commerce, yet it is easy to see that if the "exclusive delegation to Congress of the power to regulate commerce did not embrace commerce between the states and territories, the interference by the states with such commerce might be justified. Again, if in any view these duties could be treated as other than custom duties the result would be the same, inasmuch as the goods were articles exported from New York, and there was a total lack of power to lay any tax or duty on such articles. The prohibition on Congress is explicit, and noticeably different from the prohibition on the states. The state is forbidden to lay “any imposts or duties;” Congress is forbidden to lay “any tax or duty.” The state is forbidden from laying imposts or duties “on imports or exports,” that is, articles coming into or going out of the United States. Congress is forbidden to tax “articles exported from any state.” The plain language of the Constitution should not be made “blank paper by construction,” and its specific mandate ought to be obeyed. As said in Marbury v. Madison, “It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?”. 1 Cranch, 178, 2 L. ed. 74. Nor is the result affected by the fact that #. collection of these duties was at Porto CO. In Brown v. Maryland, 12. Wheat. 437, 6 L. ed. 685, Chief Justice Marshall said: “An impost, or duty on imports, is a custom or a tax levied on articles brought into a country, and is most usually secured before the importer is allowed to exercise his rights of ownership over them, because evasions of the law can be prevented more certainly by executing it while the articles are in its custody. It would not, however, be less an impost or duty on the articles if it were to be levied on them after they were landed. The policy and consequent practice of levy*ing or securing the duty before or on enteroing the port does not limit the power to that • state of things, nor, consequently, the prohibition, unless the true meaning of the clause so confines it. . What, then, are ‘imports?' The lexicons inform us they are ‘things imrted.” If we appeal to usage for the meaning of the word, we shall receive the same answer. They are the articles themselves which are brought into the country. “A duty on imports,' then, is not merely a duty on the act of importation, but is a duty on the thing imported. It is not, taken in its literal sense, confined to a duty levied while the article is entering the country, but ex
tends to a duty levied after it has entered the country.” And so of exports. They are the things exported,—the articles themselves. A duty on exports is not merely a duty on the act of exportation, but is a duty on the article exported, and the article exported remains such until it has reached its final destination. The place of collection is purely incidental, and immaterial on the question of power. But we are told that these duties were laid, not on articles exported from the state of New York, but on articles imported into Porto Rico. The language used, however, precludes this contention, and there is nothing in the act to indicate that at some particular point on a voyage articles exported were to cease to be such and to become imports, and nothing in the facts in this case to indicate a sea change of that sort as to these goods. The geographical origin of the shipment controls, and, as heretofore said, it is not material whether the duties were collectible at the place of exportation or at Porto Rico. They were imposed on articles exported from the state of New York, and before the articles had reached their ultimate destination and been mingled with the common mass of property on the island. Chief Justice Marshall disposed of the suggested evasion thus: “Suppose revenue cutters were to be stationed off the coast for the purpose of levying a duty on all merchandise found in vessels which were leaving the United States for foreign countries; would it be received as an excuse for this outrage were the government to say that exportation meant no more than carrying goods out of the country, and as the ro-g hibition to lay a tax on imports, or things: imported, ceased the * instant they were * brought into the country, so the prohibition to tax articles exported ceased when the were carried out of the country?” 12 Whea 445, 6 L. ed. 688. There is no difference in principle between the case supposed and that before us. The course of transportation is arrested until the exaction is paid. The proposition that because the proceeds of these duties were to be used for the benefit of Porto Rico they might be regarded as if laid by Porto Rico itself with the consent of Congress, and were therefore lawful, will not bear examination. No money can be drawn from the Treasury except in consequence of appropriations made by law. This act does not appropriate a fixed sum for the benefit of Porto Rico, but provides that the money collected, and collected from citizens of the United States in every port of the United States, shall be placed in a separate fund or subsequently in the treasury of Porto Rico, to be expended for the government and benefit thereof. And although the destination of the proceeds in this way were lawful, it would not convert duties on articles exported from the states into local taxes. States may, indeed, under the Constitution, lay duties on foreign imports and exports, for the use of the Treasury of the
United States, with the consent of Congress, but they do not derive the power from the general government. The power pre-existed, and it is its exercise only that is subjected to the discretion of Congress. Congress may lay local taxes in the territories, affecting persons and property therein, or authorize territorial legislatures to do so, but it cannot lay tariff duties on articles exported from one state to another, or from any state to the territories, or from any state to foreign countries, or grant a power in that regard which it does not possess. But the decision now made recognizes such powers in Congress as will enable it, under the guise of taxation, to exclude the products of Porto Rico from the states as well as the products of the states from Porto Rico; and this, notwithstanding it was held So in De Lima v. Bidwell, 182 U. S. 1, 45 L. ed. § 1041, 21 Sup. Ct. Rep. 743, that Porto Rico * after the ratification of the "treaty with Spain ceased to be foreign and became domestic territory. My Brothers Harlan, Brewer, Peckham concur in this dissent. We think it clear on this record that plaintiffs were entitled to recover, and that the judgment should be reversed.
1. A writ of habeas corpus will seldom be upheld as a writ of error to review in a Federal court the proceedings in a criminal case in the state court.
2. Questions depending upon state law—such as the lawfulness of a respite granted by the governor to a person under sentence of death, or the validity of a sentence before the expiration of a year during which the right to file a motion for a new trial is claimed to continue—will not be reviewed by a Federal court on writ of habeas corpus.
8. The power of the Supreme Court on an appeal from a dismissal of a petition for habeas corpus by a circuit court of the United States for want of jurisdiction, a certificate thereof being given, is not limited to the question of jurisdiction by the act of Congress of March 3, 1891, $ 5, but extends, under U. S. Rev. Stat. § 761, to such disposal of the party as law and justice require.
district of Massachusetts his petition in habeas corpus. In that petition he stated that he was a citizen of Italy, and a subject of its King; that he was detained by the respondent under a warrant issued by the superior court of Suffolk county, reciting a conviction of murder, and directing the warden to inflict death by passing a current of electricity through him; that the time fixed for the execution of the sentence was on the week beginning April 7, 1901; that on April 9, 1901, the governor, with the advice of the council, issued a document purporting to respite the execution of sentence, the respite to expire on Saturday May 11, 1901; that on May 10, 1901, he presented a petition for a writ of habeas corpus to the said circuita court, which petition was denied on May 11,5: 1901; that *from such denial he forthwith * claimed and was allowed an appeal to the Supreme Court of the United §e. and that such appeal was there pending and undetermined. The petition further stated that on May 10 he filed in the superior court for the county of Suffolk a motion for a new trial, in accordance with the provisions of the Massachusetts statutes, which motion was still pending and undetermined. Upon these facts he asserted, first, that no law of Massachusetts provided for the punishment of a person sentenced to death, where the week appointed by the court for the execution had elapsed without execution and without any lawful action by the governor in the way of pardon, commutation, or respite, and therefore that the detention by the warden was contrary to the provisions of the 1st section of the 14th Amendment of the Federal Constitution; second, that for the same reason the detention was contrary to the 3d article of the treaty be. tween the United States of America and His Majesty the King of Italy (17 Stat. at L. 845), and contrary to § 2 of article 6 of the Constitution of the United States; third, that by § 28 of chapter 214 of the Public Statutes of Massachusetts the court in which the trial of an indictment is had may at the term of the trial, or within one year thereafter, grant a new trial; that therefore execution could not lawfully be done upon him until the expiration of a year from the term at which he was convicted, to wit, in this case before July 1, 1901, and that the execution of the sentence before that date would deprive him of his life without due process of law, and would deny to him the equal protection of the laws, contrary to the lst section of the 14th Amendment; fourth, that for the same reason the execution of the sentence would be contrary to the 3d article of the treaty between the United States and Italy; fifth, that the execution of the sentence within the year would deprive him of his right under the statutes of Massachusetts to move for a new trial within the year, and of his right to be present at the decision of such motion, which right was guaranteed to him by article 23 of the treaty between the United States and Italy, which reads as follows: “The citizens of either
* *Party shall have free access to the courts of i. in order to maintain and defend eir own rights, without any other conditions, restrictions, or taxes than such as are imposed upon the natives. They shall, therefore, be free to employ, in defense of their rights, such advocates, solicitors, notaries, agents, and factors as they may judge proper, in all their trials at law; and such citizens or agents shall have free opportunity to be present at the decisions and sentences of the tribunals in all cases which may concern them, and likewise at the taking of all examinations and evidences which may be exhibited in the said trials;” sixth, that the motion for a new trial which he had filed on May 10 not having been determined, execution could not lawfully be done upon him until the decision of that motion, notwithstanding which he had reason to apprehend that the respondent intended to immediately, upon the determination of the apeal to the Supreme Court of the United tates, cause execution to be done upon him, which execution would deprive him of his rights under the 14th Amendment and article 23 of the treaty; seventh, that the respondent derives his authority to hold the petitioner in custody solely by virtue of the provisions of chapter 326 of the Massachusetts Statutes of 1898, and that by them no authority was given to him to retain the custody of the petitioner after the expiration of the week appointed by the court for the execution of the sentence, except through the lawful action of the governor in granting a respite, that no lawful action had been taken by the governor in the matter, and that, therefore the petitioner was deprived of his liberty contrary to the 14th Amendment; and, eighth, that for the same reason he was deprived of his liberty contrary to the 14th Amendment and the 3d article of the treaty between the United States and Italy. The 3d article of the treaty between the United States and Italy, referred to in this petition, is as follows: “The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant - protection and security for their persons 3 and property, and shall enjoy in this respect * the same rights and privileges "as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives.” On the presentation of this petition to the circuit court, that court dismissed the same for want of jurisdiction, without prejudice to an application to the courts of the state. Re Storti. 109 Fed. 807. A certificate of this fact was signed by the circuit judge, and from the order dismissing the petition an appeal was taken to this court.
Messrs. G. Philip Wardner and W. M. Stockbridge for appellant.
Messrs. H. M. Knowlton and Arthur W. DeGoosh for appellees.
Mr. Justice Brewer delivered the opinion of the court: The grounds set forth in this petition for
a discharge by the Federal court of the petitioner from the custody of the warden are wholly without foundation, and the case is another of the numerous instances in which, as said by Mr. Chief Justice Fuller, in Craener v. Washington, 168 U. S. 124, 128, 42. L. ed. 407,408, 18 Sup. Ct. Rep. 1, 2, “applications for the writ have been made, and appeals taken from refusals to grant it, quite destitute of meritorious grounds, and operating only to delay the administration of justice.” It is an attempt to substitute a writ of habeas corpus for a writ of error, and to review the proceedings in a criminal case in the state court by such collateral attack rather than by direct proceedings in error, —something which this court has repeatedly said ought seldom to be done. See, among other cases, Baker v. Grice, 169 U. 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, and cases cited in the opinion; 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. Many of the allegations in the petition are general and obscure, and it is not easy to determine therefrom in what particulars the petitioner considers the proceedings: against him to be in"conflict with the Feder-5 al Constitution or the treaty with Italy. Some of the matters presented involve only the construction of state statutes and should be determined by the courts of the state, whose determination in respect thereto is binding upon this court. It must be borne in mind that under § 763 of the Revised Statutes the jurisdiction of the Federal court to issue a writ of habeas corpus is limited to “the case of any person alleged to be restrained of his liberty in violation of the Constitution, or of any law or treaty of the United States,” and to cases arising under the laws of nations. With these considerations in mind we pass to notice more particularly the matters set forth in the petition. It is stated that the petitioner was sentenced to be put to death at a given time; that he was not then put to death on account of a respite granted by the governor, and that such respite was unlawfully granted. Wherein the unlawfulmess consisted is not stated, and whether it were lawful or not is a matter dependent on the laws of the state, and to be determined by its courts. The Federal Constitution neither grants nor forbids to the governor of a state the right to stay the execution of a sentence. So, also, it is said that under the Massachusetts statutes the party convicted has a year in which to file a motion for a new trial, and, therefore, no sentence can be executed on him until that time. Whether that be so or not is also a question depending on the statutes of the state, and to be determined by its courts. The state may see fit to postpone the execution of a capital sentence for a year, or provide that it shall be carried into effect more
speedily, and what the state has provided in the matter is for its courts to decide. It is averred that the proceedings in the Massachusetts courts are in conflict with the rights secured by the treaty between Italy and the United States, but the articles of the treaty referred to only require equality of treatment and that the same rights and privileges be accorded to a citizen of Italy that are given to a citizen of e: the United States under like circumstances, 3 and there is nothing in the petition tending * to show a lack of "such equality of treatment. The petition, therefore, is plainly without merit. But the principal contention of counsel is that the petition was dismissed by the circuit court for want of jurisdiction and a certificate thereof given, and that under § 5 of the act of March 3, 1891 (26 Stat. at L. 827, chap. 517), the only question that we can consider is one of jurisdiction, and the following cases are referred to: Horner v. United States, 143 U. S. 570, 36 L. ed. 266, 12 Sup. Ct. Rep. 522; Chappell v. United States, 100 U. S. 499, 40 L. ed. 510, 16 Sup. Ct. Rep. 397; Press Pub. Co. v. Monroe, 164 U. S. 105, 41 L. ed. 367, 17 Sup. Ct. Rep. 40, and Huntington v. Laidley, 176 U. S. 668, 44 L. ed. 630, 20 Sup. Ct. Rep. 526. We do not question that rule as applied to ordinary suits and actions, but $ 761, Rev. Stat., provides as to habeas corpus cases that “the court, or justice, or judge shall proceed in a summary way to determine the facts of the case by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require.” That mandate is applicable to this court, whether it is exercising its original or appellate jurisdiction. Proceedings in habeas corpus are to be disposed of in a summary way. The interests of both the public and the petitioner require promptness; that if he is unlawfully restrained of his liberty it may be given to him as speedily as possible; that if not, all having anything to do with his restraint be advised thereof, and the mind of the public be put at rest, and also that if further action is to be taken in the matter it may be taken without delay. Especially is this true when the habeas corpus proceedings are had in the courts of a jurisdiction different from that in pursuance of whose mandate he is detained. This matter of promptness is not peculiar to these cases in Federal courts, but is the general rule which obtains whereever the common law is in force. It is one of those things which give to such proceedings their special value, and is enforced by statutory provisions, both state and Federal. The command of the section is “to dispose of the party as law and justice require.” All the freedom of equity procedure is thus rescribed; and substantial justice, prompty administered, is ever the rule in habeas corpus. : As the petition presented no case entitling F the petitioner to a "discharge, as the grounds stated therein are absolutely frivolous, and as the result reached in the Circuit Court
was in accordance with law and justice, the judgment is affirmed, and it is further ordered that the mandate issue at once.
(183 U. S. 191) WILSON BROTHERS, a Corporation, and . Jacob Kahn, Henry Kahn, Jacob Wohlbach, Copartners under the Name of Kahn Brothers & Company, and A. W. Becker, Harry L. Mayer, Joseph Mayer, and Henry B. Mayer, Copartners under the Firm Name of Becker, Mayer, & Company, Appts., ox. CASSIUS B. NELSON.
Bankruptcy—permitting creditor to obtain preference.
The fallure of an insolvent debtor to file a vol. untary petition in bankruptcy at least five days before a sale of his property under a judgment entered against him upon an irrevocable power of attorney given years before constitutes the suffering or permitting of the creditor to obtain a preference, which amounts to an act of bankruptcy under the bankrupt act of July 1, 1898, chap. 541, $ 3, though the judgment is entered without the knowledge or consent of the debtor and he is unable to prevent its enforcement in any other way than by filing his petition in bankruptcy.
Statement by Mr. Justice Gray:
The circuit court of appeals for the seventh circuit certified to this court the following statement of facts and questions of law:
“On February 5, 1885, Cassius B. Nelson executed and delivered to Sarah Johnstone his promissory note in writing for the sum of $8,960, payable ‘five years or before after date,” with interest at the rate of 4 per cent per annum until paid. To this note was attached an irrevocable power of attorney, duly executed by the said Nelson under § hand and seal in the usual form, authorizing any attorney of any court of record in: his name to confess judgment thereon after: maturity of the "note. This note was given for so much money at the time loaned to Nelson, and the interest on the note was paid from time to time up to November 1, 1898. Nelson was a trader, and entered into busi
ness as such at the city of Madison, Wisconsin, soon after the giving of the note, and carried on such business until his stock in trade was levied upon by the sheriff under execution, as hereinafter stated. On November 1, 1898, Nelson, as he well knew, was and had long been insolvent, and thereafter continued to be and is now insolvent, his liabilities largely exceeding his assets. “On November 21, 1898, Sarah Johnstone caused judgment to be duly entered in the circuit court of the state of Wisconsin for the county of Dane against said Nelson upon the note and warrant of attorney aforesaid for the sum of $8,975, damages and costs, being the face of the note and $15 costs. Upon that judgment execution was immediately thereafter issued out of the court to the sheriff of that county, who thereunder and by authority thereof on the same day levied upon the stock and goods of Nelson, and thereafter and on December 15, 1898, sold the same at public auction, and applied the proceeds thereof, to wit, the sum of $4,400, upon and in part payment of the judgment so rendered. This proceeding left the said Nelson without means to meet any other of his obligations. The judgment was so entered and the levy made without the [...". of Nelson and without his owledge or consent. Such judgment was not subject to attack by Nelson, and could not have been vacated or discharged by any legal proceedings which might have been in: stituted by him in that behalf; nor could the levy under the execution issued upon such judgment have been set aside or vacated by Nelson, except by his filing his voluntary petition in *]; prior to the sale, and obtaining an adjudication of bankruptcy thereunder, or by payment of the | ". *3. ecember 10, 1898, creditors of the said. Nelson, of the requisite number and holding debts against him to the requisite amount, filed their petition against the said Nelson in the district court of the United : States for the western district of Wisconsin, 3 sitting in bankruptcy, to procure an adju
* dication inst”him as a bankrupt. The act of ba o therein alleged was in substance that while insolvent he suffered
and permitted the said Sarah Johnstone, one of his creditors, to obtain preference upon his property, through 1 proceedings, by the entry of the said judgment and the levy thereunder upon his stock of goods, and failed to vacate or discharge the preference obtained through such legal proceedings at least five days before the sale of the property under such judgment and execution. Upon issue joined, the district court ruled that the said Nelson had not, by reason of the premises, committed an act of bankruptcy, and this ruling is before us for review. “The questions of law upon which this court desires the advice and instruction of the Supreme Court are: “l. Whether the said Cassius B. Nelson, by failure to file his voluntary petition in bankruptcy before the sale under such levy,
and to procure thereon an adjudication of bankruptcy, or by his failure to pay and discharge the judgment before the sale under such levy, committed an act of bankruptcy, within the meaning of § 3a, subd. (3), of the bankrupt act. “2. Whether the judgment so entered and the levy of the execution thereon was a preference ‘suffered’ or ‘permitted' by the said Nelson within the meaning of clause (3) of § 3a of the bankrupt law. “3. Whether the failure of Nelson to vacate and discharge the preference so obtained, if it was one, at least five days before the execution sale, was an act of bank.
Messrs. Harrison Musgrave, J. M. Flower, and D. K. Tenney for appellants.
Messrs. Wm. F. Vilas and R. M. Bashford for appellee.
Mr. Justice Gray delivered the opinion of the court: *
On February 5, 1885, Nelson, in consid-: eration of so much"money then lent to him. by Sarah Johnstone, executed and delivered to her his promissory note for the sum of $8,960, payable in five years, with interest until paid. Attached to that note was an irrevocable power of attorney, executed by Nelson, in the usual form, authorizing any attorney of a court of record in his name to confess judgment thereon after its maturity... The interest on the note was paid until November 1, 1898. At that date Nelson, as he well knew, was, and long had been, and ever since continued to be, insolvent. On November 21, 1898, Sarah Johnstone caused jo. to be duly entered in a court of Wisconsin upon the note and the warrant of attorney for the face of the note and costs. Upon that judgment, execution was issued to the .# who on the same day levied on Nelson's goods, and on December 15, 1898, sold the goods by auction, and applied the proceeds, thereof in part payment of the judgment. This proceeding left Nelson, without means to meet any other of his obligations. The judgment was entered and the levy made without the procurement of Nelson and, without his knowledge or consent. The judgment and levy were unassailable in law, and could not have been yacated or discharged by any legal proceedings, except by his voluntary petition in bankruptcy. On December 10, IS98, a tition in bankruptcy was filed against Nel. son; and the questions certified present, in various forms, the question whether Nelson committed an act of bankruptcy within the oins of $ 3, cl. 3, of the bankrupt act of 1898.
In considering these questions, strict regard must be had to the provisions of that act, which, as this court has already had occasion to observe, differ in important respects from those of the earlier bankrupt acts. Bardes v. First Nat. Bank, 178 U. § 524, 44 L. ed. 1175, 20 Sup. Ct. Rep. 1000; Bryan v. Bernheimer, 181 U. S. 188, 45 L. ed. 814, 21 Sup. Ct. Rep. 557; Wall v. Coa,