*301

his application to the circuit court of the | eign nations, the courts of the United States United States for a writ of habeas corpus, have frequently interposed by writs of haalleging that he was restrained of his lib-beas corpus and discharged prisoners who erty in violation of the Constitution of the United States. That court held the statute to be unconstitutional, and discharged the accused from the custody of the state authorities.

The state insists, upon this appeal, that the statute, at least in the particulars applicable to this case, was consistent with the Constitution of the United States.

This question is one of great importance, but we do not deem it necessary now to consider it; for in our opinion the circuit court should have denied the application for the writ of habeas corpus, without prejudice to a renewal of the same after the accused had availed himself of such remedies as the laws of the state afforded for a review of the judgment in the state court of which he complains.

were held in custody under state authority. So, also, when they are in the custody of a state officer, it may be necessary, by use of the writ, to bring them into a court of the United States to testify as witnesses." Ex parte Royall, 117 U. S. 241, 250, 29 L. ed. 868, 871, 6 Sup. Ct. Rep. 734; Ex parte Fonda, 117 U. S. 516, 518, 29 L. ed. 994, 6 Sup. Ct. Rep. 848; Re Duncan, 139 U. S. 449, 454, sub nom. Duncan v. McCall, 35 L. ed. 219, 222, 11 Sup. Ct. Rep. 573; Re Wood, 140 U. S. 278, 289, sub nom. Wood v. Brush, 35 L. ed. 505, 509, 11 Sup. Ct. Rep. 738; McElvaine v. Brush, 142 U. S. 155, 160, 35 L. ed. 971, 973, 12 Sup. Ct. Rep. 156; Cook v. Hart, 146 U. S. 183, 194, 36 L. ed. 934, 939, 13 Sup. Ct. Rep. 40; Re Frederich, 149 U. S. 70, 75, 37 L. ed. 653, 656, 13 Sup. Ct. Rep. 793; New York v. Eno, 155 U. S. 89, 96, 39 L. ed. 80, 83, 15 Sup. Ct. Rep. 30; Pepke v. Cronan, 155 U. S. 100, 39 L. ed. 84, 15 Sup. Ct. Rep. 34; Re Chapman, 156 U. S. 211, 216, 39 L. ed. 401, 402, 15 Sup. Ct. Rep. 331; Whitten v. Tomlinson, 160 U. S. 231, 242, 40 L. ed. 406, 412, 16 Sup. Ct. Rep. 297; Iasigi v. Van De Carr, 166 U. S. 391, 395, 41 L. ed. 1045, 1049. 17 Sup. Ct. Rep. 595; Baker v. Grice, 169 U. S. 284, 290, 42 L. ed. 748, 750, 18 Sup. Ct. Rep. 323; Tinsley v. Anderson, 171 U. S. 101, 105, 43 L. ed. 91, 96, 18 Sup. Ct. Rep. 805; Fitts v. McGhee, 172 U. S. 516, 533, 43 L. ed. 535, 543, 19 Sup. Ct. Rep. 269; Markuson v. Boucher, 175 U. S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76.

custody by the state authorities under a charge of perjury committed in giving his deposition as a witness before a notary public in Richmond, Virginia, in the case of a contested election of a member of the House of Representatives of the United States. He sued out from the circuit court of the United was discharged upon a writ of habeas corpus

We have held, upon full consideration, that although under existing statutes a circuit court of the United States has jurisdiction upon habeas corpus to discharge from the custody of state officers or tribunals one restrained of his liberty in violation of the Constitution of the United States, it is not required in every case to exercise its power to that end immediately upon application being made for the writ. "We cannot suppose," this court has said, "that Congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, There are cases that come within the exwhere the accused claims that he is held in ceptions to the general rule. In Loney's custody in violation of the Constitution of Case, 134 U. S. 372, 375, sub nom. Thomas v. the United States. The injunction to hear Loney, 33 L. ed. 949, 951, 10 Sup. Ct. Rep. the case summarily, and thereupon 'to dis-584, 585, it appeared that Loney was held in pose of the party as law and justice require' [R. S. § 761], does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact that the public good requires that those relations be not dis-States, this court saying: "The power of turbed by unnecessary conflict between punishing a witness for testifying falsely in courts equally bound to guard and protect a judicial proceeding belongs peculiarly to rights secured by the Constitution. When the government in whose tribunals that prothe petitioner is in custody by state author-ceeding is had. It is essential to the imparity for an act done or omitted to be done in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or where, being a subject or citizen of a foreign state, and domiciled therein, he is in custody, under like authority, for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order, or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations; in such and like cases of urgency, involving the authority and operations of the general government, or the obligations of this country to, or its relations with, for

tial and efficient administration of justice in the tribunals of the nation, that witnesses should be able to testify freely before them, unrestrained by legislation of the state, or by fear of punishment in the state courts. The administration of justice in the national tribunals would be greatly embar rassed and impeded if a witness testifying before a court of the United States, or upon a contested election of a member of Congress, were liable to prosecution and punishment in the courts of the state upon a charge of perjury, preferred by a disappointed suitor or contestant, or instigated by local passion or prejudice." So, in Ohio v. Thomas, 173 U. S. 276, 284, 285, 43 L. ed. 699, 702, 19

*504

*503

cles of commerce, especially articles of food, or adapted for general use, are regarded as affecting general interests and the rights of the public; and habeas corpus has frequently been resorted to in cases of imprisonment for violation of such statutes." Re Brundage, 96 Fed. Rep. 963, 969.

Sup. Ct. Rep. 453, 456, which was the case | caused by the prosecution of a writ of erof the arrest of the acting governor of the ror to a final decision, or unless the question Central Branch of the National Home for has already been decided by the Supreme Disabled Volunteer Soldiers, at Dayton, Court of the United States, whose decision Ohio, upon a charge of violating a law of the state court has disregarded in the prothat state, the action of the circuit court of ceeding. State statutes prohibiting the imthe United States discharging him upon ha-portation from other states and sale of artibeas corpus, while in custody of the state authorities, was upheld upon the ground that the state court had no jurisdiction in the premises, and because the accused, being a Federal officer, "may, upon conviction, be imprisoned as a means of enforcing the sentence of a fine, and thus the operations of the Federal government might in the meantime be obstructed." The exception to the general rule was further illustrated in Boske v. Comingore, 177 U. S. 459, 466, 467, 44 L. ed. 846, 849, 20 Sup. Ct. Rep. 701, 704, inley v. Massachusetts, 155 U. S. 461, 39 L. ed. which the applicant for the writ of habeas corpus was discharged by the circuit court of the United States, while held by state officers, this court saying: "The present case was one of urgency, in that the appellee was an officer in the revenue service of the United States whose presence at his post of duty was important to the public interests, and whose detention in prison by the state authorities might have interfered with the regular and orderly course of the business of the department to which he belonged."

Among the cases cited in support of the action of the circuit court are Minnesota v. Barber, 136 U. S. 313, 34 L. ed. 455, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, and Plum

223, 5 Inters. Com. Rep. 590, 15 Sup. Ct. Rep. 154. It must be admitted that in the first-named case the general rule announced in prior and subsequent cases was not applied. The reasons for not then applying it do not appear from the opinion of the court. It may be that the precise point now under examination was not called to its attention. Plumley v. Massachusetts is not in point, for it came to this court upon writ of error to the highest court of Massachusetts.

The present case does not come within any It is undoubtedly true that the state enof the exceptions to the general rule an-actment in question may in its operation afnounced in the cases above cited. It is not, fect the business of many, and in some dein any legal view, one of urgency. The ac- gree, but indirectly, the rights of the public; cused does not, in his application, state any but that consideration is not sufficient to reason why he should not be required to justify such interference by the Federal bring the question involved in the prosecu-court as will interrupt the orderly course of tion against him before a higher court of the proceedings in the state court. We do not state and invoke its power to discharge him think that the exercise by a Federal court of if in its judgment he is restrained of his its power upon habeas corpus to discharge liberty in violation of the Constitution of the one held in custody by the state authorities United States. It cannot be assumed that and charged with a violation of a state enthe state court will hesitate to enforce any actment should be materially controlled by rights secured to him by that instrument; any consideration of the extent of particular for upon them equally with the courts of the business interests that may be affected by a Union rests the duty to maintain the su- prosecution instituted in a state tribunal preme law of the land. Robb v. Connolly, against him, or of the indirect effect of his 111 U. S. 624, 637, 28 L. ed. 542, 546, 4 Sup. detention in custody upon the rights of the Ct. Rep. 544. If the state court declined to general public. Nor do we think that the recognize the Federal right specially claimed circuit court should have interfered with the by the accused, the case could be brought custody of the appellee because in its opinion here for review. the action of the municipal court of MinneAfter observing that the questions of con-apolis was inconsistent with the judgments stitutional law arising in this case had been determined in Schollenberger v. Pennsylvania, 171 U. S. 1, 43 L. ed. 49, 18 Sup. Ct. Rep. 757, and Collins v. New Hampshire, 171 U. S. 30, 43 L. ed. 60, 18 Sup. Ct. Rep. 768, adversely to the present contention of the state, and that there was jurisdiction to discharge the petitioner on habeas corpus, the circuit court said: "Even then, for reasons of comity, such power will seldom be exercised by the circuit court to discharge a petitioner held under process from a state court, even after conviction by the trial court, unless large interests affecting the business of many or the rights of the public

are

so involved that serious consequences will follow from the delay which will be

of this court in the Schollenberger and Collins Cases. Upon that question the state court was entitled to form its own opinion, and give judgment accordingly. Whether, in view of the judgments in the Schollenber ger and Collins Cases, the state court should have held the Minnesota statute to be repug nant to the Constitution of the United States, it is not necessary now to say. Besides, the record does not show that the attention of the municipal court of Minneapolis was called to those cases; much less is there any reason to suppose that it deliberately refused to accept the decisions of this court as controlling upon questions arising under the Constitution of the United States. As disclosed by the record, the case,

Argued October 19, 22, 1900. Decided of the same year. The Constitution adopted

Statement by Mr. Justice Harlan: The ultimate question in this case is Company. The company was incorporated whether the county of Wilkes, North Caro- by the ordinance for the purpose of conlina, is liable upon certain bonds issued instructing a railroad of one or more tracks 1889 in payment of a subscription in its name to the capital stock of the North Western North Carolina Railroad Company.

from some point on the North Carolina Railroad between the town of Greensboro in Guilford county and the town of Lexington in Davidson county, running by way of Salem and Winston in Forsyth county "to some point in the northwestern boundary line of the state to be hereafter determined."

By the 5th section of the ordinance it was provided that after the organization of the company its officers should proceed "to locate the eastern terminus of the North Western North Carolina Railroad, and shall proceed to construct said road, with one or more tracks, as speedily as practicable, in sections of 5 miles each, to the towns of Winston and

Salem, in Forsyth county, which portion of said railroad, when completed, shall constitute its first division."

By the 12th section it was declared that "all counties or towns subscribing stock to said company shall do so in the same manner and under the same rules, regulations, and restrictions as are set forth and prescribed in the act incorporating the North Carolina & Atlantic Railroad Company, for the government of such towns and counties as are now allowed to subscribe to the capital stock of said company;" and by § 13, that "the company shall have power to construct branches of said road, one of which shall run from the towns of Winston and Salem by way of Mount Airy, in Surry county, to the line of the state of Virginia."

tory, in the county of Caldwell, which branch shall be known as the second division.'" By the 1st and 2d sections the ordinance of 1868 was further amended in particulars that need not be mentioned. By the 4th section it was provided: "That any township or city, town, county, or other municipal corporation of this state shall have pow er and authority to subscribe for and take any number of shares of capital stock of said company that a majority of the voters of such township or city, town, county, or other municipal corporation may elect to take therein." After prescribing the mode in which the will of the people as to a subscription of stock should be ascertained, that section proceeded: "If the result of any such election shall show that a majority of The North Carolina & Atlantic Railroad the qualified voters of any township or city, Company referred to in the 12th section was town, county, or other municipal corporathe Atlantic & North Carolina Railroad tion, favor the taking of the amount of Company incorporated by an act of assem- stock so voted for in such election, then the bly approved December 27th, 1852. By the authorities who, by this act, are empowered 33d section of the charter of that company to determine what amount of stock shall be it was declared to "be lawful for any incor- taken, shall subscribe the amount of stock porated town or county near or through so voted for in said company, and shall have which said railroad may pass to subscribe power to levy and collect taxes for that spefor such an amount of stock in said company cial purpose to pay for the said stock in inas they shall be authorized to do by the in- stalments as the same may become due, or, habitants of said town or the citizens of said in case it shall not be deemed best to collect county, in manner and form as hereinafter taxes to pay by taxation such subscription provided." Provision was made (§ 34) in for stock, then such township or city, town, the same act to take the sense of the quali-county, or other municipal corporation shall fied voters of any town or county upon the question of a subscription by it to the stock of the company, and it was declared (§ 35) that if a majority of the qualified voters of any county or town voting upon the question were in favor of the subscription, the corporate authorities of the town and the justices of the county should appoint an agent to make the subscription in behalf of such town and county, to "be paid for in the bonds of such town and county, and on such time as shall be agreed on by said town of ficers and the justices of such county." Laws N. C. 1852, pp. 484, 499.

By an act of assembly of August 11th, 1868, the ordinance of March 9th, 1868, was re-enacted, ratified, and confirmed. By the same act also the commissioners of Forsyth county were invested with authority to levy from time to time such tax as was sufficient to pay the subscriptions made to the capital stock of the North Western North Carolina Railroad Company, and any interest due thereon, or to liquidate any debt created in borrowing money to pay the subscription of stock. At the end of that act as published are the words, "Ratified the 11th day of August, A. D. 1868."

have power to issue bonds for the purpose of raising money to pay for such subscription, and shall provide for the payment of interest upon such bonds, and also for the payment of said bonds when they become due: "At the close of that act, as pub lished, are these words: "Read three times in the general assembly and ratified the 20th day of February, A. D. 1879."

Another act was passed March 2d, 1881. By that act the North Western North Carolina Railroad Company was authorized to extend and construct its line of road, or a branch thereof, to conumence at or near Winston, in the county of Forsyth, through the counties of Forsyth, Davidson, Yadkin, Davie, Rowan, and Iredell, or any or either of them, to Statesville, or some other point on the Western North Carolina Railroad, and to build and operate additional branches thereto, or from its present main line, to any important mines or manufactories in any of said counties, or counties adjacent to them; and any corporation, county, city, town, or township interested therein was empowered to subscribe to stock for those pur poses, or otherwise contribute to the work in such manner and amount as should be de

corporation, county, city, town, or township, and agreed on with the said North Western North Carolina Railroad Company. At the close of that act, as published, are the words: "In the general assembly, read three times and ratified this 2d day of March, a. D. 1881."

By the 1st section of the above act of Feb-termined by the proper authorities of such ruary 20th, 1879, it was declared that "§ 13 of chapter 17 of the ordinance of the Convention of 1868, ratified the 9th day of March, 1868, be amended by adding the words 'and one of which shall be constructed from the town of Winston and Salem, up the valley of the Yadkin by the way of Jonesville and Wilkesboro, in the county of Wilkes, to Patterson's Fac

The validity, under the Constitution of the state, of each of the above acts of March

609.

11th, 1868, February 20th, 1879, and March | tion of article 2 of the Constitution of the 2d, 1881, was questioned upon grounds presently to be stated.

In the circuit court judgment was rendered in favor of the plaintiffs, Coler & Co., who were found to be bona fide holders for value of some of the bonds. The case was carried to the circuit court of appeals, and is now here upon questions certified under the judiciary act of March 3d, 1891 (26 Stat. at L. 826, chap. 517).

The certified questions are as follows: "1. Whether, upon the averment of the bill of complaint, answers, replications, orders, exhibits, and other evidence, and matters and things recited herein, the circuit court of the United States was bound in passing upon this case by the decisions of the supreme court of North Carolina in the following cases: Wilkes County Comrs. v. Call, 123 N. C. 308, 44 L. R. A. 252, 31 S. E. 481; Union Bank v. Oxford Comrs. 119 N. C. 214, 34 L. R. A. 487, 25 S. E. 966; Stanly County Comrs. v. Snuggs, 121 N. C. 394, 39 L. R. A. 439, 28 S. E. 539; Rodman v. Washington, 122 N. C. 39, 30 S. E. 118; Buncombe County Comrs. v. Payne, 123 N. C. 432, 31 S. E. 711, considered in connection with prior decisions of said court and the following provisions of the Constitution of said state: Article 2, §§ 14 and 16, and article 5, §§ 1, 4, 6, and 7, and article 7, § 7.

"2. Whether, if the bonds and coupons in question were issued, put in circulation, and came to the hands of complainants, appellees, in due course of trade, for valuable consideration and without notice, and if there were at that time no decision of the supreme court of North Carolina adverse to these bonds or identical bonds issued under similar statutes, the bonds held by complain. ants are valid bonds.

"3. Whether there was any decision adverse to the validity of these bonds or identical bonds or any construction of the Constitution or law of North Carolina which affected the question of their validity when they came in due course of trade and for valuable consideration and without notice other than such notice as the parties are assumed to have of existing provisions in the Constitution and statutes of the state of their invalidity."

state, which is in these words: "No law shall be passed to raise money on the credit of the state, or to pledge the faith of the state, directly or indirectly, for the payment of any debt, or to impose any tax upon the people of the state, or allow the counties, cities, or towns to do so, unless the bill for the purpose shall have been read three several times in each house of the general assembly, and passed three several readings, which readings shall have been on three different days, and agreed to by each house respectively, and unless the yeas and nays on the second and third readings of the bill shall have been entercd on the journal.”

In support of the above proposition, reliance is placed upon the cases named in the first of the certified questions.

We are asked whether the circuit court was bound to follow those decisions when considered in connection with prior decisions of the supreme court of North Carolina and with the above and other provisions of the state Constitution, by one of which it is declared that "each house shall keep a journal of its proceedings, which shall be printed and made public immediately after the adjournment of the general assembly." Art. 2, § 16.

Premising that the journals of the two houses were put in evidence, and that it did not appear therefrom that the yeas and nays, on the second and third readings of the acts of 1868, 1879, and 1881, respectively, were entered on the legislative journals, let us inquire as to the scope of the decisions in the above cases.

In Union Bank v. Oxford Comrs. (1896) 119 N. C. 214, 220, 34 L. R. A. 487, 488, 25 S. E. 966, 967, which involved the validity under the 14th section of the state Constitution of an act passed in 1891 authorizing a municipal subscription to the stock of a railroad company and the issuing of bonds in payment thereof, it was said: "This section of the Constitution is imperative and not recommendatory, and must be observed; otherwise this wise and necessary precaution inserted in the organic law would be converted into a nullity by judicial construction. The point is one of transcending importance, and is simply whether the people, in their organic law, can safeguard the taxpayers against the creation of state, county, and town indebtedness by formalities not required for ordinary legislation, and must the courts and the legisla apture respect those provisions? This safe guard is § 14 of article 2 of the Constitution.

Messrs. A. C. Avery, R. O. Burton, and James E. Shepherd, for appellants.

Messrs. John F. Dillon, Charles Price, Harry Hubbard, and John M. Dillon for pellees.

Mr. Justice Harlan, after stating the facts as above reported, delivered the opinion of the court:

This being the case disclosed by the record, we proceed in our examination of such matters involved in the certified questions as are presented with sufficient distinctness to require notice at our hands.

The county insists that the bonds in question were issued in violation of the 14th sec

The journals offered in evidence showed affirmatively that 'the yeas and nays on the second and third reading of the bill' were not 'entered on the journal.' And the Constitution, the supreme law, says that, unless so entered, no law authorizing state, counties, cities, or towns to pledge the faith of the state or to impose any tax upon the people, etc., shall be valid. The people had the power to protect themselves by requiring in the organic law something further