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custody was affirmed by the Circuit Court of Appeals in a court opinion found at page 87 of 31 C. C. A., and page 453 of 87 Fed. The Circuit Court of Appeals gave the opinion that upon a proper construction of the statute of Ohio it did not and could not apply to the use of oleomargarine at the Soldiers' Home. The Circuit Court of Appeals, in reference to this point, said:

"With respect to the question of law involved, we concur in the reasoning upon which Judge Taft's opinion proceeds (and which we are content to adopt as our own), and in the conclusion which he reached, save that we prefer to rest our approval of the order made by the court below upon the ground that, inasmuch as the Legislature of Ohio had no power to regulate the conduct of this administrative agency of the national government by such a statute as is here in question, it ought to be presumed that the Legislature did not intend it to have such an application, and that the statute should be construed accordingly."

The case was carried on appeal to the Supreme Court of the United States, and the judgment below affirmed. Ohio v. Thomas, 173 U. S. 276, 19 Sup. Ct. 453, 43 L. Ed. 699. The Supreme Court of the United States, in disposing of the case and discussing the issues, called attention to the fact that the dairy commissioner and the justice of the peace of Ohio were actually construing the law and enforcing it, or attempting to enforce it, as being applicable to the Soldiers' Home, and that court wholly ignored the view that upon a proper construction of the statute it did not so apply. As the state was, through its judicial department and its executive officers, actually enforcing the statute as applicable, that court broadly declared the statute unconstitutional and pretermitted any reference whatever to the view that the statute did not apply to the Soldiers' Home, if properly and fairly construed.

And so here, if in the light of the Skidmore Case the revenue act of 1903 could not and should not be construed as applying to any interest or right of the University, or as affecting its exemption, still the fact practicallly is that the state, through its revenue officers, is actually enforcing and construing the statute in such a way as to make it applicable to the 1,000-acre exemption on the lands of the University, and in such a way that it will or may affect the title and interest of that University and cast upon it a cloud which will require litigation for its removal. This discussion, however, must not be prolonged further.

The injunction applied for will accordingly be allowed in favor of the University of the South alone against any further proceedings by the defendants against any and every lessee and tenant of the University of the South occupying parcels or parts of the 1,000 acres belonging to the University of the South. The order can be drawn and made to run in apt and appropriate language and form, and is allowed accordingly. The complainant lessees will, of course, pay the cost of the cause so far as that is incident to their having been made parties, as the result is, as to them, final. Of course, it results from these views that the court concludes that the revenue act of 1903, so far as the University of the South is concerned, is in violation of both the state and federal Constitutions,




Ex parte WOOD. (Circuit Court, W. D. North Carolina. July 22, 1907.) 1. HABEAS CORPUS-JURISDICTION OF FEDERAL COURTS-DISCHARGE OF STATE


Where a federal court granted a preliminary injunction restraining the officers of a state from enforcing a state statute fixing rates to be charged by railroads for the carriage of passengers within the state pending suits by the railroad companies to determine the constitutionality of such statute, and by its order required such companies to issue coupons to purchasers of tickets calling for the difference between the rates charged and the statutory rate, to be repaid in case the statute was sustained, the selling of tickets in conformity to such order was “an act in pursuance of

an order

of a court” of the United States, within the meaning of Rev. St. $ 753 [U. S. Comp. St. 1901, p. 592], and, where an agent is adjudged guilty of a crime and imprisoned for such act by the state authorities, the federal court is authorized by such section to discharge him on a writ of habeas corpus.

[Ed. Note.-Jurisdiction of federal courts, see note to In re Huse, 25



Section 4 of the North Carolina act of 1907 (Pub. Laws 1907, p. 250, c. 216), prescribing the maximum rates which may be charged by railroad companies for the carriage of passengers within the state, which provides that any railroad company violating any provision of the act shall be liable to a penalty of $500 for each violation payable to the person ag. grieved, and any agent of such company violating the act shall be guilty of a misdemeanor and subject to fine or imprisonment or both, is unconstitutional as a denial to the railroad companies of the equal protection of the laws by subjecting them to excessive and ruinous penalties if they exercise their right to contest the validity of the law in the courts.

[Ed. Note.--Imposition of penalty, extra allowance of damages, costs, or fees as denial of equal protection of law, see note to Williamson v. Liverpool & London & Globe Ins. Co., 72 O. C. A. 547.] Petition for Writ of Habeas Corpus. Jas. H. Wood, W. B. Rodman, and Moore & Rollins, for petitioner. Jas. H. Merrimon, for the State.

PRITCHARD, Circuit Judge. This is an application of the petitioner, Jas. H. Wood, to be discharged on a writ of habeas corpus from the custody of the sheriff of Buncombe county. The petitioner was indicted on a charge of having violated the provisions of section 4 of an act passed at the session of the Legislature of North Carolina of 1907 (Pub. Laws 1907, p. 250, c. 216) prescribing the maximum charges railroad companies may make for transporting passengers in North Carolina, tried and convicted, and sentenced to a term of 30 days' imprisonment to be worked upon the public roads of Buncombe county.

Some time since suits were instituted in the Circuit Court of the United States for the Eastern District of North Carolina by several railroad companies against the Corporation Commissioners of North Carolina, the Attorney General, and the Assistant Attorney General of that state, for the purpose of obtaining protection of the fourteenth amendment to the Constitution of the United States against an act of the Legislature of North Carolina establishing maximum rates which such companies claimed to be confiscatory, and, on a prima facie case, a motion was made for interlocutory injunctions. Accordingly, on the 29th of June, injunctions pendente lite were issued enjoining the defendants and all other persons from putting the rates into effect during the inquiry as to the constitutionality of the same, and from instituting prosecutions or attempting to impose penalties upon the companies, or their employés, for a failure to put into effect the statutory rates which are being contested. The court amply preserved the rights of the traveling public by requiring a coupon to be given to each purchaser evidencing the amount to be refunded to him in the event the rates should be upheld, and to secure the same ample bond and security were given. This was in accordance with the law of North Carolina where a rate made by the Commission is attacked. Thereupon the matter was referred to a master to ascertain the facts and report his conclusions, and, to avoid delay, he was required to make his report by the 25th of September, and the hearing was fixed for the first Monday in October, so as to give the parties an opportunity to have the questions involved finally determined by the Supreme Court at the earliest possible moment. There was nothing unusual in the proceedings instituted by the several railroad companies in the state. Similar suits have been instituted in the state of Alabama, where Judge Jones issued an injunction, and also in the state of Georgia, where Judge Newman pursued the

same course.

Notwithstanding the United States Circuit Court had thus taken jurisdiction of the whole matter and was proceeding in an orderly way with its consideration, the evidence shows that the Governor of North Carolina has issued an address to the judges of the superior courts of the state, questioning the authority of the court to make the order referred to, and asking them to see that indictments against the agents and employés of the railroads and its officials be sent before the grand jury in order that the state may undertake the prosecutions which are enjoined in my order, and stating that, as chief executive of the state, he stands ready to aid them in enforcing the law. In accordance with this policy, a number of indictments have been found and prosecutions begun in defiance of the order of injunction issued by this Circuit Court. If these prosecutions are permitted and continued, the result will be to nullify the injunction which was granted by the court, and to practically defeat its jurisdiction. Not only are the rights of litigants involved, but the dignity and authority of the Circuit Court of the United States as well. These prosecutions and arrests, taking place in widely separated portions of the state, present serious difficulties in the matter, and this court is confronted with open and avowed opposition by the powers of the state. Obstacles are being thrown in the way of inquiry by this court on writs of habeas corpus into the legality of arrests, and this seems to be the deliberate policy of those representing the state. The court does not wish to be understood as imputing improper motives to the Governor or other state officials. The penalties prescribed by the state statute for charging more than the statutory rates are so enormous that, if permitted to be enforced, they would practically bankrupt the railroad in an exceedingly brief time,

and before a final hearing could be had in the cause, and thus place the complainant in a position where it would be powerless to assert a right which is guaranteed to it by the Constitution of the United States. If the criminal prosecutions against the agents, conductors, and employés are permitted to continue, the managers of the railroads cannot successfully operate their trains, carry the mails, or continue their usefulness, as common carriers doing an interstate business.

The Constitution of North Carolina contains ample provision for the protection and preservation of the liberty of the citizen.

Article 1, § 18, contains the following:

"Every person restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful; and such remedy ought not to be denied or delayed."

Section 21 of the same article also provides : “The privileges of the writ of habeas corpus shall not be suspended.” Section 1821 of the Revisal of North Carolina of 1905 is as follows:

"Every person imprisoned or restrained of his liberty within this state, for any criminal or supposed criminal matter or on any pretense whatsoever, except in cases specified in the succeeding section, may prosecute a writ of habeas corpus according to the provisions of this chapter, to inquire into the cause of such imprisonment or restraint, and if illegal, to be delivered therefrom."

Section 1828 of the same chapter is the only law of which the court has any knowledge that imposes upon a judge a penalty for a failure to perform a judicial act. The section in question reads as follows:

"If any judge authorized by this chapter to grant writs of habeas corpus shall refuse to grant such writ when legally applied for, every such judge shall forfeit to the party aggrieved two thousand and five hundred dollars."

Thus it will be seen that the state Constitution of North Carolina, as well as the statutory law, affords ample protection to every person who is deprived of his liberty without due process of law, and, such being the case, it is remarkable that any one representing the state should be opposed to the granting of the writ of habeas corpus. Likewise, the Constitution of the United States and the Revised Statutes afford every citizen of the Union when imprisoned contrary to law protection to the fullest extent by the writ of habeas corpus.

Article 1, § 9, cl. 2, of the Constitution of the United States, is as follows:

“The privileges of the writ of habeas corpus shall not be suspended unless in cases of rebellion or invasion, the public safety may require it."

Section 751 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 592] contains the following provisions:

"The Supreme Court and the Circuit and District Courts shall have power to issue writs of habeas corpus."

"The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.” Rev. St. 752.

“The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained.” Rev. St. $ 755.

Notwithstanding the plain provisions and enactments contained in the Constitution and Revised Statutes of the United States, as well as the state Constitution and the statutes of the state, it is seriously contended that the agents of the complainant in this instance, when indicted for the violation of the statute (the enforcement of which has been restrained by this court), are not entitled to a remedy which is afforded to every other citizen of the state. If this policy is to prevail in North Carolina, persons who invest their money in enterprises like that of the complainant will be deprived of the means of protecting their property rights and denied the benefits of the writ of habeas corpus which is intended for the preservation of the liberty of every citizen. It will be a sad day for the people of North Carolina when its citizens are prohibited by the acts of the Legislature from asserting any right guaranteed to them by the Constitution of the United States. Suits of this character have been brought in different states of the Union, and in every instance the federal courts have proceeded to determine the questions involved without interference, hindrance, or delay by the legislative or judicial authorities of such states.

The equal protection of the law is guaranteed to every citizen of the United States, and I shall employ all means within the power of the court to secure to persons who invoke the jurisdiction of this court such rights to the fullest extent of the law. If the law is construed in a spirit of fairness and impartiality, there can be no conflict of jurisdiction between the state courts and the courts of the United States.

Much has been said in regard to the power of a court of equity to enjoin the prosecution of a criminal case. In the case of Dobbins v. Los Angeles, 195 U. S. 241, 25 Sup. Ct. 18, 49 L. Ed. 169, Mr. Justice Day, who delivered the opinion of the court, in discussing this phase of the question, said:

“It is well settled that, where property rights will be destroyed, unlawful interference by criminal proceedings, under a void law, or ordinance, may be reached and controlled by a decree of a court of equity. Davis & Tarnum Mfg. Co. v. Los Angeles, 189 U. S. 207, 218, 23 Sup. Ct. 498, 47 L. Ed. 778, and cases there cited.”

In this instance the federal court has not been the aggressor, but has simply adopted the regular practice and procedure which has been approved by the Supreme Court of the United States in cases of a like nature, and, while the court is not inclined to do anything that will produce an unseemly conflict, nevertheless it is incumbent upon it to protect the rights of the parties to this controversy as well as maintain the dignity and authority of this court, and this cannot be accomplished without preserving to the fullest extent the jurisdiction of the court in determining the question which has been submitted to it for consideration. If, in pursuing the usual and well-defined practice and procedure in such cases with the sole view of maintaining the jurisdiction of this court, at any stage of the proceeding, conflict must come, and I trust that it may not, I shall not evade the responsibility which is imposed upon me as the presiding officer of this court.

Much has been said about the sovereignty of the state. That question does not arise in this controversy. This court having assumed jurisdiction of the subject-matter involved in the original suit, wherein the

155 F-13

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