LOUISVILLE & NASHVILLE RAILROAD COMPANY v. SCOTT.

ERROR TO THE COURT OF APPEALS OF THE COMMONWEALTH OF KENTUCKY.

No. 286. Argued October 19, 20, 1910.--Decided January 3, 1911.

Decided on authority of Atlantic Coast Line R. R. Co. v. Riverside Mills, ante, p. 186.

THE facts are stated in the opinion.

Mr. Joseph R. Lamar for plaintiff in error in No. 215 1 and Mr. C. H. Moorman, with whom Mr. Benjamin D. Warfield and Mr. Henry L. Stone were on the brief, for plaintiff in error in this case.

Mr. Wm. S. Kenyon, Assistant to the Attorney General, with whom The Attorney General was on the brief, by leave of the court for the United States, as amicus curiæ in support of the constitutionality of § 20 of the act of June, 1906.

There was no appearance for defendant in error.

MR. JUSTICE LURTON delivered the opinion of the court.

This case was heard with No. 215, Atlantic Coast Line Railroad Co. v. Riverside Mills, just decided. Like that case it presents only the question of the constitutionality of the Carmack amendment of the act to regulate commerce.

The facts are not substantially different, and the judgment of the Court of Appeals of the Commonwealth of Kentucky is affirmed upon the authority of that case. Affirmed.

1 See ante, p. 186.

VOL. CCXIX-14

Syllabus.

219 U.S.

MATTER OF GREGORY, PETITIONER.

PETITION FOR WRIT OF HABEAS CORPUS.

No. 17, Original. Argued December 5, 1910.-Decided January 3, 1911.

Habeas corpus cannot be made to perform the functions of a writ of error, and this court is concerned only with the questions of whether the information is sufficient, or whether the committing court properly applied the law if that court had jurisdiction to try the issues and render the judgment. Harlan v. McGourin, 218 U. S. 442.

The provisions and prohibitions of § 1176 of the Revised Statutes relating to the District of Columbia are not limited to transactions previously licensed by the act of August 23, 1871, but expressly include gift enterprises conducted in any manner, whether defined in said act or otherwise.

Section 1177 of the Revised Statutes relating to the District of Columbia punishes a recognized category of offenses within the power of Congress to punish, and is not controlled or rendered invalid by a definition of the prohibited crime in an earlier statute which has been repealed.

Where the statute defining the crime is valid, it is within the range of

judicial consideration to determine whether the acts of the accused are within the definition, and if the court has jurisdiction its judgment cannot be reviewed on habeas corpus.

The police court of the District of Columbia has jurisdiction to try persons charged on information of violating § 1177 of the Revised Statutes relating to the District of Columbia prohibiting engaging in gift enterprises, and the judgment of that court determining that the acts of accused fell within the definition of gift enterprise is not reviewable on habeas corpus proceedings.

THE facts, which involve the constitutionality and construction of §§ 1176, 1177 of the Revised Statutes relating to the District of Columbia prohibiting and punishing gift-enterprises, and the validity of a conviction thereunder, are stated in the opinion.

219 U.S.

Argument for Petitioner.

Mr. John Hall Jones and Mr. W. Benton Crisp for petitioner:

Section 1177 of the Revised Statutes relating to the District of Columbia does not define gift-enterprises. Such definition is found in the laws of the District of Columbia, 1871-73, Part II, 96, and see Re Lansburgh, 11 App. D. C. 512, and opinion in District v. Kraft, referred to in petition in this case.

The answer filed herein bases the jurisdiction of the Police Court upon the act of 1873. The information merely charges petitioner with engaging in the business of a gift-enterprise, which comes within the definition of the act of 1871, and charges a perfectly innocent business transaction involving neither moral turpitude, nor any element of chance.

The court has original jurisdiction to issue the writ of habeas corpus in this case. Ex parte Bollman & Swartwout, 4 Cr. 75; Ex parte Yerger, 8 Wall. 85; Ex parte Virginia, 100 U. S. 339; Ex parte Siebold, 100 U. S. 371.

The prohibition contained in this statute is in violation of the Fifth Amendment to the Constitution of the United States, in that it deprives petitioner of liberty and property without due process of law, and the courts below were, therefore, without jurisdiction to try and sentence petitioner. Lochner v. New York, 198 U. S. 47, 53; Mugler v. Kansas, 123 U. S. 623, 661; Lawton v. Steele, 152 U. S. 133; McLean v. Arkansas, 211 U. S. 539, 547; O'Keefe v. Somerville, 190 Massachusetts, 110; Young v. Commonwealth, 101 Virginia, 853; People v. Gillson, 109 N. Y. 389; People v. Zimmerman, 102 App. Div. 103; State v. Hyman, 98 Maryland, 596, 613; Toledo R. R. Co. v. Jacksonville, 67 Illinois, 37, 40; State v. Loomis, 115 Missouri, 307, 313; Ex parte Drexel & Holland, 147 California, 763, 767; State v. Dalton, 22 R. I. 77, 80.

The act does not affect the public health, safety and morals.

In the following cases the petitioner's business has been held to be legal: Humes v. Little Rock, 138 Fed. Rep. 929; Hawaii v. Gunst, 18 Hawaii, 196; Sperry & Hutchinson Co. v. Weber, 161 Fed. Rep. (Ill.) 219; Sperry & Hutchinson Co. v. Temple, 137 Fed. Rep. (Mass.) 992; Ex parte Hutchinson, 137 Fed. Rep. (Oregon) 950; Sperry & Hutchinson Co. v. Brady, 134 Fed. Rep. (Penna.) 691; Same v. Mechanics' Cloth Co., 135 Fed. Rep. (R. I.) 833; Same v. Same, 128 Fed. Rep. (R. I.) 800; Ex parte Hutchinson, 137 Fed. Rep. (Wash.) 949; State v. Shugart, 138 Alabama, 86; Montgomery v. Kelly, 142 Alabama, 552; Ex parte McKenna, 126 California, 429; Ex parte Drexel & Holland, 147 California, 763; Denver v. Frueauff, 39 Colorado, 20; Hewin v. Atlanta, 121 Georgia, 731; O'Keefe v. Somerville, 190 Massachusetts, 110; Commonwealth v. Emerson, 165 Massachusetts, 149; Commonwealth v. Sisson, 178 Massachusetts, 578; Sperry & Hutchinson Co. v. Temple, 137 Fed. Rep. 992; Long v. Maryland, 74 Maryland, 565; Attorney General v. S. & H. Co., 126 N. W. Rep. (Minn.) 120; State v. Ramseyer, 73 N. H. 31; People v. Gillson, 109 N. Y. 389; People v. Dycker, 72 App. Div. 308; People v. Zimmerman, 102 App. Div. 103; Winston v. Beeson, 135 N. C. 271; Commonwealth v. Moorhead, 7 Penn. Co. Ct. Rep. 513; State v. Dalton, 22 R. I. 77; State v. Dodge, 76 Vermont, 197; Young v. Commonwealth, 101 Virginia, 853.

Mr. Edward H. Thomas and Mr. William Henry White, with whom Mr. Francis H. Stephens was on the brief, for respondent.

MR. JUSTICE HUGHES delivered the opinion of the court.

This is a petition for a writ of habeas corpus. By information filed in the Police Court of the District of Columbia, the petitioner was charged with engaging "in

the business of a gift-enterprise" in violation of § 1177 of the Revised Statutes relating to the District of Columbia. Thereupon an agreed statement of facts was filed, by which it appeared that the petitioner, as the managing officer of The Sperry & Hutchinson Company, was conducting, within the District, its business of issuing and redeeming so-called "trading stamps" in the particular manner set forth. It was stipulated that the statement should be considered as a part of the information, and the petitioner made a motion to quash. This motion was sustained and the petitioner was discharged. On writ of error, the Court of Appeals of the District of Columbia reversed the judgment of the Police Court and ordered the cause to be remanded for further proceedings in conformity with its opinion. Application was made to this court for a writ of certiorari, which was refused. 218 U. S. 673. The petitioner was then arraigned in the Police Court, pleaded not guilty, and waived trial by jury; and the case was submitted to the court upon the agreed statement. Judgment of guilty was entered and the petitioner was sentenced to pay a fine. He then obtained leave of this court to file the present petition.

The only question before us is whether the Police Court had jurisdiction. A habeas corpus proceeding cannot be made to perform the function of a writ of error and we are not concerned with the question whether the information was sufficient or whether the acts set forth in the agreed statement constituted a crime, that is to say, whether the court properly applied the law, if it be found that the court had jurisdiction to try the issues and to render the judgment. Ex parte Kearney, 7 Wheat. 38; Ex parte Watkins, 3 Pet. 193; Ex parte Parks, 93 U. S. 18; Ex parte Yarbrough, 110 U. S. 651; In re Coy, 127 U. S. 731; Gonzales v. Cunningham, 164 U. S. 612; In re Eckart, 166 U. S. 481; Storti v. Massachusetts, 183 U. S. 138; Dimmick v. Tompkins, 194 U. S. 540; Hyde v. Shine, 199 U. S.