their passage to the islands by the crews of | hibited and prevented the said company from foreign vessels and were killed in great num- taking any seals whatever from the said bers while in the water. For several years islands during the year 1893, and thus dethe United States, asserting that it had terri- prived the said defendant of the benefit of its torial jurisdiction over Behring sea, had been said lease." We think this so far partakes of striving to prevent vessels of foreign nations a conclusion of law that we are not shut up to from seal hunting on the open waters thereof. treating it as a finding of fact. The power to Great Britain denied the territorial jurisdic- regulate the seal fisheries in the interest of tion of the United States and denied that the the preservation of the species was a sovereign [133]United States *had a right of property in the protective power, subject to which the lease fur seals while on the high seas during their was taken, and if the government found it progress to or from the islands of St. Paul necessary to exercise that power to the exand St. George, and it became necessary to re- tent which this finding asserts, and if we assort to international regulation to prevent the sume that the company might thereupon have extermination of the seals. Indeed, it ap- treated this contract as rescinded, it is suffipears that the Treasury agent in charge made cient to say that it took no such position, but a report to the Secretary of the Treasury af- accepted the performance involved in the deter the season of 1890, in which he strenuous- livery of the 7,500 skins. The company did ly urged the necessity of stopping sealing for not wish to rescind or abandon, and it could a number of years absolutely upon the islands not but recognize that, as the modus was enas a necessary measure for the preservation tered into in an effort to save the seal race of the seals. On the 15th of June, 1891, an from extermination, and thereby to preagreement for a modus vivendi was concluded serve something for the future years of the between the government of the United States lease, the prohibition was so far for its beneand the government of Her Britannic Majesty fit.

tary, it was the real contracting party, ex-
ercising the power of regulation through the
Secretary, so that it was immaterial whether
the Secretary on his own judgment or in com-
pliance with the will of the government con-
fined the number of scals taken in the year
1893 to 7,500. Undoubtedly the government
could have directed the Secretary by law to
restrict the killing to 7,500 seals, and the
treaty was nothing more.

"in relation to the fur seal fisheries in Behring Again, although the government acted in sea” (27 Stat. at L. 980), whereby with a view making the lease by the hand of the Secreto promote the friendly settlement of the questions between the two governments touching their respective rights in Behring sea, "and for the preservation of the seal species," it was agreed that seal killing should be prohibited until the following May, altogether by Great Britain, and by the United States "in excess of seventy-five hundred, to be taken on the islands for the subsistence and care of the natives." This was followed by a convention submitting to arbitration the questions concerning the jurisdictional rights of the United States in Behring sea; "the preservation of the fur seal in, or habitually resorting to, the said sea," and the right to take such seals, which was proclaimed May 9, 1892 (27 Stat. at L. 947).

And under the same date the modus vivendi was renewed during the pendency of the arbitration. 27 Stat. at L. 952.

The arbitral tribunal sat in Paris in 189293, and the prohibition covered the killing period for which recovery is sought in this


The company could not object that the Secretary was constrained to impose the limitation, for the Secretary was bound to obey the instructions of his principal, and the company *could not make it the subject of a con-[135] test in pais as to whether the preservation of the herd in fact required the limitation. The whole business of taking seals was conducted under the supervision of the government, and by § 1973 the Secretary was authorized to appoint agents, who were charged with the management of the seal fisheries.

The record shows that instructions were issued to the government supervising agent The learned circuit judge held that the on. April 26, 1893, and a copy delivered to the limitation under the modus vivendi was not superintendent of the company before the a designation by the Secretary, but was a commencement of the season of that year. prohibition by the government; and, conse- These instructions directed the number quently, that if the lessees had not received of seals to be taken during the season of 1893 any skins the action could not have been to be limited to 7,500. It was stated by the maintained. But he held that as the 7,500 Secretary that it was believed "that if the skins were received by the lessees they must killing be confined between the first of June make compensation for them; that a proper and the tenth of August, a better quality of [134]way to determine *this was to ascertain what skins would be obtained and less injury the fair product of the year, which might would be done to the rookeries;" and he safely be taken, was, and compute what each added: "This matter is, however, left, as skin would have cost the company, assuming above stated, to your discretion, and in referthey had taken that number; and by this ence thereto you will confer fully with the mode of computation, having found that representative of the company, its interests 20,000 might properly have been taken, he and those of the government in the preserreached the sum of $94,687.50 as the amount vation of the fur seals being identical." due to the government.

The circuit court found that the United States, pursuant to the modus vivendi. "pro

In the letter of the attorney of the company of November 15, 1893, he said: "During the present year this company, in strict com

for the corporation in a sult to which the off-
cer is a party, after hearing on due notice and
appearance, to order him to turn over such
property to the receiver.

6. A jury trial is not necessary to due process
of law on an inquiry for contempt.
[Nos. 632, 633.]

State, requiring him to deliver to the receiver of the Houston Cemetery Company certain books and property of that company. Judgments of the Circuit Court and of the Court of Criminal Appeals affirmed.

See same case below (Tex. Civ. App.) 36 S. W. Rep. 802, 37 Tex. Crim. Rep.

Argued May 5, 6, 1898. Decided May 31, S. W. 306.



The facts are stated in the opinion. Mr. James L. Bishop for appellant and plaintiff in error:

The commitment and the order on which it was made were void.

Distinct and incompatible proceedings were blended in one judgment.

APPEAL from a judgment of the Circuit Court of the United States for the Northern District of Texas dismissing a writ of habeas corpus to inquire into the cause of the imprisonment of Thomas Tinsley for a conRe Chiles, 22 Wall. 157 (22: 819); Peotempt; and in error to the Court of Criminal Appeals of the State of Texas to review a ple, Munsell, v. New York County Ct. of Oyer judgment dismissing a writ of habeas corpus & Terminer, 101 N. Y. 245, 54 Am. Rep. 691. and remanding said Tinsley to the custody Regarding the order as made in the proof the sheriff for the same contempt of court, ceeding as a civil remedy directing the appelwhich was disobeying the order of the Dis-lant to deliver the property specified to the trict Court of the County of Harris in said receiver, or in default of delivery that he be

As to powers of court to punish for contempt, -see note to Ea parte Robinson, 22:205. That there is no review of decree punishing for contempt; limits to rule, see note to New Orleans v. New York Mail S. S. Co: 22: 354.

As to powers and duties of receivers,—see note to Davis v. Gray, 21:447.

As to presumption of innocence in habeas corpus proceedings, see note to State v. Jones (N. C.) 22 L. R. A. 678.


ceptional nature.
284 (42:748).

Baker v. Grice, 169 U. S.

Habeas corpus will lie to prevent the execution of the petitioner under order of a state court, pending an appeal in previous habeas corpus proceedings instituted by him in a Federal court, the effect of which is to stay proceedings in the state court. Re Ebanks, 84 Fed. Rep. 311.

Federal officers arrested under a charge made in state courts will be discharged by a Federal court on habeas corpus where there is no ground for a criminal charge under the state laws. Re Lewis, 83 Fed. Rep. 159.

The finding of a commissioner holding a prisoner for removal to another Federal disistrict, as to probable cause to believe that he has been guilty of a crime, will not be disturbed where the testimony, though not strong, tends to show the commission of the offense charged. Re Price, 83 Fed. Rep. 830.

As to jurisdiction of United States courts, to issue writs of habeas corpus,-see note to Re Reinitz (C. C. S. D. N. Y.) 4 L. R. A. 236. Habeas corpus; power of Federal courts to sue; in what cases; when discharge granted; review of decisions; contempt proceedings. The circuit courts of the United States have Jurisdiction to issue a writ of habeas corpus in favor of a person unlawfully restrained of his liberty by state officers under a statute in violation of the Constitution of the United States. Baker v. Grice, 169 U. S. 284 (42: 748).

Error in submitting to the jury only the question of murder in the first degree, while the evidence is sufficient at the most to convict of murder in the second degree, does not constitute such a jurisdictional defect in a conviction for murder in the first degree as to sustain a writ of habeas corpus. Crossley v. California, 168 U. S. 640 (42:610).

The action of the circuit court of the United States in refusing to grant appeals in habeas corpus cases in favor of a prisoner under judgment of a state court cannot be revised on application to the Supreme Court of the United States for such a writ. Re Boardman, 169 U. 8. 39 (42: 653).

A writ of habeas corpus will not be granted by a Federal court to investigate the detention of a person for selling cigarettes without license, under a plain statute making no discriminations against foreign goods or foreign citizens, but simply requiring every person engaged in the business of selling cigarettes to pay a special license tax. Re May, 82 Fed. Rep. 422.

The court cannot upon habeas corpus review a judgment of deportation made by a United States commissioner in respect to a Chinese person upon the facts. Re Tsu Tse Mee, 81 Fed. Rep. 702.

A complaint in habeas corpus alleging invalidity of process or proceedings under which the party is held in custody must set out copies of such process or proceedings, or the essential parts thereof; and mere averments of conclusions of law are inadequate. Craemer v. Wash

A determination by a state court that judgington, 168 U. S. 124 (42: 407). ment of conviction in a capital case shall not be stayed, notwithstanding the pendency of an appeal which is alleged to present Federal questions, will not be interfered with by the Supreme Court of the United States on a writ of habeas corpus. Re Boardman, 169 U. S. 39 (42:653).

A Federal court will not on habeas corpus discharge a prisoner charged with a violation of the criminal laws of one state and apprehended in another, where it appears by the recitals contained in the warrant under which he was arrested and the record of the extradition proceedings, that no right, privilege, or immunity secured to him by the Constitution and laws of the United States will be violated by remanding him to the custody of the agent of the demanding state. Dawson v. Rushin, 49 U. S. App. 674, 83 Fed. Rep. 306, 28 C. C. A. 354.

Writ of habeas corpus cannot perform the office of a writ of error to review proceedings in extradition before an officer authorized to It is efficient only entertain such proceedings. to reach error fatal to the jurisdiction of the officer over the person accused, or over the subject-matter of the accusation. Sternaman v. Peck, 51 U. S. App. 312, 80 Fed. Rep. 883, 26 C. C. A. 214.

Habeas corpu wil' te to review an imprisonsentence of a state court, ment under where the question is whether such court had jurisdiction to hear and determine the charge. Re Walte. 81 Fed. Rep. 359.

Federal courts will not, except in extreme cases, if at all, interfere by habeas corpus with confinement of Insane person, because steps provided for by the state statute have not been followed, but the proper redress is by application to be state courts. Re Huse, 48 U. S. App. 318. 79 Fed. Rep. 305, 25 C. C. A. 1. One held for extradition upon charge of for

The regular course of justice in a state court will not be interfered with by habeas corpus In a Federal court, unless the case is of an ex-gery should not be released upon habeas corpus,

171 U. S.

tional question is not waived by taking an appeal also to the circuit court of appeals.

[Nos. 141, 496.]


2 A complainant in an equity suit may gener-Argued March 24, 25, 1898. Decided May 31, ally dismiss his bill at any time before the hearing; but leave to dismiss a bill is not granted where, beyoud the annoyance of a second litigation upon the subject-matter, such action would be manifestly prejudicial to the defendant.

3. Legal prejudice to defendant to authorize a denial of a motion by plaintiff to discontinue must be other than the mere prospect of future litigation.

4. The decision of a motion for leave to dis-
continue will not be reviewed in this court ex-
cept for abuse of the discretion of the court,
or an obvious violation of a fundamental rule
of a court of equity.

5. Leave to discontinue a suit in equity to re-
strain bringing suits for rent, alleging an elec-
tion to terminate the lease by virtue of its
provisions and that the lease was ultra vires,
and offering to do what is equitable and right
for the property demised, and asking the
court to decree the compensation or relief to
be made, is properly denied after the lease
has been held void in another case, and after
an injunction has been granted against recov-
ering rent and testimony has been taken on
the issues involved in the suit, when defend.
ant opposes such discontinuance and asks
leave to file a cross bill to avail itself of the
tenders made in the original bill.
6. A cross bill for affirmative relief is properly
allowed to be filed by defendant for the re-
turn of property delivered under an illegal
lease and to determine the liability of the
complainant, where he has alleged an election
validity and offered to do what the court

to terminate the lease, and also alleged its in

should decree to be just.

APPEAL from a judgment of the Circuit Court of the United States for the Eastern District of Pennsylvania and also on certiorari to the United States Circuit Court of Appeals for the Third Circuit to review a judgment of the Circuit Court in favor of the Central Transportation Company against the Pullman's Palace Car Company, for the sum of $4,235,044, for the value of certain property which was leased by the Central Transportation Company to the Palace Car Company by an ultra vires lease, and which was to be returned or paid for by the latter company. Reversed, and case remitted to the United States Circuit Court for the Eastern District of Pennsylvania with directions to enter a judgment for the Central Transportation Company in accordance with the opinion.

See same case, 139 U. S. 24 [35: 55], also same case below, 39 U. S. App. 307, 76 Fed. Rep. 401, 22 C. C. A. 246.

Statement by Mr. Justice Peckham:

The record in this case shows that in 1870 the Central Transportation Company, hereafter called the Central Company, was a corporation which had been in 1862 incorporated under the general manufacturing laws of the state of Pennsylvania. It was engaged in the business of operating railway sleeping cars and of hiring them to railroad companies

7. The right to a recovery of property trans-under written contracts by which the cars ferred under an illegal contract is founded upon the implied promise to return or make compensation for it.

were to be used by the railroad companies for the purpose of furnishing sleeping conveniences to travelers. The corporation at 8. The right to recover property delivered un- this time had contracts with a number of difder an illegal contract rests upon a disaffirm- ferent railroad companies in the east, princiance of the contract, and is permitted only to pally, but not exclusively, with what is do justice to the party who has thus deliv-known as the Pennsylvania Railroad system,

ered it.

9. The market value of the stock of a corporation is not a proper measure of the value of

its property transferred by an ultra vires lease, and which must be returned or paid


and it had been engaged in its business with those companies for some time prior to 1870. In the year last named the Pullman's Palace Car Company, hereafter called the Pullman Company, was a corporation which had been 10. The value of contracts with third parties, incorporated under the laws of the state of or of patents owned by a company when it Illinois. It was doing the same general kind transfers its property under an ultra vires of business in the west that the Central Comlease, and which bave expired when the obli-pany was doing in the east. For reasons not gation to restore the property or make com- material to detail, the two companies entered pensation therefor is enforced, cannot be con- into an agreement of lease, which was exesidered in determining the value of such prop-cuted February 17, 1870.

ents and contracts for the time they were

erty, when payment for the use of such pat By its terms the Central Company leased used was included in the rent paid, and they to the Pullman Company its entire plant and had become valueless at the time of their personal property, together with its contracts expiration.

11. The earnings of property transferred under an ultra vires lease cannot be included in the compensation to be paid the lessor in lieu of the property on disaflirmance of the contract. 12. The loss sustained by the lessor in an ultra vires lease on account of the breaking up of its business and the loss of contracts with

which it had with railroad companies for the use of its sleeping cars on their roads, and also the patents belonging to it. The lease was to run for ninety-nine years, which was the duration of the charter of the Central Company.

It was also agreed that the Central Comthird persons when the lease is repudiated pany would not engage in the business of manufacturing, using, or hiring sleeping cars recovering compensation for the property while the contract remained in force.

cannot be recovered as part of its relief, ou

transferred and not restored.

In consideration of these various obliga

Пons, the Pullman Company agreed to pay | property, contracts, and rights of the said deannually the sum of $264,000 during the en- fendant, the Central Transportation Comtire term of ninety-nine years, in quarterly pany, and including a covenant on the part payments, the first quarter's payment to be of said defendant corporation not to transact made on the 1st of April, 1870. during the existence of said lease any of the [140] *From the time of the execution of the con- business for the transaction of which it was tract its terms were carried out, and no par- incorporated, was never legally valid beticular trouble occurred between the compa- tween the parties thereto, but was void for nies for about fifteen years. During this time the want of authority and corporate power and up to the 27th day of January, 1885, the on the part of the defendant to make the Pullman Company paid to the Central Com- said contract of lease, and because the same pany, as rent under the contract, the sum of was in violation of the charter conferring the $3,960,000, without any computation of in- corporate powers of said defendant, and of terest. About or just prior to January, 1885, the purpose of its incorporation, as by the said differences arose between the companies. charter, to which, for greater certainty, refThe Pullman Company claimed the right to erence is made, your orator is advised it will terminate the contract under the eighth appear; that the said contract of lease was clause thereof, or else to pay a much smaller never susceptible of being enforced in law by rent. The merits of the controversy are not your orator against said defendant, and canmaterial. not therefore be construed and held to conThe two companies not agreeing, and the tinue in force and obligatory upon your oraPullman Company refusing to pay the rent tor; and that your orator can be under no stipulated for in the lease, the Central Com- other legal obligation or equitable duty to pany brought successive actions to recover the defendant than to return such of the the instalments of rent accruing. In one of property assumed to be demised as is capathem the Pullman Company pleaded the ille-ble of being returned, and to make just comgality of the lease, as being ultra vires, the charter of ne Central Company. The plea prevailed in the trial court, and upon writ of error the judgment upholding this defense was, in March, 1891, sustained in this court. Central Transportation Company v. Pullman's Palace Car Company, 139 U. S. 24 [35: 55].

persation for such other of the said property as under the said contract of lease it ought to make compensation for, which it is willing and now offers to do."

In the prayer for reliet it was also asked

"That the court may consider and decree whether said contract of lease was not made without authority of law on the part of the After the bringing of several actions for in- defendant and in excess of its corporate stalments of rents by the Central Company powers and in violation of its corporate duand before the question of ultra vires had ties, so as not to be enforceable against your been argued in this court, the Pullman Com-orator beyond the obligation of your orator pany on the 25th day of January, 1887, com- to make return of or just compensation for menced this suit by the filing of its bill the property *demised; and that an account{1 \2] against the Central Company in the circuit may be taken between your crator and decourt of the United States for the eastern fendant, and that the amount may be ascer district of Pennsylvania. The bill asked for tained that should be paid by your orator to an injunction to restrain the bringing of the defendant on any account whatever; more suits for rent. It gave a general history. . and that an accounting may be had be of the transactions between the companies tween your orator and defendant as to all the from the execution of the contract between matters and things set out in this bill." them in February, 1870, down to the time of The Central Company answered the bill, the filing of the bill, and it alleged the elec-denying many of the material allegations tion of the Pullman Company to terminate therein contained. It denied that the Pullthe lease under the provisions of the eighth clause thereof, and the willingness of the company to pay what should be found by the court to be equitable and right to the Central Company on account of the property which had been transferred by that company to it, and to this end it prayed the aid of the court. The bill also contained the following allegation:

man Company had ever elected to terminate the lease under the provisions of the eighth clause thereof, and it alleged that the lease was still in existence, and that it had the right to recover from the Pullman Company the amount of the rent named in the lease, and that no valid agreement had ever been made between the companies in any way altering the lease or reducing the amount of [141] *And your orator shows that in said lease the rent payable thereunder. It denied that it is recited that the said contract of lease is the lease was illegal, and it alleged that even made on the part of the defendant, the said if it were, the illegality did not justify the Central Transportation Company, under an complainant in applying for any equitable act of the general assembly of the common-relief whatever. Upon application on the wealth of Pennsylvania therein named, ap- part of the Pullman Company the court proved the 9th day of February, A. D. 1870, granted an injunction restraining the bring a copy whereof is hereto attached, marked ing of suits for the collection of rent acExhibit G, and referred to as part of this bill; cruing after July, 1886. but it declined to enbut your orator is advised, and therefore subjoin those already pending for rent accruing mits it to the court, that the said lease being a grant, assignment, and transfer of all the

before that date.

After considerable proof had been taken

Testimony was taken under these plead

upon the issues involved in this suit and af- foundation of any action or application for[144] ter the decision of the other case in this any relief whatever between the parties court, in March, 1891, holding the lease ille- thereto. And this respondent submits that gal and void, the complainant herein, on the the rule which precludes the granting of re25th of April, 1891, applied to the court for lief by any court of either equity or law, leave to dismiss its bill at its own cost. This upon a contract void for contravention of application was opposed by the defendant, public policy, forbade this circuit court to alwho, on the same day, moved for leave to file low such affirmative relief upon this cross a cross bill, in which it said it would avail bill which asserts no claim of right not itself of the tenders of relief made by the founded directly upon the express undertakcomplainant in its bill, and that it would ings of this contract of lease, held void by pray such relief in its cross bill as might be this court itself and by the supreme court pertinent to the case made by the bill. In for the reasons aforesaid." The Pullman December, 1891, complainant's motion for Company therefore denied that it owed any leave to dismiss ite bill was denied, and the duty to the cross complainant which was endefendant's motion for leave to file a cross forceable at law or equity to return to the bill was granted. Thereupon the cross bill Central Company the property assigned unwas filed, in which the Central Company ac-der the lease or to account for any profits deknowledging, under the decision of this rived under and by reason of any property court, that the lease in question was void, delivered to it under the agreement. 143]*claimed to avail itself of the tenders made in complainant's bill upon the subject of the re-ings, and the case came before the circuit turn of its property and compensation for that which it was impossible to return, and claimed, among other things, that the Pullman Company should account for all the profits which it had derived since the making of the lease by the use of the property transferred to it under the agreement, and that the amount found due should be paid to the Central Company, and that the Pullman Company should be adjudged to be a trustee for the Central Company of all the contracts for transportation, whether original, new or renewals, held by the Pullman Company with railroad companies with which there were contracts of transportation with the Central Company at the time of the making of the lease in February, 1870, and that the Pullman Company should be adjudged to pay the Central Company all such sums as should be due to it by the Pullman Company as such trustee, and that defendant should in the future from time to time account for the sums which should be due by reason of future operations under those contracts. It also prayed for a discovery and an accounting by the Pullman Company of its use and disposition of the property turned over to it by the Central Company.

To this cross bill the Pullman Company filled three demurrers, the first being a general demurrer on the ground that the cross bill was filed contrary to the practice of the court, and also that it appeared that the court had no jurisdiction of the case; the second demurrer related to the portions of the cross bill praying that the cross defendant might be regarded as a trustee and decreed to account accordingly; the third demurrer related to that part of the cross bill which asked for an account of profits since the making of the lease and for future profits. The demurrers were overruled with leave to present the questions on final hearing, and the Pullman Company then answered the eros bill. Among other things it set up that the agreement in question was void, "and that being null and void between the parties hereto because of such character of the agreement, it cannot be made the lawful

court for final hearing, and that court held
that the cross complainant made out a case
for an accounting by the cross defendant for
the value of the property when received, to-
gether with its earnings since, less the
amount paid as rent. The court therefore
referred it to a master for the purpose of as-
certaining the facts, with directions to report
within the time named in the order of refer-
ence. Under this order testimony was taken
and the master reported in favor of the Cen-
tral Company, and the exceptions filed hav-
ing been overruled, judgment was entered in
favor of the Central Company for the sum of
$4,235,044, together with costs. From this
judgment the Pullman Company appealed
directly to this court. It also appealed to
the circuit court of appeals. The case was
there argued upon a motion to dismiss the
appeal, and the motion denied, and the fur-
ther argument was postponed until some dis-
position was made of the appeal taken di-
rectly to this court. 39 U. S. App. 307. A
motion has also been made to this court to
dismiss the appeal, and thereupon an applica-
tion was made to us for a writ of certiorari
to the circuit court of appeals for the third
circuit, and on account of the peculiar cir-
cumstances it was granted, and the record
has been returned to this court by virtue of
that writ.

Messrs. Edward S. Isham, Joseph H.
Choate, A. H. Wintersteen, and Robert T.
Lincoln for appellant.

Messrs. Frank P. Prichard and John
G. Johnson for appellee.

Mr. Justice Peckham delivered the opinion of the court:

The motion to dismiss the appeal in this case is now before the court.

Counsel for the Pullman Company took the appeal directly from the circuit court to this court on the theory that the case involved the construction or application of the Constitution of the United States, because of the holding of the court below that the cause of action alleged by the Central

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