Ex parte Koyall, 117 U. S. 241 (29: S68); Re Frederich, 149 U. S. 70 (37: 653); Cook v. Hart, 146 U. S. 183 (36: 934); Re Wood, 140 U. S. 278 (35: 505); Whitten v. Tomlin-issued, in answer to which Tinsley averred son, 160 U. S. 231 (40: 406); Pepke v. Cro- that the notes and the minute book had been delivered by the corporation to him as colnan, 155 U. S. 100 (39: 84). The claim of denial of due process of law lateral security for money advanced by him to the corporation, and that he had made, at appears utterly untenable. of the trust fund in securities which he had the expense to himself of $7.70, an investment offered, and was still ready, to deliver to the receiver upon payment of this sum.

judgment are not due process of law, and United States of its own writ of habeas that he ought not and cannot be by such corpus was in accordance with the rule, reproceedings imprisoned or compelled to turn peatedly laid down by this court, that the over said property and things, for that there- circuit courts of the United States, while they by he is deprived of a trial by due course of have power to grant writs of habeas corpus law; that the judgment and commitment for the purpose of inquiring into the cause of were uncertain and indefinite, and did not restraint of liberty of any person in custody limit the time of his confinement under them; under the authority of a state in violation that the statute of the state provided that the of the Constitution, a law or a treaty *of the[105] district court should not have the power to United States, yet, except in cases of imprison any person for a longer period than peculiar urgency, ought not to exercise that three days for a contempt; and that the mat- jurisdiction by a discharge of the person in ters set up in said motion and judgment did advance of a final determination of his case not and could not constitute a contempt. in the courts of the state, and, even after This petition for a writ of habeas corpus such final determination, will leave him to was denied by the judge of the district court, his remedy to review it by writ of error from but on April 2, 1897, was granted by the this court. Ex parte Royall, 117 U. S. 241 presiding judge of the court of criminal ap [29: 868]; Lx parte Fonda, 117 U. S. 516 peals of the state of Texas, and a writ of [29: 994]; Ke Frederich, 149 U. S. 70 [37: habeas corpus issued, addressed to the sheriff, 653]; Pepke v. Cronan, 155 U S. 100 [39: who, on April 8, returned that he held the 84]; Bergemann v. Backer, 157 U. S. 655 prisoner under the commitment for contempt. [39: 845]; Whitten v. Tomlinson, 160 U. S. After full arguments by both parties, the 231 [40: 406]: Baker v. Grice, 169 U. S. 284 court of criminal appeals entered judgment, [42 L. ed. 748]. This case shows no such cirdismissing the writ of habeas corpus, and re-umstances as to require departure from this manding him to the custody of the sheriff, on the ground that the order of commitment for contempt was within the power of the district court, at least so far as concerned the notes and minute book, because Tinsley was [104]a *party to the suit in which the receiver was appointed, and claimed no title, other than by way of lien, in the notes and minute book, and such lien, if genuine, would be preserved to him against the property in the hands of the receiver. 40 S. W. 306.

It was argued in behalf of Tinsley that the
judgment committing him for contempt was
not reviewable by this court; citing the state-
ment in Chetwood's Case, 165 U. S. 443, 462
[41: 782, 788], that "judgments in proceed-
ings in contempt are not reviewable here on
appeal or error. Hayes v. Fischer, 102 U. S.
121 [26: 95]; Re Debs, 158 U. S. 564,573 [39:
1092,1095], and 159 U. S. 251 [mem.]" But
that statement was made in regard to such
judgments in independent proceedings for con-
tempt in the circuit courts of the United
States, and the reason is, as stated in cases re-
ferred to in Hayes v. Fischer, above cited,
that such judgments were considered as judg
ments in criminal cases, in which this court
had no appellate jurisdiction from those
courts. Ex parte Kearney, 7 Wheat. 38, 42
[5: 391, 392]; New Orleans v. New York Mail
Steamship Company, 20 Wall. 387, 392 [22:
354, 357].

On April 26, 1897, Tinsley filed a motion to set aside that judgment and for a rehearing, which, after further written arguments in his behalf, was overruled on May 12, 1897. On May 15, 1897, upon a petition alleging that by the order of commitment he "is deprived of his liberty, and will be, if he submits to the order, of his property, without due process of law, in violation of the Constitution of the United States," he obtained from the circuit court of the United States for the eastern district of Texas a writ of But the appellate jurisdiction of this court habeas corpus to the sheriff, which, after a from the state court extends to a final judghearing, was by the judgment of that court ment or decree in any suit, civil or criminal, dismissed and the prisoner remanded to in the highest court of a state where a decicustody; and on January 21, 1898, he apsion in the suit could be had, against a title, pealed from that judgment to this court.

right, privilege, or immunity, specially set up On January 31, 1898, he sued out a writ and claimed under the Constitution or a of error from this court to review the judg. treaty or statute of the United States. Rev. ment of the court of criminal appeals of the Stat. § 709. Consequently, if the order of state of Texas, and filed in that court an the court of criminal appeals of the state of assignment of errors, one of which was that Texas, being the highest court of the state by the proceedings in that court "he was having jurisdiction of the case, dismissing the deprived of his liberty, and, if he submitted writ of habeas corpus issued by one of its to the order of the trial court, would be de-judges, and remanding the prisoner to cusprived of his property, without due process of law, in violation of the Constitution of the United States and the 5th and 14th Amendments thereto."

The two cases now before us are the ap peal from the judgment of the circuit court of the United States, and the writ of error to the court of criminal appeals of the state of Texas.

The dismissal by the circuit court of the

tody, denied to him any right specially set
up and claimed by him under the Constitu-
tion, laws, or treaties of the United States, it
is doubtless reviewable by this court on writ
of "error. Newport Light Company v. New [106]
port, 151 U. S. 527, 542 [38: 259. 264]; Pepke
v. Cronan, 155 U. S. 100, 101 [39: 84, 85].

We perceive no reason for holding that any
such rights were denied by the judgment of
the court of criminal appeals, in view of the
171 U. S.

facts appearing in the record and the grounds doubtedly competent for the district court to
on which that court proceeded as disclosed
by its opinion.

Counsel asserts that the rights clairaed under the Constitution of the United States were the right to due process of law, and the right to the equal protection of the laws.

The right to the equal protection of the laws was certainly not denied, for it is apparent that the same law or course of procedure which was applied to Tinsley would have been applied to any other person in the state of Texas, under similar circumstances and conditions; and there is nothing in the record on which to base an inference to the contrary.

Was the right to due process of law denied? If the committing court had jurisdiction of the subject-matter and of the person. and power to make the order for disobedience to which the judgment in contempt was rendered, and to render that judgment, then the court of criminal appeals could not do other wise than discharge the writ of habeas corpus and remand the petitioner. The writ cannot be availed of as a writ of error or an appeal, and if the commitment was not void petitioner was not deprived of his liberty without due process of law.

compel the surrender of the minute book and notes in Tinsley's possession, and that he could not be discharged on habeas corpus until he had performed or offered to perform so much of the order as it was within the power of the district court to impose, even though it may have been in some part invalid. Re Swan, 150 U. S. 637 [37: 1207].

The other objections suggested require no special consideration. It is said that the imprisonment for contempt was limited by the state statute to three days (art. 1101, Tex. Rev. Stat.), but the state court held that that statute had reference to a quasicriminal contempt as a punishment, and not to a civil contempt, where the authority of the court is exercised by way of compelling obedience. Rapalje, Contempt, 21. This is not a Federal question, and we accept the ruling of the state court in its construction of the statute. It is urged that the order of commitment imposed an uncertain and indefinite term of imprisonment; but the order was that Tinsley should be confined until he complied, and the addition, "or *until he shall be discharged by the further order of the court," was merely intended to retain the power to discharge him if the court should thereafter conclude to do so, it being within his own power to obtain his discharge at any time by obeying the order. Nor is there any force in the objection that no trial by jury was awarded, for such trial was not demanded, and a jury trial is not necessary to due process of law on an inquiry for contempt. Walker v. Sauvinet, 92 Û. S. 90 [23: 678]; Eilenbecker v. Plymouth County District Court, 134 U. S. 31 [33: 801]; Rapalje, Contempt, § 112.

The district court of Harris county, Texas, was a court of general jurisdiction, and had jurisdiction in the suit against the Cemetery Company and its officers, including Tinsley, who was not a stranger, but a party, to the litigation, after hearing had on due notice and appearance by the defendants, to enter the order appointing a receiver and directing the company's officers to deliver to him, on his demand therefor, the company's property in their custody, including the books, notes, and moneys on hand, and to determine on the facts that Tinsley was in contempt in refusing to deliver such property, and assuredly to adjudge this as to so much of the property as he conceded belonged to the company, but [107]the possession of which he claimed the right CENTRAL to retain only in order to enforce an alleged lien.

The judgments of the Circuit Court and of the Court of Criminal Appeals are severally affirmed.

NATIONAL BANK OF BOS

TON et al.

v.

AARON R. STEVENS et al.

(See S. C. Reporter's ed. 108, 109.)

Motion to amend mandate.

Where the motion to amend the mandate of this court proceeds on a misconception of the meaning of the judgment and mandate, the motion will be denied.

[No. 38.]

The court of criminal appeals held that, as
Tinsley did not claim the legal title in the
notes and in the minute book, but merely an
equity or lien thereon to secure his debt; as
the order to turn over the property to the re-
ceiver was by no means an adjudication as
to his lien,which if it was a genuine lien
would be preserved to him in the hands of
the receiver; and as the effect of the order
was merely to place the articles in the hands
of the receiver for administration under the
orders of the court,-the district court un-
questionably had the power to make the order Submitted May 9, 1898.
as to these articles, and did not exceed its
jurisdiction in so doing. So that even though
the $492.52 was not a trust fund in his hands,
as the district court had decided, but a mere
debt due from him, because, as he alleged,
that sum had been taken by another, and he
had simply agreed to make i good, the ad-
judication of the district court was neverthe-
less sustainable apart from that item.

We concur in the view that it was un
171 U. S. U. S.. BOOK 43.

1898.

Decided May 31,

IN ERROR to the Court of Appeals of the State of New York. On motion to amend the mandate in this cause (reported in 169 U. S. 432, 42 L. ed. 807) so as to command that the judgment be reversed only in the particulars described in the opinion of this court. Motion denied.

See same case below, 144 N. Y. 50.

97

Mr. Edward Winslow Paige, for the | NORTH AMERICAN COMMERCIAL COM{110 defendants in error, in favor of motion:

The opinion of the court seems to show that the court intended to reverse the judgment in the two particulars only which are described in it. The mandate, however. commands the reversal of the whole judgment.

The defendants in error move to amend the mandate so that it conform to the opinion.

It is the opinion of the counsel who signs this brief that it is decidedly for the interest

of the defendants in error that the motion be denied.

And for the following reasons:—

The whole judgment being reversed, there must inevitably, under the laws of New York, be a new trial of the whole action

As

PANY, Plff. in Err.,

0.

UNITED STATES.

(See S. C. Reporter's ed. 110-137.)
Lease by the government of the exclusive
right to take fur seals-maximum number
of seals-reduction of rental-Secretary
of the Treasury—damages.

1.

the defendants in error might succeed in the
new trial in all matters except those de-
scribed in the opinion of the court-as to be
reversed-there would be a general judgment | 2.
in favor of the defendants in error like the
present judgment, except that it would omit
the injunction and the provision about the
plaintiffs in error proving their certificates.
Under that judgment there would of course
be a new sale and the bondholders could then
buy through the medium of a trustee other
than Mr. Foster, thus relieving the case
from the difficulty described in the opinion
of the court.

It would also relieve the defendants in error from paying the costs of the court, since there is not any way under the laws of New York by which a successful plaintiff can be made to pay costs to the defendant.

And they can also show, although as we submit the present record shows, that not any of the proceeds of the certificates went into the property. Nevertheless we make the motion.

No reduction of the per capita amount to be

paid for each sealskin taken and shipped by a
lessee of the government can be made on ac-
count of the limitation by the Secretary of
the Treasury of the number of seals that may
be killed, although by U. S. Rev. Stat. § 1962,
a proportionate reduction of the rents re-
served may be made, where the lease provides
for an annual rental of $60.000 and in addition
thereto for a certain sum for each skin taken
and shipped, as this is in the nature of a
bonus or addition to the stated consideration.

The original provision for a maximum num

ber of seals to be taken by a lessee and a pro-
portionate reduction of the fixed rental in
case of a limitation, made by the act of Con-
gress of 1870, is not done away with by im-
plication by the act of May 24, 1874, which re-
moves the restrictions imposed by U. S. Rev.
Stat. §§ 1960, 1962, concerning the months
during which seals may be taken and the
number to be taken on or about each island
respectively.

3. Assuming that the lessee took all the risk of
a catch of seals reduced by natural causes,
yet when the number that might be killed
was limited by the act of the government or
its agent, the Secretary of the Treasury, the
lessee was entitled to a reduction of the rental
reserved in the same proportion as the num-
ber of skins permitted bore to the maximum.

4.

In reducing the number of seals which may be taken by a lessee of the government in the Pribiloff islands, in the exercise of the power reserved to him, it is immaterial whether the Secretary of the Treasury acts on his own judgment, or in compliance with the will of the government as expressed by the treaty with Great Britain.

business of taking fur seals on the islands of St. George and St. Paul, in the territory of Alaska, and for royalties upon the seals taken, and for the revenue tax on the skins, the judgment of the Circuit Court being in favor of the United States for $94,687.50, with interest and costs amounting to $107,257.29. Judgment of Circuit Court reversed, and cause remanded with direction to enter judgment in favor of the United States for $76,G87.50 with interest from April 1, 1894, etc. See same case below, 74 Fed. Rep. 145.

the business of taking fur seals on the Islands of St. George and St. Paul, in the ter ritory of Alaska, and to send a vessel or vessels to said islands for the skins of such seals. "The said North American Commercial Company, in consideration of the rights secured to it under this lease above stated, on its part covenants and agrees to do the things following, that is to say:

Statement by Mr. Chief Justice Fuller: This was an action brought by the United States against the North American Commercial Company to recover the sum of $132,-George and St. Paul, and also to pay to said 187.50, with interest, for rent reserved for the year ending April 1, 1894, under a so-called lease, bearing date March 12, 1890, made by the Secretary of the Treasury to the company, and royalties upon 7,500 fur-seal skins taken and shipped by the company that year in virtue of that instrument, and for 111]the revenue tax of $2 on *each skin. The claim of the government consisted of these

items:

Annual rental.

$60,000 00 15,000 00 57,187 50 $132,187 50 And interest thereon from April 1, 1894. The case was tried by the circuit court without a jury. The court found for the United States in the sum of $94,687.50, with interest, and judgment was entered in their favor for $107,257.29, principal, interest, and costs. 74 Fed. Rep. 145.

Revenue tax on 7,500 skins at $2...
Per capita at $7.62% on 7,500 skins.
Total.

The company having taken a writ of error to the circuit court o: appeals for the second circuit, that court certified a certain question arising in the cause concerning which it desired the instructions of this court for its proper decision, whereupon this court ordered that the whole record and cause be sent up for consideration. A counterclaim of the company against the United States for breach of the lease was disallowed and dismissed by the circuit court, but not on the merits, and without prejudice to the right of the company to enforce the same by any other proper legal proceeding.

The agreement of lease out of which the cause of action arose is as follows:

"To pay to the Treasurer of the United States each year during the said term of twenty years, as annual rental, the sum of sixty thousand dollars, and in addition thereto agrees to pay the revenue tax or duty of two dollars laid upon each fur seal skin taken and shipped by it from the islands of St. Treasurer the iurther sum of seven dollars sixty-two and one half cents apiece for each and every fur seal skin taken and shipped from said islands, and also to pay the sum of fifty cents per gallon for each gallon of oil sold by it made from seals that may be taken on said islands during the said period of twenty years, and to secure the prompt pay. ment of the sixty thousand dollars rental above referred to the said company agrees to deposit with the Secretary of the Treasury bonds of the United States to the amount of fifty thousand dollars, face value, to be held as a guarantee for the annual payment of said sixty thousand dollars rental, the interest thereon when due to be collected and paid to the North American Commercial Company, provided the said company is not in default of payment of any part of the said sixty thousand dollars rental.

"That it will furnish to the native inhabitants of said islands of St. George and St. Paul annually such quantity or number of dried salmon and such quantity of salt and such number of salt barrels for preserving their necessary supply of meat as the Secretary of the Treasury shall from time to time determine.

"That it will also furnish to the said inhabitants eighty tons of coal annually and a sufficient number of comfortable dwellings in which said native inhabitants may reside, and will keep *said dwellings in proper repair,and[113] will also provide and keep in repair such suitable school-houses as may be necessary, and will establish and maintain during eight months of each year proper schools for the education of the children on said islands, the same to be taught by competent teachers, who shall be paid by the company a fair compensation, all to the satisfaction of the Secretary of the Treasury, and will also provide and maintain a suitable house for religious worship, and will also provide a competent physician or physicians and necessary and proper medicines and medical supplies, and will also provide the necessaries of life for the widows and orphans and aged and infirm inhabitants of said islands who are unable to provide for themselves; all of which foregoing agreements will be done and performed by the said company free of all costs and charges to said native inhabitants of said islands or

"This indenture, made in duplicate this twelfth day of March, 1890, by and between William Windom, Secretary of the Treasury of the United States, in pursuance of chapter 3 of title 23, Revised Statutes, and the North American Commercial Company, a corporation duly established under the laws of the state of California, and acting by I. Liebes, its president, in accordance with a resolution of said corporation adopted at a meeting of its board of directors held January 4, 1890, witnesseth: That the said Secretary of the Treasury, in consideration of the agreements hereinafter stated, hereby leases to the said North American Commercial Company for a term of twenty years from the first day of [112]May, 1890, the exclusive right to engage into the United States.