[312] DORAS HEBERT et al., Plffs. in strued together, is a matter of state law on Err., V. STATE OF LOUISIANA. (See S. C. Reporter's ed. 312-317.) Intoxicating liquors prosecution in both Federal and state court. 1. Under the provisions of the 18th Amendment to the Federal Constitution one may be prosecuted both in the Federal and in the state court for an offense which constitutes a violation of both the Federal and the state law. 5. The due process of law clause in the 14th Amendment of the Federal Constitution does not make the statutes of the sev eral states the test of what it requires. Constitutional law jurisdiction of Supreme Court of United States. 6. The due process of law clause of the 14th Amendment, to the Federal Constitution does not enable the Supreme Court of violations of the United States to revise decisions of the state courts on questions of state law. Constitutional law 14th Amendment. 2. A prosecution for violation of a state statute declaring the manufacture of intoxicating liquor for beverage purposes an offense is not, since the enactment of the 18th Amendment to the Federal Constitution, cognizable under the authority of the United States, within the meaning of § 256 of the Federal Judicial Code giving Federal courts exclusive jurisdiction in cases So cognizable. Arrest court. party under bail in Federal requirement of 7. The 14th Amendment to the Constitution of the United States requires that state action shall be consistent with the fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions. Courts jurisdiction state statutes. operation of 8. All that the Supreme Court of the United States has jurisdiction to decide, 3. In the absence of objection on the when a state court construes two statutes part of the Federal government, the fact together in determining the extent of the that persons accused of violating state stat- penalty to be imposed for violation of a utes are on bail awaiting trial in a Fed-state statute, is whether, under the due eral court for violation of a Federal statute presents no obstacle to their arrest under the process of the state court as a means of acquiring jurisdiction of their persons. Courts conclusiveness of state decision. 4. Whether or not one state statute excludes another, or both are to be con Note. On acquittal or conviction under Federal statute as bar to prosecution under state or territorial statute, based on the same act or transaction see annotations to State v. Smith, 16 A.L.R. 1231; State v. Rhodes, 22 A.L.R. 1551, and Hebert v. Louisiana, 46 A.L.R. 1106. On construction and effect of the Volstead Act-see annotation to Street v. Lincoln Safe Deposit Co. 10 A.L.R. 1553. On Federal constitutional and legislative provisions as to intoxicating liquor as affecting state legislation-see annotations to Com. v. Nickerson, 10 A.L.R. 1587; Jones v. Hicks, 11 A.L.R. 1320, and State v. Gauthier, 26 A.L.R. 661. Generally, on concurrent jurisdiction of Federal and state courts-see annotations to Smith v. M'Iver, 6 L. ed. U. S. 152, and Copp v. Louisville & N. R. Co. 12 L.R.A. 725. On acquittal or conviction in prosecution under National Prohibition Act as bar to other prosecution-see annotation to Murphy v. United States, post, 446. process clause of the Federal Constitution, the state has power to impose the penalty under the statutes as thus construed. [No. 24.] Submitted October 13, 1926. Decided November 1, 1926. N WRIT of Error to the Supreme of the District Court for the Jefferson review a judgment affirming a judgment Davis Parish, convicting defendants of violating the statute prohibiting the manufacture of intoxicating liquor for beverage purposes. Affirmed. See same case below, 158 La. 209, 103 So. 742. The facts are stated in the opinion. Mr. A. R. Mitchell submitted the cause for plaintiff in error. Mr. Thomas Arthur Edwards was on the brief: Where a special statute of a state provides special penalties and limits the fine and imprisonment, and the supreme court of the state maintains a sentence under a general law, imposed in excess of that provided in said special statute, the defendant is deprived of his liberty without due process of law, in violation of the 14th Amendment to the Federal Constitution. Rodgers v. United States, 36 Ct. Cl. 266, affirmed in 185 U. S. 83, 46 L. ed. 816, 22 Sup. Ct. Rep. 582; Ex parte Jackson (C. C.) 140 Fed. 266, reversed in 75 C. C. A. 41, 143 Fed. 783; Atchison, T.. & S. F. R. Co. v. Haynes, 8 Okla. 576, 58 Pac. 738; Austin v. Cahill, 99 Tex. 172, 88 S. W. 542, 89 S. W. 552; Callaghan v. McGown, Tex. Civ. App. 90 S. W. 319; United States v. Stafoff (D. C.) 268 Fed. 417; Reynolds v. United States (C. C. A. 6th) 280 Fed. 1; Anderson v. State, 8 Okla. Crim. Rep. 90, 126 Pac. 847, Ann. Cas. 1914C, 314; State v. Bates, 14 Utah, 293, 43 L.R.A. 33, 47 Pac. 79; Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Panama R. Co. v. Johnson, 264 U. S. 375, 382, 68 L. ed. 748, 751, 44 Sup. Ct. Rep. 391. Our Constitution prohibits dual prosecution for the same offense, and the state is limited by our fundamental law just as the Federal government is limited by the Federal Constitution to the same extent. Ponzi v. Fessenden, 258 U. S. 254, 66 L. ed. 607, 22 A.L.R. 879, 42 Sup. Ct. Rep. 309. Messrs. E. R. Schowalter and John J. Robira, and Mr. Percy Saint, Attorney General of Louisiana, submitted the cause for defendant in error. Mr. Percy T. Ogden was on the brief: A prosecution under a state law is a prosecution by a different sovereignty from that of the Federal government, enforcing the Volstead Act, and therefore conviction under one is no bar to a prosecution under the other. United States v. Lanza, 260 U. S. 377. 67 L. ed. 314, 43 Sup. Ct. Rep. 141, reversing United States v. Peterson (D. C.) 268 Fed. 864; Ponzi v. Fessenden, 258 U. S. 254, 66 L. ed. 607, 22 A.L.R. 879, 42 Sup. Ct. Rep. 309; State v. Rhodes, 146 Tenn. 398, 22 A.L.R. 1544, 242 S. W. 642; United States v. Holt (D. C.) 270 Fed. 639. Where no Federal question is involved, the Supreme Court of the United States cannot review a decision of a state court with respect to a question arising under the Constitution of the state. Green v. Frazier, 253 U. S. 233, 64 L. ed. 878, 40 Sup. Ct. Rep. 499; Ft. Smith Lumber Co. v. Arkansas, 251 U. S. 532, 64 L. ed. 396, 40 Sup. Ct. Rep. 304; Crane v. Campbell, 245 U. S. 304, 60 L. ed. 304, 38 Sup. Ct. Rep. 98; Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 60 L. ed. 1172, 36 Sup. Ct. Rep. 708; John v. Paullin, 231 U. S. 583, 58 L. ed. 381, 34 Sup. Ct. Rep. 178; West v. Louisiana, 194 U. S. 258, 48 L. ed. 965, 24 Sup. Ct. Rep. 650; Murray v. Louisiana, 163 U. S. 101, 41 L. ed. 87, 16 Sup. Ct. Rep. 990, 10 Am. Crim. Rep. 242. A decision of a state supreme court, construing the statutes of the state, is not subject to review by the Supreme Court of the United States. American Mfg. Co. v. St. Louis, 250 U. S. 459, 63 L. ed. 1084, 39 Sup. Ct. Rep. 522; Danciger v. Cooley, 248 U. S. 319, 63 L. ed. 265, 39 Sup. Ct. Rep. 119; Wells, F. & Co. v. Nevada, 248 Ū. S. 165, 63 L. ed. 190, 39 Sup. Ct. Rep. 62; Rogers v. Hennepin County, 240 Ū. S. 184, 60 L. ed. 594, 36 Sup. Ct. Rep. 265; King v. West Virginia, 216 U. S. 92, 54 L. ed. 396, 30 Sup. Ct. Rep. 225; O'Conor v. Texas, 202 U. S. 501, 50 L. ed. 1120, 26 Sup. Ct. Rep. 726, Price v. Pennsylvania R. Co. 113 U. S. 218, 28 L. ed. 980, 5 Sup. Ct. Rep. 427; West v. Louisiana, 194 U. S. 258, 48 L. ed. 965, 24 Sup. Ct. Rep. 650. the opinion of the court: Mr. Justice Van Devanter delivered The state of Louisiana, like the United States, has a statute making it a criminal offense to manufacture intoxicating liquor for beverage purposes. A judg ment of the supreme court of the state affirming a conviction under this statute, 158 La. 209, 103 So. 742, is presented for review by this writ of error. The writ was sued out before the Act of February 13, 1925, chap. 229, 43 Stat. at L. 936, Comp. Stat. § 1120, Fed. Stat. Anno. Supp. 1925, p. 84, and falls within the saving clause in the last section. When the accusation was preferred in the state court, and when the accused were arrested thereon, they already were under indictment in the federal district court for the same acts as an offense against the federal statute and were on bail awaiting trial in that court. When taken before the state court they interposed a plea, first, that it was without authority to entertain the accusation, because the acts charged constituted an offense against the United States of which the federal district court was [314] given exclusive jurisdiction by § 256 of the Federal Judicial Code, and, second, that, even if the accusation could be entertained, their arrest under state process while they were on bail awaiting trial in the federal district court was in derogation of the authority of the latter, and therefore did not give jurisdiction of their persons. The plea was overruled and this is assigned as error. We think the ruling was right. The 18th Amendment to the Constitution contemplates that the manufacture of intoxicating liquor for beverage purposes may be denounced as a criminal offense both by the federal law and by the state | state's power arising out of the Federal law; and that these laws may not only Constitution and left her free to enact coexist but be given full operation, each prohibition laws applying to all transindependently of the other. Where such actions within her limits. To be sure, manufacture is thus doubly denounced the first section of the Amendment took one who engages therein commits two from the states all power to authorize distinct offenses, one against the United acts falling within its prohibition, but States and one against the state, and it did not cut down or displace prior may be subjected to prosecution and state laws not inconsistent with it. Such punishment in the federal courts for one laws derive their force, as do all new and in the state courts for the other ones consistent with it, not from this without any infraction of the constitu- Amendment, but from power originally tional rule against double jeopardy, it belonging to the states, preserved to being limited to repeated prosecutions them by the 10th Amendment, and now United States relieved from the restriction heretofore "for the same offense." v. Lanza, 260 U. S. 377, 67 L. ed. 314, arising out of the Federal Constitution. This is the ratio decidendi of our deci43 Sup. Ct. Rep. 141. sion in Vigliotti v. Pennsylvania, 258 U. S. 403, 66 L. ed. 686, 42 Sup. Ct. Rep. 330." It of course was essential that the The provision in § 256 of the Federal Judicial Code has no bearing on the authority of a state court to entertain an accusation for an offense against the state law. That provision relates to of-state court have jurisdiction of the perfenses "cognizable under the authority of the United States." Only offenses against the laws of the United States are cognizable under its authority. Those against state laws are cognizable only under the authority of the state. And this is true where the same act is an offense against both a law of the United States and a law of the state. sons of the accused. In fact they were before it and were accorded full opportunity to defend. In the absence of any showing to the contrary, and there is none, it properly may be assumed that the [316] United States acquiesced in their arrest and trial on the accusation under the state law, notwithstanding they were then on bail awaiting trial in An argument is advanced to the effect the federal court on the indictment pendthat the state in denouncing the manu- ing there. Certainly if the United States facture of intoxicating liquor for bever- was not objecting the fact that the acage purposes as a criminal offense and in cused were thus on bail awaiting trial taking proceedings to punish the of- in the federal court presented no obfenders is exerting a power [315] de-stacle to the arrest under the process rived from the 18th Amendment, and of the state court as a means of acquirtherefore that all that is done by the state in that regard must be taken as done under the authority of the United States. The same argument was advanced in United States v. Lanza, supra, and was rejected as unsound for reasons which we deem it well to repeat here the "To regard the amendment as source of the power of the states to adopt and enforce prohibition measures is to take a partial and erroneous view of the matter. Save for some restrictions arising out of the Federal Constitution, chiefly the commerce clause, each state possessed that power in full measure prior to the Amendment, and the probable purpose of declaring a concurrent power to be in the states was to negative any possible inference that in vesting the National Government with the power of country-wide prohibition state power would be excluded. In effect the second section of the 18th Amendment put an end to restrictions upon the ing jurisdiction of their persons. Ponzi v. Fessenden, 258 U. S. 254, 260, 66 L. ed. 607, 611, 22 A.L.R. 879, 42 Sup. Ct. Rep. 309; Beavers v. Haubert, 198 U. S. 77, 85, 49 L. ed. 950, 953, 25 Sup. Ct. Rep. 573; Peckham v. Henkel, 216 U. S. 483, 486, 54 L. ed 579, 580, 30 Sup. Ct. Rep. 255. on a The accused also assign error ruling respecting the maximum period of imprisonment admissible under the state law. Two statutes were involved. The accused took the position that one was special and excluded the other. But the trial court rejected that view, construed the statutes as intended to be taken together, and as a result imposed a more burdensome sentence than was named in the statute which the accused thought controlling. The Supreme Court sustained that construction, and the accused contend here, as they did in that court, that the construction was wrong and, being wrong, operated as a denial 272 U. S. of due process of law in the sense of the Appt., V. FIDELITY & DEPOSIT COMPANY et al. (See S. C. Reporter's ed. 317–321.) Appeal to Supreme Court of United constitutional grounds. 1. Since the Amendment of February 13, 1925, of § 238 of the Judicial Code, there is no right to a direct appeal to the Supreme Court of the United States on constitutional grounds alone. jurisdiction Appeal constitutionality of order. attack upon 14th Amendment. The contention must | WILL MOORE, Insurance Commissioner, be overruled. Whether state statutes shall be construed one way or another is a state question, the final decision of which rests with the courts of the state. The due process of law clause in the 14th Amendment does not take up the statutes of the several states and make them the test of what it requires; nor does it enable this court to revise the decisions of the state courts on questions of state law. What it does require is that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as "law of the [317] land." Those principles are ap; plicable alike in all the states and do not depend upon or vary with local legislation. Castillo v. McConnico, 168 U. S. 674, 682, 683, 42 L. ed. 622, 624, 625, 18 Sup. Ct. Rep. 229; West v. Louisiana, 194 U. S. 258, 261-263, 48 L. ed. 965, 968, 969, 24 Sup. Ct. Rep. 650; Patterson v. Colorado, 205 U. S. 454, 459, 51 L. ed. 879, 880, 27 Sup. Ct. Rep. 556, 10 Ann. Cas. 689; Pullman Co. v. Knott, 235 U. S. 23, 25, 59 L. ed. 105, 110, 35 Sup. Ct. Rep. 2; Enterprise Irrig. Dist. v. Farmers Mut. Canal Co. 243 U. S. 157, 166, 61 L. ed. 644, 649, 37 Sup. Ct. Rep. 318. The supreme court of the state having held that the two statutes must be taken to- Argued October 12, 1926. Decided Novemgether in determining the penalty intended we must accept that conclusion as if written into the statutes themselves. Lindsley v. Natural Carbonic Gas Co. 220 U. S. 61, 73, 55 L. ed. 369, 375, 31 Sup. Ct. Rep. 337, Ann. Cas. 1912C, 160. All that would be open in this court under the due process clause is whether the state had power to impose the penalty fixed by the statutes as thus construed. Rawlins v. Georgia, 201 U. S. 638, 640, 50 L. ed. 899, 900, 26 Sup. Ct. Rep. 560, 5 Ann. Cas. 783. That the state had such power is not questioned, but only that the statutes rightly construed show that the power has been exercised. On this question, as we have said, the decision of the supreme court of the state is controlling. Judgment affirmed. 71 L. ed. 2. An application for injunction to prevent a state insurance commissioner from revoking a right to do business within the state, on the ground that petitioner will thereby be deprived of his property without due process of law, is an attack upon the order of the insurance commissioner upon the ground of unconstitutionality within the meaning of § 266 of the Judicial Code, Supreme Court of the United States. as amended, governing direct appeals to the direct Appeal under § 266, Judi 3. Section 266 of the Judicial Code, as amended, authorizes a direct appeal to the Supreme Court of the United States only junction is made and the case is heard bewhere an application for a preliminary infore three judges, notwithstanding the bill presents a case in which such injunction might have been applied for. [No. 185.] ber 1, 1926. APPEAL by defendant from a decree of the District Court of the United Annotation.-Direct review by Federal Supreme Court of district court judgments or decrees. I. In general; finality of judgment, 273. II. The designated classes of cases: 18 a. Where jurisdiction is in issue, 274. b. When construction or application of Federal Constitution is involved, 275. c. When state law is claimed to violate Federal Constitution, 276. d. Miscellaneous, 277. I. In general; finality of judgment. 273 States for the District of Oregon enjoining the revocation of complainant's right to do business in the state. Dismissed. See same case below, 3 F. (2d) 652. The facts are stated in the opinion. Miss Grace E. Smith argued the cause and, with Mr. Willis S. Moore and Mr. I. H. Van Winkle, Attorney General of Oregon, filed a brief for appellant: A direct appeal to the Supreme Court of the United States from a final decree of a district court is authorized in any suit in which the hearing on an applicathose appended to Gwin v. United States, 46 L. ed. U. S. 741; B. Altman & Co. v. United States, 56 L. ed. U. S. 894; and Berkman v. United States, 63 L. ed. U. S. 877. A decree of a Federal district court in a suit in rem in admiralty against a ship, which decree, though not formally dismissing the libel, holds for naught the process under which the ship was arrested, declares that the ship is not subject to any such process, and directs her release, is final for the purpose of an appeal to the Federal Supreme Court. The Pesaro (1921) 255 U. S. 216, 65 L. ed. 592, 41 Sup. Ct. Rep. 308. But in Oneida Nav. Corp. v. W. & S. Job & Co. (1920) 252 U. S. 521, 64 L. ed. 697, 40 Sup. Ct. Rep. 357, where a decree of a Federal district court dismissing, for lack of jurisdiction, the petition of the defendant vessel owner in an admiralty suit to bring in as a party defendant a corporation which it asserted would be liable as an indemnitor if the liability of the vessel should be established, the court, in holding that it lacked the finality essential to support an appeal, said: “A case may not be brought here in fragments. This court has jurisdiction under § 238 of the Judicial Code, as under other sections, only from judgments which are both final and complete." II. The designated classes of cases. a. Where jurisdiction is in issue. Whether or not a ship owned by a foreign government, and at the time of arrest in the possession of such government, is subject to the process of a Federal district court sitting as a court of admiralty, is a jurisdictional question in the sense of the provision of the Judicial Code, § 238, for an appeal or writ of error from the district court directly to the Federal Supreme Court in any case in which the jurisdiction of the lower court may be in issue. The Carlo tion for an interlocutory injunction is required to be before three judges; that is, in any case in which such suit and application are brought for the purpose of suspending or restraining the enforcement or execution of an order made by an administrative board or commission created by and acting under and pursuant to the statutes of a state, upon the ground of the unconstitutionality of such order. Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 292, 67 L. ed. 659, 661, 43 Sup. Ct. Rep. 353; Bluefield Waterworks Poma (1921) 255 U. S. 219, 65 L. ed. 594, 41 Sup. Ct. Rep. 309 and The Pesaro (1921) 255 U. S. 216, 65 L. ed. 592, 41 Sup. Ct. Rep. 308. A judgment of a Federal district court can be reviewed by direct appeal to the Federal Supreme Court in a case in which there is a contention that no valid service of process has been made upon the defendant, and that the judgment was rendered without jurisdiction over the person. De Rees v. Costaguta (1920) 254 U. S. 166, 65 L. ed. 202, 41 Sup. Ct. Rep. 69. In Robert Mitchell Furniture Co. v. Selden Breck Constr. Co. (1921) 257 U. S. 213, 66 L. ed. 201, 42 Sup. Ct. Rep. 84, where the district court held the summons in the suit void, and, on the plaintiff's statement that it could not secure service otherwise, dismissed the petition for want of jurisdiction over the person of the defendant, it was held that an appeal from the district court would lie to the Federal Supreme Court. An appeal does not lie to a Federal circuit court of appeals from a decree of a district court in which the jurisdiction of that court as a court of admiralty was in issue, and was decided in favor of the defendant; the only possible appeal under §§ 128 and 238 of the Judicial Code being one to the Federal Supreme Court. See The Carlo Poma, su pra. Wilson v. Republic Iron & Steel Co. (1921) 257 U. S. 92, 66 L. ed. 144, 42 Sup. Ct. Rep. 35, where the question was raised as to whether a Federal district court into which a cause of action had been removed from a state court should retain the same and proceed to its adjudication, or remand it to the state court, was held to be a proper case for review by the Federal Supreme Court under § 238 of the Judicial Code, which provides for such review in any case in which the jurisdiction of the court is in question, provided, however, |