The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1907-07-26

persons are indicted and imprisoned In
pursuance Of a statute Of a state, and
la must be remembered that this is not
an attempt on the part of the state to
enforce a law which has for it's object
the preservation of the peace, protec-
ton OF the morals or the general vel
fare OF the public and it cannot be in
sisted that these prosecutions are ne
cessary to promote the welfare OF the
public, in view OF the fact that this
cour thas amply pritected the rights
OF those who may purchase tickets by
requiring the complainant 20 give a
bond amply. sufficient to secure the
payment Of any damages that may be
sustained.
On the other hand. is a penal statute
enacted with the sole view Of enforcing
obedience TO the first section Of the
act which undertakes TO fix maximum
passenger rates. Therefore. inasmuch
as the validity of the act which pre-
scribes passenger rates is being on
tested and the court has by injunction
restrained the enforcement Of the same
there is every reason why this court
should exercise it's discretion in grant
ing the writ of habeas corpus, wien IL
Is apparent that prosecutions o. the
complainant and its agents are being
instituted solely for the purpose OF de-
terring the complainant FROM prOSacut-
ing its original suit.
/ IN view of this situation tle Court Is
called pOn to determine the Question
whether the petitioner is entitled 10
be discharged. inasmuch as ii appears
TO the court that the action, account Oh
[ which he was indicted. was cOaamitte-f
IN pursuance of an order ana decree
sf this court.
Section 1853 of the revised Statutes Of
the United States Is rs follows:
The writ of habeas corpus sGa'' III
no case extend to a prisoner IDS jail.
l1less where he is in custody unGer or
- color OF the authority Of the United
States or IS committed for tria! before
come court thereof; or is in custody
for All act done or omitted in purs,i-
| apce Of a law of the United States; or
! Il an order, process or decree OF a
| court or judge thereof; Or is in custody
IL violation OF the constitution. or If
q law or treaty OF the United SteteT~
or Dei4g a subject or citizen of a Cor-
s.eign state, and Gcmiciled therein, 3.
fia custody fog an ast lone o. Omitte !
uf"tr al" alleged i-ht. :'t.e :. thor
] ity, privilege, protection or exemption
J claimed under the commission or or
der, or sanction, of any foreign state.
CT under color thereof, the validity
| and effect of Thic41 whereof CeI,end
u.boh the law OF nations; or unless it
is necessary to bring the prisoner into
co Tt to,1estify.@
The provisions of the foregoing sec
| ton are So plain that there can be 10
| doubt as tn the true intent and mean
ing Of the same 1t Is provided in
| Express terms than the writ of haceaS
corpus shall extend to one who IS in
| custody for an act done or omitted in
! purs anc Of a law of the United
| States or of III order, process Ur decree
| of a court or judge thereof.
In tAe case. Of State We Boone. 132 n.
| c.. 1908, Chief Justice Clark, who de-
| livered the opinion OF the court, in dis
cussing the "Neag1e- case among other
| things said:
mo such doctrine is found in Nca-
, giles csc (Neagle's case E35 U. S. y
for it only holds thar what the federal
| government enjOins rs a duty the state
| cannot punish as, a crime"
| This SQUIRT, by. proper order, having
directed that the complainant should
| provide aatickeE; with a coupon attach
ed thereto representing the difference
| betwee1-the present rate, AID the pro-
| posed rate, it thereby became the duty
| of the company al9 it's agents to
| strictly comply with t1if requirements
| of such order and my failure on their
1 n0Tf to sNp6nrXro he 0S-.A yz-SII111 N1111nr
| them lisble to- attachment for con-
tempt, and uneter such. circumstances,
| the duty, being anjoined by this conrl.
! the performance of Tie. same by the
complainant and its agents would nos
| render them liable to, punishment IN
| der the statute OF the stale. Any at-
| tempt to- punish the company or It's
| agents for. the observance of the order
| and decree Of this court would be in
| utter disregard Of the comfy which
| should exist hetwesen the state and
| federal courts az we'll as an absolute
| nullity, II the state courts possess
| the power to indict persons acting I'M
der thu directions. Of the federal court
| for the performance OF a. duty enjDir-
| ed upEa them. in q suit which ma ne
brought in such cenrt, hen the power
| Of the circuit courts Of the United
| States would be completely paralyZeC
anG such courts would be rendered
unable to proceed f the deteFmiuatICl
Of any. question Involving the validity
Of the statute Of a state legislature.
While tie CoUGI is Of opinion thaI
; the petitioner IS entitled 70 be ds-
| charged Tor the reasons h~ereinbef0ro
stated, nevertheless, there is anotaer
phase Of ibis question WHICH the court
SHOULD consider in orde : that there
LAY be q proper determj patton OF the
matter ID controversy, and in the CON
Sideration of which it is incumbent
upon the court to pass upon the zalit-
ilty Of section four of the act in CUES
stiOn, which reads as follows:
"That anr railroad nnnlnanN riniaI.