*336 contempt cases was denied no longer exists, the decisions themselves cease to have con< trolling authority, and whether the circuit courts of appeals have authority to review proceedings in contempt in the district and circuit courts depends upon the question whether such proceedings are criminal cases. That they are criminal in their nature has been constantly affirmed. cases by appeal or writ of error. Neither review by this court of a final decision in was there in our Federal system prior to the act of February 6, 1889 (25 Stat. at L. 656, chap. 113), which provided for a writ of error from this court in capital cases. While the act creating the court of appeals, March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 547), authorized a review of criminal cases, yet it limited the jurisdiction of this court to cases of a conviction for a capital or otherwise in- The orders imposing punishment are final. famous crime since limited to capital cas- Why, then, should they not be reviewed as es (29 Stat. at L. 492, chap. 68, pp. 549, final decisions in other criminal cases? It 556), and gave the right of review of all is true they are peculiar in some respects, other criminal cases to the circuit courts of rightfully styled sui generis. They are triappeal; and, of course, a proceeding in con- able only by the court against whose autempt cannot be considered as an infamous thority the contempts are charged. No jury crime. Habeas corpus is not treated as a passes upon the facts; no other court inwrit of error, and while it may be issued by quires into the charge. Ex parte Tillingone court to inquire into the action of a hast, 4 Pet. 108, 7 L. ed. 798. As said by court of co-ordinate jurisdiction, yet the in- Mr. Justice Miller, speaking for the court, quiry is only whether the action of the in Eilenbecker v. Plymouth County Dist. Ct. court in imposing punishment was within 33 L. ed. 801, 803, 10 Sup. Ct. Rep. 424, its jurisdiction. Even in an appellate court, | 426, 134 U. S. 31, 36: the writ of habeas corpus is not of itself the equivalent of a writ of error, although, when supplemented by certiorari, as shown in the case of Re Watts, 190 U. S. 1, 47 L. ed. 933, 23 Sup. Ct. Rep. 718, it may bring the whole case before the appellate court for review. The act of March 3, 1891, establishing circuit courts of appeals must now be more fully considered. While its primary purpose was the relief of this court by the creation of new appellate courts, and the distribution between those courts and this of the entire appellate jurisdiction of the United States (The Paquete Habana, 175 U. S. 677, 681, 44 L. ed. 320, 321, 20 Sup. Ct. Rep. 290, and cases cited), yet it also enlarged the area of appellate jurisdiction. As originally passed it gave to this court jurisdiction over cases of infamous crimes in addition to that which it theretofore had in capital cases. By § 6 it gave to the circuit courts of appeals appellate jurisdiction to review by appeal or writ of error final decisions in the district court and the existing circuit courts in all cases other than those provided for in the preceding section. That this was intended to include criminal cases is evident from a subsequent clause, which makes the decision of the courts of appeals final "in all cases arising "If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it. It has always been one of the attributes—one of the pow ers necessarily incident to a court of justice that it should have this power of vindicating its dignity, of enforcing its orders, of protecting itself from insult, without the necessity of calling upon a jury to assist it in the exercise of this power." See also Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900, in which we said (p. 594, L. ed. p. 1106, Sup. Ct. Rep. p. 910): "But the power of a court to make an or der carries with it the equal power to punish for disobedience of that order, and the inquiry as to the question of disobedience has been from time immemorial, the special function of the court. And this is no technical rule. In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency." But the mode of trial does not change the nature of the proceeding, or take away the finality of the decision. So when, by § 6 of the courts of appeals act, the circuit courts of appeals are given jurisdiction to review the "final decision in the district court and "Thus, appellate jurisdiction was given in the existing circuit courts in all cases other all criminal cases by writ of error, either than those provided for in the preceding sec from this court or from the circuit courts of tion of this act, unless otherwise provided appeals." by law," and the preceding section gives to As, therefore, the ground upon which a this court jurisdiction to review convictions under the criminal laws." See United States v. Rider, 163 U. S. 132, 138, 41 L. ed. 101, 103, 16 Sup. Ct. Rep. 983, 986, in which, referring to §§ 5 and 6, we said: 337 *338 in only capital or otherwise infamous crimes, and no other provision is found in the statutes for a review of the final order in contempt cases, upon what satisfactory ground can it be held that the final decisions in contempt cases in the circuit or district courts are not subject to review by the circuit courts of appeals? Considering only such cases of contempt as the present-that is, cases in which the proceedings are against one not a party to the suit, and cannot be regarded as interlocutory-we are of opinion that there is a right of review in the circuit court of appeals. Such review must, according to the settled law of this court, be by writ of error. Walker v. Dreville, 12 Wall. 440, 20 L. ed. 429; Deland v. Platte County, 155 U. S. 221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82; Bucklin v. United States, 159 U. S. 680, 40 L. ed. 304, 16 Sup. Ct. Rep.182. On such a writ only matters of law are considered. The decision of the trial tribunal, court or jury, deciding the facts, is conclusive as to them. See same case below, 51 C. C. A. 78, 113 The facts are stated in the opinion. Messrs. Charles P. Cocke, William *Mr. Justice McKenna delivered the opinion of the court: The case was removed from the civil dis trict court in and for the parish of Orleans to the United States circuit court for the eastern district of Louisiana by defendant, on the ground that it was a corporation organized by an act of Congress of the United States. The petition alleges that plaintiff delivered to defendant, at a point on the line of its railway called Meekers' Switch, to be transported to New Orleans, 52 bales of cotton at a rate of freight then and there agreed upon, and a bill of lading issued to plaintiff. The cotton was loaded upon the cars of defendant, and, while waiting transunnec-portation, was destroyed by fire. We, therefore, answer the questions in this way: The second and fourth in the affirmative, the third in the negative. It is essary to answer the first. (194 U. S. 432) HENRY CHARNOCK, Piff. in Err., บ. The petition charges negligence on the part of defendant in that it failed to take measures of precaution for the safety and protection of the cotton, but left it in the cars on a side track, "in an open country, unguarded and unwatched." The bill of lading contained a provision exempting defend TEXAS & PACIFIC RAILWAY COM-ant from liability for damage to, or destruc PANY. tion of, the cotton by fire, but the petition alleges that the provision was null and void, duty to guard as far as plaintiff is concerned, for the fol negligence ▲ carrier is not chargeable with negligence in failing to take precautions to guard against the danger from fire to cotton awaiting transportation in locked box cars on a side track, in the open country, established and maintained for the accommodation of the planters in that neighborhood, where the carrier is merely following a practice which has continued for years without any resulting loss or complaint. [No. 194.] Argued April 8, 1904. 1904. lowing reasons, among others: He received no consideration therefor; the rate which he agreed to pay was the only rate defendant would give or was offered; on account of the negligence of the defendant. The value of the cotton was $2,440.32. The evidence in the case is that Meekers was a mere switch track running to the Meekers plantation. No agent was maintained at the station. Shippers wanting cars applied for them at the next station. The practice was for shippers to load the cars furnished and to get bills of lading from the agent who furnished the cars. The next Decided May 16, train passing after the cars were loaded took them; that no guard or watchman was placed over freight was well known. N ERROR to the United States Circuit Court of Appeals for the Fifth Circuit to review a judgment which affirmed a judgment of the Circuit Court for the Eastern District of Louisiana, entered on a verdict directed in favor of defendant in an action against a common carrier to recover damages for the loss of a shipment from fire. Affirmed. The loading of the cotton in the present case was completed at 2 P. M. The bill of lading was obtained at 5 P. M. The fire was discovered at 10 P. M. The train which was to take the cars was not due until 9 A. M. next morning. There was no evidence of the cause of the fire. Defendant moved the court to instruct the jury to return a verdict for it. Plain *437 *436 450 ⚫438 tiff requested the court to submit to the jury the question whether or not the destruction of the cotton was due to, or caused by, the negligence of the defendant. The request was denied, and the motion of the defendant was granted, and a verdict was returned for defendant. From the judgment entered on the verdict error was prosecuted to the circuit court of appeals for the fifth circuit, and the judgment was affirmed. 51 C. C. A. 78, 113 Fed. 92. This case was argued and submitted with Cau v. Texas & P. R. Co. 194 U. S. 427, ante, 663, 24 Sup. Ct. Rep. 663, and all of its questions are ruled by that case except one, and that is the effect of leaving the cotton unguarded on the responsibility of the defendant. In answering the question two elements are to be considered, the negligence of the defendant, and its connection with the destruction of the cotton. If the evidence established neither, the circuit court rightfully directed a verdict for defendant. Negligence has always relation to the circumstances in which one is placed, and what an ordinarily prudent man would do or omit in such circumstances. Applying that test in the case at bar, we do not think negligence on the part of defendant was established. Meekers was not a regular station; indeed, was not a station at all, but a mere switch track. The defendant was not obliged to receive freight there. It was, as said by the court of appeals, "a country or plantation switch," established and maintained for the accommodation of the planters of the neighborhood. There was no agent or employee maintained there for the purpose of receiving or guarding freight, nor was there fire apparatus kept. Cars were only sent there when ordered, loaded by the shipper, and taken by the first passing freight train to the point of destination. This was the practice for years, and there is not a word of testimony that it was not adequate to the protection of the planters, as it was to their accommodation, or that it was, in their judgment, not a complete fulfilment of the duty of defendant. No circumstance is shown which demanded a change in the practice. There was no demand made by the plaintiff for a change. Whatever risk there was seems to have been accepted as a consideration for the convenience afforded. It is easy to understand that if watchmen had been demanded of the defendant, it would have insisted upon the delivery of freight at its regular station at Le Compte, 2 miles distant. But the risk seems not to have been great. No loss from any cause is shown to have occurred during the existence of the practice,—nothing shown from which danger could be apprehended. One of the plaintiff's witnesses testified that tramps passed up and down the road daily; but what can be inferred from that? It is inappreciable. Was danger to be apprehended from their carelessness or malice? During the ten or eleven years of the exist ence of the station not an instance of either is shown. It is, however, urged that a place of delivery other than a regular station can be agreed on or established by custom or practice, and at the instant of delivery the full responsibility of a carrier attaches. To bring the case at bar within those principlesFisher v. The Norval, 8 Mart. N. S. 120; Barrett v. Salter, 10 Rob. (La.) 434, and Roth v. Harkson, 18 La. Ann. 705, are cited. The principles may be assented to; the cases cited are distinguishable from that at bar. In Fisher v. The Norval, 35 bales of cotton were sent to be shipped on the brig Norval, and were received by the captain. The cotton was left upon the levee, unguarded, and during the night following delivery it was destroyed by fire. The origin of the fire was not shown, but it was shown that it was not customary in the city (New Orleans) to put a guard over cotton so placed. The Code of the state made carriers liable for loss or damage to property intrusted to their care, unless they proved that such loss or damage had been occasioned by accidental and uncontrollable events. The defendants in the case were adjudged liable. The supreme court held, approving the decision of the trial court, "there was negligence in the defendants permitting the cotton to be exposed all night on the levee, to theft, fire, and other accidents, without some person to take care of it." It was not the care, the court further observed, that a prudent person would take of his own property, and the custom proved was not a good excuse. The facts in that case are markedly different from those in the pending case. Cotton exposed upon the levees of New Orleans is in a different situation from cotton inclosed in locked box cars on a side track, in the solitude of the country, and demands a different degree of care. In Barrett v. Salter, 40 hogsheads of to bacco were delivered for shipment on the ship Huron. It was receipted for by the mate. After it was received a heavy rain came, which lasted about two hours, to which it was suffered to remain exposed. It was testified that the captain was told that if the tobacco should be put on board without being opened and trimmed, it would be found damaged on its arrival at destination. It was so found. The defendants were held liable. In Roth v. Harkson, the question was *439 440 2. 3. whether cotton put in a place designated by has the power, under its charter, to adopt The question whether certain acts amount to a violation of a municipal ordinance is not a Federal one, which can be reviewed on writ of error from the Federal Supreme Court to a state court. A decision of a state court construing the provisions of a city charter authorizing the city to prohibit the erection of cow stables and dairies "within prescribed limits" so as to permit the city to make the limits for the operation of the ordinance coincident with the city limits presents no Federal ques tion, which can be reviewed on writ of error from the Federal Supreme Court to a state court. 4. Neither due process of law nor the equal protection of the laws is denied by a municipal ordinance adopted under legislative authority, forbidding the establishment or maintenance of a dairy or cow stable within the city limits without having received permission so to do from the municipal assembly, by a proper ordinance. [No. 204.] 1904. Decided May 16, State of Missouri to review a judgment which affirmed a judgment of the St. Louis Court of Criminal Correction, which had in turn affirmed a conviction in the Police Court of that city for the violation of an ordinance forbidding the establishment and maintenance of dairies or cow stables within the city limits without having first received permission of the municipal assembly. Affirmed. ticular whatsoever; that it was the duty of IN ERROR to the Supreme Court of the the said company to take some measures of precaution to protect said cars and the cotton contained therein, from depredation, loss, or injury by third persons, wrongdoers or those bent upon mischief; that it totally failed and neglected to take any measures of precaution for the safety and protection of the said cotton, but left it in said cars, said track, unguarded and unwatched, in the nighttime, during which it was destroyed by fire; that petitioner believes that the said cotton was set on fire by some malicious person; that petitioner has no actual knowledge as to the origin or cause of said fire." The evidence we have commented on, and, we may only add, it established all that was charged as negligence, and there was nothing for the defendant to explain. The defendant could, as it did, submit the question of its liability upon the evidence adduced. Judgment affirmed. (194 U. S. 361) JOHN G. FISCHER, Piff. in Err., บ. CITY OF ST. LOUIS. Error to state court Federal question constitutional law due process of law -equal protection of the laws validity of municipal ordinance against dairies and cow stables. 1. See same case below, 167 Mo. 654, 67 8. W. 872. Statement by Mr. Justice Brown: *This proceeding was originally instituted by a criminal complaint filed by the city of St. Louis against Fischer in the police court for a violation of an ordinance of the city in erecting, building, and establishing on certain premises occupied by Fischer, at Nos. 7208 and 7210 North Broadway, a dairy and cow stable, without first having obtained permission so to do from the municipal assembly by proper ordinance, and for maintaining such dairy and cow stable without permission of such assembly. Motion was made to quash the complaint upon the ground, amongst others, that § 5 of the ordinance under which the conviction was held was in violation of the 14th Amendment of the Constitution of the United States. The case was submitted to the court upon the following agreed statement of the facts: "The plaintiff, the city of St. Louis, is a Whether or not a municipal corporation municipal corporation, organized and exist24 S. C. 43. +362 363 ing under the laws of the state of Missouri, and defendant is and was on the 16th day of November, 1898, the occupant of certain premises known as 7208 and 7210 North Broadway, in the city of St. Louis, state of Missouri, upon which premises, at said time, stood a dwelling-house and frame stable, which had been erected and built prior to the occupancy of said premises by defendant." "At the time of the approval of ordinance No. 18,407, of said city and state, said premises, buildings, and stable were occupied and in use by a certain party other than this defendant, for the purpose of operating a dairy and maintaining a cow stable, and this | defendant was, at the same time, operating a dairy and maintaining a cow stable on premises known as No. 6305 Bulwer avenue, in said city and state. Some time in the month of March, 1898, the said premises at Nos. 7208 and 7210 North Broadway were abandoned as a dairy and cow stable, and the dwelling-house thereon was occupied by a private family for residence purposes only, and no dairy or cow stable was maintained on said premises from March, 1898, until some time in September, 1898. In September, 1898, defendant moved his cows, about thirty in number, from premises No. 6305 Bulwer avenue, on to premises Nos. 7208 and 7210 North Broadway, placed them in the old stable, and did proceed to conduct upon said premises a dairy establishment, and produce from said cows milk, and sell the same to his customers for profit, and was so doing on the said 16th day of November, 1898, without having first obtained permission so to do from the municipal assembly by proper ordinance, as provided by 5 of ordinance No. 18,407 of the city of St. Louis, approved April 6, 1896," a copy of which section is given in the margin.t Upon this state of facts defendant was convicted and fined. An appeal was granted to the St. Louis court of criminal correction, which affirmed the judgment. An appeal was then taken to the supreme court of the state, where the judgment was again affirmed. 167 Mo. 654, 67 S. W. 872. Mr. Justice Brown delivered the opinion of the court: The authority of the city of St. Louis to adopt the ordinance in question is found in the Revised Statutes of the state (1899, pp. 2484 and 2488), which declare: "The mayor and assembly shall have power, within the city, by ordinance not inconsistent with the Constitution or any law of this state, or of this charter, hibit the erection of and dairies to procow stables within prescribed limits, and to remove and regulate the same." "Finally, to pass all such ordinances, not inconsistent with the provisions of this charter or of the laws of the state, as may be expedient in maintaining the peace, good government, health, and welfare of the city, its trade, commerce, and manufactures, and to enforce the same by fines and penalties not exceeding $500, and by forfeitures not exceeding $1,000. The authority of the municipality of St. Louis, under this charter, to adopt the ordinance in question, was settled by the decision of the supreme court, and is not open to attack here. Considerable stress is laid upon the fact that at the time the ordinance was adopted (April 6, 1896), the dairy and cow stable had already been erected, and at that time was occupied and in use for that purpose, though such use was subsequently abandoned, and the premises used as a private residence for a short time, when defendant moved his cattle there and established anew the dairy and cow stable which had theretofore been used. The supreme court, however, found that defendant was guilty of maintaining a dairy and cow stable, within the meaning of the ordinance, without permission of the municipal assembly, and as this construction of the ordinance involves no Federal question, we are relieved from the necessity of considering it. Defendant's objection to the ordinance, that it is made to apply to the whole city, when authority was only given by the charter to prohibit the erection of cow stables and dairies "within prescribed limits," is equally without foundation. If it were possible to prescribe limits for the operation of Messrs. Louis A. Steber and J. E. Mc- the ordinance, it was held by the supreme Keighan for plaintiff in error. Messrs. William F. Woerner, Charles W. Bates, and Charles R. Skinker for defendant in error. +Sec. 5. No dairy or cow stable shall hereafter be erected, built, or established within the limits of this city without first having obtained permission so to do from the municipal assembly by proper ordinance, and no dairy or cow stable not in operation at the time of the approval of this ordinance shall be maintained court to be equally possible to declare that those limits should be coincident with the limits of the city. This is also a non-Federal question. on any premises unless permission so to do shall have been obtained from the municipal assembly by proper ordinance. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than $100 nor more than $500. |