favor of the public and against the corporation 'which can claim nothing which is not clearly given.' "82 Mr. Justice Clarke was alone in his dissent in the Ohio Traction case, and only Mr. Justice Brandeis joined him in the Covington case.

VIII. IMMUNITIES OF PERSONS CHARGED WITH CRIME

In Burton v. New York Central R. Co.83 a lady who had been taken from a train by New York police authorities, in the erroneous belief that she was wanted for a crime in Indiana, sued the road for damages claiming that the arrest was illegal and that the road owed her a duty to protect her from illegal arrest. The federal Constitution was brought into the dispute by the plaintiff's claim that the extradition clause guaranteed an immunity from arrest for a crime in another state except after a demand from the executive of the state in which the crime was alleged to have been committed. The Supreme Court held, however, that the federal Constitution and the act of Congress passed to effectuate its provisions have nothing to do with arrest in advance of a requisition, and that whether such an arrest should be made was a matter which each state is at liberty to decide for itself. Since the only federal claim was based on the absence of a requisition, the victim of the unfortunate mistake was denied relief.

82 But in City of Mitchell v. Dakota Telephone Co., (1918) 246 U. S. 396, holding that a later franchise did not supersede or modify an earlier one, Mr. Justice McKenna said that the conclusions reached "have the support of principles declared by this court that grants of rights and privileges by the state or of any of its municipalities are strictly construed 'and whatever is not unequivocally I granted is withheld; nothing passes by mere implication.'" In the Mitchell case it was conceded that a franchise had expired unless it had been extended by a later one. Jurisdiction to determine the effect of the later ordinance on the former one was obtained under the claim raised under the obligation-of-contracts clause. The Supreme Court reversed the district court, holding that it incorrectly decided that the earlier franchise had been superseded and that it incorrectly failed to give effect to a prior judgment between the parties on this question.

8 (1917) 245 U. S. 315. See 86 Central Law Journal 79 and 31 Harvard Law Review 650.

"See Biddinger v. Commissioner of Police, (1917) 245 U. S. 128, for a decision holding that a person arrested in an asylum state, who conceded that he was in the demanding state at the time the alleged crime was committed, is not entitled

Immunity from unreasonable searches and seizures and from compulsory self-incrimination was the basis of the prayer of the petitioner in Perleman v. United States to restrain a federal district attorney from taking possession of certain papers impounded by a federal court in some civil proceedings. The papers had been voluntarily offered by the petitioner in a patent suit and were in the custody of the court as part of the record in that suit, when upon formal motion they were released for the use of the government in preparing criminal proceedings against Mr. Perleman for alleged perjury. In denying the prayer that the papers be not so used, Mr. Justice McKenna said that in all the cases when seizure of papers had been held to violate the constitutional provisions relied on, "there was force or threats or trespass upon property, some invasion of privacy or governmental extortion." Here the petitioner had voluntarily produced the papers for his own advantage and his objection to their use in criminal proceedings against him was predicated solely on his ownership. But the "criterion of immunity" was said to be "not the ownership of property, but the 'physical or moral compulsion' exerted."

Ruthenberg v. United States, 8 which followed the Selective Draft Law cases in upholding the Selective Service Law and sustained the conviction of Mr. Ruthenberg for inducing, aiding, etc., a certain Mr. Schue to fail to register, rejected also several contentions addressed to the unconstitutionality of the proceedings in which conviction was obtained. The defendant was a Socialist and thought that he ought not to be tried by a jury composed exclusively of members of other parties and of property owners, but the constitutional issue thus raised was said to be settled "by previous adverse rulings upon similar contentions urged by negro defendants indicted and tried by juries composed of white men." Previous decisions, too, were relied on to

to habeas corpus on the ground that the statute of limitations of the demanding state prevented his punishment, as that defense can be asserted only at the trial. See 18 Columbia Law Review 70, 2 Minnesota Law Review 304, and 27 Yale Law Journal 422.

85 (1918) 247 U. S. 7.

86 Note 70, supra.

dispose of the objection that the court refused to permit defendant's attorney, when examining the jury, to inquire whether they distinguished between socialists and anarchists. The provision of the Sixth Amendment that persons accused of crime should be tried by a jury of the state and district in which the crime was committed was held not to be violated by drawing the jury exclusively from one division of a judicial district. It was also held immaterial that the indictment was found "without a sworn charge previously made."

In Toledo Newspaper Co. v. United States,87 the constitutional guarantee of freedom of the press was held not to protect a newspaper owner from summary punishment for contempt of court on account of editorials concerning a pending trial which were found to possess the tendency to obstruct the administration of justice. Justices Day and Clarke did not sit, and Justices Holmes and Brandeis dissented, on the ground that the acts of the newspaper were not within the summary power vested by the statute. The words of the statute were thought by Mr. Justice Holmes to "point only to the present protection of the Court from actual interference, and not to postponed retribution for lack of respect to its dignity-not to moving to vindicate its independence after enduring the newspaper's attacks for nearly six months as the Court did in this case." The publication, he held, was neither in the presence of the court nor "so near thereto as to obstruct the administration of justice," and was therefore not within the contempts over which summary power was vested by the statute. It was also said that by "misbehaviour" the statute "means something more than adverse comment or disrespect." Mr. Justice Holmes recognized that the articles which Judge Killets resented and for which he held the paper in contempt, "no doubt contained innuendoes not flattering to his personality." But he remarked soothingly that "a judge of the United States is expected to be a man of ofdinary firmness of character," and that he could find in the publications nothing that could have a tendency to prevent "such a judge" from "performing his sworn duty," or "that would have affected a mind of reasonable fortitude."

87 (1918) 247 U. S. 402.

IX. JURISDICTION AND PROCEDURE OF COURTS

THE EXTENT OF FEDERAL JUDICIAL POWER

Many of the cases already considered have passed upon the question whether federal jurisdiction obtained, since many constitutional issues are raised by the parties through an assertion or denial of the presence of a question under the Constitution of the United States. Thus when the parties properly raise the jurisdictional issue, the court before deciding a federal question must determine whether there is a federal question to decide. It is often a shadowy line which marks the distinction between a dispute whether a constitutional question exists and one as to how an alleged constitutional question should be decided. The court in one sense necessarily decides a constitutional question when it determines that no constitutional question has been raised. The cases reserved for treatment in this section are those in which the jurisdictionary question is either the only or the most prominent one in dispute. Though in form the decision may depend on a disputed application of the Judicial Code and therefore seem to be one of statutory rather than of constitutional construction, the boundaries defined by the code are often coterminous with those delimited in the Constitution, so that in substance the latter is involved as well as the former.

Of the decisions determining whether the case at bar arose under the federal Constitution, all but two have been placed in the preceding sections. These two are Ketcham v. Burrs and Cincinnati v. Cincinnati & Hamilton Traction Co.89 In the former the court was unable to discover any federal question in a bill to set aside an adjudication of insanity and to restore papers of the petitioner used in the inquisition and kept in custody.

In the Cincinnati case the majority of the court found a federal question raised by allegations that a city was threatening to enforce an ordinance reciting that the complainant's franchise had expired, and declaring that the continued operation of the

88 (1917) 245 U. S. 510.

89 (1918) 245 U. S. 446. See 31 Harvard Law Review 879.

road would be deemed an acceptance of the ordinance. The city was enjoined from asserting in any proceedings the claim that the ordinance was accepted by continued operation, and from taking any other than judicial proceedings to interfere with the company prior to an adjudication of the validity of the ordinance. The federal district court that tried the case had gone further and "adjudicated in favor of the companies in respect of the grants, ordinances, and contracts relied on," and enjoined the city from any further proceedings whatever. But the Supreme Court accepted the declarations of counsel for the city that the only action contemplated under the ordinance was a judicial proceeding in the state courts in which of course its validity would be open to question, and therefore modified the injunction so that such a suit was not restrained.

The case evidently caused the court considerable difficulty, for it was twice reargued and the final decision was not handed down until two years after the original argument. The characteristically meager opinion of Mr. Justice McReynolds makes it difficult to find the principle or doctrine for which the case stands. The minority insisted, through Mr. Justice Clarke, that the court had to deal with "an utterly unsubstantial and purely paper attempt to carry into the federal courts a case which, because of its 'many difficult problems arising under local laws,' is peculiarly one for first decision in the state courts, with the right of revision in this court as provided by law." The ordinance itself was said to impair no rights until enforced, and as the only contemplated enforcement was not enjoined, the only conceivable present menace lay in the recital that continued operation would be deemed an acceptance of the ordinance. As to this, Mr. Justice Clarke said that any effort on the part of the city to declare that the company would waive its rights by continuing operations would be entirely ineffective, since, if it had any rights, it could not possibly waive them by continuing to exercise them. There must be some better reason for the decision than the majority opinion reveals," for only Mr. Justice Brandeis joined

"In the note in 31 Harvard Law Review 879, the decision is supported on the ground that, since the ordinance "provided for a reduction of the rates with an