claims, under § 17 of its charter, a right to, *eight of the grand jurors were [147 charge certain amounts against income. But not citizens of the United States or it does not appear there or elsewhere that of the territory, a qualification prescribed the appellant set up that the charter was by the laws of the territory. The territory a statute of the United States, or that it re-joined issue on this plea. The parties then lied upon article 1, § 10, or any other clause of the Constitution of the United States. Writ dismissed. 146] *MORITA KEIZO, Plff. in Err., V. agreed upon the facts upon which it was based; namely, that the eight grand jurors questioned were citizens only by virtue of judgments of naturalization in a circuit court of the territory. The plea, with the agreed facts, raised the question of the jurisdiction of the circuit court of the territory to naturalize aliens. Under a statute of the terri WILLIAM HENRY, High Sheriff of the tory that question was certified to the suTerritory of Hawaii. preme court, and that court held that the circuit courts of the territory had jurisdiction to naturalize, and that the grand jury possessed the necessary qualifications. Thereupon the trial judge overruled the plea in abatement, and an exception was taken. After due proceedings, plaintiff in error was found guilty as charged, and, on March 22, 1906, sentenced to death. Thereupon he prosecuted a writ of error to the supreme court of the territory, assigning, among other errors, the overruling of the plea in abatement. The judgment of the lower court was Argued October 29, 1908. Decided Novem- affirmed by the supreme court on October 23, I ber 16, 1908. N ERROR to the Supreme Court of the Territory of Hawaii to review a judgment discharging a writ of habeas corpus. Affirmed. 1906, and a death warrant thereupon was issued by the governor of the territory, commanding the high sheriff to execute the sentence of death on January 22, 1907. No writ of error was sued out on the foregoing judgments of the supreme court. The plaintiff in error, however, six days before the date fixed for his execution, filed a petition for habeas corpus in the supreme court of the territory, basing his claim for discharge from custody upon the same facts set forth in the plea of abatement and in the agreed statement of Mr. Charles R. Hemenway argued the facts. The petition alleged that, for the rea The facts are stated in the opinion. in error. cause, and, with Mr. M. F. Prosser filed a brief for defendant in error. Mr. Justice Moody delivered the opin ion of the court: This is a writ of error directed to a judg ment of the supreme court of the territory of Hawaii, discharging a writ of habeas corpus and remanding the petitioner to the custody of the sheriff. The plaintiff in error was indicted for murder by a grand jury at a term of a circuit court of the territory, held in August, 1905. The grand jury was composed of sixteen members. A plea in abatement was seasonably filed, alleging that NOTE-As to questions reviewable by habeas corpus-see notes to State v. Jack son, 1 L.R.A. 373; Bion's Appeal, 11 L.R.A. 694; United States v. Hamilton, 1 L. ed. U. S. 490; Ex parte Carll, 27 L. ed. U. S. 288; Oteiza y Cortes v. Jacobus, 34 L. ed. U. S. 464; Pearce v. Texas, 39 L. ed. U. S. 164; and Glass v. The Betsey, 1 L. ed. U. S. 489. son of the disqualification of eight members of the grand jury, the indictment was void, diction to proceed against him under it. and that the trial court was without jurisThe writ of habeas corpus was discharged and the petition remanded to the custody of the sheriff, and to this judgment the present writ of error is directed. The principal question argued before us by counsel is, whether the eight members of the grand jury, whose qualifications were *questioned, were naturalized by courts [148 having the authority to naturalize aliens. But we find no occasion to decide or consider this question. If the plaintiff in error desired the judgment of this court upon it, he should have brought a writ of error to the judgment of the supreme court of the territory which passed upon it in affirming the judgment of conviction in the trial court. He may not lie by, as he did in this case, until the time for the execution of the judgment comes near, and then seek to raise collaterally, by habeas corpus, questions not affecting the jurisdiction of the court which convicted him, which were open to him in the original case, and, if properly presented then, could ultimately have come to this court upon writ of error. Un questionably, if the trial court had exceeded its jurisdiction, a prisoner held under its judgment might be discharged from custody upon a writ of habeas corpus by another court having the authority to entertain the writ (Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; Ex parte Siebold, 100 U. S. 371, 25 L. ed. 717; Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Ex parte Wilson, 114 U. S. 417, 29 L. ed. 89, 5 Sup. Ct. Rep. 935), though even in a case of this kind a court will sometimes refrain from releasing a prisoner upon writ of habeas corpus, and will remit him to his remedy by writ of error (Riggins v. United States, 199 U. S. 547, 50 L. ed. 303, 26 Sup. Ct. Rep. 147; Urquhart v. Brown, 205 U. S. 179, 51 L. ed. 760, 27 Sup. Ct. Rep. 459). But no court may properly release a prisoner under conviction and sentence of another court, unless for want of jurisdiction of the cause of person, or for some other matter rendering its proceedings void. Where a court has jurisdiction, mere errors which have been committed in the course of the proceedings cannot be corrected upon a writ of habeas corpus, which may not, in this manner, usurp the functions of a writ of error. Ex parte Parks, 93 U. S. 18, 23 L. ed. 787; Ex parte Siebold, supra, 375; Ex parte Yarbrough, supra, 651, 653; Ex parte Wilson, supra, 421; Re Delgado, 140 U. S. 586, 35 L. ed. 578, 11 Sup. Ct. Rep. 874; United States v. Pridgeon, 153 U. S. 48, 59, 63, 38 L. ed. 631, 635, 637, 14 Sup. Ct. Rep. 746; Andrews v. Swartz, 156 U. S. 272, 276, 39 L. ed. 422, 423, 15 Sup. Ct. Rep. 389; Riggins v. United States, supra; Felts v. Murphy, 201 U. S. 123, 50 L. ed. 689, 26 Sup. Ct. Rep. 366; Valentina v. Mercer, 201 U. S. 131, 50 L. ed. 693, 26 Sup. Ct. Rep. 368. 149] *These well-settled principles are decisive of the case before us. Disqualifications of grand jurors do not destroy the jurisdiction of the court in which an indictment is returned, if the court has jurisdiction of the cause and of the person, as the trial court had in this case. Ex parte Harding, 120 U. S. 782, 30 L. ed. 824, 7 Sup. Ct. Rep. 780; Re Wood, 140 U. S. 278, 35 L. ed. 505, 11 Sup. Ct. Rep. 738; Re Wilson, 140 U. S. 575, 35 L. ed. 513, 11 Sup. Ct. Rep. 870. See Re Moran, 203 U. S. 96, 104, 51 L. ed. 105, 108, 27 Sup. Ct. Rep. 25. The indictment, though voidable, if the objection is seasonably taken, as it was in this case, is not void. United States v. Gale, 109 U. S. 65, 27 L. ed. 857, 3 Sup. Ct. Rep. 1. The objection may be waived, if it is not made at all or delayed too long. This is but another form of saying that the indictment is a sufficient foundation for the jurisdiction of the court in which it is returned, if jurisdiction otherwise exists. That court has the authority to decide all questions concerning the constitution, organization, and qualification of the grand jury, and, if there are errors in dealing with these questions, like all other errors of law committed in the course of the proceedings, they can only be corrected by writ of error. Judgment affirmed. A suit to compel the specific performance by a carrier of its agreement to issue free passes annually to the complainants is not brought within the original jurisdiction of a Federal circuit court as one arising under the Constitution or laws of the United States, within the meaning of the act of August 13, 1888 (25 Stat. at L. 434. chap. 866, U. S. Comp. Stat. 1901, p. 509), by allegations in the bill that the refusal to comply with the contract is based upon the provision of the act of Congress of June 29, 1906 (34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), and that such act does not prohibit the giving of passes under the circumstances of the case, and, if construed as having such effect, violates U. S. Const., 5th Amend., by denying due process of law. [For other cases, see Courts, 506-508, in Digest Sup. Ct. 1908.] Statement by Mr. Justice Moody: Mr. L. A. Shaver, as amicus curiæ, filed The appellees (husband and wife), being a brief for the Interstate Commerce Comresidents and citizens of Kentucky, brought mission. this suit in equity in the circuit court of the United States for the western district of Kentucky against the appellant, a railroad company and a citizen of the same state. The object of the suit was to compel the specific performance of the following contract: Louisville, Ky., Oct. 2d, 1871. The Louisville & Nashville Railroad Company, in consideration that E. L. Mottley and wife, Annie E. Mottley, have this day released company from all damages or claims for damages for injuries received by them on the 7th of September, 1871, in consequence of a collision of trains on the railroad of said company at Randolph's Station, Jefferson County, Kentucky, hereby agrees to issue free passes on said railroad and branches now existing or to exist, to said E. L. & Annie E. Mottley for the remainder of the present year, and thereafter to renew said passes annually during the lives of said Mottley and wife or either of them. The bill alleged that in September, 1871, plaintiffs, while passengers upon the defendant railroad, were injured by the defendant's negligence, and released their respective claims for damages in consideration of the agreement for transportation during their lives, expressed in the contract. It is alleged that the contract was performed by the defendant up to January 1, 1907, when the defendant declined to renew the passes. The bill then alleges that the refusal 151]to comply with the contract*was based solely upon that part of the act of Congress of June 29, 1906 (34 Stat. at L. 584. chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), which forbids the giving of free passes or free transportation. The bill further alleges: First, that the act of Congress referred to does not prohibit the giving of passes under the circumstances of this case; and, second, that, if the law is to be construed as prohibiting such passes, it is in conflict with the 5th Amendment of the Constitution, because it deprives the plaintiffs of their property without due process of law. The defendant demurred to the bill. The judge of the circuit court overruled the demurrer, entered a decree for the relief prayed for, and the defendant ap pealed directly to this court. Mr. Henry Lane Stone submitted the cause for appellant. Mr. Lewis McQuown submitted the cause for appellees. Mr. Clarence U. McElroy was on the brief, Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court: Two questions of law were raised by the demurrer to the bill, were brought here by appeal, and have been argued before us. They are, first, whether that part of the act of Congress of June 29, 1906 (34 Stat. at L. 584, chap. 3591, U. S. Comp. Stat. Supp. 1907, p. 892), which forbids the giving of free passes or the collection of any different compensation for transportation of passengers than that specified in the tariff filed, makes it unlawful to perform a contract for transportation of persons who, in good faith, before the passage of the act, had accepted such contract in satisfaction of a valid cause of action against the railroad; and, second, whether the statute, if it should be construed to render such a contract unlawful is in *violation of the 5th Amendment of[152 the Constitution of the United States. We do not deem it necessary, however, to consider either of these questions, because, in our opinion, the court below was without jurisdiction of the cause. Neither party has questioned that jurisdiction, but it is the duty of this court to see to it that the jurisdiction of the circuit court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion. Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382, 28 L. ed. 462, 463, 4 Sup. Ct. Rep. 510; King Iron Bridge & Mfg. Co. v. Otoe County, 120 U. S. 225, 30 L. ed. 623, 7 Sup. Ct. Rep. 552; Blacklock v. Small, 127 U. S. 96, 105, 32 L. ed. 70, 73, 8 Sup. Ct. Rep. 1096; Cameron v. Hodges, 127 U. S. 322, 326, 32 L. ed. 132, 134, 8 Sup. Ct. Rep. 1154; Metcalf v. Water town, 128 U. S. 586, 587, 32 L. ed. 543, 9 Sup. Ct. Rep. 173; Continental Nat. Bank v. Buford, 191 U. S. 120, 48 L. ed. 119, 24 Sup. Ct. Rep. 54. There was no diversity of citizenship, and it is not and cannot be suggested that there the case was a "suit was any ground of jurisdiction, except that arising under the Constitution or laws of the United States." 25 Stat. at L. 434, chap. 866, U. S. Comp. Stat. 1901, p. 509. It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts "Conforming itself to that rule, the complainant would not, in the assertion or proof of its cause of action, bring up a single Federal question. The presentation of its cause of action would not show that it was one arising under the Constitution or laws of the United States. *"The only way in which it might be[154 claimed that a Federal question was presented would be in the complainant's statement of what the defense of defendants would be, and complainant's answer to such defense. Under these circumstances the case is brought within the rule laid down in Tennessee v. Union & Planters' Bank, supra. That case has been cited and approved many times since." that the defense is invalidated by some pro- | defendant the burden of proving such devision of the Constitution of the United fense. States. Although such allegations show that very likely, in the course of the litigation, a question, under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution. In Tennessee v. Union & Planters' Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654, the plaintiff, the state of Tennessee, brought suit in the circuit court of the United States to recover from the defendant certain taxes alleged to be due under the laws of the state. The plaintiff alleged that the defendant claimed an immunity from the taxation by virtue of its charter, and that therefore the tax was void, because in violation of the provision of the Constitution of the United 153]*States, which forbids any state from passing a law impairing the obligation of contracts. The cause was held to be beyond the jurisdiction of the circuit court, the court saying, by Mr. Justice Gray (p. 464): "A suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws." Again, in Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632, 47 L. ed. 626, 23 Sup. Ct. Rep. 434, the plaintiff brought suit in the circuit court of the United States for the conversion of copper ore and for an injunction against its continuance. The plaintiff then alleged, for the purpose of showing jurisdiction, in substance, that the defendant would set up in defense certain laws of the United States. The cause was held to be beyond the jurisdiction of the circuit court, the court saying, by Mr. Justice Peckham (pp. 638, 639): "It would be wholly unnecessary and improper, in order to prove complainant's cause of action, to go into any matters of defense which the defendants might possibly set up, and then attempt to reply to such defense, and thus, if possible, to show that a Federal question might or probably would arise in the course of the trial of the case. To allege such defense and then make an answer to it before the defendant has the opportunity to itself plead or prove its own defense is inconsistent with any known rule of pleading, so far as we are aware, and is improper. "The rule is a reasonable and just one that the complainant in the first instance shall be confined to a statement of its cause of action, leaving to the defendant to set up in his answer what his defense is, and, if anything more than a denial of complainant's cause of action, imposing upon the The interpretation of the act which we have stated was first announced in Metcalf v. Watertown, 128 U. S. 586, 32 L. ed. 543, 9 Sup. Ct. Rep. 173, and has since been repeated and applied in Colorado Cent. Consol. Min. Co. v. Turck, 150 U. S. 138, 142, 37 L. ed. 1030, 1031, 14 Sup. Ct. Rep. 35; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 459, 38 L. ed. 511, 513, 14 Sup. Ct. Rep. 654; Chappell v. Waterworth, 155 U. S. 102, 107, 39 L. ed. 85, 87, 15 Sup. Ct. Rep. 34; Postal Teleg. Cable Co. v. United States (Postal Teleg. Cable Co. v. Alabama) 155 U. S. 482, 487, 39 L. ed. 231, 232, 15 Sup. Ct. Rep. 192; Oregon Short Line & U. N. R. Co. v. Skottowe, 162 U. S. 490, 494, 40 L. ed. 1048, 1049, 16 Sup. Ct. Rep. 869; Walker v. Collins, 167 U. S. 57, 59, 42 L. ed. 76, 77, 17 Sup. Ct. Rep. 738; Muse v. Arlington Hotel Co. 168 U. S. 430, 436, 42 L. ed. 531, 533, 18 Sup. Ct. Rep. 109; Galveston, H. & S. A. R. Co. v. Texas, 170 U. S. 226, 236, 42 L. ed. 1017, 1020, 18 Sup. Ct. Rep. 603; Third Street & Suburban R. Co. v. Lewis, 173 U. S. 457, 460, 43 L. ed. 766, 767, 19 Sup. Ct. Rep. 451; Florida C. & P. R. Co. v. Bell, 176 U. S. 321, 327, 44 L. ed. 486, 489, 20 Sup. Ct. Rep. 399; Houston & T. C. R. Co. v. Texas, 177 U. S. 66, 78, 44 L. ed. 673, 680, 20 Sup. Ct. Rep. 545; Arkansas v. Kansas & T. Coal Co. 183 U. S. 185, 188, 46 L. ed. 144, 146, 22 Sup. Ct. Rep. 47; Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 68, 46 L. ed. 808, 809, 22 Sup. Ct. Rep. 585; Boston & M. Consol. Copper & S. Min. Co. v. Montana Ore Purchasing Co. 188 U. S. 632, 639, 47 L. ed. 626, 631, 23 Sup. Ct. Rep. 434; Minnesota v. Northern Securities Co. 194 U. S. 48, 63, 48 L. ed. 870, 877, 24 Sup. Ct. Rep. 598; Joy v. St. Louis, 201 U. S. 332, 340, 50 L. ed. 776, 780, 26 Sup. Ct. Rep. 478; Devine v. Los Angeles, 202 U. S. 313, 334, 50 L. ed. 1046, 1053, 26 Sup. Ct. Rep. 652. The application of this rule to the ease at bar is decisive against the jurisdiction of the circuit court. It is ordered that the judgment be reversed and the case remitted to the circuit court with instructions to dismiss the suit for want of jurisdiction. 155] AMERICAN SUGAR REFINING COMPANY OF NEW YORK, Appt., V. UNITED STATES. (See S. C. Reporter's ed. 155–162.) Direct appeal from circuit court -case involving Federal Constitution. A contention by importers that the Treasury regulations respecting the polariscopic test for sugar assumed to add something to the dutiable standard prescribed by the tariff act of July 24, 1897 (30 Stat. at L. 168, chap. 11, U. S. Comp. Stat. 1901, p. 1647), par. 209, and that the Secretary of the Treasury thus exercised legislative power confided by the Constitution solely to Congress, does not constitute a real and substantial dispute or controversy concerning the construction or application of the Federal Constitution within the meaning of the act of March 3, 1891 (26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549), 5, so as to sustain a direct appeal from a Federal circuit court to the Supreme Court. [For other cases, see Appeal and Error, 938 989, in Digest Sup. Ct. 1908.] Mr. John G. Johnson argued the cause, and, with Messrs. Henry B. Closson and John E. Parsons, filed a brief for appellant: Where the validity of Treasury regulations is attacked as an illegal exercise of power lodged with another branch of the government, a Federal question is presented to this court for review. Boske v. Comingore, 177 U. S. 459, 44 L. ed. 846, 20 Sup. Ct. Rep. 701; United States ex rel. Steinmetz v. Allen, 192 U. S. 543, 48 L. ed. 555, 24 Sup. Ct. Rep. 416. NOTE. On direct review of decisions of district and circuit courts-see note to Gwin v. United States, 46 L. ed. U. S. 741. Mr. James C. McReynolds argued the cause and filed a brief for appellee: A mere allegation that some constitutional question is involved does not suffice to give jurisdiction; the record must show a real, substantial dispute or controversy concerning the construction or application of the Constitution, upon which the result depends. Western U. Teleg. Co. v. Ann Arbor R. Co. 178 U. S. 239, 243, 44 L. ed. 1052, 1054, 20 Sup. Ct. Rep. 867; Lampasas v. Bell, 180 U. S. 276, 45 L. ed. 527, 21 Sup. Ct. Rep. 368; American Sugar Ref. Co. v. New Orleans, 181 U. S. 277, 281, 45 L. ed. 859, 861, 21 Sup. Ct. Rep. 646. The admitted duty of the Secretary of the Treasury was to construe as best he could the paragraph relating to collection of duty upon sugars, and to promulgate regulations for carrying it into effect. This, and this alone, he did. The only real, substantial point involved is whether or not he properly construed the statute; and that gives this court no jurisdiction upon direct appeal. Sloan v. United States, 193 U. S. 614, 620, 48 L. ed. 814, 817, 24 Sup. Ct. Rep. 570; Beavers v. Haubert, 198 U. S. 77, 85, 49 L. ed. 950, 25 Sup. Ct. Rep. 573. It may not be doubted that Congress, without violating any constitutional provision, could have, in terms, directed exactly what was prescribed by the Treasury regulations. If, attempting to act under the statute, executive officers have imposed an unauthorized burden upon appellant, no constitutional rights have been violated; there has been, at most, a misconstruction of the law. South Carolina V. Seymour (United 153 U. S. 353, 358, 38 L. ed. 742, 744, 14 States ex rel. South Carolina v. Seymour) Sup. Ct. Rep. 871; Linford v. Ellison, 155 U. S. 503, 508, 39 L. ed. 239, 241, 15 Sup. Ct. Rep. 179; Rawlins v. Georgia, 201 U. S. 638, 50 L. ed. 899, 26 Sup. Ct. Rep. 560, 5 A. & E. Ann. Cas. 783; Re Moran, 203 U. S. 96, 104, 51 L. ed. 105, 108, 27 Sup. Ct. Rep. 25. Mr. Chief Justice Fuller delivered the opinion of the court: The tariff act of July 24, 1897, provides: 209. Sugars not above number six-[158 teen Dutch standard in color, tank bottoms, syrups of cane juice, melada, concentrated melada, concrete and concentrated molasses, testing by the polariscope not above seventyfive degrees, ninety-five one-hundredths of one cent per pound, and for every additional degree shown by the polariscopic test, thirtyfive one thousandths of one cent per pound additional, and fractions of a degree in proportion; and on sugar above number sixteen |