Opinion of the Court.

tion can have no application to a New Madrid location prior to the return of the survey to the recorder is, in our opinion, not well founded and not supported by any of the authorities cited to prove that proposition. Right and justice calls for the application of the rule in this case, and no reason is seen why it should not be applied.

"The foregoing objections to the sheriff's deed were considered in the case of Hammond v. Johnston, 99 Mo. 198, but we have travelled over the ground again in view of the great value of the property involved and the earnest arguments made on the hearing of this case.

"3. There is another objection to the sheriff's deed not made or considered in the Hammond-Johnston case, and that is this, that it is void because the execution issued out of the Supreme Court instead of out of the circuit court. We hold that the sale was and is valid in this collateral proceeding, and in saying this we assume that it appears from the sheriff's return that the first piece of property sold brought more than enough to pay the costs, and that it appears from that return that the property in question was the second piece sold.

"With the foregoing conclusions it follows that the judgment should be, and it is, affirmed."

The judgment thus affirmed was in accordance with the judgment of the Supreme Court of the State of Missouri which was before this court in Hammond v. Johnston, 142 U. S. 73.

Mr. J. B. Henderson, for the defendants in error, moved to dismiss both actions upon the ground that "the whole question of title, in the judgment of the Missouri court, turned on the validity of the sheriff's sale," which was "a question purely of state law and not reviewable in this court."

Mr. D. T. Jewett and Mr. Leverett Bell opposing.

THE CHIEF JUSTICE: The writs of error are dismissed upon the authority of Hammond v. Johnston, 142 U. S. 73.

Statement of the Case.

In re SWAN, Petitioner.

ORIGINAL.

No. 10. Original. Argued November 20, 1893. — Decided December 18, 1893.

A writ of habeas corpus cannot be used to perform the office of a writ of error or appeal.

When a person is imprisoned under a judgment of a Circuit Court which had no jurisdiction of the person or of the subject-matter, or authority to render the judgment, and no writ of error or appeal will lie, then relief may be accorded by writ of habeas corpus.

S. claiming to act as a constable in the State of South Carolina, and to act under the statute of that State touching intoxicating liquors known as the Dispensary Act, seized without warrant and carried away a cask of liquor which had been brought into the State by a receiver operating a railroad under authority of the Circuit Court of the United States for that district, and was held by him as an officer of that court, awaiting its delivery to the consignee. The receiver applied to the court which appointed him, setting forth the facts, and praying that S. be attached and punished for contempt, and be required to restore the property. A rule to show cause issued and S. appeared and made answer. The court adjudged him to be guilty of contempt, ordered him to be imprisoned until he return the property, and when that should be done that he be imprisoned for a further period of three months, and until he should pay the costs.

Held,

(1) That the Circuit Court had jurisdiction;

(2) That its determination that the act of S. was illegal, and that he was in contempt, was not open to review in this proceeding; (3) That it was not necessary to determine whether he could be required to pay the costs, as he had not yet restored the goods, nor suffered the three months' imprisonment.

The possession of property by the judicial department, whether Federal or state, cannot be arbitrarily encroached upon, without violating the fundamental principle which requires coördinate departments to refrain from interference with the independence of each other.

By an order of the Circuit Court of the United States for the District of South Carolina in the case of F. W. Bound v. The South Carolina Railway Company and others, Daniel II. Chamberlain was appointed receiver of the railway company,

Statement of the Case.

and all of its property was placed under his care and management and protected by injunction. In the operation of the railroad as a common carrier, there was delivered to the receiver April 12, 1893, a barrel of liquor shipped by citizens of North Carolina from Statesville in that State, and consigned to their agents in Charleston, South Carolina. By reason of some confusion arising over the bill of lading, or from the markings on the barrel, there was difficulty in discovering the consignees, and the barrel was stored in the warehouse of the railroad company awaiting the result of an investigation in that particular.

An act of the general assembly of South Carolina, commonly called the Dispensary Law, and entitled "An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this State, except as herein provided," was approved December 24, 1892, and by its terms was to go into full operation July 1, 1803. Acts South Carolina, 1892, No. 28, p. 62.

On the first of August, 1893, while the matter of the ascer tainment of the consignee was being investigated and the barrel was in the warehouse of the receiver, freight unpaid, one C. B. Swan entered the warehouse, seized the barrel, took it out of the custody of the receiver, and deposited it in the jail of Charleston County, in the care of the sheriff. Swan showed no authority either from the consignee or the consignor of the goods, and produced no warrant by virtue of which the seizure was made. When questioned by the receiver, the sole authority referred to by him was his commission as a constable of the State. His suspicions had been excited respecting this barrel, it having been, presumably from necessity, removed from one part of the floor of the warehouse to another, and he acted on his suspicions. It was admitted that he took the course he did of his own motion without instructions from any one in the legal department of the State, and probably without instructions from any other person. After the seizure the goods remained in the place where deposited by Swan without any proceeding or application whatever until on August 7, 1893, the receiver filed his petition in the Circuit Court in the case in which he was appointed, setting forth the

Statement of the Case.

facts and praying that Swan be attached and punished for contempt of court in seizing the goods without warrant, and that he be compelled to restore them to the receiver's custody for delivery to the consignee. A rule to show cause was accordingly entered, to which Swan made answer, disclaiming any purpose to commit contempt of court, but justifying the seizure under the Dispensary Act, and making no offer to restore the goods. The court after full hearing ordered that the rule be made absolute, and committed him to the custody of the marshal to be imprisoned in the jail of Charleston County until he returned, "to the custody of the receiver, the barrel taken by him from the warehouse without warrant of law. And when that has been surrendered that he suffer a further imprisonment thereafter in said county jail for three months and until he pay the costs of these proceedings."

In its opinion, the court, (Simonton, J.,) after stating the facts, said: "Were this a simple case of interference with property in the hands and custody of this court, without notice to it, and without action on its part, its settlement would be easy. Were it even based upon a charge of violation of the law on the part of the receiver, and sustained by a mandate issuing from any proper authority, the court would not be slow to believe that the manner of the execution of the mandate arose from inadvertence, and would lend its aid to an investigation of the charge, and a due execution of the law. As a common carrier, the receiver is bound to respect and obey the laws of the State. He and the court from whom he holds his appointment are servants of the law, exceptionably bound to pay it the utmost deference and respect. But the real issue in this case is vastly more important than an interference with property in the hands of the court. It is far reaching in its consequences, and concerns, not only the receiver, but every other citizen. Has any constable the right, without warrant, to search premises, and to seize property, when he suspects that a violation of the law is intended?"

The various sections of the Dispensary Act were then considered and the result reached that a constable had no authority to so search and seize under the terms of the act, on general

Statement of the Case.

principles, or under. the constitution of South Carolina, and it was said in conclusion:

"In the case now before us there is not even the excuse for haste. The goods were stored and kept in a warehouse, not at a place for sale. No concealment whatever was practised. In his answer the respondent says that for several days he saw the package, and watched it. Any notification to this court would have absolutely secured him from any removal of it. Within his reach, at any hour of the day, he could have gone before any justice or judge, and could have obtained, or at least could have sought, a warrant. The process of law was within his reach. Even when he searched and seized the package, he openly disregarded the law. For eight days he remained inactive, taking no steps whatever to justify, support, or legalize his action. It does not appear even that he reported it to any one. His contempt of private rights went far beyond his disregard of the existence and authority of this court."

Swan, having been committed, presented his petition for the writ of habeas corpus, and a rule having been entered thereon, and a return having been duly made thereto, the application was heard by this court upon the petition and return, and the accompanying exhibits, which included the opinion, now reported in 57 Fed. Rep. 485.

By the first section of the Dispensary Act it was provided that after July 1, 1893, the manufacture, sale, barter, or exchange, or the keeping or offering for sale, barter, trade, or exchange, within the State, of intoxicating liquors, should be regulated and conducted as provided in the act.

The second section provided for the appointment of a commission to purchase all intoxicating liquors for lawful sale in the State and to furnish the same to persons designated as dispensers thereof, to be sold as prescribed.

In all purchases or sales made by the commissioner it was made his duty to cause a certificate to be attached to each and every package, "and without such certificate any package containing liquors which shall be brought into the State; or shipped out of the State, or shipped from place to place within