4. The next assignment of error is based upon the refusal of the court to require an answer to interrogatory number 5, as to the number of Edmisson's cattle the agent of the commission company shipped from Curtis to Kansas City. To establish error in the refusal of the court, plaintiffs in error cite § 298 of the Civil Code of the territory, which provides that, in all cases, the jury shall render a general verdict, and the court shall, in any case, at "the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same." deposition of the bookkeeper, and that copies | 620); but the Oklahoma statute has made of the entries were made by the notary. But interest a part of the detriment caused by when the copies were offered as evidence the conversion of personal property. Other they were immediately objected to as incom-states have done the same. petent and immaterial and not the best evidence. The commission company was therefore put upon notice that the production of the books themselves would be insisted on. The notary was not trying the case, and before the court and jury who were trying it the objection to the copies of the entries were renewed. We think that the books should have been produced. They were intended as independent evidence,-independent of the witness from whose returns they were made. But if it should be granted their exclusion was error, it is difficult to see how the commission company was prejudiced. | The persons who received the cattle at the place they were delivered to the company, and the employee of the company who sold them after they were received, and from whose report the books were made up, all were permitted to testify. And it may be that the entries in the books were inadmissible for the other reasons given by the supreme court. They were not entries of any transaction relating to the cattle between the commission company and Edmisson. They were entries of sales made by the commission company after the cattle had been delivered to its agent and shipped to it by that agent. 3. Error is assigned upon the instruction of the court that, if the jury found a conversion of the property, 7 per cent interest should be added to its value from the time of its conversion. The contention is that interest can only be given in actions by a creditor against a debtor, and that § 2615 of the Oklahoma Statutes of 1893 controls. That section reads as follows: It certainly cannot be contended that the statute requires every interrogatory to be answered, however remote the fact it inquires about may be from the issue. The supreme court of the territory pointed out the fact inquired into was only incidental to the issue, and was, besides, undefined and uncertain as to time. The number of cattle shipped might have some bearing or relation of proof to the number delivered, which was the issue in the case, but, under the circumstances and conditions of the other proofs, it was within the discretion of the court to decide whether a specific answer should or should not have been required. Indeed, the interrogatory seems to have been improvi dently submitted, for the supreme court, in its opinion, says: "The evidence disclosed that a large number of Edmisson cattle had been shipped to Kansas City, in various shipments. Bryson testifies that the total number of cattle on the part of the plaintiff as to the number of cattle that were shipped. The entire controversy was as to the number of cattle that were delivered by the plaintiff to the agent of the defendant, and the number converted after allowing the defendant all that it was entitled to under and pursuant to the contract." [17 Okla. 353, 87 Pac. 314.] "In an action for the breach of an obliga-shipped was 2,578. There was no dispute tion not arising from contract, and in every case of oppression, fraud, or malice, interest may be given in the discretion of the jury." The supreme court of the territory rejected the contention, deciding that § 2640 governed the case. It provides as follows: "The detriment caused by the wrongful conversion of personal property is presumed to be: First. The value of the property at the time of the conversion, with the interest from that time." There was no error in this ruling. It may be that, in the absence of statute, the general rule is that in actions for tort the allowance of interest is not an absolute right (Lincoln v. Claflin, 7 Wall. 132, 19 L. ed. 106; The Scotland [Dyer v. National Steam Nav. Co.] 118 U. S. 507, 30 L. ed. 153, 6 Sup. Ct. Rep. 1174; District of Columbia v. Robinson, 180 U. S. 92, 45 L. ed. 440, 21 Sup. Ct. Rep. 283; Frazer v. Bigelow Carpet Co. 141 Mass. 126, 4 N. E. 28 S. C.-24. 5. Plaintiffs in error finally complain as ground of error of certain remarks by the court which, it is contended, were prejudicial. The supreme court replied to this assignment of error that no objection had been taken to the remarks complained of. Counsel now say that to have made objection would have made "a bad matter much worse." But we cannot accept the excuse. We have examined the remarks complained of, and we do not think they had the misleading strength that is attributed to them. At any rate, it was the duty of counsel to 689 A license tax imposed under municipal ordinance upon those engaged in selling beer in the city by the barrel, half barrel, or quarter barrel must be regarded, even when applied to interstate transactions in the original packages, as an exercise of the police power permitted by the Wilson act of August 8, 1890 (26 Stat. at L. 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177), subjecting intoxicating liquors arriving in a state to the laws of such state enacted in the exercise of its police powers, although the city may derive more or less revenue from the ordinance in question.* [No. 113.] | city council, as authorized by the state leg- Subsection 28 of 2 fixes the amount, upon the payment of which the license may be granted in such a case as this, as follows: "28. Breweries.-Each person, firm, corporation, dealer, brewer, brewery, agent or handler for a brewery, selling beer by the barrel, half barrel, or quarter barrel (this clause is not to include license for wholesale or retail vinous or spirituous liquors), $200." The statement of facts as agreed upon then continues as follows: "That the defendant herein is an individual who resides in Mobile, Alabama, and that he is engaged in the business of being a retail beer dealer, for which, under the Argued January 17, 1908. Decided Febru- exhibit hereto, he has paid the amount of ary 24, 1908. IN ERROR to the Supreme Court of the his license, as required by said ordinance for and during the fiscal year, beginning March 15, 1904, and ending March 14, 1905; and IN State of Alabama te review a judgment that said payment having been made, a li cense therefor was duly issued by the proper authorities of the city of Mobile, authorizing the defendant to carry on the business of retail beer dealer during said time; that the defendant, in addition to his other liquor which reversed a judgment of the City Court of Mobile, in that state, in favor of defendant in an action to recover a fine imposed for selling beer without a municipal license. Affirmed. See same case below, 146 Ala. 138, 40 So. business, carried on under the authority of 826. Statement by Mr. Justice Peckham: The plaintiff in error herein seeks to reverse a judgment of the supreme court of Alabama which reversed a judgment in his favor given by the city court of Mobile. The action was brought in the city court by the city of Mobile, by a written complaint, wherein the city sought to recover from the plaintiff in error (defendant in that court) the sum of $15, the amount of the fine imposed upon him by the recorder for the violation of what is termed the license ordinance of the city, approved March 14, 1904, by failing to obtain and pay for a license under the 28th subdivision of the 2d section of that ordinance, relating to the selling of beer in that city. The defendant filed a plea, setting up what he alleged was a defense. *Upon the trial in the city court the parties agreed upon a statement of facts. said paid license under said ordinance, has From such statement it appears that the *473 verdict was thereupon rendered in his favor. On appeal from the judgment to the supreme court it was reversed, the court holding that the trial court should have refused the request of the defendant, and directed the jury to find a verdict for the plaintiff. The case was therefore remanded with such directions. Messrs. Richard Wm. Stoutz and Walter * Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court: beer, to do with as he pleased; that he paid | with the request of the defendant, and a for it usually after its arrival, but never until a bill of lading for each such shipment so paid for had been received by the defendant at Mobile; that the packages in which said beer came were invariably kegs of the ordinary, usual, and customary commercial sizes in which the same is packed for sale and shipment, and that in such usual commercial original packages the same was taken from the car upon arrival at Mobile, and stored in the storehouse or warehouse of the defendant in the city of Mobile until sold by the defendant; that the defendant made sales of said kegs in quantities of one or more to his various customers in and about the city of Mobile and the vicinity thereof, and that such sales were made in contemplation by defendant of deliveries by the defendant in said kegs as original packages, and that the deliveries were thereafter made by delivery wagons owned and operated by the defendant in the city of Mobile to such customers in such original packages. That from the time of the packing and shipment of said beer at the breweries in other states than Alabama, until after sale and delivery thereof by the defendant to his various customers in the city of Mobile and the vicinity thereof, none of said kegs as original packages ever be came broken or open, but the deliveries by the defendant to his respective customers of said beer was always in the same, original, usual, commercial packages in which the same was packed and shipped from the breweries in said foreign states. That each and all of the kegs herein mentioned contained more than one quart of beer. That this mode of business has been conducted by the defendant since March 15, 1904, and still continues, and that, except as is herein above stipulated, the defendant, neither as a brewery, person, firm, corporation, dealer, brewer, brewery agent, or handler has ever It is insisted that Congress, by the passold beer by the barrel, half barrel, or quar-sage of the Wilson act, merely removed the ter barrel in the city of Mobile, Alabama, impediment to the states reaching the insince March 15, 1904. That nearly 50 per cent of all the offenses against the ordinances of the city of Mobile ordained to secure peace and order is brought about by the use of intoxicating liquors. Neither the license sued for nor the fine assessed by the recorder has been paid." The plaintiff in error asserts that a license tax, such as is provided in this ordinance, is a tax upon the seller of the goods under the license, and therefore a tax upon the goods themselves (Kehrer v. Stewart, 197 U. S. 60, 49 L. ed. 663, 25 Sup. Ct. Rep. 403), and, as they were brought into the state from another state, they cannot be taxed in their original packages, even under the Wilson act. 26 Stat. at L 313, chap. 728, U. S. Comp. Stat. 1901, p. 3177. The ordinance, it is said, is in the nature of a revenue act, and was not enacted in the exercise of the police powers of the state through the city. The Wilson act provides that the liquors, upon arrival in a state or territory to which the liquor may be sent, shall be subject to the operation and effect of the laws of the state or territory, enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such state or territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise. terstate liquor through the police power, and that it intended to, and did, keep in existence any other impediment to state interference with interstate commerce in original packages. But we are of opinion that this section of the ordinance was clearly an exercise of The case was submitted to the jury upon the police power of the state, and, as such, this agreed statement. authorized by the act of Congress. The fact that the city derives more or less revenue from the ordinance in question does not tend to prove that this section was not adopted in the exercise of the police power, even though it might also be an exercise of the power to tax. The police power is a very extensive one, and is frequently exThe court charged the jury in accordance ercised where it also results in raising a The plaintiff, the city of Mobile, asked the court to charge the jury that, if they believed the evidence, they must find for the plaintiff. The defendant also asked the court to charge the jury that, if they believed the evidence in this case, they ought to find for the defendant. 478 (208 U. S. 480) EDWARD E. RICHARD and Ralph G. V. CITY OF MOBILE. No. 113, ante, 370. revenue. The police powers of a state form a portion of that immense mass of legislation which embraces everything within the territory of a state not surrendered to the general government; all which may be most advantageously exercised by the states themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for the regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc., are component | Argued January 17, 1908. Decided Febru. parts of this mass. Gibbons v. Ogden, 9 Wheat. 1-203, 6 L. ed. 23-71; New York v. [No. 112.] ary 24, 1908. PPEAL from the Circuit Court of the Miln, 11 Pet. 102, 139, 141, 9 L. ed. 648, 662, A United States for the Southern Dis trict of Alabama to review a judgment sus ter A. White for appellants. Messrs. Richard Wm. Stoutz and Wal Mr. Burwell Boykin Boone for appellee. Mr. Justice Peckham delivered the opinion of the court: This is an appeal from a judgment of the circuit court of the United States for the 663; Barbier v. Connolly, 113 U. S. 27, 31, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357. The sale of liquors is confessedly a sub-taining a demurrer to, and dismissing, a ject of police regulation. Such sale may be bill which seeks to enjoin a municipality from collecting a municipal license tax upon absolutely prohibited, or the business may be controlled and regulated by the imposi- persons selling beer by the barrel, half bartion of license taxes, by which those only rel, or quarter barrel. Affirmed. who obtain licenses are permitted to engage in it. Taxation is frequently the very best and most practical means of regulating this kind of business. The higher the license, it is sometimes said, the better the regulation, as the effect of a high license is to keep out from the business those who are undesirable, and to keep within reasonable limits the number of those who may engage southern district of Alabama, sustaining the in it. We regard the question in this case as covered in substance by prior decisions demurrer of the city of Mobile to a bill filed of this court. See Vance v. W. A. Vander- by the appellants, and dismissing the same. cook Co. 170 U. S. 438, 446, 42 L. ed. 1100, It appears that the appellants sought to ob1103, 18 Sup. Ct. Rep. 674; Reymann Brew-tain an injunction to restrain the city from ing Co. v. Brister, 179 U. S. 445, 45 L. ed. 269, 21 Sup. Ct. Rep. 201; Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 25, 49 L. ed. 925, 928, 25 Sup. Ct. Rep. 552; Delamater v. South Dakota, 205 U. S. 93, 51 L. ed. 724, 27 Sup. Ct. Rep. 447. Even where the subject of transportation is not intoxicating liquor, this court has held that goods brought in the original packages from another state, having arrived at their destination, and being at rest there, may be taxed, without discrimination, like other property within the state, even while in the original packages in which they were brought from another state. American Steel & Wire Co. v. Speed, 192 U. S. 500, 48 L. ed. 538, 24 A. N. ARMSTRONG, Warden of the State Sup. Ct. Rep. 365. *This license tax is exacted without reference to the question as to where the beer was manufactured, whether within or without the state, and hence there is no discrimination in the case. collecting the amount of the license tax imposed under the ordinance of the city upon those who were engaged in selling beer in the city by the barrel, half barrel, or quar ter barrel. *The question involved is, as counsel for appellants admits, identical with that which has just been decided in the foregoing case, No. 113 [208 U. S. 472, 52 L. ed. Sup. Ct. Rep. 370], and for the reasons therein stated the judgment of the Circuit Court is affirmed. 28 (208 U. S. 481) CHARLES UGHBANKS, Plff. in Err., V. Prison at Jackson, Michigan. deci Courts following state court sions statutory construction. 1. A decision of the highest state court, that the Michigan indeterminate sentence act (Public Acts 1903, No. 136) was not repealed as to those sentenced under it by Public Acts 1905, No. 184, will be followed by the Federal Supreme Court on writ of error to the state court.* Constitutional law― due process of law - equal protection of the laws. 2. A person sentenced under the Michigan •Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, §§ 950-95% *481 *480 482 indeterminate sentence act (Public Acts | not be heard or considered for the reason 1903, No. 136) after having been twice be- that it appeared that he had been twice before convicted of felony is not imprisoned fore convicted of a felony, and the act prowithout due process of law or denied the vides that no person who has been twice equal protection of the laws because he is deprived by that act, of the privilege therein previously convicted of a felony shall be accorded to other convicts at the end of the eligible to parole. minimum term of the sentence to make application for parole, although the statute gives no hearing upon the question of prior conviction. [No. 435.] Submitted January 20, 1908. Decided February 24, 1908. I State of Michigan u review a judgment N ERROR to the Supreme Court of the denying an application for writ of habeas corpus. Affirmed. Statement by Mr. Justice Peckham: After the expiration of the maximum term named in the sentence, being still detained in prison under the claim that the law provided a maximum term of imprisonment of five years in such a case as his, which term had not elapsed, the plaintiff in error applied to the supreme court of Michigan for a writ of habeas corpus to obtain his discharge, and, upon the denial of the application, brought the case here. Messrs. John B. Chaddock and George E. Nichols for plaintiff in error. Messrs. John E. Bird and Henry E. Chase for defendant in error. *This writ of error brings up a judgment Mr. Justice Peckham, after making the of the supreme court of Michigan, denying foregoing statement, delivered the opinion the application of the plaintiff in error for of the court: a writ of habeas corpus, to inquire into the cause of his detention in, and to obtain his discharge from, the state prison at Jackson. It appears from the record that on the 17th of March, 1904, the plaintiff in error was proceeded against in the circuit court for the county of Washtenaw, in the state of Michigan, on an information filed by the prosecuting attorney for that county, charging the plaintiff in error with having committed the crime of burglary on the 15th of March, 1904. Upon being arraigned upon such information he pleaded guilty and was, on the day mentioned, sentenced under the indeterminate sentence act of the state to be confined in the state prison at Jackson at hard labor for a period not less than one year and not more than two years. Public Acts of Michigan, 1903, No. 136. His term of imprisonment, counting the maximum period for which he was sentenced, ended, as he asserts, on March 17, 1906, even without any deduction for good behavior. In his petition for the writ, plaintiff in error stated that, by the record kept and retained by the warden of the Michigan state prison at Jackson, it appeared, as plaintiff in error was advised, that he had been twice before convicted of felony, and that he had served four years in Kingston, Canada, and four years in Jackson, Michigan, on account thereof, and that he was a resident of Canada, and had never resided in the state of Michigan or in the United States. He made application at the end of the minimum term of his sentence to the advisory board, provided for by 8 4 of the above act, for his discharge on parole, but he was notified that his application could An act providing for an indeterminate sentence was first passed in Michigan in 1889, and was declared unconstitutional by the supreme court of that state. People v. Cummings, 88 Mich. 249, 14 L.R.A. 285, 50 N. W. 310. A constitutional amendment was subsequently adopted (1901), which authorized the legislature to provide for an indeterminate sentence law, as punishment for crime, on conviction thereof. Art. 4, § 47, Constitution of Michigan, as amended. Under the authority of this amendment the legislature, in 1903, passed act No. 136 of the Public Acts of that year. This act was held to be valid. Re Campbell, 138 Mich. 597, 101 N. W. 826; Re Duff, 141 Mich. 623, 105 N. W. 138. An act of a character very similar has been held to violate no provision of the Federal Constitution. Dreyer v. Illinois, 187 U. S. 71, 47 L. ed. 79, 23 Sup. Ct. Rep. 28. While the act in question here was in force, the crime of plaintiff in error was committed, and on the 17th of March, 1904, he was sentenced as already stated. The sentence fixed the maximum as well as the minimum term of imprisonment, but the fixing of the maximum term in the sentence has been held to be void, as not intended or authorized by the law of 1903 in any case where the statute providing for the punishment of a crime itself fixes the maximum term of imprisonment at a certain number of years. Re Campbell and Re Duff, supra. In this case, where the maximum term for burglary is fixed by the statute at five years, the sentence fixing that term at two years was simply void, and the maximum term of imprisonment fixed by the statute 485 483 |