HORNER v. UNITED STATES et al.

On the 10th of August, 1891, a post-office inspector of the United States made complaint on oath before John A. Shields, a United States commissioner for the southern district of New York, that on the 29th of December, 1890, Edward H. Horner, of New York city, unlawfully deposited, and caused to be deposited, in the post-office at that city, in the state of New York, and in the southern district of New York, a certain circular, to be conveyed and delivered by mail, which in the contents thereof, thereafter set forth in the complaint, concerned a lottery, and which was then and there addressed to Joseph Ehrman, 70 Dearborn street, Chicago, Ill., and was inclosed in an envelope, with postage thereon prepaid, and carried by mail, and that the circular contained, among other things, what is set forth in the margin;1 the further contents of the complaint being also set forth therewith.

On the same day the commissioner issued a warrant to the marshal, commanding him to arrest Horner, and bring him before the commissioner. This was done, and Horner demanded an examination on the charge, which was had and completed; and the commissioner then certified that it appeared to him, from the testimony offered, that there was probable cause to believe Horner guilty of the offense charged in the warrant, and he committed Horner to the custody of the marshal, in default of $5,000 bail, to await the action of the grand jury. By consent, Horner was then discharged, on his own recognizance, until a day named, for the purpose of giving bail, and was subsequently discharged on bail, to await trial.

On the 17th of November, 1891, Horner was surrendered by his surety, and was committed by the commissioner, in default of $5,000 bail, to the custody of the marshal on the warrant, to await the action of the grand jury. On the same day, on the petition of Horner, presented to the circuit court of the United States for the southern district of New York, an order was made by that court that writs of habeas corpus and certiorari issue to the marshal and the commissioner, returnable on that day. Returns were made to the writs, and on the same day, after counsel were heard, the court, held by Judge WHEELER, made an order dismissing the writ of habeas corpus, and remanding Horner to the custody of the marshal. Horner thereupon took an appeal to this court, on November 17, 1891, and was discharged on bail, to abide the further action of the circuit court on the mandate of this court.

The complaint in this case is founded on section 3894 of the Revised Statutes of the United States, as amended by the act of September 19, 1890, chapter 908, (26 St. p. 465,) which reads as follows: 'No letter, postal-card, or circular concerning any lottery, so-called 'gift concert,' or other similar enterprise offering prizes dependent upon lot or chance, or concerning schemes devised for the purpose of obtaining money or property under false pretenses, and no list of the drawings at any lottery or similar scheme, and no lottery ticket, or part thereof, and no check, draft, bill, money, postal-note, or money order for the purchase of any ticket, tickets, or part thereof, or of any share or any chance in any such lottery or gift enterprise, shall be carried in the mail, or delivered at or through any post-office or branch thereof, or by any letter-carrier; nor shall any newspaper, circular, pamphlet, or publication of any kind containing any advertisement of any lottery or gift enterprise of any kind offering prizes dependent upon lot or chance, or containing any list of prizes awarded at the drawings of any such lottery or gift enterprise, whether said list is of any part or of all of the drawing, be carried in the mail, or delivered by any postmaster or letter-carrier. Any person who shall knowingly deposit or cause to be deposited, or who shall knowingly send or cause to be sent, anything to be conveyed or delivered by mail in violation of this section, or who shall knowingly cause to be delivered by mail anything herein forbidden to be carried by amil, shall be deemed guilty of a misdemeanor, and on conviction shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment, for each offense. Any person violating any of the provisions of this section may be proceeded against by information or indictment, and tried and punished, either in the district at which the unlawful publication was mailed, or to which it is carried by mail for delivery according to the direction thereon, or at which it is caused to be delivered by mail to the person to whom it is addressed.'

There are nine assignments of error in this case, six of which allege that the facts proved before the commissioner do not constitute a crime within section 3894, as amended; two of them are based on the claim that that section is unconstitutional; and the remaining one contends that that section is in violation of a treaty between the United States and Austria, and is therefore void.

It is contended on the part of the United States that, as the appeal in this case was taken on November 17, 1891, after the act entitled 'An act to establish circuit courts of appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes,' chapter 517, passed March 3, 1891, (26 St. p. 826,) went into effect, this court has no jurisdiction of this appeal, and that it ought to have been taken to the circuit court of appeals for the second circuit. But, as the constitutionality of section 3894, as amended, is drawn in question, an appeal in this case lies directly to this court from the circuit court, under section 5 of the act of March 3, 1891, which gives such appeal 'in any case in which the constitutionality of any law of the United States * * * is drawn in question.' This is in accordance with our decision in Nishimura Ekiu v. U. S., 142 U. S. 651, 658, 659, 12 Sup. Ct. Rep. 336, where it was said: 'As this case involves the constitutionality of a law of the United States, it is within the appellate jurisdiction of this court, notwithstanding the appeal was taken since the act establishing circuit courts of appeals took effect. Act March 3, 1891, c. 517, § 5; 26 St. pp. 827, 828, 1115.'

We are further of opinion that, where an appeal or writ of error is taken direct to this court under section 5 of the act of March 3, 1891, in a case in which the constitutionality of a law of the United States is drawn in question, this court acquires jurisdiction of the entire case, and of all questions involved in it, and not merely of the question of the constitutionality of the law of the United States. This is shown by the fact that under section 5, where an appeal or writ of error is taken direct to this court, in a case in which the jurisdiction of the district court or of the circuit court is in issue, it is specifically directed that 'the question of jurisdiction alone shall be certified to the supreme court from the court below for decision;' but there is no kindred limitation prescribed in regard to any of the other cases in which jurisdiction in this court of appeals or writs of error is given by section .

It is contended for Horner that the circular set forth in the complaint, relating to the redemption of the Austrian government bonds, is not included in the prohibition of section 3894 of the Revised Statutes, as amended, and that he committed no offense by depositing such circular in the mail. But we are of opinion that that question ought not to be reviewed by us on this appeal. The point raised is that the Austrian bond scheme was not a lottery. That is a question properly triable by the court in which an indictment may be found against Horner. He is now held to await the action of a grand jury. His case is in the regular course of criminal adjudication. It is not proper for this court, on this appeal, nor was it proper for the circuit court, on the writ of habeas corpus, to determine the question as to whether the scheme was a lottery. In re Luis Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. Rep. 1031; Stevens v. Fuller, 136 U. S. 468, 10 Sup. Ct. Rep. 911. The commissioner had jurisdiction of the subjectmatter involved, and of the person of Horner, and the grand jury would have like jurisdiction. The offense, if any, was committed within the southern district of New York. Whether the scheme was a lottery is a question to be determined in the administration of the jurisdiction. It is not for this court to determine that question in advance. The principle is the same as that involved in Re Tassett, 142 U. S. 479, 483, 484, 12 Sup. Ct. Rep. 295. The case presents for the determination of the court in which the indictment may be found the question as to whether the scheme was a lottery, and it is not for any court to determine it in advance, on habeas corpus. If an inferior court or magistrate of the United States has jurisdiction, a superior court of the United States will not interfere by habeas corpus. Ex parte Mason, 105 U. S. 696; Ex parte Carll, 106 U. S. 521, 1 Sup. Ct. Rep. 535; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. Rep. 935; Wales v. Whitney, 114 U. S. 564, 5 Sup. Ct. Rep. 1050; Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. Rep. 780; Benson v. McMahon, 127 U. S. 457, 8 Sup. Ct. Rep. 1240; In re Coy, 127 U. S. 731, 758, 8 Sup. Ct. Rep. 1263; In re Luis Oteiza y Cortes, 136 U. S. 330, 10 Sup. Ct. Rep. 1031; Stevens v. Fuller, 136 U. S. 468, 477, 478, 10 Sup. Ct. Rep. 911, and cases there cited.

The question of the constitutionality of section 3894, as amended, is disposed of by the decision of this court in Ex parte Rapier, 143 U. S. 110, 12 Sup. Ct. Rep. 374, which holds that it is constitutional.

The proposition that that section is void if it contravenes a treaty between the United States and Austria is not tenable. The statute is a law equally with the treaty, and, if subsequent and conflicting with the treaty, supersedes the latter. Head-Money Cases, 112 U. S. 580, 5 Sup. Ct. Rep. 247; Whitney v. Robertson, 124 U. S. 190, 8 Sup. Ct. Rep. 456; Chinese Exclusion Case, 130 U. S. 581, 9 Sup. Ct. Rep. 623.

The order of the circuit court, dismissing the writ of habeas corpus and remanding the accused, is affirmed.