unless it be as to the effect of the Constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only."

And the court declined to make such limitation.

And in Trade-Mark cases, 100 U. S. 82, 99, the court said: "If we should, in the case before us, undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do, namely, make a trade-mark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances under the act of Congress, and in others under state law. Cooley, Const. Lim., 178, 179; Commonwealth v. Hitchings, 5 Gray (Mass.), 482."

And see United States v. Ju Toy, 198 U. S. 253, 262, 263. We think these principles apply to the case at bar, and that this order of the Secretary, undertaking to make a stringent regulation with highly penal consequences, is single in character, and includes commerce wholly within the State, thereby exceeding any authority which Congress intended to confer upon him by the act in question, if the same is a valid enactment. We, therefore, find it unnecessary to pass upon the other questions which were thought to be involved in the case at bar.

The judgment of the state court will be

Reversed and the cause remanded to it for further proceedings not inconsistent with this opinion.

MR. JUSTICE MCKENNA Concurs in the result.

203 U.S.

Syllabus.

ILLINOIS CENTRAL RAILROAD COMPANY v. ED

WARDS.

ERROR TO THE CIRCUIT COURT OF CARLISLE COUNTY, STATE OF KENTUCKY.

No. 12. Submitted December 14, 1905; Restored to docket December 18, 1906; Resubmitted April 16, 1906.--Decided December 17, 1906.

Decided on authority of Illinois Central Railroad v. McKendree, ante, p. 514.

Mr. J. M. Dickinson, Mr. Edmund F. Trabue and Mr. Blewett Lee for plaintiff in error.1

The Attorney General and The Solicitor General for the United States at the suggestion of the court, there being no brief filed for defendant in error.1

THIS case involves the same questions upon similar facts as No. 13, just decided. Counsel filed a written stipulation that it shall be controlled and determined by the ruling made in that case. The judgment is reversed, and cause remanded to the state court for further proceedings not inconsistent with this opinion.

MR. JUSTICE MCKENNA Concurs in the result.

GATEWOOD v. NORTH CAROLINA.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CAROLINA.

No. 105. Argued November 16, 1906.-Decided December 24, 1906.

In determining the constitutionality of a state statute this court must follow the construction given thereto by the highest court of the State; and a ruling by that court that the provisions of a statute prohibiting the purchasing of a commodity on margin, and the carrying on of "bucket 1 For abstracts of arguments see ante, pp. 520 et seq.

Argument for Plaintiff in Error.

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shops" for dealing in such commodity are separable is conclusive on this court, and refutes the contention of one convicted of carrying on a "bucket shop" that the law is void as to him because certain presumptions created by the statute in regard to the prohibitions of purchasing on margins may be repugnant to the Fourteenth Amendment; nor will this court determine that the creation of certain presumptions of guilt by a state statute is repugnant to the due process clause of the Fourteenth Amendment when the record does not show that the conviction sought to be reviewed was based on these presumptions and could not have been based on independent evidence.

138 N. Car. 149, affirmed

THE facts are stated in the opinion.

Mr. Robert W. Winston, with whom Mr. Victor S. Bryant was on the brief, for plaintiff in error:

The question presented is whether the act of 1905 of North Carolina is valid or invalid. Plaintiff in error contends that § 7 vitiates the entire act, it being inconsistent with the Constitution of the United States because it declares that the act shall not be construed so as to apply to any person, firm, corporation or his or their agent engaged in the business of manufacturing or wholesale merchandising in the purchase or sale of the necessary commodities required in the ordinary course of their business. Also that the presumptions created in the act are within the prohibition against the deprivation of property without due process of law. Connolly v. Union Pipe Co., 184 U. S. 540.

The act evidently means that a wholesale merchant or manufacturer or his agent, when engaged in purchasing or selling commodities required in the ordinary course of his business, is not liable to the provisions of such legislation. That is the conduct of a wholesale merchant, or his agent, buying or selling on margin, is not criminal or presumptively so, while another, in the like circumstances, is presumably guilty of a crime. The North Carolina Court declares that there may be good reasons for this discrimination, and whether good and sound or the contrary, that courts have no veto power upon such exercise of the police power. State v. Barrett, 50 S. E.

203 U.S.

Argument for Plaintiff in Error.

Rep. 506. The police power of the State does not extend so far as this. The Barrett case, supra, cited as authority for this position, fails to sustain it.

Section 7 is in the nature of a proviso to each of the other sections; and such connection is established by its phraseology. It qualifies section 1 and renders lawful for the excepted classes to do any of the prohibited acts as well as to buy and sell on margin.

The other sections of the act are concerned with the establishment of proof alone, and the creating of certain artificial and arbitrary presumptions from certain predicaments of fact, but § 7 is also to be appended to each as a proviso. Hence, notwithstanding the admission of any of the facts specified in these sections of the act by the manufacturer, or wholesale merchant, no presumption of guilt arises and he is relieved. from the burdensome and disgraceful presumption of crime which is cast upon all the other people under like circumstances. This conclusion cannot be avoided, because of the language of the law itself.

As to the unconstitutionality of the act by reason of the exemptions provided for therein, see Union Co. Nat. Bank v. Ozan Lumber Co., 127 Fed. Rep. 211; Brown v. Jacobs Pharmacy Co., 115 Georgia, 453; State v. Mitchell, 79 Maine, 66; Matthews v. People, 202 Illinois, 389; Standard Oil Co. v. Spartanburg, 66 S. Car. 37; Kellyville Coal Co. v. Harrier, 207 Illinois, 624; Greenwich Ins. Co. v. Carroll, 125 Fed. Rep. 129; Ballard v. Mississippi Cotton Oil Co., 81 Mississippi, 507; In re Pell, 181 N. Y. 48; People v. Orange Co. Road Co., 175 N. Y. 84; Texas v. Shippers' Compress &c. Co., 93 Texas, 603.

It is plain that the act of 1889 was a dead letter until the act of 1905 vitalized it by making certain innocent things presumptive evidence of guilt. By express legislative enactment, the act of 1905 is incorporated into the act of 1889, so that a retail merchant, under § 1 of the act of 1889, cannot recover if he sue upon a contract where he has put up a margin, but a wholesale merchant can recover under like conditions.

Argument for Defendant in Error.

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If only 7 of the act of 1905 is a discrimination in favor of the manufacturer and wholesale dealer, in so far as it relates to §5 of the act, then the whole act is just as effectually void as if the Supreme Court of the State had held all of said sections to be discriminative.

The act of 1905 is unusual in its artificial presumptions and in the manner in which it is engrafted upon the act of 1889 and it is not in harmony with the letter or spirit of the Constitution. The following cases are illustrative of the point at issue. Munn v. Illinois, 94 U. S. 113; Lawton v. Steele, 152 U. S. 133; Colon v. Lisk, 153 N. Y. 188.

Presumptions of guilt attempted to be raised by acts of legislatures are void. People v. Lyon, 27 Hun, 180; State v. Beswick, 13 R. I. 218; State v. Beach, 43 N. E. Rep. 951; Cummings v. Missouri, 4 Wall. 328; Wynehamer v. People, 13 N. Y. 446; San Mateo v. Railroad Co., 13 Fed. Rep. 722.

Mr. Walter Clark, Jr., by special leave of the court, with whom Mr. Robert D. Gilmer, Attorney General of the State of North Carolina, was on the brief, for defendant in error:

The State contends that § 7 of the act of 1905 does not in any way conflict with any provision of the Constitution of the United States or of the Fourteenth Amendment thereto. If it had read "this act shall not be construed so as to apply to any person, firm, corporation, or his or their agent, engaged in the business of manufacturing or wholesale merchandising," this might have been class legislation, exempting certain persons, and therefore unconstitutional. But this is not the whole of the section. It contains also "in the purchase or sale of the necessary commodities required in the ordinary course of their business." This gives these classes no right not given to everyone else. This section was added out of superabundant caution. It simply gives these classes the right to buy or sell for actual future delivery. The act does not prevent anyone from buying for actual future delivery, but makes it criminal for any person, firm, etc., to buy on margin for future delivery