196, Comp. Stat. 1913, § 8606), where there, failed to furnish such "couplers coupling was testimony showing that an engine automatically by impact" as the statute rehaving backed for the purpose of coupling quires (Johnson v. Southern P. Co. 196 U. the tender to a car, on a curve which the S. 1, 18, 19, 49 L. ed. 363, 369, 370, 25 Sup. jury were warranted in finding was SO slight as not to affect the case, and having Ct. Rep. 158, 17 Am. Neg. Rep. 412), nothWe are of failed to effect the coupling automatically ing else needs to be considered. by impact, the brakeman, noticing that the opinion that there was enough evidence to drawhead on the car was not in line with go to the jury upon that point. No doubt the one on the tender, put in his arm for there are arguments that the jury should the purpose of straightening it and thus have decided the other way. Some lateral making the coupling possible, and was in- play must be allowed to drawheads, and, jured. further, the car was on a curve, which, of course, would tend to throw the coupler out of line. But the jury were warranted in finding that the curve was so slight as not to affect the case, and in regarding the [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1020; Dec. Dig. 286(13).] [No. 111.] Argued November 16, 1916. cember 4, 1916. N ERROR to the Court of Errors and IN Decided De- track as, for this purpose, a straight line. If couplers failed to couple automatically upon a straight track, it at least may be said that a jury would be warranted in finding that a lateral play so great as to prevent coupling was not needed, and that, in the absence of any explanation believed by them, the failure indicated that the railroad had not fully complied with the law. Chicago, B. & Q. R. Co. v. United States, 220 U. S. 559, 571, 55 L. ed. 582, 586, 31 Sup. Ct. Rep. 612; Chicago, R. I. & P. R. Co. v. Brown, 229 U. S. 317, 320, 321, 57 Appeals of the State of New Jersey to review a judgment which affirmed a judg ment of the Supreme Court of that state in favor of plaintiff in an action brought under the Federal Safety Appliance and Employers' Liability Acts. Affirmed. See same case below, 87 N. J. L. 148, 93 Atl. 574. The facts are stated in the opinion. Messrs. Thomas E. French, Samuel H. Richards, and Charles Heebner for plaintiff in error. Mr. David O. Watkins for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is an action brought by the defendant in error to recover for the loss of an arm crushed while he was coupling a tender to a car. There is no dispute that the case is governed by the acts of Congress-the Safety Appliance Act of March 2, 1893, chap. 196, §§ 2, 8, 27 Stat. at L. 531, Comp. Stat. 1913, §§ 8606, 8612, and the Employers' Liability Act of April 22, 1908, chap. 149, §§ 3, 4, 35 Stat. at L. 65, Comp. Stat. 1913, §§ 8659, 8660. The facts material here are few. The engine had backed for the purpose of coupling with the car and had failed to couple automatically by impact. Thereupon the plaintiff, noticing that the drawhead was not in line with the one on the engine, put in his arm for the purpose of straightening it and thus making the coupling possible, and was caught. An exception was taken to the refusal of a ruling that no negligence was shown on the part of the railroad company, but the court of errors and appeals affirmed the judg ment of the court below. 87 N. J. L. 148, 93 Atl. 574. If there was evidence that the railroad L. ed. 1204-1206, 33 Sup. Ct. Rep. 840, 3 1. The contention that municipal ordinances, which subject the business of a private detective or detective agency to Police supervision, and provide that no person shall carry on such business without first being recommended by the board of police commissioners and taking the oath of a city detective and giving a bond, offend against the due process of law and equal protection of the laws clauses of U. S. Const. 14th Amend., is not so frivolous as not to serve as the basis of a writ of error from the Federal Supreme Court to a state court. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 1056; Dec. Dig. 394(10).] CONSTITUTIONAL LAW 238(1), 275(1) DUE PROCESS OF LAW-EQUAL PROTECTION OF THE LAWS-REGULATING PRIVATE DETECTIVES-POLICE POWER. 2. Municipal ordinances which subject the business of a private detective or detective agency to police supervision, and provide that no person shall carry on such For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes business without first being recommended by, the board of police commissioners and taking the oath of a city detective and giving a bond, do not offend against the due process of law and equal protection of the laws clauses of U. S. Const. 14th Amend., but are valid exercises of the police power. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. $$ 688, 695, 830, 839, 843; Dec. Dig. 238(1), 275(1).] CONSTITUTIONAL LAW 42-STATUTES -- 3. A nonresident private detective who made no effort to comply with municipal ordinances which subject the business of a private detective or detective agency to police supervision, and provide that no person shall carry on such business without first being recommended by the board of police commissioners and taking the oath of the city detective and giving a bond, cannot complain that in their enforcement an unconstitutional discrimination was made against citizens of other states. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 39, 40; Dec. Dig. 42.] [No. 103.] proved by the court of appeals and the judgment affirmed. The court of appeals rejected the contention that the ordinances were unreasonable and void under the Constitution of the state, to review which decision we, of course, have no power; and it also sustained the ordinances against the contention that they I offended the clauses of the 14th Amendment to the Constitution of the United States. The latter contention is repeated here. His contention, in its most general form, is that the ordinances abolish the occupation of private detective by the requirements of application for a permit to the police commission of the city, the approval of the chief of police, oath of office, and to work under police supervision. These requirements, it is insisted, offend the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States. The contention makes a Federal question, and, as we are not disposed to consider it Submitted November 14, 1916. Decided De frivolous, a motion to dismiss which is made cember 4, 1916. The facts are stated in the opinion. Messrs. John D. Little, Arthur G. Powell, Marion Smith, and Max F. Goldstein for plaintiff in error. Messrs. Samuel D. Hewlett and James L. Mayson for defendant in error. Mr. Justice McKenna delivered the opin ion of the court: will be denied. the facts of the complaint were established; In passing upon the merits we assume that is, that plaintiff in error was proved to have acted as a private detective, though ices were those of a "sleuth," though he he denied and denies it, and that his servasserts they were only those of a clerk. We make these assumptions against the denials of plaintiff in error because, to sustain the denials, he selects parts of the testimony only, and ignores also the deduction that it was possible to make even from that testimony. The only question for our decision is the validity of the law, and of that we have no enunciation. doubt. Nor are we disposed to take much time in its discussion, notwithstanding the The question in the case is the validity earnest argument of plaintiff in error. The of ordinances of the city of Atlanta, Geor-extent of the police power of the state has gia, which subject the business of a private been too recently explained to need further detective or detective agency to police superThe present case is easily vision, and provide that no person shall within its principle. It would be very comcarry on such business without being first monplace to say that the exercise of police recommended by the board of police comis one of the necessary activities of govern. missioners, and taking the oath of a city ment, and all that pertains to it may be detective, and giving a bond in the sum of subjected to regulation and surveillance as $1,000, as prescribed by the ordinances. a precaution against perversion. The Atlanta ordinances do no more. They provide in effect that all who engage in it or are connected with it as a business shall Plaintiff in error was convicted in the recorder's court of the city of a violation of the ordinances, and sentenced to pay a fine, with the alternative of imprisonment. Under the local procedure a petition for certiorari was presented to the judge of the superior court of the county to review the conviction, and was refused "sanction," to use the local word. This action was ap have the sanction of the state, have the stamp of the state as to fitness and character, take an oath to the state for faithful execution of its duties, and give a bond for their sanction. This the state may do against its own citizens and may do against For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes a citizen of Louisiana, which plaintiff in, upon a plea of guilty be suspended indefierror is, or against a citizen of any other nitely during good behavior upon considerations wholly extraneous to the legality of state. the conviction. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2554-2559; Dec. D.g. 1001.] [No. 11, Original.] But the ruling of the local officers in refusing approval of applications of nonresidents of Georgia is urged as a construction of the ordinances or laws of the state, and, it is contended, makes them discriminatory against citizens of other states. Plaintiff Argued January 10 and 11, 1916. Decided in error, however, admits he made no effort to comply with the ordinances. The court of appeals, therefore, was of opinion that, whether certain sections of the Penal Code We December 4, 1916. PPLICATION for a writ of mandamus A to the United States District Court Judge for the Northern District of Ohio, directing him to vacate an order suspending during good behavior the execution of a sentence to imprisonment. Rule made absolute. of the state did or did not exclude citizens of other states from engaging as private detectives, plaintiff in error was deprived of no constitutional right, for "as to him the ordinances were not construed at all." In The facts are stated in the opinion. other words, that he had not asserted a Attorney General Gregory, Assistant Atright, and, in the absence of assertion, torney General Wallace, and Solicitor Gencould not have it judicially passed on. concur in the ruling. It is within the principle of Gundling v. Chicago, 177 U. S. 183, 44 L. ed. 725, 20 Sup. Ct. Rep. 633. To complain of a ruling, one must be made the victim of it. One cannot invoke, to defeat a law, an apprehension of what might be done under it, and which, if done, might not receive judicial approval. Judgment affirmed. MANDAMUS 160(5) RULE TO SHOW 2. A rule to show cause why mandamus should not issue where a Federal district court has exceeded its power by ordering that the execution of a sentence to imprisonment imposed by it upon a plea of guilty be suspended indefinitely during good behavior upon considerations wholly extraneous to the legality of the conviction is properly directed to the judge, to compel the vacation of the order of suspension, rather than to the clerk of the court, to compel him to issue a commitment. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 331; Dec. Dig. 160(5).] CRIMINAL LAW 1001-SUSPENDING EXECUTION OF SENTENCE POWER OF FED ERAL COURT. 3. A Federal district court exceeds its power by ordering that the execution of a sentence to imprisonment imposed by it eral Davis for the United States. Mr. Edwin J. Marshall for respondent. Mr. John M. Killits, in propria persona, also for respondent. Messrs. Richard W. Hale, Frank W. Grin nell, Homer Folks, and Charles L. Chute as amici curiæ. Mr. Chief Justice White delivered the opinion of the court: The accused pleading guilty to an indictment charging him in several counts with embezzling the money of a national bank of which he was an officer, and making false entries in its books, in violation of § 5209, Revised Statutes (Comp. Stat. 1913, § 9772), was sentenced to imprisonment in the penitentiary for five years, the shortest term which, under the statute, could have been imposed upon him. At once at his request, over the objection of the United States district attorney, the court ordered "that the execution of the sentence be, and it is hereby, suspended during the good behavior of the defendant, and for the purpose of this case this term of this court is kept open for five years." The United States moved to set this order aside on the ground that, as it was not a mere temporary suspension of the sentence to enable legal proceedings pending or contemplated to revise it to be taken, or application for pardon to be made, or any other legal relief against the sentence to be resorted to, but, on the contrary, as it was a permanent suspension based upon considerations extraneous to the legality of the conviction or the duty to enforce the sentence, the order of suspension was void, as it was equivalent to a refusal to carry out the statute. tion was denied. In the opinion giving its reasons for so doing, the court, conceding that the suspension was permanent, stated The mo For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the general considerations which it deemed it was required to take into view in deciding whether the sentence should be enforced, conceding the legality of the conviction and sentence and their finality, as follows: "Modern notions respecting the treatment of law breakers abandon the theory that the imposition of the sentence is solely to punish, and now the best thought considers three elements properly to enter into the treatment of every criminal case after conviction. Punishment in some measure is still the object of sentence, but, affecting its extent and character, we consider the effect of the situation upon the individual, as tending to reform him from or to confirm him in a criminal career, and also the relation his case bears to the community in the effect of the disposition of it upon others of criminal tendencies." After pointing out the peculiar aptitude possessed by a trial judge for the appreciation of such conditions, and the imperative duty which rested upon such judge to consider and weigh the matters stated, and to determine, as an inherent attribute of judicial power, whether a permanent suspension of the term of imprisonment fixed by the statute should be ordered, the circumstances upon which it was concluded that a permanent suspension should be directed were stated in part as follows: "We took into account the peculiar cir cumstances under which his crime was com mitted, having regard to the temptations which from time to time encompassed him, and his personal necessities, and the purposes for which his appropriations were made. Also, the fact that his friends made his employers whole, and that otherwise he had so commended himself to the favor of his employers suffering by his crime, that they at all times, as well as now, evince a disposition to forgive his abuse of their confidence, and to support him against the punishment which the law provides. We find that otherwise than for this crime, his disposition, character, and habits have so strongly commended him to his friends, acquaintances, and persons of his faith, that they are unanimous in the belief that the exposure and humiliation of his conviction are a sufficient punishment, and that he can be saved to the good of society if nothing further is done with him." serve for the benefit of the United States that nothing exists in this case which moved the court to suspend the execution of sentence to prevent an abuse of the court's process, or to prevent an injustice being done to the defendant,' so far as it may be said that abstract justice required defendant to suffer for his crime. However, we considered the defendant from many standpoints to be as worthy of the benefit of the discretion to suspend the execution of his sentence as any other convict upon whom that favor has hitherto been bestowed." Following a written demand which was thereafter made upon the clerk to issue a commitment, which was refused by him on the ground that the sentence had been suspended, and the further refusal of the judge to direct the clerk to issue such commitment, the United States sought and obtained a rule to show cause why a mandamus should not be awarded directing the judge to vacate the order of suspension, under which the subject is now before us for consideration. The remedial appropriateness of the writ of mandamus is at the threshold questioned, but we dispose of the subject by a mere reference to adjudged cases conclusively establishing the want of foundation for the contention. Ex parte Bradley, 7 Wall. 364, 19 L. ed. 214; Life & Fire Ins. Co. v. Wilson, 8 Pet. 291, 8 L. ed. 949; Re Winn, 213 U. S. 458, 53 L. ed. 873, 29 Sup. Ct. Rep. 515; Re Metropolitan Trust Co. 218 U. S. 312, 54 L. ed. 1051, 31 Sup. Ct. Rep. U. S. 539, 55 L. ed. 575, 31 Sup. Ct. Rep. 18; Ex parte Metropolitan Water Co. 220 600. In addition, however, it is urged that, as the right to resort to the extraordinary remedy by mandamus must rest upon the assumption that the order of suspension was absolutely void, therefore the rule for the writ should have been directed not against the judge, but against the clerk, to compel him to issue the commitment. But we pass from its consideration, as we are of opinion that its want of merit will be completely demonstrated by the slightest appreciation of the judicial duties of the court below and the ministerial relation of the clerk of the court to the same. The return to the rule and the statement in support of the same lucidly portray the contentions involved in the question of pow After further elaborating considerations er to be decided, and the subject in all its of a like nature, and stating very many cir- aspects has been elaborately discussed, not cumstances confirming those mentioned, to only by the printed arguments of the parleave no room for doubt that its action was ties, but, in addition, light has been thrown intended to be permanent and was based on the general question by an argument subalone on the extraneous circumstances stat-mitted by the New York State Probation ed, the court said: Commission, explaining the statutory sys "Passing now to the concrete case, we ob- tem of parol prevailing in that state, and by an able argument presented by members | criminal laws, and, upon conviction, to imof the bar of the first circuit in behalf of a pose the punishment provided by law, is practice of mitigating or pretermitting, when deemed necessary, the statutory punishment for crimes, which it is declared has prevailed in the United States courts in that circuit for many years. judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanent The argument on behalf of the respondent concedes that the order of suspension was permanent, and absolutely removed the accused from the operation of the punishment provided by the statute; and it is further conceded that a suspension of this char-ly refuse to do so. And the effect of the acter was the equivalent of an absolute and permanent refusal to impose, under the statute, any sentence whatever. However absolute may be the right thus asserted, it is nevertheless said it is not without limitation, since it may not be capriciously called into play. Passing the question whether this assumed restriction is not in the nature of things imaginary as the result of the scope of the authority asserted, let us come to dispose of the contention made by examining the propositions relied upon to sustain it. They are: 1. That the right to refuse to impose a sentence fixed ly statute, or to refuse to execute such a sentence when imposed, is a discretion inhering in the judicial power to try and punish violations of the criminal law. 2. That even if there be doubt on this subject as an original proposition, such doubt is dispelled as the right was recognized and frequently exerted at common law. 3. That the power claimed has also been recognized by decisions of state courts and of United States courts of criginal jurisdiction to such an extent that the doctrine is now to be considered as not open to controversy. 4. That whatever may be the possibility of dispute as to this last view, at least it cannot be denied that in both the state and Federal courts, over a very long period of time, the power here asserted has been exercised, often with the express, and constantly with the tacit, approval of the administrative officers of the state and Federal governments, and has been also tacitly recognized by the inaction of the legislative department during the long time the practice has prevailed, to such an extent that the authority claimed has in practice become a part of the administration of criminal law, both state and Federal, not subject to be now questioned or overthrown because of mere doubts of the theoretical accuracy of the conceptions upon which it is founded. proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative, and includes the right in advance to bring within judicial discretion for the purpose of executing the statute elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment fixed by law and ascertained according to the methods by it provided, belongs to the executive department. The proposition might well be left with the demonstration which results from these considerations, but the disregard of the Constitution which would result from sustaining the proposition is made, if possible, plainer by considering that, if it be that the plain legislative command fixing a specific punishment for crime is subject to be permanently set aside by an implied judicial power upon considerations extraneous to the legality of the conviction, it would seem necessarily to follow that there could be likewise implied a discretionary authority to permanently refuse to try a criminal charge because of the conclusion that a particular act made criminal by law ought not to be treated as criminal. And thus it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments, and hence leave no law to be enforced. 2. The contention as to support for the proposition at common law. The common law is thus stated in Hale's Pleas of the Crown, vol. 2, chap. 58, p. 412: "Reprieves or stays of judgment or execution are of three kinds, viz.: "I. Ex mandato regis. "II. Ex arbitrio judicis. Sometimes the 1. The contention as to inherent judicial judge reprieves before judgment, as where power. Indisputably under our constitutional system the right to try offenses against the he is not satisfied with the verdict, or the evidence is uncertain, or the indictment insufficient, or doubtful whether within |