within its limits, by virtue of general laws providing for such taxation, where no tax is levied upon the article or discrimination made against it by reason of the fact that it has come from another state; and it is maintained that the agreement in question acts directly upon the subject of interstate commerce, and adds a restraint to it which is unlawful, under the provisions of the statute.

In the view we take of this case, we are not called upon to decide whether the defendants are or are not engaged in interstate commerce, because, if it be conceded they are so engaged, the agreement, as evidenced by the by-laws, is not one in restraint of that trade, nor is there any combination to monopolize, or attempt to monopolize, such trade, within the meaning of the act.

It has already been stated in the Hopkins Case, above mentioned, that, in order to come within the provisions of the statute, the direct effect of an agreement or combination must be in restraint of that trade or commerce which is among the several states or with foreign nations. Where the subjectmatter of the agreement does not directly relate to and act upon and embrace interstate commerce, and where the undisputed facts clearly show that the purpose of the agreement was not to regulate, obstruct, or restrain that commerce, but that it was entered into with the object of properly and fairly regulating the transaction of the business in which the parties to the agreement were engaged, such agreement will be upheld as *not within the statute, where it can be seen that the character and terms of the agreement are well calculated to attain the purpose for which it was formed, and where the effect of its formation and enforcement upon interstate trade or commerce is, in any event, but indirect and incidental, and not its purpose or object. As is said in Smith v. Alabama, 124 U. S. 465, 473, 8 Sup. Ct. 564, 566: "There are many cases, however, where the acknowledged powers of a state may be exerted and applied in such a manner as to affect foreign or interstate commerce without being intended to operate as commercial regulations." The same is true as to certain kinds of agreements entered into between persons engaged in the same business, for the direct and bona fide purpose of properly and reasonably regulating the conduct of their business among themselves aud with the public. If an agreement of that nature, while apt and proper for the purpose thus intended, should possibly, though only indirectly and unintentionally, affect interstate trade or commerce, in that event we think the agreement would be good. Otherwise there is scarcely any agreement among men which has interstate or foreign commerce for its subject that may not remotely be said to, in some obscure way, affect that commerce, and to be therefore void. We think, within the plain and obvious construction to be placed upon the act, and following the rules in this regard al

ready laid down in the cases heretofore decided in this court, we must hold the agreement under consideration in this suit to be valid.

From very early times it has been the custom for men engaged in the occupation of buying and selling articles of a similar nature at any particular place to associate themselves together. The object of the association has in many cases been to provide for the ready transaction of the business of the associates by obtaining a general headquarters for its conduct, and thus to insure a quick and certain market for the sale or purchase of the article dealt in. Another purpose has been to provide a standard of business integrity among the members by adopting rules for just and fair dealing among them and enforcing the same by penalties for their violation. The agreements have been voluntary, and the penalties have been enforced under the supervision and by members of the association. The preamble adopted by the association in this case shows the ostensible purpose of its formation. It was not formed for pecuniary profits, and a careful perusal of the whole agreement fails, as we think, to show that its purpose was other than as stated in the preamble. In other words, we think that the rules adopted do not contradict the expressed purpose of the preamble, and that the result naturally to be expected from an enforcement of the rules would not directly, if at all, affect interstate trade or commerce.. The agreement now under discussion differsradically from those of U. S. v. Jellico Moun-tain Coal & Coke Co., 46 Fed. 432; U. S. v. Coal Dealers' Ass'n, 85 Fed. 252; and U. S.. v. Addyston Pipe & Steel Co., 29 C. C. A. 141, 85 Fed. 271. The agreement in all of these cases provided for fixing the prices of the articles dealt in by the different companies, being in one case iron pipe for gas, water, sewer, and other purposes, and coal in the other two cases. If it were conceded that these cases were well decided, they differ so materially and radically in their nature and purpose from the case under consideration that they form no basis for its decision. This association does not meddle with prices and itself does no business. In refusing to rec ognize any yard trader who is not a member of the exchange, we see no purpose of thereby affecting or in any manner restraining interstate commerce, which, if affected at all, can only be in a very indirect and remote manner. The rule has no direct tendency to diminish, or in any way impede or restrain, interstate commerce in the cattle dealt in by defendants. There is no tendency, as a result of the rule, directly or indirectly, to restrict the competition among defendants for the class of cattle dealt in by them. Those who are selling the cattle have the market composed of defendants, and also composed of the representative buyers of all the packing houses at Kansas City, and also of the various commission merchants who are con

stantly buying on orders and of those who are buying on their own account. This makes a large competition, wholly outside of the defendants. The owner of cattle for sale is therefore furnished with a market at which the competition of buyers has a broad effect. All yard traders have the opportunity of becoming members of the exchange, and to thus obtain all the advantages thereof.

The design of the defendants evidently is to bring all the yard traders into the association as members, so that they may become subject to its jurisdiction, and be compelled by its rules and regulations to transact business in the honest and straightforward manner provided for by them. If while enforcing the rules those members who use improper methods or who fail to conduct their business transactions fairly and honestly are disciplined and expelled, and thereby the number of members is reduced, and to that extent the number of competitors limited, yet all this is done, not with the intent or purpose of affecting in the slightest degree interstate trade or commerce, and such trade or commerce can be affected thereby only most remotely and indirectly; and if, for the purpose of compelling this membership, the association refuse business relations with those commission merchants who insist upon buying from or selling to yard traders who are not members of the association, we see nothing that can be said to affect the trade or commerce in question other than in the most roundabout and indirect manner. The agreement relates to the action of the associates themselves, and it places, in effect, no tax upon any instrument or subject of commerce; it exacts no license from parties engaged in the commercial pursuits; and prescribes no condition in accordance with which commerce in particular articles or between particular places is required to be conducted. Sherlock v. Alling, 93 U. S. 99; Smith v. Alabama, 124 U. S. 465, 473, 8 Sup. Ct. 564; Pittsburg & S. Coal Co. v. Louisiana, 156 U. S. 590, 598, 15 Sup. Ct. 459.

If for the purpose of enlarging the member-ship of the exchange, and of thus procuring the transaction of their business upon a proper and fair basis by all who are engaged therein, the defendants refuse to do business with those commission men who sell to or purchase from yard traders who are not members of the exchange, the possible effect of such a course of conduct upon interstate commerce is quite remote, not intended and too small to be taken into account.

The agreement lacks, too, every ingredient of a monopoly. Every one can become a member of the association, and the natural desire of each member to do as much business as he could would not be in the least diminished by reason of membership, while the business done would still be the individual and private business of each member, and each would be in direct and immediate competition with each and all of the other members. If

all engaged in the business were to become members of the association, yet, as the association itself does no business, it can and does monopolize none. The amount and value of interstate trade is not at all directly affected by such membership. The competition among the members and with others who are seeking purchasers would be as large as it would otherwise have been, and the only result of the agreement would be that no yard traders would remain who were not members of the association. It has no tendency, so far as can be gathered from its object or from the language of its rules and regulations, to limit the extent of the demand for cattle, or to limit the number of cattle marketed, or to limit or reduce their price, or to place any impediment or obstacle in the course of the commercial stream which flows into the Kansas City cattle market. While in case all the yard traders are not induced to become members of the association, and those who are such members refuse to recognize the others in business, we can see no such direct, necessary, or natural connection between that fact and the restraint of interstate commerce as to render the agree ment not to recognize them void for that reason. A claim that such refusal may thereby lessen the number of active traders on the market, and thus possibly reduce the demand for, and the prices of, the cattle there set up for sale, and so affect interstate trade, is entirely too remote and fanciful to be accepted as valid.

This case is unlike that of Hopkins v. Stave Co., 28 C. C. A. 99, 83 Fed. 912, to which our attention has been called. The case cited was decided without reference to the act of congress, upon which alone the case at bar is prosecuted, and the agreement was held void at common law as a conspiracy to wrongfully deprive the plaintiff of its right to manage its business according to the dictates of its own judgment. It was also said that the fact could not be overlooked that another object of the conspiracy was to deprive the public at large of the benefits to be derived from a labor-saving machine which seemed to the court to be one of great utility. No question as to interstate commerce arose and none was decided.

From what has already been said regarding rule 10, it would seem to follow that the other rules (11, 12, and 13) are of equal validity as rule 10, and for the same reasons. The rules are evidently of a character to enforce the purpose and object of the exchange as set forth in the preamble, and we think that for such purpose they are reasonable and fair. They can possibly affect interstate trade or commerce in but a remote way, and are not void as violations of the act of congress.

We are of opinion, therefore, that the order in this case should be reversed, and the case remanded to the circuit court of the United States for the Western division of the

632

The act of March 1, 1895 (2 Supp. Rev. St. p. 392), which extended the jurisdiction of the United States courts in the Indian Territory to capital cases, having also created the court of appeals in that territory, with power to entertain appeals and writs of error, the jurisdiction of such court to review judgments in capital as well as other cases is exclusive, and the supreme court has no appellate jurisdiction of such cases.

In Error to the United States Court in the Indian Territory.

Cyrus A. Brown, plaintiff in error in case No. 249, was indicted in the United States court for the Northern district of the Indian Territory, charged with the crime of murder, which indictment was filed in the United States court for the Indian Territory, Northern district, sitting at Muscogee, on the 10th day of December, A. D. 1896.

On the 17th day of December, A. D. 1897, he was convicted of the crime of murder in said court, and the judgment of the court sentencing him to death was made on the 24th day of December, A. D. 1897. On the 1st day of February, A. D. 1898, the plaintiff in error filed a petition in said court for a writ of error from the supreme court of the United States, and filed an assignment of errors. On February 8, A. D. 1898, a writ of error was allowed in said cause, and on the same day a citation was issued in said cause, service of which was acknowledged on the 16th day of February, A. D. 1898. Pursuant to the writ of error in said cause, a transcript of the record in said cause was filed in the office of the clerk of the supreme court of the United States on the 23d day of February, A. D. 1898. The government has filed its motion to dismiss the writ of error in said cause, for the reason that the supreme court of the United States has no jurisdiction under the law to entertain said writ of error, nor to pass upon any of the alleged errors in said record, because said court has no appellate jurisdiction of said cause.

George Curley, alias George Cully, plaintiff in error in case No. 250, was indicted in the United States court for the Northern district of the Indian Territory, sitting at Vinita, charged with the crime of murder, which indictment was filed in open court on the 21st day of October, A. D. 1897. On the same day the defendant took a change of venue to the United States court at Muscogee, and a

transcript of the record and the original indictment was forwarded to the clerk of the United States court at Muscogee, Indian Territory. On the 13th day of December, A. D. 1897, at the December term of the United States court for the Northern district of the Indian Territory, at Muscogee, the indictment heretofore found was referred to the grand jury; and upon the same day the grand jury returned into open court at Muscogee, Indian Territory, a new indictment against the defendant for murder. On the 22d day of December, A. D. 1897, the defendant was found guilty of the crime of murder; and on the 24th day of December, A. D. 1897, judgment of the court was pronounced upon said defendant, sentencing him to death.

On February 11, 1898, plaintiff in error, through his attorney, W. H. Twine, filed a petition for a writ of error from the supreme court of the United States, and also filed his specification of error. A writ of error was allowed on the 19th day of February, 1898; and on the 23d day of February, 1898, service of the citation issued out of this court was acknowledged. A transcript of the entire record was filed in the office of the clerk of the supreme court of the United States on March 1, 1898. The government has filed its motion to dismiss the writ of error in said case for the reason that the supreme court of the United States has no jurisdiction under the law to entertain said writ of error, nor to pass upon any of the alleged errors in said record. because said court has no appellate jurisdiction of said

cause.

Koogler & Watkins, for Brown. W. H. Twine, for Curley. Sol. Gen. Richards and P. L. Soper, for the United States.

*Mr. Justice SHIRAS, after stating the case in the foregoing language, delivered the opinion of the court.

By the act of congress approved March 1, 1889 (1 Supp. Rev. St. [2d Ed.] p. 670), there was established a United States court for the Indian Territory. The act conferred no jurisdiction over felonies, but by the fifth section exclusive original jurisdiction was conferred over all offenses against the laws of the United States committed within the Indian Territory, not punishable by death or by imprisonment at hard labor. Jurisdiction was conferred in all civil cases between citizens of the United States who are residents of the Indian Territory where the value of the thing in controversy shall amount to $100 or more. The final judgment or decree of the court, where the value of the matter in dispute, exclusive of costs, exceeds $1,000, may be reviewed and reversed or affirmed in the supreme court of the United States upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a circuit court.

On March 1, 1895, congress passed an act (2.

633

Supp. Rev. St. pp. 392–398, dividing the Indian Territory into three judicial districts, and providing for the appointment of two additional judges. This act extended the jurisdiction of the United States court in said territory to capital cases and other infamous crimes, the jurisdiction over which had theretofore been vested in the United States courts at Ft. Scott, Kan., Ft. Smith, Ark., and Paris, Tex., and provided that all such offenses should be prosecuted in the United States court in the Indian Territory after the 1st day of September, 1896.

The eleventh section is as follows:

"That the judges of said court shall constitute a court of appeals, to be presided over by the judge oldest in commission as chief justice of said court. And said court shall have such jurisdiction and powers in said Indian Territory and such general superintending control over the courts thereof as is conferred upon the supreme court of Arkansas over the courts thereof by the laws of said state, as provided by chapter forty of Mansfield's Digest of the Laws of Arkansas, and the provisions of said chapter, so far as they relate to the jurisdiction and powers of said supreme court of Arkansas as to appeals and writs of error, and as to the trial and decision of cases, so far as they are applicable, shall be and they are hereby extended over and put in force in the Indian Territory.

"And appeals and writs of error from said court in said districts to said appellate court in criminal cases shall be prosecuted under the provisions of chapter forty-six of Mansfield's Digest, by this act put in force in the Indian Territory."

These enactments clearly provide that writs of error in criminal cases shall be taken to the appellate court of the United States for the Indian Territory, and dispose of the question before us, unless there are other provisions of the acts of congress which prevent such a conclusion.

The counsel for defendants in error contend that the act of February 6, 1889 (1 Supp. Rev. St. [2d Ed.] p. 638), gave to the supreme court the right to review. The sixth section of that act is in the following words:

"That hereafter, in all cases of conviction of crime, the punishment of which provided by law is death, tried before any court of the United States, the final judgment of such court against the respondent shall, upon the application of the respondent, be re-examined, reversed or affirmed by the supreme court of the United States upon a writ of error, under such rules and regulations as said court may prescribe."

It will be observed that, when this law was passed, the United States court for the Indian Territory did not possess jurisdiction in capital cases. That jurisdiction was subsequently conferred. But, even if it be conceded that the provisions of the act of February 1, 1889, might have attached or become applicable to the judgments of the United

States court for the Indian Territory when jurisdiction in capital cases was "extended to that court, the intention of congress is manifested to have been otherwise by the provision above cited from the act of March 1, 1895, whereby it is provided that writs of error in capital cases shall be taken to the court of appeals of the United States for the Indian Territory.

This court had occasion to consider the effect of the act of February 6, 1889, in respect to the judgments of the supreme court of the District of Columbia in capital cases, in the case of Cross v. U. S., 145 U. S. 571, 12 Sup. Ct. 844, and it was there said:

"It is contended on behalf of the government that the writ of error will not lie because the supreme court of the District of Columbia is not a court of the United States, within the intent and meaning of the section. McAllister v. U. S., 141 U. S. 174, 11 Sup. Ct. 949, is cited, with the decisions referred to therein, as sustaining that view; but it is to be remembered that that case referred to territorial courts only, and, moreover, if the disposal of the motion turned on this point, the words 'any court of the United States' are so comprehensive that, used as they are in connection with convictions subject to the penalty of death, the conclusion might be too technical that congress intended to distinguish between courts of one class and of the other. But the difficulty with the section is that it manifestly does not contemplate the allowance of a writ of error to any appellate tribunal, but only to review the final judgment of the court before which the respondent was tried, where such judgment could not otherwise be reviewed by writ of error or appeal. It is the final judgment of a trial court that may be re-examined upon the application of the respondent, and it is to that court that the cause is to be remanded, and by that court that the judgment of this court is to be carried into execution. The obvious object was to secure a review by some other court than that which passed upon the case at nisi prius. Such review by two other courts was not within the intention, as the judiciary act of March 3, 1891, shows. This is made still clearer by the further provision that no such writ of error 'shall be sued out or granted unless a petition therefor shall be filed with the clerk of the court in which the trial shall have been had during the same term or within such time, not exceeding sixty days next after the expiration of the term of the court at which the trial shall have been had, as the court may for cause allow by order entered of record.' This language is entirely inapplicable to the prosecution of a writ of error to the judgment of an appellate tribunal affirming the judgment of the trial court. And the case before us shows this."

It is true that in the present cases the writs of error were sued out directly to the trial court, whereas in the Case of Cross the writ of error was taken to the judgment of the

supreme court of the District affirming the judgment of the trial court, and therefore some of the language quoted from the opinion in the latter case is not strictly applicable. But the reasoning of the court, showing that it was unlikely that congress intended a review by two other courts than the trial court, is applicable. It is not to be supposed that congress, when it provided by the act of March 1, 1895, for a review or writ of error in the court of appeals for Indian Territory, regarded the sixth section of the act of February 6, 1889, as also applicable.

The counsel for the defendants in error cite in their briefs the fifth and thirteenth sections of the act of March 3, 1891, establishing the United States circuit court of appeals, providing that appeals or writs of error may be taken from the district or circuit courts direct to the supreme court of the United States in cases of capital crimes, and providing that appeals and writs of error may be taken from the decisions of the United States court in the Indian Territory to the supreme court of the United States, or to the circuit court of appeals in the Eighth circuit, in the same manner and under the same regulations as from the circuit or district courts of the United States.

Of course, as, when this act was passed, the United States court in the Indian Territory had no jurisdiction over capital crimes, congress did not contemplate any appeal or writ of error in such cases. And when, by the act of March 1, 1895, jurisdiction of the United States court in the Indian Territory was extended to capital cases, and a court of appeals was established, with power to entertain appeals and writs of error, the act of March 3, 1891, cannot be regarded as applicable in such cases. Where a statute provides for a writ of error to a specified court of appeals, it must be regarded as a repeal of any previous statute which provides for a writ of error to another and different court.

The decisions of the court of appeals of the United States in the Indian Territory are final, except so far as they are made subject to review by some express provision of law. In the eleventh section of the act of March 1, 1895, it is provided that "appeals and writs of error from the final decision of said appellate court shall be allowed and may be taken to the circuit court of appeals for the Eighth judicial circuit in the same manner and under the same regulations as appeals are taken from the circuit courts of the United States"; but it is not claimed by the counsel for the plaintiff in error that this provision applies to capital cases; and see the case of Folsom v. U. S., 160 U. S. 121, 16 Sup. Ct. 222. It has been held by this court that the court established in the Indian Territory, though a court of the United States, is not a district or circuit court of the United States. In re Mills, 135 U. S. 268, 10 Sup. Ct. 763. We accept the contention of the solicitor general on behalf of the government, that the

court of appeals in the Indian Territory, being a court of the United States, is analogous to the supreme court of the District of Columbia, and bears the same relation to the trial court in the Indian Territory as the supreme court of the District of Columbia bore to the trial court in the District.

And it was held in Ex parte Bigelow, 113 U. S. 329, 5 Sup. Ct. 543, that no appeal could be taken or writ of error sued out to the supreme court of the District of Columbia in a capital case, the court saying: "No appeal or writ of error in such case as that lies to this court. The act of congress has made the judgment of that court conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain." In re Heath, 144 U. S. 92, 12 Sup. Ct. 615; Cross v. Burke,, 146 U. S. 84, 13 Sup. Ct. 22.

*Our conclusion is that we have no appellate jurisdiction of capital cases from the United States court for the Northern district of the Indian Territory, and that such appellate jurisdiction is vested exclusively in the United States court of appeals in the Indian Territory.

The motion is allowed, and the writs of error in these cases are dismissed.

(171 U. S. 658)

PEOPLE OF STATE OF NEW YORK ex rel. PARKE, DAVIS & CO. v. ROBERTS, Comptroller of State of New York.1 (October 31, 1898.)

No 21.

CORPORATIONS-STATE FRANCHISE TAX-CONSTITUTIONALITY OF STATUTE-SUPREME COURTREVIEW OF STATE DECISIONS-FEDERAL QUES

TION.

1. The New York statute imposing a franchise tax upon corporations doing business in the state (Laws 1880, c. 542, § 3, as amended by Laws 1885, c. 359) is not unconstitutional as denying to corporations organized under the laws of other states equal protection, because it exempts from the tax corporations wholly engaged in manufacturing or mining within the state, since it makes no discrimination between domestic corporations and those of other states in that regard.

2. The action of the comptroller of a state in determining the amount of capital employed in the state by a corporation of another state for purposes of taxation involves no federal question, and the decision of the state court affirming such action cannot be reviewed by the supreme court.

3. A state franchise tax upon private corporations, based on the amount of capital employed by the corporation in the state, is not affected by the character of the property in which the capital is invested, and is therefore not rendered illegal by the fact that such capital is employed in interstate or foreign com