In the Matter of Walter J. Gregory, Petitioner. riginal

• Decision Date: 03 January 1911
• Docket Number: O,No. 17,17
• Citation: 31 S.Ct. 143,55 L.Ed. 184,219 U.S. 210
• Parties: IN THE MATTER OF WALTER J. GREGORY, Petitioner. riginal
• Court: U.S. Supreme Court

219 U.S. 210

31 S.Ct. 143

55 L.Ed. 184

IN THE MATTER OF WALTER J. GREGORY, Petitioner.

No. 17, Original.

Argued December 5, 1910.

Decided January 3, 1911.

Messrs. John Hall Jones and W. Benton Crisp for petitioner.

[Argument of Counsel from page 211 intentionally omitted] Messrs. Edward H. Thomas, William Henry White, and Francis H. Stephens for respondent.

Mr. Justice Hughes delivered the opinion of the court:

This is a petition for a writ of habeas corpus. By information filed in the police court of the District of Columbia, the petitioner was charged with engaging 'in the business of a gift enterprise,' in violation of § 1177 of the Revised Statutes relatin to the District of Columbia. Thereupon an agreed statement of facts was filed, by which it appeared that the petitioner, as the managing officer of the Sperry & Hutchinson Company, was conducting, within the District, its business of issuing and redeeming so-called 'trading stamps' in the particular manner set forth. It was stipulated that the statement should be considered as a part of the information, and the petitioner made a motion to quash. This motion was sustained and the petitioner was discharged. On writ of error, the court of appeals of the District of Columbia reversed the judgment of the police court, and ordered the cause to be remanded for further proceedings in conformity with its opinion. Aplication was made to this court for a writ of certiorari, which was refused. 218 U. S. 673, 54 L. ed. 1205, 31 Sup. Ct. 223. The petitioner was then arraigned in the police court, pleaded not guilty, and waived trial by jury; and the case was submitted to the court upon the agreed statement. Judgment of guilty was entered, and the petitioner was sentenced to pay a fine. He then obtained leave of this court to file the present petition.

The only question before us is whether the police court had jurisdiction. A habeas corpus proceeding cannot be made to perform the function of a writ of error, and we are not concerned with the question whether the information was sufficient, or whether the acts set forth in the agreed statement constituted a crime, that is to say, whether the court properly applied the law, if it be found that the court had jurisdiction to try the issues and to render the judgment. Ex parte Kearney, 7 Wheat. 38, 5 L. ed. 391; Ex parte Watkins, 3 Pet. 193, 7 L. ed. 650; Ex parte Parks, 93 U. S. 18, 23 L. ed. 787; Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152; Re Coy, 127 U. S. 731, 32 L. ed. 274, 8 Sup. Ct. Rep. 1263; Gonzales v. Cunningham, 164 U. S. 612, 41 L. ed. 572, 17 Sup. Ct. Rep. 182; Re Eckart, 166 U. S. 481, 41 L. ed. 1085, 17 Sup. Ct. Rep. 638; Storti v. Massachusetts, 183 U. S. 138, 46 L. ed. 121, 22 Sup. Ct. Rep. 72; Dimmick v. Tompkins, 194 U. S. 540, 48 L. ed. 1110.24 Sup. Ct. Rep. 780; Hyde v. Shine, 199 U. S 62, 83, 50 L. ed. 90, 97, 25 Sup. Ct. Rep. 760; Whitney v. Dick, 202 U. S. 132, 136, 50 L. ed. 963, 964, 26 Sup. Ct. Rep. 584; Kaizo v. Henry, 211 U. S. 146, 148, 53 L. ed. 125, 126, 29 Sup. Ct. Rep. 41, This rule has recently been applied in a case where it was contended in a habeas corpus proceeding that the record should be examined to determine whether there was any testimony to support the accusation. And this court, affirming the judgment which discharged the writ, said by Mr. Justice Day: 'The contention is that, in the respects pointed out, the testimony wholly fails to support the charge. The attack is thus not upon the jurisdiction and authority of the court to proceed to investigate and determine the truth of the charge, but upon the sufficieney of the evidence to show the guilt of the accused. This has never been held to be within the province of a writ of habeas corpus. Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusions.' Harlan v. McGourin, 218 U. S. 448, ante, 47, 31 Sup. Ct. Rep. 47.

We come, then, to the grounds upon which the jurisdiction of the police court is assailed. It is urged that the prohibition contained in the statute under which the information was brought is unconstitutional, in that it violates the 5th Amendment of the Constitution of the United States by depriving the petitioner of liberty and property without due process of law. The information rested on § 1177 of the Revised Statutes relating to the District of Columbia, which makes it a crime 'in any manner' to engage 'in any gift-enterprise business' in the District. If this section be read alone, no basis appears for the argument of invalidity. It cannot be said that the words 'gift-enterprise business' are so uncertain as to make the prohibition nugatory, or that they necessarliy include conduct which lies outside the range of legislative interference in the exercise of the police power. While these words are general, they may be regarded as embracing a class of transactions which the legislature is competent to condemn. Thus, a 'gift enterprise' has been defined to be 'a scheme for the division or distribution of certain articles of property, to be determined by chance, amongst those who have taken shares in the scheme.' Bouvier's Law Dict. (Rawle's Rev.) p. 884; Black's Law Dict. p. 539; Anderson's Law Dict. p. 488. See also Lohman v. State, 81 Ind. 15, 17; Winston ston v. Beeson, 135 N. C. 271, 279, 65 L.R.A. 167, 47 S. E. 457; Randle v. State, 42 Tex. 580

But it is said that § 1177 must be read in connection with § 1176, which in turn has reference to the act of the legislative assembly of the District of Columbia, approved August 23, 1871. The argument in substance is that these statutes furnish a controlling definition of the words 'giftenterprise business,' as used in § 1177, and that if this be so, the section must be held unconstitutional.

The act passed in 1871 by the legislative assembly of the District of Columbia, to which reference is made, was entitled, 'An Act Imposing a License on Trades, Business, and Professions Practised or Carried on in the District of Columbia.' It provided as follows:

'The proprietors of gift enterprises shall pay $1,000 annually. Every person who shall sell or offer for sale any real estate or article of merchandise of any description whatever, or any ticket of admission to any exhibition or performance, or other place of amusement, with the promise, expressed or implied, to give or bestow, or in any manner hold out the promise of gift or bestowal, of any article or thing, for and in consideration of the purchase by any person of any other article or thing, whether the object shall be for individual gain or for the benefit of any institution, of whatever character, or for any purpose whatever, shall be regarded as a gift enterprise: Provided, That no such proprietor, in consequence of being thus taxed, shall be exempt from paying any other taxes imposed by law, and the license herein required shall be in addition thereto.' Laws of the District of Columbia, 1871-72, Part 2, pages 96, 97.

Congress, by act of February 17, 1873, chap. 148, 17 Stat. at L. 464, disapproved and repealed this legislation, and enacted the prohibitions which later were incorporated in § 1176 and 1177 of the Revised Statutes relating to the District of Columbia, as follows:

'Sec. 1176. So much of the...