the laws because it excepts from Its operation druggists, manufacturers, persons who give away liquors in their private dwellings, and railway corporations dispensing liquors in dining and buffet cars under state license. 2. The equal protection of the laws is not denied by a state local option law under which the traffic in intoxicating liquors may be 8. 4. made a crime in certain territory and per mitted elsewhere. An objection that the equal protection of the laws is denied to alleged violators of a state local option law because the selection of the jurors for the trial of such offenses is not restricted, as in other cases, to the dis trict in which they are committed, cannot be raised in advance of the trial. A state local option law does not violate the due process of law clause of the Federal Constitution by vesting legislative powers in the judiciary, because it fails to define the words "wholesale" and "retail," as used in that act, and commits to the courts the pow er to fix the punishment for third and subsequent offenses by imposing a fine of not less than $200 and imprisonment of not more than sixty and not less than ten days. [No. 262.] was not within any of the exceptions of the law. In the petition for habeas corpus it was alleged that plaintiff in error was arrested by a constable of the township of Cambridge, upon a warrant issued by a justice of the peace in and for the township of Center, Guernsey county, Ohio, which township is outside of the geographical boundaries of the city of Cambridge, where the violation of the law was claimed to have occurred. That, by virtue of the arrest, plaintiff in error was committed to jail in the county of Guernsey, and there imprisoned by J. B. Dollison, the sheriff of the county. The petition alleged that the law violated the Constitution of the state in certain particulars. We omit the allegations, as the their sufficiency, and its judgment is not supreme court of the state decided against open to our review. Wherein the law offends the Constitution of the United States was expressed as follows: "It contravenes § 1, article 14, of the Constitution of the United States, in that it de Argued April 28, 29, 1904. Decided May nies to this defendant and other persons IN 16, 1904. IN ERROR to the Supreme Court of the State of Ohio to review a judgment which affirmed a judgment of the Circuit Court of Guernsey County in that State remanding to custody the petitioner in a writ of habeas corpus to test the constitutionality of the Ohio local option law. Affirmed. See same case below, 68 Ohio St. 688, 70 N. E. 1131. The facts are stated in the opinion. Messrs. Frank S. Monnett, D. F. Pugh, and R. M. Nevin for plaintiff in error. Messrs. W. B. Wheeler and A. V. Taylor for defendant in error. Mr. Justice McKenna, after stating the case, delivered the opinion of the court: The plaintiff in error was committed to custody upon a warrant for violating the law of Ohio called the "Beal Local Option Law." He petitioned in habeas corpus for his discharge to one of the judges of the state, having jurisdiction. On hearing he was remitted to custody, and the judgment was affirmed by the supreme court of the state. This writ of error was then sued out. The question involved is the constitutionality of the law. The facts constituting the violation of the law were alleged to be the unlawful selling and furnishing to one E. L. Scott, a resident of the city of Cambridge, six pints of beer, and with keeping a place where intoxicating liquors are kept for sale, given away, and furnished for beverage purposes. The sale within its jurisdiction the equal protection of the law; it deprives said defendant and other citizens of their liberty and property without due process of law; it contravenes article 5 of the Constitution of the United States; it contravenes article 6 of the Constitution of the United States, in that the accused cannot enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime is and shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, in this, to wit: that said jury cannot be selected by any previ ously enacted law from the territorial district, to wit, of the city of Cambridge, which district, and within which district alone, said crime, if any, is, was, and could have been committed." All of these objections, however, are not open to the plaintiff in error to make. It is well established that the first eight articles of the amendments to the Constitution of the United States have reference to powers exercised by the government of the United ElStates, and not to those of the states. lenbecker v. District Court, 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424. Our consideration, therefore, must be confined to the contentions under the 14th Amendment. Those contentions are that the Ohio statute denies plaintiff in error the equal protection of the law, and deprives him of liberty and property without due process of law. The first contention can only be sustained if the statute treat plaintiff in error differ *447 *448 ently from what it does others who are in the same situation as he, that is, in the same relation to the purpose of the statute. The statute is too long to quote at length. It is a local option law. It permits the municipal corporations of the state to prohibit "the selling, furnishing, and giving away of intoxicating liquors as a beverage, or the keeping of a place where such liquors are sold, kept for sale, given away, or furnished." It excepts druggists in certain cases, and manufacturers when selling in wholesale quantities to "bona fide dealers trafficking in intoxicating liquors, or in wholesale quantities to any party residing outside of the limits of said municipality." What constitutes a "giving away" is expressed in the statute as follows: "The words, 'giving away,' where they occur in this act, shall not apply to the giving away of intoxicating liquors by a person in his private dwelling, unless such private dwelling is a place of public resort." By a subsequent statute it was enacted that each railway corporation which shall maintain or conduct dining or buffet cars upon any one of its trains, and shall desire to dispense intoxicating liquors on such cars, may do so by obtaining a license from the state, upon the payment of $300 or $700, accordingly as the corporation operates either 200 or 700 miles of railway within the state. It is not clear whether plaintiff in error relies on that act as a part of the other, and an addition to its discriminations. Assuming him to do so, the exceptions in the statute are druggists, manufacturers, persons who give away liquors in their private dwellings, and railway corporations dispensing liquors in dining and buffet cars, under state license. These exceptions constitute the inequalities of the statute upon which plaintiff in error bases his contention. He is not one of the excepted classes. He is a retail dealer of liquor; maybe a saloon keeper, but of that the record does not clearly inform us. If, between his occupation and the excepted occupation, there is such difference as to justify a difference of legislation, necessarily he cannot complain; and, we think, there is a manifest difference. It is equally manifest if we should regard him as "giving away" his liquor. That act may not have the same objectionable consequences when done in a private dwelling as when done in a saloon or other place of business. The state may look beyond the mere physical passing of liquor from one person to another, and regard and constitute the place where it is done the essence of the offense. But even if the discriminations of the statute were less obviously justifiable, we might not be able to condemn them. Missouri, K. & T. R. Co. v. 24 S. C.-45. May, 194 U. S. 267, ante, 638, 24 Sup. Ct. Rep. 638. Plaintiff in error further urges that to make an act a crime in certain territory and permit it outside of such territory is to deny to the citizens of the state the equal operation of the criminal laws; and this he charges against, and makes a ground of objection to, the Ohio statute. This objection goes to the power of the state to pass a local option law; which, we think, is not an open question. The power of the state over the liquor traffic we have had occasion very recently to decide. We said, affirming prior cases, the sale of liquor by retail may be absolutely prohibited by a state. Cronin v. Adams, 192 U. S. 108, ante, p. 219, 24 Sup. Ct. Rep. 219. That being so, the power to prohibit it conditionally was asserted, and the local option law of the state of Texas was sustained. Rippey v. Texas, 193 U. S. 504, ante, p. 516, 24 Sup. Ct. Rep. 516. The next contention of plaintiff in error is that under the statute he is not on equal terms with all others accused of crime. He attempts to support this contention by a provision of the Constitution of Ohio, and a decision of the supreme court of that state. By the Constitution of the state those charged with crimes are guaranteed "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." The supreme court, considering this provision, said in Cooper v. State, 16 Ohio St. 328: "The right of the accused to an impartial jury cannot be abridged. To secure this right it is necessary that the body of triers should be composed of men indifferent between the parties, and otherwise capable of discharging their duty as jurors. This duty is enjoined by the Constitution, and, it is true, cannot be impaired, or the right abridged by legislative action." Applying the Constitution and the decision, plaintiff in error asserts that the district in which his offense was committed was necessarily the area of the operation of the statute, and it is only jurors selected from such district that will be indifferent between the state and him. It is only such jurors, he urges, that are his peers; and he defines a peer to be one "capable of committing a like crime, and suffering a like punishment, and liable to a like disgrace." There are two answers to the contention. First, it must be inferred from the decision of the supreme court in the case at bar that plaintiff in error does not construe correctly either the Constitution of the state or the opinion he cites. Second, plaintiff in error has not yet been tried. What the courts of the state may decide as to juries we do not 450 *451 wish to anticipate; and plaintiff in error cannot complain until he is made to suffer. The final contention of plaintiff in error is that the statute of Ohio deprives him of due process of law. The only additional argument advanced on this contention is that the statute does not define the words "wholesale" and "retail," and fails to limit the amount of the fine or penalty to be imposed by the court. This omission of the general assembly, it is said, vests legisla at a foreclosure sale, who has no other connection with the mortgage contract than that arising from his purchase for a sum sufficient to pay the mortgage debt, is impaired by changes in the law subsequent to the execu tion of the mortgage, but prior to the sale, with reference to the time of redemption and the rate of interest payable in order to redeem. [No. 263.] tive power in the judiciary, which cannot be Submitted April 26, 1904. Decided May 16, done in a republican form of government. Of this contention we need only observe that if a case can exist in which the kind or 1904. degree of power given by a state to its tri-IN ERROR to the Supreme Court of the bunals may become an element of due process under the 14th Amendment, it would have to be a more extreme example than the Ohio statute. Wholesale and retail are pretty well known terms, and present less uncertainties than many terms submitted to courts for interpretation. Besides, would it not be strange to hold that a statute unaccompanied by a glossary of its terms leaves unfulfilled the legislative power? State of California to review a judgment which affirmed a judgment of the Superior Court of the County of Los Angeles in that State dismissing on the merits a complaint in an action by a purchaser at a foreclosure sale to cancel a deed executed by the sheriff to a judgment creditor of the mortgagor upon the payment of the sum required to redeem the land from the foreclosure sale, pursuant to a statute enacted subsequent to the execution of the mortgage, but prior to the sale, and to secure a conveyance of such property to himself as such purchaser. Affirmed. See same case below, 137 Cal. 663, 70 Pac. 778. Statement by Mr. Justice Peckham: The statute declares a person guilty of a violation of its provisions to be guilty of a misdemeanor, and imposes a penalty for a first and second offense, a maximum and minimum fine, and for any subsequent offense a fine of not less than $200 and imprisonment of not more than sixty days and not less than ten days. Ohio Rev. Stat. §§ The plaintiff in error commenced this ac 4364-206. As we understand the argument tion in the proper state court to procure a of plaintiff in error, his objection is directed decree canceling a deed of the premises mento the penalty for the third and subsequent tioned in the complaint, executed by the deoffenses. We might dispose of the objection fendant Hammel to the defendant Rhodes, by saying it anticipates the future too and also directing that a deed should be exemuch. He is not now concerned with that cuted to the plaintiff by defendant Hammel penalty. He has not yet been convicted of aor Burr, or both, conveying the same propfirst offense, as far as the record shows. Indeed, the charge against him presumably is based on his first offense. But considering him entitled to make the objection, we may answer*it and close the discussion by observing that it is not an extreme discretion to commit to the judgment of a court, in the manner provided by the Ohio statute, the amount of punishment to fix for illegal liquor selling. Judgment affirmed. (194 U. S. 415) JOHN D. HOOKER, Plff. in Err., v. JOHN BURR, A. W. Rhodes, and W. A. Contracts-impairment of obligation erty to the plaintiff, which had been purchased by him under the sale in foreclosure hereinafter mentioned. Defendant Burr was sheriff at the time of that sale, and conducted the same, and executed the certificate of sale June 13, 1898. His term of office expired in January, 1899, and defendant Hammel became his successor, and, as such, executed the deed to defendant Rhodes, which plaintiff in error asks to have set aside. The two defendants, Burr and Hammel, were made parties herein because it was not certain which one of them should be decreed to execute the deed to plaintiff which he asks for in this suit. The defendants, by their answer, denied many of the material allegations of the complaint, and the case went to trial before the court, and, a judgment having been entered dismissing the complaint on the merits, an appeal was taken to the supreme court of California, which affirmed the judgment No contract right of an independent purchaser (137 Cal. 663, 70 Pac. 778), and the plain 417 be made upon the payment of the amount of the purchase money with one per cent a month as interest thereon, and on February 26, 1897, the same section was again amend for redemption to twelve instead of six months, while keeping the rate of interest at 1 per cent per month on the amount of the purchase price paid at the sale. It will be noticed that both these amendments had been enacted, and existed as the law in regard to redemptions, at the time when the sale was made on June 13, 1898, upon the foreclosure of the mortgage. Mr. J. S. Chapman for plaintiff in error. Messrs. W. H. Anderson, E. C. Bower, and Anderson & Anderson for defendants in error. Mr. Justice Peckham, after making the above statement of facts, delivered the opinion of the court: The plaintiff in error contends that the several alterations of the law as it existed at the time when this mortgage was executed, regarding the time of redemption and the amount of interest payable to the purchaser at the foreclosure sale in order to redeem the land sold, impair the obligation of a contract as to all mortgages in existence before the alterations were made. tiff has brought the case here. The material | 27, 1895, the legislature altered this statute, facts are as follows: which was § 702 of the Code of Civil ProOn October 16, 1893, Anna P. and Am-cedure, by providing that redemption might brose H. Spencer, then being the owners of the property, mortgaged the same to one Jacob Swiggart, to secure the payment of a promissory note of the same date for $5,000. This note and mortgage were subsequently ed by the legislature by extending the time assigned by Swiggart to Charles H. Bishop, who afterwards commenced a suit upon the note and mortgage to recover the amount due on the former, and to foreclose the mortgage. On May 14, 1898, a judgment was entered in the case, whereby it was adjudged that there was due to the plaintiff upon the note the sum of $6,782.49, and that the same was a lien upon the mortgaged premises, and there was also a judgment for the sale of the premises to obtain payment of the sum found due on the note. On May 16, 1898, an execution upon the judgment was issued to the sheriff (Burr) and on June 13, 1898, he sold to the plaintiff in error, Hooker, the mortgaged premises for the sum of $9,500, who thereupon paid the amount of his bid to Burr, and Burr then gave a certificate of sale to the plaintiff as the purchaser. Plaintiff alleges that he was entitled to a deed from the sheriff of date December 13, 1898, that being six months after his purchase at the foreclosure sale. On December 12, 1898, Rhodes, one of the defendants (who was a judgment creditor of Spencer, the mortgagor), issued an execution on his judgment, and assumed to redeem the land from the foreclosure sale by the payment of $10,070 to the sheriff, to be The first inquiry is, Whose contract was paid to the purchaser, the plaintiff in error, impaired by the alteration of the law? It being the amount of the purchase price paid is seen that the amount due on the mortgage by the latter at the foreclosure sale, togeth- in question at the time of the sale upon foreer with interest thereon at the rate of 1 per closure was $6,782.49, and that the property cent per month. The sum was received by sold for $9,500. That amount was paid by the sheriff as the full amount due to the the purchaser to the sheriff, and it resulted plaintiff in error on his bid, with interest. in the payment of the mortgage debt, princiThe plaintiff in error declined to accept the pal and interest, and the release of the land money, and now contends that the amount from the lien of the mortgage. Subsequentdelivered to the sheriff for the redemption ly to that payment the mortgagee had no inwas not enough; and he also makes the terest in further proceedings. Neither the claim that there was never any legal pay- mortgagee nor his assignee was the purchasment to the sheriff, even of the sum men- er at the sale, and neither was in any mantioned. The sheriff, after receiving the re- ner injured by the alterations of the law in demption money, executed a deed to the the respects mentioned. If, therefore, there judgment creditor, Rhodes, and it is this was by this legislation an impairment of the deed which plaintiff seeks to have set aside. obligation of a contract between the mortAt the time when the above-mentioned gagor and the mortgagee, which the latter mortgage was executed, on October 16, 1893, could have taken advantage of if injured the law in California provided that a judg- thereby, it is perfectly clear that he is not in ment debtor or redemptioner might redeem the least injured when, by the sale under the property from the purchaser at the fore-his mortgage, he realizes the full amount of closure sale, at any time within six months his debt, principal, interest, and costs. after the sale, on paying the purchaser the What can he complain of under such ciramount of his purchase money, with interest cumstances, even conceding an abstract imat 2 per cent a month thereon in addition, pairment of the obligation of his contract? up to the time of redemption. On March 'Having realized and been paid in full the 420 entire amount of money called for by his | importance because the property sold for mortgage, he surely cannot be heard to com- enough to pay the debt, even though there plain that, nevertheless, the obligation of was an abstract impairment of the obligahis contract was impaired. If not injured tion of his contract. to the extent of a penny thereby, his abstract rights are unimportant. The purchaser must found his rights upon the law as it existed when he purchased. We have lately held (therein following a An alteration after he had purchased, to his long line of authorities) that a party insist- prejudice, would be a different thing. Cooling upon the invalidity of a statute, as vio-ey, Const. Lim. 4th ed. 356. We agree that lating any constitutional provision, must the law existing when a mortgage is made show that he may be injured by the uncon-enters into, and becomes a part of, the constitutional law, before the courts will listract; but that contract has nothing to do, ten to his complaint. Tyler v. Registration so far as this question is concerned, with the Judges, 179 U. S. 405, 45 L. ed. 252, 21 Sup. contract of a purchaser at a foreclosure sale, Ct. Rep. 206; Turpin v. Lemon, 187 U. S. having no other connection with the mort51, 60, 47 L. ed. 70, 74, 23 Sup. Ct. Rep. 20. gage than that of a purchaser at such sale. If, instead of showing any injury, the plain- His rights regarding matters of redemption tiff shows that he cannot possibly be in- are to be determined as we have stated. jured, he cannot, of course, ask the interference of the court. Therefore, if the mortgagee, or his assignee, were himself the plaintiff, and complaining that the obligation of his contract had been impaired by subsequent legislation, it is plain his complaint would be dismissed when it appeared that, notwithstanding the alleged subsequent illegal legislation, he suffered no injury, because he had proceeded with the foreclosure of his mortgage, and had been paid the full amount of his contract debt, interest, and costs. Under such circumstances the question becomes a moot one, and courts do not sit to decide that character of question. American Book Co. v. Kansas, 193 U. S. 49, ante, p. 394, 24 Sup. Ct. Rep. 394; Jones v. Montague, decided April 25, 1904, 194 U. S. 147, ante, 611, 24 Sup. Ct. Rep. 611. The question of the impairment of the mortgage contract, therefore, is not before us as between mortgagor and mortgagee. It has been so decided in the case of Connecticut Mut. L. Ins. Co. v. Cushman, 108 U. S. 51, 27 L. ed. 648, 2 Sup. Ct. Rep. 236. There the property was sold at foreclosure sale for enough to pay the mortgage debt (page 56, L. ed. p. 652, Sup. Ct. Rep. 241), and the reduction of the rate of interest which was payable to the purchaser at the foreclosure sale, upon a redemption (which reduction was made by the legislature prior to the sale, although subsequently to the mortgage), was held valid. The company, as purchaser at the foreclosure sale, bid enough to pay the principal and interest of its debt, and after the purchase it contended that the attempted redemption was insufficient because the interest upon the amount it had bid upon the sale had been computed at 8 per cent, the rate of interest allowed by law at the time of the sale, instead of 10 per cent, the rate existing at the time of the execution of the mortgage. It was held We are of opinion that, as to the plaintiff that, as to the purchaser, the rate existing in error, an independent purchaser at the at the time of the sale was the legal rate, foreclosure sale, having no connection what-and the redemption at that rate was valid. ever with the original contract between the The principle of that case decides the one at mortgagor and mortgagee, his rights are to be determined by the law as it existed at the time he became a purchaser, unless, upon action taken by the mortgagee, the property had been sold under a decree providing that it should be sold without regard to the subsequent legislation which impaired his contract. The purchaser bought at the time when the law, as altered, was in operation, and, so far as he was concerned, it was a valid law; his contract was made under that law, and it is no business of his whether the original contract between the mortgagor and mortgagee was impaired or not by the subsequent legislation. He cannot be heard to contend that the original law applies to him, because a subsequent statute might be void as to some one else. The some one else might waive its illegality, or consent to its enforcement, or the question might have no bar. It is asserted, however, on the part of the plaintiff in error, that Barnitz v. Beverly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042, has in effect overruled the former case, and that upon the principle decided in the Barnitz Case the plaintiff in error herein is entitled to a reversal of the judgment. We are not of that opinion. In the first place, it was distinctly stated in Barnitz v. Beverly that it was not inconsistent with, and did not overrule, the former case, and its facts show a clear distinction between the two cases. The sum bid at the foreclosure sale did not pay the amount due on the mortgage, and the whole case shows that, although the mortgagee became purchaser, the debt of the mortgagor was not thereby paid, and it was the mortgagee's rights under her contract, as contained in ⚫421 |