*183

Messrs. John W. Griggs, Benjamin S. Harmon, David L. Krebs, and George S. Graham for petitioner.

Messrs. John G. Johnson and Francis I. Gowen for respondents.

also why they should not produce them at | ent of and collateral to the main action, a certain time and place before trial 'and and the order therefore reviewable on a permit the plaintiff, its counsel and ac- writ of error; that the corporation's officountants, to inspect the same and take cers and agents were not "parties" within such copies as they may deem proper.' The Revised Statutes, § 724; that that section defendant answered the petition, setting did not authorize an order requiring a party forth (1) that the action was for the re- to produce books and papers before trial, covery of damages in the nature of penal- but, if such relief was desired, it must be ties, and therefore that the defendant was obtained by a bill of discovery. The presnot obliged to produce its books and papers, ent cause was then brought to this court either before or at the trial; (2) that even on certiorari, and is numbered 283 on its if the action were one in which the defend- docket. It was advanced for hearing and ant could be required to produce its books heard October 28, 29, together with No. and papers at the trial, it could not be 284, also brought up on certiorari. required to do so before the trial; (3) that the petition did not describe with sufficient particularity the books and papers the production of which was desired, or state the facts which the books and papers would tend to prove; and (4) that the defendant could not produce any books which would show the rebates and drawbacks alleged to have been allowed to other companies, because they had not been so kept as to show any such allowances. With the petition and answer before it, the circuit court, on the return of the rule to show cause, 'adjudged, ordered, and decreed' that Alexander J. Cassatt, president, John B. Thayer, fourth vice president, and the ten other officers and employees of the defendant, 'produce on the trial of this cause' the books and papers described in the petition, and also that they produce them before trial at a specified time and place for the inspection of the plaintiff, with leave to the plaintiff to make copies thereof."

Mr. Chief Justice Fuller delivered the opinion of the court:

The Pennsylvania Railroad Company did not except to the order, nor attempt to prosecute a writ of error therefrom, if that were possible; the plaintiffs in error, who were officers of the company, excepted and carried the case up on this writ of error. They were not parties to the case between the coal company and the railroad company, had no property in the books and papers referred to, were mere custodians as officers, and any rights of theirs were not made to appear to be involved in the disclosures sought. The order as to them was purely interlocutory, not imposing penalty or liability, and not finally disposing of an independent proceeding.

What Mr. Justice Bradley said in Wil

ed. 559, 564, 4 Sup. Ct. Rep. 638, in holding a decree on intervention appealable, and citing many cases, was that the order appealed from there "was final in its nature, and was made in a matter distinct from the general subject of litigation,—a matter by itself, which affected only the parties to the particular controversy, and those whom they represented."

To review this order, Cassatt and the other officers and agents of the Pennsylvania company sued out, as individuals, aliams v. Morgan, 111 U. S. 684, 698, 28 L. writ of error from the circuit court of appeals for the third circuit, assigning as error (1) that the circuit court erred in entering the order requiring plaintiffs in error to submit to the inspection of the plaintiff below and its counsel, prior to the trial of the cause, the books, records, and papers referred to therein; and (2) requiring the production at the trial of said books, records, and papers. The case was heard, together with two similar cases, one of which was entitled Pennsylvania Coal & Coke Co. v. Cassatt, and is numbered 284 on the present docket. [207 U. S. 187, 52 L. ed., 28 Sup. Ct. Rep. 110.]

This order affected the plaintiff and defendant in the case itself, and not respondents as individuals at all, and, if the court, had power to punish disobedience or enforce compliance, then the order prior to such action on the part of the court was clearly interlocutory in the suit. Alexander v. United States, 201 U. S. 117, 50 L. ed. 686, 26 Sup. Ct. Rep. 356. If the provision of § 724 in respect of disobedience of such an order was exclusive, then, of course, respondents were in no way aggrieved. Doyle v. London Guarantee & Acci. Co. 204 U. S. 599, 51 L. ed. 641, 27 Sup. Ct. Rep.

The circuit court of appeals gave an opinion in one case applicable to the three, and reversed the judgments of the circuit court with costs. 10 L.R.A.(N.S.) 99, 150 Fed. 32, 48. That court held that the order in question was a "final decision" within 6 of the judiciary act of March 3, 1891 [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549]; that the proceeding | 313. which resulted in the order was independ- Whether the order to produce was valid,

*186

and whether it warranted judgment by de- | of error from the Federal Supreme Court fault against the defendant company, were to the highest court of a state, where the matters in which plaintiffs in error had no latter court decides that the accused was concern. There was here no attachment not put in jeopardy by his prior conviction, for contempt, no judgment on default, and because such conviction was reversed on no independent and collateral proceeding, the ground that there had then been no legal demand. the order disposing of which could be considered as a final decree.

Judgment reversed and cause remanded

[No. 161.]

with a direction to dismiss the writ of Argued October 28, 1907. Decided December 2, 1907.

error.

(207 U. S. 187)

PENNSYLVANIA COAL & COKE COM-IN ERROR to the Supreme Court of the

PANY, Petitioner,

V.

State of Pennsylvania to review a judg ment which affirmed a judgment of the Su

A. J. CASSATT, John B. Thayer, Charles perior Court of that state, which had in

E. Pugh, et al.

This case is governed by the decision in Webster Coal & Coke Co. v. Cassatt, ante, p. 108.

[No. 284.]

Argued October 28, 29, 1907. Decided December 2, 1907.

turn affirmed a conviction in the Court of Quarter Sessions of Schuylkill County, in that state, of embezzlement, over a plea of former jeopardy. Dismissed for want of jurisdiction.

See same case below, 216 Pa. 71, 64 Atl. 890.

The facts are stated in the opinion. Messrs E. B. Sherill, William Wilhelm, and Charles A. Douglas for plaintiff

ON WRIT of Certiorari to the United in errors

States Circuit Court of Appeals for the Third Circuit to review a judgment reversing an order of the Circuit Court for the Eastern District of Pennsylvania, requiring certain officers and employees of a carrier charged with violations of the interstate commerce act to produce certain relevant books and papers. Reversed and remanded with directions to dismiss the writ of error to the Circuit Court.

See same case below, 150 Fed. 48.
Messrs. John W. Griggs, Benjamin S.
Harmon, David L. Krebs, and George S.
Graham for petitioner.

Messrs. Guy E. Farquhar, C. E. Berger, and Irvin A. Reed for defendant in error.

Mr. Justice Harlan delivered the opinion of the court:

In a civil action brought by the county of Schuylkill, Pennsylvania, in 1901, against Shoener, the present plaintiff, for the amount of certain fees alleged to have been collected by him, as the clerk of a quarter sessions court, but withheld by him from the county treasurer, a judgment was rendered in favor of the county for $18,245. That

Messrs. John G. Johnson and Francis judgment was affirmed upon appeal by the

1. Gowen for respondents.

supreme court of Pennsylvania on May 4th, 1903. Schuylkill county v. Shoener, 205 Pa. 592, 55 Atl. 791.

Shoener was then proceeded against by indictment under § 65 of the Penal Code of Pennsylvania of 1860, which section is in these words: "If any state, county, township, or municipal officer of this commonwealth, charged with the collection, safekeeping, transfer, or disbursement of public money, shall convert to his own use, in any way whatsoever, or shall use by way of investment in any kind of property or merchandise, any portion of the public money intrusted to him for collection, safekeeping, transfer, or disbursement, or shall prove a defaulter, or fail to pay over the same when thereunto legally required by the state, county, or township treasurer, or other proper official or person authorized to demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement

This section was construed by the supreme court of Pennsylvania in Com. v. Mentzer, 162 Pa. 646, 29 Atl. 720, the court holding that each of the acts enumerated in the statute was a distinct and separate offense, although they might be so entirely parts of the same transaction as to constitute but one offense; that whether particular acts were so combined as to make one offense depended upon the facts in each case, and raised a question of fact for the jury.

In refusing to

of so much of said money as shall be thus the demand, and does not apply to a case taken, converted, invested, used, or unac- where demand is made to pay during the counted for, which is hereby declared a mis- pendency of a dispute as to who is entitled to demeanor; and every such officer, and every the money, and which dispute, by agreement person or persons whomsoever aiding or of both parties to it, is pending determinaabetting, or being in any way accessory to tion in the courts. said act, and being thereof convicted, shall pay over at the time the alleged demand be sentenced to an imprisonment, by sepawas made he did just what any other man rate or solitary confinement at labor, not ex- similarly situated and with due regard to ceeding five years, and to pay a fine equal his rights would have done; and it is a to the amount of money embezzled." Pa. perversion of the 65th section of the act of Laws 1860, p. 385. March 31, 1860, to attempt to apply it to a case like this. The only evidence of a demand to pay over was the [comptroller's] letter. This was written and received by the appellant at a time when the county, by its own agreement, coudd not have enforced any civil liability against him, and in refusing to comply with the notice to pay he was standing on his right not to do so until it was determined that the county was entitled to receive the money. The learned trial judge charged the jury that The indictment was returned November the institution of the suit in the common 14th, 1903, the date is important, and pleas of the county was a legal demand for contained thirteen counts, those other than the payment of the money, and should be the fourth, eighth, and twelfth counts in regarded as such a demand in the prosecu substance charging the accused with con- tion of the appellant on the counts charging, verting public funds to his own use, and the him to pay over on demand. In the civil fourth, eighth, and twelfth counts charging courts constructive demands may be and are him only with failing to pay over the pub-recognized, but not so in a criminal court, lic moneys that came into his hands, when in the prosecution for an offense having as thereunto legally required by the county. The accused was acquitted January 6th, 1904, on all the accounts except the fourth, eighth, and twelfth, and on those accounts he was convicted. On appeal to the superior court the conviction was sustained (25 Pa. Super. Ct. 526), but, on appeal from the court to the supreme court of Pennsylvania, the judgments of conviction in both the lower courts were reversed June 22d, 1905, and the accused was discharged from the recognizance which he had executed. Com v. Shoener, 212 Pa. 527, 61 Atl. 1093.

one of its statutory ingredients a refusal to pay on demand. A demand there means actual demand. The only actual demand that the commonwealth pretends was made was the comptroller's letter. It was written after the institution of the civil suit, and after the distinct agreement by the county that the question of the defendant's liability should be judicially determined. Before being so determined there was no liability to be enforced against him civilly, and, therefore, no demand could be made upon him that he was bound to recognize. He has been acquitted on the counts charging him with a conversion of the public funds to his own use, and there was no evidence to sus

failed to pay over after having been legally thereunto required on demand made. The 11th assignment

In the opinion of the supreme court it was stated that the only demand ever made on the accused was in a letter to him from the county comptroller, under date of De-tain the conviction on the charge that he had cember 30th, 1902. But that demand, the court said, was made at a time when the question of the right of the accused to retain the moneys he had retained was, by agreement of the county, pending and undecided in the civil court. The court, after observing that it was competent for the county to have entered into such an agreement, Baid:

complains of the error of the court below in instructing the jury that there had been legal demand made upon the defendant to pay over the fees. This assignment should have been sustained. If there had been proper instructions as to a legal demand, the defendant would have been acquitted on the counts on which he was convicted. The remaining assignments need not be considered. The judgment of the superior court is reversed, as is that of the court below, and the defendant is discharged

"How could any demand have been made at that time that the defendant was bound to heed? . . . The failure to pay on demand, as contemplated by the statute under which he is indicted, is a failure to pay that which, at the time the demand is made, clearly belongs to the county making' from his recognizance.”

Subsequently, on June 30th, 1905, the | the present indictment. All that we decided county made another and formal demand was that, as the county of Schuylkill could upon Shoener to pay over $7,243.28, that not, at the time the prosecution was inbeing the balance of the fees or moneys then stituted, have made a legal demand upon the retained by him, and ascertained, on audit-appellant for the payment of the fees in ing of his accounts, to belong to the county. his hands, the statutory offense of failing This demand was disregarded, and, on Sep- to pay over had not been committed. He tember 4th, 1905, the present new indict- was discharged from his recognizance simply ment was found, charging only one of the because the prosecution against him had offenses specified in the statute, namely, that been instituted before the offense charged the accused had failed, on demand, to pay against him was or could have been commitinto the county treasury the above sum of ted under the admitted facts in the case. He $7,243.28. was therefore never in jeopardy. If, after The defendant pleaded, among other his conviction, the court below had arrested things, that the present indictment was for judgment on the verdict, he would have been the same offense as that specified in the first in the same situation in which our reversal indictment; that his acquittal on the first of it placed him, but he could not have nine counts of the *former indictment was pleaded the arrest of the judgment as a bar an acquittal of the charge contained in the to a new indictment against him for an present indictment; and that after the re-offense subsequently committed, for he never versal of the judgment of conviction on the was in peril." [216 Pa. 80, 64 Atl. 894.] fourth, eighth, and twelfth counts he could The plaintiff insists that his trial and connot be again prosecuted for the same offense.viction on the present indictment would subReferring to the opinion of the supreme ject him to jeopardy a second time for court in the former prosecution, the trial the offense of having failed to pay over court, in its charge to the jury, said: "When on proper demand, thereby depriving him of that opinion was filed in the supreme court his liberty without due process of law, in of Pennsylvania, and subsequently here, and violation of the 14th Amendment of the Conthe proceedings of the previous trial were stitution of the United States. reversed, there was no crime that this defendant was called upon to answer for, because the supreme court declared that the demand that had been made upon him was illegal, had no right to be made, and he was not bound to obey it, and therefore not bound to pay over the money when they called on him in December, 1902, because the county had no right to call on him then for this money, but they were bound to wait until after the supreme court as well as this court decided the question of whether or not he had any claim or right to that money. Now, gentlemen of the jury, under this state of facts, I come to the conclusion that there was no crime to try when he was tried before; that the crime that is now tried in this indictment exists only since the actual demand was made, which the language of that supreme court opinion requires to be made before he is required to pay over."

The defendant was convicted and sentenced to imprisonment for two and a half years.

The judgment of conviction was affirmed, the supreme court saying: "In support of his plea of autrefois acquit, the appellant relies upon our reversal of the former judgment against him. The jury, on the trial of the first indictment, found him guilty of having failed to pay over the license fees in his hands after demand had been made upon him to do so. Our reversal of the judgment on that verdict did not acquit him of the offense charged against him in

*The contention that, by the judgment of the supreme court of Pennsylvania, the plaintiff in error has been deprived of a right secured to him by the Constitution of the United States, must be overruled. He has not been twice placed in jeopardy for the same offense. Upon the hearing of the case arising out of the first indictment, the supreme court of Pennsylvania, construing the statute under which the defendant was prosecuted, and looking at the undisputed facts appearing of record, adjudged that he had not then committed any criminal offense; that he had not failed to pay over moneys belonging to the county upon any demand, disregard of which subjected him to criminal liability; consequently, it was held that no valid judgment of conviction could have been rendered against him in the first prosecution for failing to pay over the moneys in question, or any part thereof, on the particular demand shown in the record of that prosecution. These were questions of local and general law which it was the province of the supreme court of Pennsylvania to determine conclusively for the parties. They presented no question of a Federal nature.

Assuming then, that no valid judgment could have been rendered against the accused upon the first indictment for disregarding the demand upon which that indictment was based, it necessarily follows, as held by the supreme court of Pennsylvania, that that prosecution did not put the accused in

jeopardy in respect to the particular offense | put*in jeopardy for the same offense by his specified in the last indictment. That of trial under a former indictment, if it ap fense was never committed until the demand pears from the record of that trial that the of June 30th, 1905, was disregarded. The accused had not then or previously commitdefense of double jeopardy could not be sus- ted, and could not possibly have committed, tained unless we should hold that the charge any such crime as the one charged, and against Shoener in the first indictment therefore that the court was without juriscould be sustained under the statute. But diction to have rendered any valid judgment we cannot so adjudge without disregarding against him, and such is the case now bealtogether the decision of the supreme court fore us, then the accused was not, by such of Pennsylvania, and without holding that trial, put in jeopardy for the offense specified an accused is put in peril by a prosecution in the last or new indictment. which could not legally result in a convic- As it was thus correctly decided that the tion for crime. It is an established rule accused was not, by the present indictment, that one is not put in jeopardy if the indict- put in jeopardy for the second time by the ment under which he is tried is so radically same offense, we need not go further or condefective that it would not support a judg-sider any question of a Federal nature, ment of conviction, and that a judgment and the writ of error must be dismissed. thereon would be arrested on motion. So, It is so ordered.

where the defense is that the accused was

28 S. C.-8.