by writ of error or appeal, yet in rare and exceptional cases it may be issued, although such remedy exists.

In New York v. Eno, 155 U. S. 89, it was held that Congress intended to invest the courts of the Union and the justices and judges thereof with power upon writ of habeas corpus to restore to liberty any person within their respective jurisdictions held in custody, by whatever authority, in violation of the Constitution or any law or treaty of the United States; that the statute contemplated that cases might arise when the power thus conferred should be exercised during the progress of proceedings instituted in a state court against the petitioner on account of the very matter presented for determination by the writ of habeas corpus; but that the statute did not imperatively require the Circuit Court by that writ to wrest the petitioner from the custody of the state officers in advance of his trial in the state court; and that while the Circuit Court had the power to do so, and could discharge the accused in advance of his trial, if restrained in violation of the Constitution, it was not bound in every case to exercise such power immediately upon application being made for the writ. The conclusion was that in a proper exercise of discretion the Circuit Court should not discharge the petitioner until the state court had finally acted upon the case, when it could be determined whether the accused, if convicted, should be put to his writ of error or the question determined on habeas corpus whether he was restrained of his liberty in violation of the Constitution of the United States.

These principles were fully discussed in the cases of the appeals of Royall from judgments in habeas corpus in the Circuit Court of the United States for the Eastern District of Virginia. 117 U. S. 241. And in addition Royall made an original application to this court for a writ of habeas corpus, which was denied upon the grounds stated in the previous cases. 117 U. S. 254.

While special reasons may exist why this should be the rule in respect of proceedings in state courts, which are not appli

cable to cases in the courts of the United States, nevertheless we have frequently applied the same principle to such cases. In re Chapman, 156 U. S. 211; In re Lancaster, 137 U. S. 393; In re Huntington, 137 U. S. 63; Ex parte Mirzan, 119 U. S. 584.

In Chapman's case we held that it was a judicious and salutary general rule not to interfere with proceedings pending in the courts of the District of Columbia or in the Circuit Courts of the United States in advance of their final determination. And we said:

"We are impressed with the conviction that the orderly administration of justice will be better subserved by our declining to exercise appellate jurisdiction in the mode desired until the conclusion of the proceedings. If judgment goes against petitioner and is affirmed by the Court of Appeals and a writ of error lies, that is the proper and better remedy for any cause of complaint he may have. If, on the other hand, a writ of error does not lie to this court, and the Supreme Court of the District was absolutely without jurisdiction, the petitioner may then seek his remedy through application for a writ of habeas corpus. We discover no exceptional circumstances which demand our interposition in advance of adjudication by the courts of the District upon the merits of the case before them."

In In re Lancaster, this court denied an application for leave to file a petition for habeas corpus in the circumstances stated in the opinion, which opinion was as follows:

"The petitioners were indicted under sections 5508 and 5509 of the Revised Statutes, on the 20th of November, 1890, in the Circuit Court for the Southern District of Georgia, and have been taken into custody. They have not invoked the action of the Circuit Court upon the sufficiency of the indictment by a motion to quash or otherwise, but ask leave to file in this court a petition for a writ of habeas corpus, upon the ground that the matters and things set forth and charged do not constitute any offense or offenses under the laws of the United States, or cognizable in the Circuit Court, and that for other reasons the in

dictment cannot be sustained. In this posture of the case we must decline to interfere.'

We are of opinion that the rule therein laid down should have been followed by the Circuit Court.

True, the present case is not one of the issue of the writ of habeas corpus in respect of confinement under state authority, nor of an application to this court for the writ, but is the case of custody taken under a capias issued on an indictment returned in the District Court and removed to the Circuit Court, and an application to that court for the writ before defendant had been compelled to take any step in the cause.

Defendant might have raised his objections to the indictment by motion to quash or otherwise. If the indictment were held good, as we are advised by the opinion of the Circuit Court it would have been, defendant would have pleaded and gone to trial, and might have been acquitted. If convicted, the remedy by writ of error was open to him.

There is nothing in this record to disclose that there were any special circumstances which justified a departure from the regular course of judicial procedure. That departure is contrary to the views we have heretofore explicitly expressed, and if we acquiesce in this method of invoking our jurisdiction, we shall find ourselves obliged to decide questions in advance of final adjudication, contrary to the settled rule, and to many decisions we have heretofore announced upon the subject.

If we should affirm or reverse the final order in this case, we should recognize a proceeding below, which we would not ourselves have entertained; and we are not disposed to hold that this manner of testing such questions as are argued here ought to have been pursued.

Final order reversed and cause remanded with a direction to the Circuit Court to quash the writ of habeas corpus and dismiss the petition without prejudice.

Argument for Plaintiff in Error.

199 U.S.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. LIEBERMAN v. VAN DE CARR, WARDEN.

ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.

No. 71. Argued November 9, 1905.-Decided December 11, 1905.

A State has the right, in the exercise of the police power, and with a view to protect the public health and welfare, to make reasonable regulations in regard to such occupations as may, if unrestrained, become unsafe or dangerous, and the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on such a trade or business is not violative of the Fourteenth Amendment. There is no presumption that a power granted to an administrative board will be arbitrarily or improperly exercised, and this court will not interfere with the exercise of such a power where the record does not disclose any ground on which the board acted.

It is primarily for the State to select the businesses to be regulated, and if those selected are proper subjects for regulation, those engaged therein are not denied the equal protection of the laws because other businesses are not subjected to similar regulations, provided all engaged in the same business are treated alike.

Section 66 of the Sanitary Code of the City of New York, regulating the sale of milk in that city, as the same has been construed by the highest court of that state, held not violative of the Fourteenth Amendment as depriving those engaged in that business of their property without due process of law or denying them the equal protection of the laws.

THE facts, which involved the constitutionality of section 66 of the Sanitary Code of the city of New York in regard to the sale of milk in that city, are stated in the opinion.

Mr. Frank Moss for plaintiff in error:

The section of the Sanitary Code involved in this action is unconstitutional and repugnant to the provisions of the Four

teenth Amendment.

It is an ordinance enforced by the State, under section 1172 of the city charter, which abridges the privileges and immunities of citizens, and deprives persons of property without due process of law, and denies to persons the equal protection of the

199 U. S.

Argument for Defendant in Error.

laws. It is not designed to protect the health of the public, and is not in any view necessary, but is an instrument of oppression, which gives to the unelected Board of Health, arbitrary powers, the misuse of which cannot be corrected by mandamus, appeal or other legal proceedings. The Board of Health has unnecessarily and unduly selected this business out of many others holding similar relations to the public, and has imposed its prohibition by the permit system on it alone.

Section 66 puts the holding, keeping, selling and delivering of milk under the arbitrary and absolute power of the Board of Health, without declaring any lines or limits for the exercise of its prohibitive action, and it allows the Board to load its permits with conditions, the nature of which is not indicated or limited in the ordinance or in the code.

The language of the section permits unjust discrimination and the evils of its abuse cannot be corrected by mandamus. Yick Wo v. Hopkins, 118 U. S. 356; People v. Noel, 187 Illinois, 587; Grundling v. Chicago, 177 U. S. 356; Dunham v. Rochester, 5 Cow. (N. Y.) 462; St. Paul v. Laidler, 2 Minnesota, 190; Richmond v. Dudley, 129 Indiana, 112; Plymouth v. Schultheis, 135 Indiana, 339, 701; State v. Dubarry, 44 La. Ann. 1117; State v. Deffer, 45 La. Ann. 658; State v. Tenant, 110 N. Car. 609.

As to how such a statute should be construed the court below clearly erred in relying on Nechamous v. Warden, 144 N. Y. 539, and see Rochester v. West, 164 N. Y. 514, in which it was held that the validity of a statute is not to be determined by what has been done in a particular instance, but by what may be done under it.

Mr. Theodore Connoly for defendant in error:

The Fourteenth Amendment does not take away from the State the power to pass police regulations affecting the health, safety and morals of the people. Barbier v. Connolly, 113 U. S. 27; Minneapolis &c. Ry. Co. v. Beckwith, 129 U. S. 26; Giozza v. Tiernan, 148 U. S. 657; Jones v. Brim, 165 U. S. 180.