Mass. 578, 580, 20 N. E. 329. As representative of the public, it may and does exercise control over the use which the public may make of such places, and it may and does delegate more or less of such control to the city or town immediately concerned. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. When no proprietary rights interfere, the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes. See Dill. Mun. Corp. §§ 393, 407, 651, 656, 666; Commissioners v. Armstrong, 45 N. Y. 234, 243, 244. "If the legislature had power under the constitution to pass a law in the form of the present ordinance, there is no doubt that it could authorize the city of Boston to pass the ordinance, and it is settled by the former decision (Com. v. Davis, 140 Mass. 485, 4 N. E. 577) that it has done so." It is therefore conclusively determined there was no right in the plaintiff in error to use the common except in such mode and subject to such regulations as the legislature, in its wisdom, may have deemed proper to prescribe. The fourteenth amendment to the constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control (Barbier v. Connolly, 113 U. S. 27, 31, 5 Sup. Ct. 357; Railway Co. v. Beckwith, 129 U. S. 26, 29, 9 Sup. Ct. 207; Giozza v. Tiernan, 148 U. S. 657, 13 Sup. Ct. 721; Jones v. Brim, 165 U. S. 182, 17 Sup. Ct. 282), and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the state. The assertion that, although it be conceded that the power existed in the state or municipality to absolutely control the use of the common, the particular ordinance in question is nevertheless void, because arbitrary and unreasonable, in that it vests in the mayor the power to determine when he will grant a permit, in truth, while admitting on the one hand the power to control, on the other denies its existence. The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser. The finding of the court of last resort of the state of Massachusetts, being that no particular right was possessed by the plaintiff in error to the use of the common, is in reason, therefore, conclusive of the controversy which the record presents, entirely aside from the fact that the power conferred upon the chief executive officer of the city of Boston by the ordinance in question may be fairly claimed to be a mere adminisrative function vested in the mayor in order to effectuate the purpose for which the common was maintained and by which its use was regulated. In re Kollock, 165 U. S. 526, 536, 537, 17 Sup. Ct. 444. The plaintiff in error cannot avail himself of the right granted by the state, and yet obtain exemption from the lawful regulations to which this right on his part was subjected by law. Affirmed. (167 U. S. 60) CROSS et al. v. EVANS. CERTIFICATE FROM CIRCUIT COURT OF APPEALS On a Certificate from the United States Circuit Court of Appeals for the Fifth Circuit. James Hagerman and F. C. Dillard, for plaintiffs in error. Rush Taggart, for defendant in error. Mr. Justice WHITE delivered the opinion of the court. as. The action below was commenced in September, 1890, by Evans, in a Texas state court, against Cross and Eddy, as receivers of the Missouri, Kansas & Texas Railway Company, a corporation of the state of Kansas, to recover damages for personal injuries sustained within the state of Texas while acting as brakeman upon a train running over a branch line of said railway system while it was being operated by the receivers. On the petition of the receivers, the cause was removed into the circuit court of the United States for the Eastern district of Tex-* Subsequently the railway properties were returned to the Kansas Company, and in the fall of 1891 that company transferred its lines of railroad to a new corporation, styled the Missouri, Kansas & Texas Railway Company of Texas. The receivers were finally discharged in the month of July, 1892. In August, 1893, service was had on the Texas Company under a second amended petition, in which the Texas Company was made a co-defendant with the receivers; its liability to the plaintiff being asserted to arise from the terms of the order of the circuit court directing the receivers to surrender the property to the Kansas Company, and upon the provisions of a special act of the legislature of Texas authorizing the sale by the Kansas Company of its properties, and subjecting the purchaser to the payment of all the liabilities of the Kansas Company. Demurrers to the jurisdiction, as also to the merits of the amended petition, were filed and overruled, and an answer was interposed by the Texas Company, which was adopted by the receivers, by way of amendment; the latter then setting up for the first time their discharge in bar of further proceedings. The cause was tried upon the issues made by the second amended petition and the answers thereto, and a verdict was returned against the Texas Company for the sum of $7,500. By direction of the court, the jury found in favor of the receivers. The cause was then taken by writ of error to the circuit court of appeals for the Fifth circuit, and on the hearing that court certified to this court, under the judiciary act of 1891, a statement declared to consist of matter appearing in the transcript of record filed in that court, and the instructions of this court were requested upon four propositions of law, as being desired "for the proper disposition of the questions arising herein." Following the questions propounded was a direction that "certified copies of the printed record and briefs on file in this case be transmitted with this certificate to the honorable the supreme court of the United States." What may be termed the statement of facts embraces a recital of the various steps in the litigation, and what purports to be the substance of the contents of the various pleadings filed in the cause, and the assignments of error (10 in number) filed by the defendants in error in the circuit court of appeals; the latter document being set out in extenso, and being followed by the recital that "all of the questions presented by the assignments of error were duly made in the circuit court, and the adverse rulings thereon are duly shown by exceptions made and saved on the trial." In the statement, attention is called to the fact that the plaintiff in his original petition asserted that the wreck which occasioned his injury was caused by a defective drawhead, while in the amended petition, filed more than a year after the injury was sustained, it was alleged that the roadbed and track at the place and time where and when the derailment happened were in a defective and unsafe condition. It was also specifically stated that the pleadings of the plaintiff contained no allegation that any betterments had been put upon the road by the receivers while they were in charge, and that at the trial no evidence was offered on the subject. The assignments of error reiterated in various forms the objections taken prior to the trial to the sufficiency of the second amended complaint, also the objections taken to the refusal of the trial court to sustain exceptions to its jurisdiction based upon the fact that the plaintiff and the Texas Company were citizens of the same state, and that the action had abated by the discharge of the receiver, and objections raised by the plea of the statute of limitations. The fifth assignment of error was to the refusal of the court to return a verdict for the de fendants, among other reasons, because the plaintiff did not allege or prove that earnings had been applied by the receivers to betterments upon the road, or that the road had been returned to the Kansas Company enhanced in value by said betterments. The questions propounded read as follows: "(1) Under the facts of the case, as shown by the pleadings and herein before recited, was the Missouri, Kansas & Texas Railway Company of Texas properly made a co-defendant with the receivers, Cross and Eddy? "(2) Under the facts of the case, as shown by the pleadings and herein before recited, had the circuit court of the United States for the Eastern district of Texas jurisdiction and authority to try and determine the issues arising on the record between the plaintiff, Evans, and the defendant the Missouri, Kansas & Texas Railway Company of Texas, and give judgment accordingly? "(3) If the first and second questions, or either of them, are answered in the negative, has this court, under the writ of error jointly sued out by the receivers, Cross and Eddy, and the Missouri, Kansas & Texas Railway Company of Texas, jurisdiction and authority to reverse in toto the judgment of the circuit court, and direct a dismissal of the case as against the Missouri, Kansas & Texas Railway Company of Texas, and award a new trial as against Eddy and Cross, receivers? "(4) In case this court is without authority to reverse the judgment of the circuit court in favor of Cross and Eddy, receivers, the same not having been complained of by the defendant in error, and in case the first two questions herein certified shall be answered in the negative, has this court authority to reverse the judgment of the circuit court, and remand the cause with instructions to remand the whole cause back to the state court from which it was originally removed?" In Graver v. Faurot, 162 U. S. 435, 16 Sup. Ct. 799, it was held that a circuit court of appeals has no power, under the judiciary act of 1891, to certify the whole case to this court, but can only certify distinct questions or propositions of law, unmixed with questions of fact or of mixed law and fact. The questions certified in the case at bar are clearly violative of this rule, as, in effect, the entire record is sent up, and by the general questions propounded the labor is imposed upon this court of determining the whole case, and all questions of law which may be lurking in the record. Thus, in the briefs filed in this court and in the court below, counsel discuss the effect of sections 2 and 6 of an act of the legislature of Texas approved March 19, 1889, which it is claimed affected pending receiverships, whetb er created by a court of the state of Texas or by a federal court, and absolutely fixed the liability both of the Kansas Company and the Texas Company to pay any valid claims which might be asserted against the receivers, and also authorized the joinder of the Texas Company as a co-defendant with the receivers in any pending suit. Whether such was the effect of the statute would seem to be a question or proposition of law entering into a consideration of the general questions propounded. The certificate, however, contains no allusion to the point. So, also, in briefs filed here and below, the question is presented of the effect of a general statute of Texas enacted in 1891, which authorized the formation of corporations for the purchase of railroads, under which statute the Texas Company was organized. It is argued in the briefs that, upon a proper construction of that law, it imposed upon the Texas Company a liability to the plaintiff, irrespective of any order of the federal court in the foreclosure suit, and it is further contended that this statute was competent authority for the joinder of the Texas Company in the pending suit against the receivers. This is clearly a separate and distinct proposition of law, essential to be passed upon in considering the general questions certified, though the point is not expressly referred to in the certificate. So, also, there is no mention in the statement of facts that plaintiff in his second amended petition averred that the Texas Company was liable to pay plaintiff's claim, by reason of the order of the federal court in the foreclosure suit directing the surrender of the property by the receivers to the Kansas Company. That order is not set out in the statement, but the sections of the order upon which the plaintiff relied below were introduced in evidence at the trial, and appear in the record filed in the circuit court of appeals. Thus another distinct proposition of law, viz. as to the legal meaning and effect of that order, is plainly latent in the record. So, also, the general questions certified might call for a consideration of whether, in the event that a liability was not imposed upon the Kansas Company by the order of the federal court, a liability resulted by reason of the character of the claim of plaintiff, and the fact that the property of the Kansas Company was returned to it by its procurement without actual foreclosure, irrespective of the fact whether or not betterments had been put upon the property with moneys earned during the operation of the road by the receivers. Again a distinct proposition of law results from the record. dependent upon an affirmative answer to the last proposition, as to whether the cause of action against the receivers abated by their discharge, and whether the claim against the Texas Company was a new and independent cause of action, to be tried and disposed of in a distinct action, or was a claim in the nature of a demand against a purchaser pendente lite, and a mere continuance of a pending action. These illustrations clearly show that the questions propounded are general in their nature, and amount simply to submitting the whole case upon the entire record to this COURTS-CONFLICTING JURISDICTION. 1. Under the act of March 1, 1895, giving the United States courts in the Indian Territory, after September 1, 1896, jurisdiction of all offenses against the laws of the United States committed in said territory, except such cases as certain other courts "shall have acquired jurisdiction of before that time," one of the courts named did not acquire jurisdiction by the mere commission of an offense within its jurisdiction, or by the issuing of a warrant not served, before September 1, 1896. 2. The fact that the accused was illegally arrested does not deprive the court of jurisdiction, to try him. This was a petition for a writ of habeas corpus to obtain the release of the petitioner from the custody of the marshal of the Southern district of the Indian Territory, who now holds him under sentence of death for the crime of rape. From the petition, and the return to the rule to show cause, it appears that on July 24, 1896, a warrant was issued by a commissioner for the Southern district of the Indian Territory to arrest Johnson upon the charge of rape, alleged to have been committed upon one Pearl McCormick on the same day; that subsequently, and on the 9th of October, at a regular term of the United States court for that district, he was indicted, and on the 17th of October was arraigned, tried, and convicted by a jury, and is now under sentence of death. It further appears that on July 25th, the day following the commission of the offense, a warrant issued by a commissioner for the Eastern district of Texas, charging him with the same crime, was placed in the hands of the marshal for that district, who demanded of the marshal of the Southern district of the Indian Territory the surrender of the petitioner, in obedience to said writ, but the same was refused. It does not appear when this demand was made, or whether it was before or after the 1st day of September. It further appeared that, at the time of the commission of the offense, the United States court for the Eastern district of Texas was not in session, and that no term of said court was held until the third Monday of Novem ber, after petitioner had been tried, convict od and sentenced to death. Upon this state of facts, the petitioner claimed that the United States court for the Southern district of the Indian Territory had no jurisdiction of the case; but that under the provisions of an act of congress, cited in the opinion, the court for the Eastern district of Texas retained jurisdiction of all offenses committed within the Southern district of the Indian Territory, where the punishment was death or imprisonment at hard labor, until September 1, 1896, and that the United States court for the Eastern district of Texas had sole and exclusive jurisdiction over his offense. John J. Weed, for petitioner. Sol. Gen. Conrad, for respondent. Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. This case raises the question whether the United States court for the Southern district of the Indian Territory had jurisdiction to try and condemn the petitioner under the circumstances above set forth. The following statutes are pertinent in this connection: By the fifth section of the act "to establish a United States court in the Indian Territory," etc., approved March 1, 1889 (25 Stat. 783), it is enacted "that the court hereby established shall have exclusive original jurisdiction over all offenses against the laws of the United States, committed within the Indian Territory as in this act defined, not punishable by death or imprisonment at hard labor"; by the seventeenth section, "that the Chickasaw Nation, and the portion of the Choctaw Nation," within certain described boundaries (including the locus of this crime), "and all that portion of the Indian Territory not annexed to the district of Kansas by the act approved January 6, 1883, and not set apart and occupied by the five civilized tribes, shall, from and after the passage of this act, be annexed to and constitute a part of the Eastern judicial district of the state of Texas for judicial purposes." The eighteenth section provides that sessions of said court shall be held twice in each year at Paris; "and the United States courts, herein provided to be held at Paris, shall have exclusive original jurisdiction of all offenses committed against the laws of the United States within the limits of that portion of the Indian Territory attached to the Eastern judicial district of the state of Texas by the provisions of this act, of which jurisdiction is not given by this act to the court herein established in the Indian Territory." Taking these sections together, it is clear that jurisdiction was vested in the new court, created by the act, over all minor offenses against the laws of the United States committed within the Indian Territory; but that jurisdiction of all offenses punishable by death or by imprisonment at hard labor was conferred upon the United States court for the Eastern district of Texas over that portion of the Indian Territory described in section 17. This jurisdiction was expressly continued by section 33 of the act of May 2, 1890 (26 Stat. 81), "to provide a temporary government for the territory of Oklahoma." On March 1, 1895, an act was passed "to provide for the appointment of additional judges of the United States court in the Indian Territory," etc. 28 Stat. 693. The ninth section of that act reads as follows: "Sec. 9. That the United States court in the Indian Territory shall have exclusive original jurisdiction of all offenses committed in said territory, of which the United States court in the Indian Territory now has jurisdiction, and after the first day of September, 1896, shall have exclusive original jurisdiction of all offenses against the laws of the United States committed in said territory, except such cases as the United States court at Paris, Texas, Fort Smith, Arkansas, and Fort Scott, Kansas, shall have acquired Jurisdiction of before that time. * "All laws heretofore enacted conferring jurisdiction upon United States courts held in Arkansas, Kansas, and Texas, outside of the, limits of the Indian Territory, as defined by law, as to offenses committed in said Indian☎ Territory, as herein provided, are hereby repealed, to take effect on September 1, 1896; and the jurisdiction now conferred by law upon said courts is hereby given from and after the date aforesaid to the United States court in the Indian Territory: provided, that in all criminal cases where said courts outside of the Indian Territory shall have on September 1, 1896, acquired jurisdiction, they shall retain jurisdiction to try and finally dispose of such cases." The case evidently turns upon the construc tion of this last section. This section had three purposes: First, to enable the United States court in the Indian Territory to retain the jurisdiction it then had under the fifth section of the act of March 1, 1889, of all offenses against the laws of the United States, not punishable by death or by imprisonment at hard labor; second, to give it jurisdiction after September 1, 1896, of all offenses whatever, except of such cases as the courts in Texas, Arkansas, and Kansas had acquired jurisdiction before that time; third, to repeal all laws conferring jurisdiction upon these courts after that date, and to vest jurisdiction of the same upon United States courts in the Indian Territory, with a proviso repeating the exception above indicated. Now, if the United States court for the Eastern district of Texas had "acquired jurisdiction" of this case, manifestly it was entitled to try the petitioner, but otherwise not. The fact that the crime was committed on the 24th of July had no bearing upon the question, since jurisdiction was vested in the United States court in the Indian Territory, not of crimes or offenses committed after September 1st, but of all offenses in that territory of which the Texas court had not acquired jurisdiction before that date. In this view, the date when the crime was committed is wholly immaterial, and the case of Caha v. U. S., 152 U. S. 211, 14 Sup. Ct. 513, is inapplicable. Jurisdiction is acquired under this statute, not by the commission of an offense, but by service of process upon the person. Herndon v. Ridgway, 17 How. 424; Chaffee v. Hayward, 20 How. 208, 215; Boswell's Lessee v. Otis, 9 How. 336, 348; Pennoyer v. Neff, 95 U. S. 714; Railway Co.*v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859. In this connection, jurisdiction of the "care”— i. e. the crime—is indistinguishable from jurisdiction of the person who is charged with the crime. We know of no reason why the rule, so frequently applied in cases of conflicting jurisdiction between federal and state courts, should not determine this question. Ever since the case of Ableman v. Booth, 21 How. 506, it has been the settled doctrine of this court that a court having possession of a person or property cannot be deprived of the right to deal with such person or property until its jurisdiction is exhausted, and that no other court has the right to interfere with such custody or possession. This rule was reaffirmed in Tarble's Case, 13 Wall. 397, in Robb v. Connolly, 111 U. S. 624, 4 Sup. Ct. 544, and in Re Spangler, 11 Mich. 298, and with reference to personal property has been so often restated as to have become one of the maxims of the law. Taylor v. Carryl, 20 How. 583; Freeman v. Howe, 24 How. 450; Ellis v. Davis, 109 U. S. 485, 3 Sup. Ct. 327; Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27; Covell v. Heyman, 111 U. S. 176, 4 Sup. Ct. 355; Byers v. McAuley, 149 U. S. 608, 13 Sup. Ct. 906; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019; In re Chetwood, 165 U. S. 443, 17 Sup. Ct. 385. The material facts of the case, upon which the petitioner relies, are that on July 25th a warrant was issued by a United States commissioner for the Eastern district of Texas, charging him with the crime for which a warrant had already been issued against him by a commissioner of the Indian Territory, and upon which he seems to have been arrested by the marshal. A demand was made by the Texas marshal upon the marshal of the Indian Territory, but neither the petition nor the return to the rule to show cause shows that the demand was made before September 1st. Assuming that the commissioner for the Southern district of the Indian Territory exceeded his authority in issuing and the marshal in executing his warrant of arrest, it does not follow that the subsequent indictment and conviction were void. If the petitioner was in the actual custody of the marshal on September 1st, his subsequent indictment and trial were valid, though in the 17 S.C.-47 first instance he might have been illegally ar rested. *Thus, in The Richmond v. U. S., 9 Cranch, 102, an illegal seizure of a vessel was made in the waters of a foreign power by a vessel belonging to the navy for a violation of the embargo act, and it was held that, although the seizure within the territorial jurisdiction of a foreign power was an offense against that power, this court could take no cognizance of it; and the majority of the court was of opinion that the law did not connect that trespass with the subsequent seizure by the civil authorities under the process of the district court, so as to annul the proceedings of that court against the vessel. This ruling was approved in The Merino, 9 Wheat. 391, 402. Indeed, there are many authorities which go to the extent of holding that in criminal cases a forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offense, and presents no valid objection to his trial in such court. Kerr v. People, 119 U. S. 436, 444, 7 Sup. Ct. 225; Ex parte Scott (1829) 9 Barn. & C. 446; Lopez's Case, 1 Dears. & B. Crown Cas. 525; State v. Smith (1829) 1 Bailey, 283; State v. Brewster (1835) 7 Vt. 118; Dow's Case (1851) 18 Pa. St. 37; State v. Ross (1866) 21 Iowa, 467. Although it has been frequently held that, if a defendant in a civil case be brought within the process of the court by a trick or device, the service will be set aside, and he will be discharged from custody. Sugar Refinery v. Mathiesson, 2 Cliff. 304, Fed. Cas. No. 14,397; Wells v. Gurney, 8 Barn. & C. 769; Snelling v. Watrous, 2 Paige, 315; Wilson v. Bacon, 10 Wend. 636; Metcalf v. Clark, 41 Barb. 45; Stein v. Valkenhuysen, El., Bl. & El. 65; Wilson v. Reed, 29 N. J. Law, 385; Carpenter v. Spooner, 2 Sandf. 917; Prefner v. Rupert, 28 Iowa, 27; Moynahan v. Wilson, 2 Flip. 130, Fed. Cas. No. 9,897; Small v. Montgomery, 17 Fed. 865; Kaufman v. Kennedy, 25 Fed. 785. The law will not permit a person to be kidnapped or decoyed within the jurisdiction for the purpose of being compelled to answer to a mere private claim, but in criminal cases the interests of the public override that which is, after all, a mere privilege from arrest. "But in this case there was nothing of the kind. The crime was committed and the prisoner arrested within the territory, and within the local jurisdiction of the territorial court. Had he been arrested without warrant by the marshal, or even by a private individual, and detained in custody until after the 1st of September, he might then have been indicted, although, perhaps, an action might have lain against the person so arrest ing him for false imprisonment. If the jurisdiction of the Texas court had attached, or, in the language of the statute, had been "acquired," before September 1st, that would have been a good defense; but, as already |