(43 Sup. Ct.) cree of the trial court was affirmed. 153 Ga. ¡subject of what constitutes a final judgment 329, 111 S. E. 911. Deprivation of rights un- are not entirely harmonious, the rule is esder the federal Constitution was duly and tablished that in order to give this court approperly asserted. The case is here on writ pellate jurisdiction the judgment or decree of error. From motives of caution defend- "must terminate the litigation between the ants also filed a petition praying the issuance parties on the merits of the case, so that if of a writ of certiorari, consideration of there should be an affirmance here, the court which was postponed to await the hearing below would have nothing to do but to exon the writ of error. ecute the judgment or decree it had rendered." Bostwick v. Brinkerhoff, 106 U. S. 3, 1 Sup. Ct. 15, 27 L. Ed. 73 and cases cited. We hold, therefore, that the writ of error was properly brought and come to a consideration of the substantive matters presented. [3] 1. The principal question, and the one to which the briefs and arguments are mainly directed, is, whether the agreement between the plaintiff and the electric company was within the powers of the town and is now valid and subsisting. This contract has been before the Supreme Court of Georgia in the course of the litigation on three distinct occasions: 149 Ga. 1, 98 S. E. 696, 5 A. L. R. 1; 152 Ga. 143, 108 S. E. 615; and (the instant case) 153 Ga. 329, 111 S. E. 911. That court, in carefully considered and wellreasoned opinions, sustained the authority of the municipality and upheld the contract as valid and subsisting. Defendants contend *438 [1, 2] Preliminarily, defendant in error insists that the decision of the state Supreme Court on the first writ of error affirming the interlocutory order of the trial court, was a final adjudication from which a writ of error from this court might have been sued out, and, hence, that we are precluded from considering the present writ of error. Rio Grande Railway v. Stringham, 239 U. S. 44, 36 Sup. Ct. 5, 60 L. Ed. 136, is cited and relied upon; but that case furnishes no support to the contention. There the trial court had adjudged the title to a piece of land to be in the defendant. Upon appeal the state Supreme Court reversed this judgment and remanded the case with directions to enter judgment awarding plaintiff title to a right of way over the land. The trial court followed this direction. Plaintiff again appealed, insisting, as it had done before, that it had title in fee simple; but the appellate court declined to consider the question, holding that the former decision concluded the court as well as the parties. This court held that as the judgment on the first appeal disposed of the whole case on the merits and directed that judgment should be entered, it left nothing to the judicial discretion of the trial court and was therefore final. Here the first writ of error was not from a final judgment, but from an interlocutory order granting a temporary injunction. That it did not finally dispose of the case is clear, since the trial court thereafter allowed amendments, ruled on a demurrer, impaneled a jury, directed a verdict and entered a *final decree, and it was upon this decree that the second writ of error was brought. We are not unmindful of the ruling of the appellate court to the effect that the issues were, in fact, disposed of on the first writ of error and its powers brought to an end; but whatever may be the view of that court in 820, 59 L. Ed. 1254. This conclusion, involvrespect of its own power to again consider ing, as it does, a construction of the state the issues, the judgment now under review Constitution and laws and powers of state is the only one this court can consider as final, for the purpose of exercising its appellate jurisdiction. Great Western Telegraph Co. v. Burnham. 162 U. S. 339, 343, 16 Sup. Ct. 850, 40 L. Ed. 991; United States v. Denver & Rio Grande R. R. Co., 191 U. S. 84, 93, 24 Sup. Ct. 33, 48 L. Ed. 106; Chesapeake & Ohio Ry. Co. v. McCabe, 213 U. S. 207, 214, 29 Sup. Ct. 430, 53 L. Ed. 765; Zeckendorf v. Steinfeld, 225 U. S. 445, 454, 32 Sup. Ct. 728, 56 L. Ed. 1156. While prior decisions on the *437 that the authority to fix rates devolved by the state Constitution upon the General As sembly, and therefore that the town of Decatur was without power to enter into a contract on that subject. When the contract was made the General Assembly had never exercised this authority and the state Supreme Court held that there was nothing in the Constitution of the state which precluded the municipality from contracting as to fares, and that, while the matter was one falling within the police power, whose exercise could not be abridged by contract, it was competent for the municipality to enter into such a contract where the state had not its police power over the subject, and that exercised and was not seeking to exercise this contract would remain effective until there should be conflicting legislative action. See Milwaukee Elec. Ry. v. Wisconsin R. R. Comm., 238 U. S. 174, 183, 35 Sup. Ct. municipalities, is controlling upon this court, as it has decided many times. See for example, Old Colony Trust Co. v. Omaha, 230 U. S. 100, 116, 33 Sup. Ct. 967, 57 L. Ed. 1410; Claiborne County v. Brooks, 111 U. S. 400, 410, 4 Sup. Ct. 489, 28 L. Ed. 470; City of Richmond v. Smith, 15 Wall. 429, 438, 21 L Ed. 200. [4, 5] On the other hand, in deciding the constitutional questions presented, this court will determine for itself whether there is, in fact, a contract and, if so, the extent of its jects future contracts to the power of the binding obligations, but will lean to an agree- Commission while exempting existing conment with the state court. Tampa Water tracts therefrom. But it is not shown that Works v. Tampa, 199 U. S. 241, 242-243, 26 the classification in fact is unreasonable and Sup. Ct. 23, 50 L. Ed. 170, and cases cited; arbitrary and, under the decisions of this Freeport Water Co. v. Freeport City, 180 U. court, we cannot say that it is obnoxious to S. 587, 595, 21 Sup. Ct. 493, 45 L. Ed. 679; the constitutional provision. Arkansas NatuDetroit v. Detroit Citizens' St. Ry. Co., 184 ral Gas Co. v. Arkansas Railroad CommisU. S. 368, 386, 22 Sup. Ct. 410, 46 L. Ed. 592; sion et al., 261 U. S. 379, 43 Sup. Ct. 387, 67 Milwaukee Electric Ry. v. Wisconsin R. R. L. Ed. decided March 19, 1923, and cases Commission, supra. And considering the question in this light we see no reason to dif- [8, 9] 4. We cannot agree with the contenfer with that court in its view of the valid- tion of defendants that the order of the comity and binding quality of the contract. The mission, directing that no change be made in contract being valid we are not concerned the matter of the issuance of free transfers with the question whether the stipulated is open to constitutional objection. The or *439 rates are confiscatory. Southern Iowa Co. v. Chariton, 255 U. S. 539, 542, 41 Sup. Ct. 400, 65 L. Ed. 764; Paducah v. Paducah R. Co., 261 U. S. 267, 43 Sup. Ct. 335, 67 L. Ed. decided February 19, 1923. [6] 2. Treating the contract as valid, it is insisted that its obligation is impaired by the statutory extension of the limits of the town and the action of the court in holding the five-cent fare applicable in the added territory. While the statute does not refer to the contract or in terms make the rates applicable in the annexed territory, the necessary result of the decision of the state courts is to give it that effect, and in that way the statute, in the respect complained of, does substantially impair the obligation of the contract by adding to its burdens. Detroit United Railway v. Michigan, 242 U. S. 238, 247, 248, 37 Sup. Ct. 87, 61 L. Ed. 268; Columbia Railway, Gas & Electric Co. v. South Carolina, 261 U. S. 236, 43 Sup. Ct. 306, 67 L. Ed. decided February 19, 1923. cited. ⚫440 der of the com*mission went no further than to direct a continuance of a practice which, so far as the record discloses, was not be yond the terms of the contract providing specifically for such transfers. Neither are we able to say that the order of the commission, directing the defendants to provide additional seating capacity on some of its lines and trailers upon the line covered by the contract, was beyond its ordinary power to require adequate service. There is nothing in the contract with which the order conflicts, and such service naturally would seem to be implied, in the absence of a provision to the contrary. 5. Other contentions advanced by defendants we find so clearly lacking in merit that we dismiss them without special consideration. It results from the foregoing that the judgment below, in so far as it makes applicable the contract rates within the annexed territory cannot be sustained. The contract rates apply only to the town of Decatur, as it ex them to additional territory is to impose a burden upon defendants outside the contract. We find no other error; but, upon the ground stated under paragraph 2, the decree of the [7] 3. The state statute of August 23, 1907 (Civil Code, § 2662), extends the power ofisted when the contract was made. To apply the Railroad Commission to street railroad companies, but contains a proviso to the effect that it shall not be construed "to impair any valid, subsisting contract now in existence between any municipality and any such state Supreme Court is reversed and the company." It is insisted that this proviso brings about an arbitrary classification, in violation of the equal protection clause of the Fourteenth Amendment, because it sub-] cause remanded for further proceedings not Writ of certiorari denied. (43 Sup. Ct.) (262 U. S. 441) GEORGIA RY. & POWER CO. et al. v. MAYOR AND COUNCIL OF CITY OF COLLEGE PARK. just decided. From their inception in the #442 state courts the two cases have been considered together and in each of the three decisions referred to in the Decatur Case the (Argued April 24, 25, 1923. Decided June 4, state Supreme Court has disposed of them in 1923.) No. 464. The contract, however, unlike the Decatur one, contains no provision on the subject of transfers. Subsequently, by an act of the Legislature, the limits of College Park were extended so as to take in a portion of the College Park line theretofore outside the municipality. Upon the authority of the Decatur Case, we hold that the application of the five-cent fare to the annexed territory impairs the obligation of the contract. In addition to that, the order of the commission requiring the issuance of free transfers to College Park patrons, was erroneous. [3] The state courts, in effect, construed the contract as obliging defendant to carry passengers in both directions between College Park and Atlanta at the stipulated rate, and with this construction we agree. It cannot be supposed to have been within the intention of the contracting parties that one In Error to the Supreme Court of the rate of fare should be charged for passage in State of Georgia. Suit by the Mayor and Council of the City of College Park against the Georgia Railway & Power Company, and others. A decree for plaintiff was affirmed by the Supreme Court of Georgia (153 Ga. 329, 111 S. E. 911), and defendants bring error, and petition for certiorari. Reversed and remanded, and writ of certiorari denied. one direction and a different rate in the opposite direction, for the same distance, over the same line, under the same conditions and entailing the same service. Such a construction of the clause would subvert the plain purpose of the ordinance, which was to fix a five-cent fare between the two cities. We construe the phrase "from * College Park to * Atlanta" as though Mr. Walter T. Colquitt, of Atlanta, Ga., it read "between College Park and Atlanta." for plaintiffs in error. See State v. Stone, 20 R. I. 269, 38 Atl. 654. *443 Mr. Geo. P. Whitman, of Atlanta, Ga., for defendant in error. This construction, moreover, *agrees with the practice of the appellant, extending over Mr. Justice SUTHERLAND delivered the many years in charging the same fare in opinion of the Court. The facts in this case and the contentions to be considered, with some exceptions presently to be stated, are essentially the same as those involved in Georgia Railway & Power Co. et al. v. Town of Decatur (No. 463) 262 U. S. 432, 43 Sup. Ct. 613, 67 L. Ed. each direction. The decree of the state Supreme Court is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. Writ of certiorari denied. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (262 U. S. 426) Appeal from the District Court of the COLLINS v. LOISEL, United States Marshal. United States for the Eastern District of (Argued May 4, 1923. Decided June 4, 1923.) No. 880. I. Criminal law 176-Preliminary examination is not "jeopardy," barring subsequent proceedings for same offense. The constitutional provision in the Fifth Amendment against double jeopardy cannot apply, unless a prisoner has theretofore been placed on trial, and the preliminary examination of one arrested on suspicion is not a trial, so that his discharge under a warrant of arrest for extradition does not bar a subsequent arrest on new papers for the same offense. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Jeopardy (in Criminal Law).] 2. Extradition 15-Treaties permit second arrest on new papers for same offense. The extradition treaties with Great Britain and other countries do not prevent a second arrest of the same fugitive, after discharge at the first hearing, for the same offense, based on new papers. 3. Judgment 751-Constitutional guaranty against double jeopardy does not supplant doctrine of res judicata. The Fifth Amendment to the Constitution, providing against double jeopardy, was not intended to supplant the fundamental principle of res judicata in criminal cases. 4. Habeas corpus 117(2) Discharge on habeas corpus is not res judicata against right to arrest for same offense on new papers. A discharge on writ of habeas corpus from custody under a warrant for arrest for extradition, on the ground that the proceedings for arrest were irregular, is res judicata only that accused was at the time illegally in custody, and does not prevent a subsequent arrest for the same offense on new papers. 5. Habeas corpus 70-Pendency of habeas need not state offense. An order committing for extradition must be interpreted as limited by the finding of the magistrate as to the charge established by the evidence, and need not specifically set forth that charge. 7. Habeas corpus 85(2)-May assume foreign government will not try prisoner on charges for which he was not extradited. It may be assumed that the foreign government which procures the extradition of a prisoner will not try him on charges other than those on which the extradition is allowed. Louisiana. Habeas corpus proceedings by Charles Glen Collins against Victor Loisel, United States Marshal. From a judgment dismissing the petition, petitioner appeals. Affirmed. #427 *Messrs. J. Zach Spearing, of New Orleans, La., and Guion Miller, of Baltimore, Md., for appellant. Mr. Robert H. Marr, of New Orleans, La., for appellee. Mr. Justice BRANDEIS delivered the opinion of the Court. This is the third appeal by Collins in habeas corpus proceedings instituted to prevent his extradition to British India. After the decision in Collins v. Miller, 252 U. S. 364, 40 Sup. Ct. 347, 64 L. Ed. 616, the District Court dismissed the application for habeas corpus so far as the commitment was based on the charge of obtaining property by false pretenses from Mahomed Alli Zaimel Ali Raza, and remanded Collins to the custody of Loisel, the marshal. The judgment of the District Court discharged the prisoner, so far as the commitment was based on charges of obtaining property by false pretenses from Pohoomul Bros. and from Ganeshi Lall & Sons. The ground of the discharge, stated in the judgment, was that Collins had been remanded to await further proceedings on these charges to the end that he might be given the opportunity of introducing evidence at a preliminary examination under the law of Louisiana; that no further examination $428 had been held; that the prosecution on those affidavits had been definitely abandoned; and that other new affidavits had been filed by the British consul general. In this judgment the British consul general acquiesced. Collins appealed. The judgment was affirmed in Collins v. Loisel, 259 U. S. 309, 42 Sup. Ct. 469, 66 L. Ed. 956. On those new affidavits, referred to in the judgment, apparently Collins was again committed to await extradition; the papers were transmitted for action to the Department of State with the magistrate's certificate; but, owi o the fact that proceedings were still pending in the District Court, the department refused to issue the warrant of extradition. Thereafter, while the Loisel Case was pend- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (43 Sup.Ct.) 430 Bros. and from Ganeshi Lall & Sons and [volving international extradition. But in discharged by the District Court. Alleging Bassing v. Cady, supra, the rule was applied that the affidavits were identical with those to a case of interstate rendition. Protection first filed on which he had been so dis- against unjustifiable vexation and harrasscharged, Collins moved, before the magistrate, to quash the new affidavits. His moment in*cident to repeated arrests for the tion was overruled; and, after due hearing, same alleged crime must ordinarily be sought, an order was entered by the magistrate again not in constitutional limitations or treaty procommitting Collins to be held for extradition visions, but in a high sense of responsibility on these charges. Then he filed, in the same on the part of the public officials charged District Court, this petition for a writ of ha- with duties in this connection. The proceedbeas corpus and certiorari. Judgment was ings before the committing magistrate on the entered therein in December, 1922, dismiss- first and on the second set of affidavits; and ing this second petition for a writ of ha- the action of the Department of State on the beas corpus; Collins was remanded to the latter were no bar to the proceedings on the custody of the marshal; and this appeal third set of affidavits here involved. The filwas taken under section 238 of the Judicial ing by the British consul general of these Code (Comp. St. § 1215). After hearing counnew affidavits was clearly justified. sel for appellant, this court on May 4, 1923, ordered that the judgment below be affirmed, *429 and that the mandate issue forthwith. [3, 4] The discharge of Collins on the first petition for habeas corpus, so far as it related to the charge of obtaining property from Be- Pohoomul Bros. and from Ganeshi Lall & Sons does not operate as res judicata. It is true that the Fifth Amendment, in providing against double jeopardy, was not intended to supplant the fundamental principle of res judicata in criminal cases, United States v. Oppenheimer, 242 U. S. 85, 37 Sup. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516; and that a judgment in habeas corpus proceedings discharging a prisoner held for preliminary examination may operate as res judicata. But the judgment is res judicata only that he was at the time illegally in custody, and of the issues of law and fact necessarily involved in that result.2 The discharge here in question did not go to the right to have Collins held for extradition. It was granted because the proceedings on which he was then held had been irregular and the British consul general, instead of undertaking to correct them, had concluded to abandon them, and to file the charges anew by another set of [1, 2] Collins contended that commitment on the new affidavits, after discharge in proceeding based on others identical in form and substance, was a violation of the Fifth Amendment and of the Treaty with Great Britain. The constitutional provision against double jeopardy can have no application unless a prisoner has, theretofore, been placed on trial. See Kepner v. United States, 195 U. S. 100, 126, 24 Sup. Ct. 797, 49 L. Ed. 114, 1 Ann. Cas. 655. The preliminary examination of one arrested on suspicion of a crime is not a trial; and his discharge by the magistrate upon such examination is not an acquittal. Commonwealth v. Rice, 216 Mass. 480, 104 N. E. 347; People v. Dillon, 197 N. Y. 254, 256, 90 N. E. 820, 18 Ann. Cas. 552. Even the finding of an indictment followed by arraignment, pleading thereto, repeated affidavits. continuances, and eventually dismissal at the instance of the prosecuting officer on the ground that there was not sufficient evidence to hold the accused, was held, in Bassing v. Cady, 208 U. S. 386, 391, 28 Sup. Ct. 392, 52 L. Ed. 540, 13 Ann. Cas. 905, not to constitute jeopardy. Likewise it has been consistently held under the treaties with Great Britain and other countries, that a fugitive from justice may be arrested in extradition proceedings a second time upon a new complaint charging the same crime, where he was discharged by the magistrate on the first complaint or the complaint was withdrawn.1 The precise question appears not to have been passed upon by this court in any case in 16 Op. Atty. Gen. 91; 10 Op. Atty. Gen. 501; In re MacDonnell, 11 Blatch. 170, 179, Fed. Cas. No. 8772; In re Kelly, 26 Fed. 852; Fergus, Petitioner, 30 Fed. 607; Ex parte Schorer (D. C.) 195 Fed. 334. See, also, 1 Moore on Extradition, pp. 457-464; 1 Hyde, International Law, p. 596; Muller's Case, 5 Phila. 289, Fed. Cas. No. 9913; In re Farez, 7 Blatch. 345, Fed. Cas. No. 4645. [5] The contention was also made that, as the arrest on the new affidavits after discharge on the old was an independent proceeding, and Collins was then being held on an entirely different charge under review by 431 this court *in the Loisel Case, the magistrate was without jurisdiction. There was here no attempt to interfere by the second proceeding with the custody of Collins on the first. The fact that Collins was in the custody of the court did not render invalid the second warrant. It would merely prevent withdrawal of the prisoner from the custody of the court by means of the execution of a second warrant. In re MacDonnell, 11 Blatch. 170, 177, 178, Fed. Cas. No. 8772; Compare Ponzi v. Fessenden, 258 U. S. 254, 260, 265, 42 Sup. Ct. 309, 66 L. Ed. 607, 22 A. L. R. 879. The Compare Ex parte Milburn, 9 Pet. 704, 710, 9 L. Ed. 280; In re White (C. C.) 45 Fed. 237; United States v. Chung Shee (D. C.) 71 Fed. 277; Id., 76 Fed. 951, 22 C. C. A. 639; Ex parte Gagliardi (D. C.) 284 Fed. 190. |