monstrous, and yet is likely to achieve the result with corporations, while it would be extravagant as applied to men. Hence, this difference is admitted to be justifiable. But the admission goes far to destroy the argument that is made. For if a fundamental distinction may be made in the evils that different delinquents are forced to suffer, surely the less important and ancient distinction between the modes of establishing the delinquency, according to the nature of the evil inflicted, even more easily may be justified. The Supreme Court of the State says that the present proceeding is of a civil nature, but assuming that nevertheless it ends in punishment, there is nothing novel or unusual about it. We are of opinion that subjection to it, with its concomitant advantages and disadvantages, is not an inequality of which the plaintiff in error can complain, although natural persons are given the benefit of the rules to which we have referred before incurring the possible sentence to prison, which the plaintiff in error escapes.

The second objection to the statute is that, although construed by the court to apply to domestic business only, nevertheless, it is held to warrant turning the defendant out of the State for an interference with interstate trade. The transaction complained of was inducing merchants in Gallatin to revoke orders on a rival company for oil to be shipped from Pennsylvania, by an agreement to give them 300 gallons of oil. It is said that as the only illegal purpose that can be attributed to this agreement is that of protecting the defendant's oil against interstate competition, it could not be made the subject of punishment by the State; that the offense, if any, is against interstate commerce alone.

The cases that have gone as far as any in favor of this proposition are those that hold invalid taxes upon sales by travelling salesmen, so far as they affect commerce among the States. Robbins v. Shelby County Taxing District, 120 U. S. 489; Rearick v. Pennsylvania, 203 U. S. 507. These cases fall short of the conclusion to which they are supposed to

point. Regulations of the kind that they deal with concern the commerce itself, the conduct of the men engaged in it and as so engaged. The present statute deals with the conduct of third persons, strangers to the business. It does not regulate the business at all. It is not even directed against interference with that business specifically, but against acts of a certain kind that the State disapproves in whatever connection. The mere fact that it may happen to remove an interference with commerce among the States as well with the rest does not invalidate it. It hardly would be an answer to an indictment for forgery that the instrument forged was a foreign bill of lading, or for assault and battery that the person assaulted was engaged in peddling goods from another State. How far Congress could deal with such cases we need not consider, but certainly there is nothing in the present state of the law at least that excludes the States from a familiar exercise of their power. See Field v. Barber Asphalt Co., 194 U. S. 618, 623.

There is an attempt also to bring this case within the statute of limitations. It was permissible for the corporation to contend that it was discriminated against unconstitutionally by being excluded from that defense, and we have dealt with the argument that it was so. But the scope of the state statutes was for the state court to determine and is not open here.

Decree affirmed.

217 U.S.

Argument for Plaintiff in Error.

HEIKE v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 849. Submitted April 11, 1910.-Decided May 2, 1910.

Appellate jurisdiction in the Federal system of procedure is purely statutory. American Construction Co. v. Jacksonville, Tampa & Key West Railway Co., 148 U. S. 372.

A case cannot be brought to this court by piecemeal; it can only be reviewed here after final judgment.

A decree is final for the purposes of review by this court when it terminates the litigation on the merits and leaves nothing to be done except to enforce by execution what has been determined. St. Louis, Iron Mountain & Southern R. R. Co. v. Express Co., 108 U. S. 24. A judgment overruling a special plea of immunity under statutory provisions, with leave to plead over, does not, in a criminal case, terminate the whole matter in litigation, and is not a final judgment to which a writ of error will lie from this court.

The immunity of one testifying before a grand jury, under the act of February 25, 1903, 32 Stat. 904, as amended June 30, 1906, 34 Stat. 798, does not render him immune from any prosecution whatever, but furnishes a defense which, if improperly overruled, is a basis for reversal of a final judgment of conviction.

THE facts are stated in the opinion.

Mr. John C. Spooner, with whom Mr. John B. Stanchfield and Mr. George S. Graham were on the brief, for plaintiff in error: A judgment, to be appealable, need not be one that finally determines the case. If the judgment from which an appeal is taken, settles a collateral matter distinct from the general subject of the litigation, it is a final, appealable judgment within the law. McLish v. Roff, 141 U. S. 661; Bowker v. United States, 186 U. S. 135, only hold that appeals direct to this court under § 5 of the act of March 3, 1891, may be taken from a final judgment alone. They leave unsettled what constitutes a final judgment.

Argument for Plaintiff in Error.

217 U.S.

The immunity statute provides: "No person shall be prosecuted," etc., and unless this court entertains this writ of error, the defendant will be denied an immunity from prosecution, given to him under the statute in lieu of the constitutional privilege and safeguard against self-accusation embodied in the Fifth Amendment; and no subsequent action of this court, after either conviction or acquittal, can repair the wrong thus done.

This question is an absolutely new one. While a judgment of respondeat ouster is usually not a final or appealable order, the judgment herein is not one of respondeat ouster. There is no analogy between this case and those involving autrefois acquit or convict, former jeopardy, senatorial privilege, and the like. See Counselman v. Hitchcock, 142 U. S. 547.

No substitute for the protection contemplated by the Amendment would be sufficient were its operation less extensive and efficient. It constituted a protection in advance. The substitute provided by the statute must equal the privilege that has been taken away, and furnish protection from prosecution in advance. See Shiras, J., in Brown v. Walker, 161 U. S. 592.

- This court, having declared that the immunity statute is constitutional, is all the more bound to see that the substitute which it provided shall not be a mockery and a snare.

The order of the court directing plaintiff in error to go to trial, is a violation of the rights of the plaintiff in error as guaranteed to him by the immunity statutes.

To permit the trial to proceed takes away that which never can be restored. In fact, plaintiff in error will have been compelled to testify against himself.

The rule as to what will constitute finality and give the appealable quality is alike in civil and criminal matters. For instances in which decrees analogous to the one involved were held final, see Forgay v. Conrad. 6 How. 201; Brush Electric Co. v. Electric Imp. Co., 51 Fed. Rep. 557.

The controversy in this case over the immunity of plain

217 U. S.

Argument for Plaintiff in Error.

tiff in error settles a collateral matter distinct from the general subject of litigation. See McGourkey v. Toledo &c. Railway Co., 146 U. S. 536.

Whenever there is a determination of some question of right, a decision is final in the sense in which an appeal from it is permitted, if it decides and disposes of the whole merits of the case as between the parties on that issue. Alexander v. United States, 201 U. S. 117, distinguished. That and other similar cases admit that where the court below proceeds to compel the witness to answer, there is a final, reviewable decision or judgment; and see Interstate Comm. Comm. v. Brimson, 154 U. S. 447; Interstate Comm. Comm. v. Baird, 194 U. S. 25.

The only thing that can follow in this case, is prosecution; and the court has ordered prosecution, and this stands in the place of the order of the court directing punishment for contempt. The question of immunity is not one involved in the general issue, but a separate and distinct privilege. Williams v. Morgan, 111 U. S. 684, 698.

Plaintiff in error might have allowed sentence to go against him without asking for any further opportunity of defense, and thus have created a final judgment, but why should he? The judgment entered upon his plea, and the order to proceed to trial, constitute as complete a violation of his rights as that which is reached where a witness is ordered to answer and, upon refusal, is committed for contempt. Hazeltine v. Bank, 183 U. S. 130; Schlosser v. Hemphill, 198 U. S. 173.

Appeals taken from the judgment relate to the highest court of a State reversing and remanding the cause for further proceedings, and have no application to this question; nor has California v. San Pablo & Tulare Co., 149 U. S. 308, 314; Mills v. Green, 159 U. S. 651; Kimball v. Kimball, 174 U. S. 158; Rankin v. The State, 11 Wall. 380.

The immunity statute does more than merely furnish a defense to a defendant when put on trial. It gives him freedom from actually being put on trial.