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Gorell Law Schou! Library
Cornell University Lib:
KF 9011.B15 ec
v.

iii
A TREATISE

ON THE LAW OF

HABEAS CORPUS
SPECIAL REMEDIES

INCLUDING
Manpamus, CERTIORARI, Quo WARRANTO AND
PROHIBITION, AND ALSO THE SUBJECT
OF COoNTEMPTS

ee mA oes

Hon. W. F. BAILEY,

Of the Wisconsia Bar,

AUTHOR OF

Master’s Liability for Injuries to Servants, Personal Injuries Relating to Master and
Servant, The Law of Jurisdiction and the Wisconsin Digest,

IN TWO VOLUMES

CHICAGO
T. H. FLOOD & CO.
TO13
12 2673

Copynzic#r
BY
W. F. BAILEY.

STATE JOURNAL PRINTING COMPANY
PRINTERS AND STEREOTYPEES:
MADIBON, WIS.
 

PREFACE

The reason for this work is simply the need of it.
There has been no treatise upon the subjects embraced
herein in many years. In the meantime they have be-
come more than usually prominent. They have kept
pace with the growth of the period. While it perhaps
ought not to be said that they have been expanded, yet
safely, in respect to some of them, it may be said they
have been applied by the courts to meet conditions
which before were without such a precedent. That
there have been changes in the law governing them,
both judicial and statutory, a reference to the work
fully demonstrates. Take for instance the subject of
Habeas Corpus. The underlying principle which con-
trols its use is that of jurisdiction. Jurisdiction is the
foundation of all legal proceedings. Jurisdiction of
the courts is either inherent, possessed by force of the
common law or conferred by statute. When and to
what extent inherent is a question often perplexing and
difficult of solution. By virtue of the complex system
of our Governments, divided into three great parts, the
executive, the legislative and the judicial, each so far
as practicable independent, to determine whether there
has been an invasion of one upon the province of the
other, presents not only a delicate but often times a
difficult question, and made so from the fact that they
are not entirely independent of each other. The courts
are designed to be the final arbiter of all questions. In
fact it may be said they are supreme. They necessarily
invade the domain of the legislative branch when called
upon to determine the constitutionality of acts of the
iv PREFACE,

former. Again, the legislative branch to a great ex-
tent determines and regulates the power of the courts;
yet it cannot invade the inherent powers of the latter.

The mere suggestion, therefore, is sufficient to dem-
onstrate the importance of the question, and as the
courts of late have more frequently than ever passed
upon it, under a great variety of conditions or circum-
stances, it is also important to the profession that they
not only become familiar with their conclusions, but the
reasons upon which they are based.

Another feature not to be overlooked, is the fre-
quency of late of a resort to the Federal tribunals to
determine controversies arising out of Federal legis-
lation as well as the extent of the supremacy of the
power of the Federal courts, under the Federal con-
stitution over state legislatures and state courts, not
only in respect to property rights but personal rights
of the citizen as well.

Much space and great consideration has been de-
voted in this work to the special features mentioned.

Radical changes in many particulars have been made,
not only in the application of the specific writs which
comprise our subjects, but also in the character of the
proceedings.

The prerogative character of the writ of Mandamus,
except in matters purely public, has become obsolete.
It is now an ordinary action at law in most jurisdic-
tions. Great changes also have been made in the
character of the proceedings in the nature of Quo War-
ranto.

The underlying principle of Certiorari is also that of
jurisdiction. Presumption enters largely into consid-
eration. A distinction exists between the exercise of
general and special powers on the part of courts of
general jurisdiction. With respect to Inferior Courts
of limited jurisdiction, or tribunals exercising judicial
functions, ordinarily presumptions are not indulged in,
PREFACE, v

but strict adherence to statutory requirements is es-
sential.

A most complete treatise of the subject of Contempts
appears. It is found that the majority of cases, where
the writ of habeas corpus was issued, involved the ques-
tion of contempts, and hence necessarily that import-
ant subject is considered.

To complete Habeas Corpus it required that the
subject of Extradition of Fugitives from Justice should
be fully considered and treated, and also that of the
right to the Custody of Children.

It thus appears that the work is of special import-
ance to prosecuting officers, who have to deal with the
enforcement of the criminal laws.

Reference has been made, in addition to the pub-
lished reports, to the Reporter System, the American
Reports, American Decisions, American State Reports,
and Lawyers Reports Annotated.

W. F. Baty.

Eau Claire, Wisconsin,

January, 1913.
b
TABLE OF CONTENTS

Chapter.

I.
II.

III.
IV.
Vv.
VI.
VII.

VIII.
IX.

XI.
XII.

XIII.
XIV.,
XV.
XVI.
XVIL

.
An PrP wn e

VOLUME I.

BOOK I.
HABEAS CORPUS.

i

GENERAL CONSIDERATIONS, §§ 1-6.
JURISDICTION OF CRIMES AND OFFENSES; FEDERAL AND STATE
CouRTS; WHEN EXCLUSIVE AND WHEN CONCURRENT, §§ 7-14.
JURISDICTION OF CouRTS, §§ 15-28.
REVIEW OF PROCEEDINGS AND JUDGMENTS, §§ 29-48.
EXcess oF JURISDICTION; REVIEW BY HaBeas Corpus, §§ 49-58.
THE JUDGMENT UPON ReviEw; Res ApsgupicaTa, §§ 59-61.
CoNTEMPTS; GENERAL REvEIW. SCOPE OF WriIT oF HaBEAS
Corpus, §§ 62-76.
Wrrnesses, §§ 77-99.
MISconbDUCT OF OFFICERS OF CoURT AND OTHERS, § 100.
PowEk TO PUNISH FOR CoNTEMPT, § 101.
PROCEEDINGS AND JUDGMENT, §§ 102-104.
Persons RESTRAINED BY OTHER THAN JUDICIAL PROCESS,
§§ 105-107.
Courrs MarriaLt; MILirary SrErvice, §§ 108-110.
Bait; ADMITTING To, §§ 111-116.
INTERNATIONAL EXTRADITION, §§ 116-126.
INTERSTATE EXTRADITION, §§ 127-144.
Custopy or CHImpRen, §§ 145-158.

CHAPTER I.
GENERAL CONSIDERATIONS.

. History of the Writ.

. Nature and Purpose of the Writ.

. Legislative Control.

. Character of the Proceedings.

. Writ; whether One of Right.

. Actual Confinement or Present Means of Enforcing it, Essential.
TABLE OF CONTENTS.

CHAPTER IL.

JURISDICTION OF CRIMES AND OFFENSES; FEDERAL AND
STATE COURTS; WHEN EXCLUSIVE AND WHEN CONCUR-

RENT.
§ 7. State Courts; Offenses against the State.
8. Federal Courts.
9. Where same Act an Offense against Federal and State Laws;
an Offense against Two Sovereignties.
10. Offenses against the National Banking Laws; Embezzlement.
11. Perjury in Proceedings before Federal Tribunals or Officers.
12. Illegal Voting for Federal Officers.
13. Extortion under Threat of Accusation of a Crime against the
United States.
14. Conspiracy against Exercise of a Federal Right.
CHAPTER III.
JURISDICTION OF COURTS.
I, FEDERAL COURTS.
§ 15. Constitutional and Legislative Provisions.
16. Repeal of a Provision of Act of 1867 Relating to Appeals; Ef-
fect.
17. Repeal of the Repealing Act; Effect.
18. Act of March 8, 1891, Creating Circuit Courts of Appeals.
19. Act of March 10, 1908, Relating to Process Issued out of State
Courts.
Review of Proceedings.
1. RevIEW OF PROCEEDINGS OF INFERIOR FEDERAL CouRTS.
20. In General.
21. Application of the Rule.
2. REVIEW OF PROCEEDINGS OF STATE CouRTS,
22. In General.
23. Discretion of Court.

Writ not Issued in Advance of Final Determination in
Other Court Except in Exceptional Cases.

Constitutional Questions not Determined where Other
Grounds Sufficient Appear.

Where Large Interests and Rights of the Public are In-
volved.

Discretion of Circuit Court not Conclusive upon Review
by Supreme Court.

‘Writ Refused where Cause no Longer Exists.
TABLE OF CONTENTS. ix

24. Exceptions to the Rule; Cases Within.

25.

26.

27.

28.

29,
30.
31.
32.
33.
34,
35.
36.
37.

38.

Prisoner in Custody for Act Done in Pursuance of the
Laws of the United States. ;

Perjury Committed in Matter within Exclusive Cogni-
zance of Federal Courts.

Officers or Agents in the Service of the Government.

Persons in Custody for an Act done Pursuant to an Order
of the Federal Court.

3. Review or FinaL JUDGMENT AND SENTENCE.
General Rule.

II, State Courts,

By What Authority and When Writ Will Issue.
In General.
Persons in Custody Under Authority of the United States.
In General. :
In Custody of United States Marshal.
In Custody of Officers of the Army.
Distinction between Persons in Custody and Where Federal
Laws Violated.

CHAPTER IV.

REVIEW OF PROCEEDINGS AND JUDGMENTS.
Preliminary Statement.
Jurisdiction and Validity of Process; the Inquiry.
Jurisdiction Defined.
Jurisdiction; Subject Matter Defined.
Mere Errors and Irregularities not Subject of Review.
Jurisdictional Questions to be Determined from the Record.
Record; What Constitutes.
Law and Practice Stated.
Unconstitutional Law; Effect on Jurisdiction.
Extraneous Proof not Admissible.
Statutes and Municipal Ordinances in Conflict with Personal
Rights.
In General.
Constitutionality of Legislative Acts. Federal Courts will
Determine. '
Requiring License of Nonresidents Selling Goods,
Wares, etc.
Ordinances Restricting Operation of Laundries.
Ordinances Declaring Structures or Other Matters a
Nuisance.
TABLE OF CONTENTS.

Where not in Violation of Federal Constitution; De-
cision of State Court, Final.
Conferring Discretionary Power upon Mayor.
Statutes Limiting Hours of Labor.
39. Unconstitutional Procedure.
In General,
40. Former Jeopardy Ordinarily not a Question of Jurisdiction.
Exception to the Rule.
Former Trial a Nullity.
41. Indictments, Validity of.
Must Precede Conviction.
Cannot be Altered or Amended.
Prosecutions upon Information within the Power of the
States.
42. Not Stating an Offense or Otherwise in Conformity to Law.
Whether act Charged is or is' not a Crime.
Rule in Indiana.
Rule in California.
Rule in Federal Courts.
/ Where Offense Charged not Within the Statute.
43, Charging an Offense not within the Jurisdiction of the Court.
44, Grand Jury Disqualified.
Exclusion of Persons on Account of Race or Color.
45. Trial by Jury; Waiver of Constitutional Right.
In General.
Exception where Statute gives Accused an Option.
The Ohio Cases Referred to.
Doctrine in Michigan.
Alien Juror; Failure to Object.
Exception, Independent of Statute.
Question not Directly Passed upon by the Federal Su-
preme Court.
Plea of Guilty; Question not Involved.
46. Trial in County or District where Offense Committed.
47. Refusal to Change Venue.
48. Review of Commitments by Magistrate.
In General.
Doctrine Stated by the Wisconsin Court.
Doctrine Stated by the Minnesota Court.
Doctrine in Indiana.
Statutes; Extent of Inquiry under.
Decision of Federal Supreme Court not in Accord with
Doctrine Stated.
Writ Ordinarily will not Issue Pending Examination.
Writ may Issue Prior to Examination.
TABLE OF CONTENTS. xi

Iowa Statute.
Title of Magistrate or Judge or Legality of Court not
Subject to Inquiry.

CHAPTER V.
EXCESS OF JURISDICTION; REVIEW BY HABEAS CORPUS.

§ 49. Doctrine Stated.
50. Authority to Render the Particular Judgment.
51. Rule Stated by which to Determine the Question of Jurisdic
tion.
52. With Respect to Place of Confinement.
53. Judgment and Sentence in Excess of that Prescribed by Law.
In. General.
54. Rule in Particular States.
Alabama.
California,
Idaho.
Iowa,
Michigan.
New York.
Ohio.
Nebraska.
Missouri.
South Dakota.
Wisconsin.
55. Cumulative Sentences.
56. Indeterminate Sentence.
57. Parole; Subsequent Arrest and Imprisonment.
58. Trial for Two Distinct Offenses at Same Time.

CHAPTER VI.
THE JUDGMENT UPON REVIEW; RES ADJUDICATA,

§ 59. Remanding the Prisoner.
60. Discharging Prisoner.
61. Federal Statute.

: CHAPTER VII.
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT.

I. ConTEMPTs IN GENERAL

§ 62. Preliminary Statement.
63. What are Contempts.
May Consist in Manner of Speech.
Xi TABLE OF CONTENTS.

Disrespectful Language, Use of; Manner in Pleading,
Both as to Substance and Language.
Insulting Letter Sent to Grand Jury.
Acts, Conduct, Speeches, etc.
Liberty of the Press; Bill of Rights.
64. Power of Courts to Adjudge and Punish.
65. Legislative Control of the Power; Extent.
Doctrine Declared by Courts in Some States.
66. Contempts Within the Statute.
67. Distinction between Civil and Criminal Contempts.
As Declared by Federal Supreme Court.
As Declared by New York Court of Appeals.
Statutes Relating to Criminal Contempts.
Immediate Presence of the Court; Expression Construed.
68. Civil Contempts Defined.
69. Character of Proceedings.
70. The Judgment or Final Order.
In General.
Striking out Pleading.
Denial of Relief.

Il. Score or THE Writ or Haseas Corpus IN REVIEWING ORDERS AND
JUDGMENTS OF CONTEMPT.

71. In General.

Disobedience or Violation of Orders or Judgments.
72. General Rule.

Extent of Inquiry.
78. In General.

Petitioner May in the Federal Court Show, not Disputing
the Facts Found, that the Act Claimed was not a Con-
tempt.

Order for Examination before Trial made in Federal
Court.

Illegal Punishment.

Facts not Subject to Review.

74. Distinction between Jurisdiction and Judgment.
75. Particular Orders and Judgments.

Enjoining Removal of Officer.

Enjoining State Officers.

Judgment; Enforcement Stayed upon Appeal.

Enjoining Federal Officers.

Mandamus; Disobedience of Writ.

Order Respecting Possession of Realty.

Decree of Specific Performance; Refusal to Comply.

Injunction; Violation of.
TABLE OF CONTENTS. xiii

Order Respecting Payment of Alimony.
Nonpayment; Ability to Pay.
Order Directing Delivery of Documents or Other Papers.
Order made in Other than Judicial Proceedings.
76. Interference with Process or Action of Court by a Third
Party.
In General.
Receivers; Interference with Their Possession,

CHAPTER VIIL »
CONTEMPTS; WITNESSES.

I, Prrvitece or WITNESS.

§ 77. Preliminary Statement.
78. At Common Law; Self- Inerimination.
General Rule.
Criminating Effect of Answer; Who to Judge.
79. Under Constitution of the United States.
In General.
Rule as Declared in Several States,
Rule as Declared by Supreme Court of the United States.
Construction of the Term Criminal Case.
80. Inspection of Books and Papers.
In General.
Production of Books of Corporation.
Public Documents, Papers, etc.
Books, Papers, etc., of siaaeats in Bankruptcy Pro-
ceedings.
81. Production of Books and Papers eae without Claim of
Incrimination.
In General.
Where not Pertinent to the Issue, ;
82. Immunity and Immunity Statutes.
In General.
83. Application of the General Rule to Acts.
84. Exposure to Infamy and Disgrace.
85. The Right or Privilege that of the Witness Alone.
86. Waiver of Privilege.
Rule with Respect to Parties.
87. Refusal to Answer Incompetent Questions.
88. Refusal to Produce Books and Papers not Relevant.
89. Refusal to Answer Questions where Court Without Jurisdic-
tion.
xiv TABLE OF CONTENTS.

II. CoNFIDENTIAL AND PRIVILEGED COMMUNICATIONS.

90. Political.
91. Professional.
Attorney and Client.
Existence of Relation.
Communication whether Privileged.
Production of Documents, Papers, etc.
Correspondence.
Waiver of Secrecy.
Communications not Privileged.
92. Physician and Patient.
93. Clergymen.
94. Husband and Wife.
In General.
Communications in Presence of Third Persons.
Communications made to Third Persons.
Rule under Particular Statutes.
Exceptions to the Rule.
95. Telegraph Operators and Postmasters.

96. Officers and Others Excused on Grounds of Public Policy or
Otherwise.

Judges and Arbitrators,
Informers,

Grand Jurors.

Petit Jurors.

III. Conrumaocy or WITNESS.

97, Refusal of Witness to Attend,
$8. Refusal to be Sworn.
99. Refusal to Testify.

Experts.

CHAPTER IX.

MISCONDUCT OF OFFICERS OF THE COURT AND OTHERS.

§ 100. In General.
Officers in General.
Attorneys.
Clerks of Court.
Sheriffs.
Jurors.
Persons Other than Officers.
TABLE OF CONTENTS. xV

CHAPTER X.
POWER TO PUNISH FOR CONTEMPT.

§ 101. In General.
Federal and State Legislatures.
Practice where Body without Authority to Punish.

CHAPTER XI.
PROCEEDINGS AND JUDGMENT.

§ 102. Summary Proceedings.
103. ‘Constructive Contempts.
Notice and Opportunity to be Heard.
104. Review of Proceedings.
Of Federal Courts.
Of State Courts.
In General.
Method of Review.
In General.
By Certiorari.
By Appeal.
By Habeas Corpus.

CHAPTER XII.
PERSONS RESTRAINED BY OTHER THAN JUDICIAL PROCESS.

§ 105. Deportation of Aliens.
106. Persons Restrained by Direction of Board of Health.
107. Lunatics Committed or Restrained.
Right of Trial by Jury.

CHAPTER XIII.
COURTS MARTIAL; MILITARY SERVICE.

§ 108. Power of Courts to Review Judgments of Courts Martial.

General Review.
Conclusiveness of Judgment.
Milligan Case; Propositions Determined.
Jurisdiction Properly Assumed; Illustrations.

109. Enlistments Generally. ;
In the Federal Service.
In the State Militia.

110. Suspension of the Writ.
Power where Vested and when it may be Exercised.
Power of the States. ‘
§ 111

112.

113.
114.

115.

§ 116.
117.
118.
119.

120.
121.
122.
123.

TABLE OF CONTENTS.

CHAPTER XIV.

BAIL; ADMITTING TO,
. Use of Writ.
Discretion of the Court in Capital Cases,
‘In General.
Before Indictment.
After Trial had and Disagreement of Jury.
After Prisoner has been Tried and Convicted Pending
Appeal.
In Cases not Capital. :
Whether Extrinsic Evidence Admissible.
Circumstances Extraordinary in Character.
Impaired Health.
Excessive Bail cannot be Required.
In General. ;
Reduction of Bail.
Right of Appeal from Order.

CHAPTER XV.
INTERNATIONAL EXTRADITION.

Definition.
Extradition is Allowed and Governed by Force of Treaties.
Executive of State without Power to Surrender Fugitive.
Jurisdiction as used in Treaties Defining Place of Commis-
sion of the Alleged Crime.
The Alleged Offense must be a Crime in Both Countries.
Political Offenses not Included in Treaties.
Whether Requisition must Precede Arrest and Inquiry. ~
Proceedings.
Examination before a United States Commissioner.
Competency of Magistrate.
Character of the Proceedings.
Examination how Conducted; where Held.
Requirements Preliminary to Issue of Warrant of Arrest.
Complaint; by Whom Made. :
Manner of Statement of Facts.
What Required to be Stated.
The Warrant; What to Contain.
Evidence; Character and Sufficiency.
Pntitled to Process at Expense of Government,
Bail; Whether Permissible.
Continuance.
Commitment and Certificate.
124,

125.
126.

127
128.

129.

180.
131,
132.
133.

134,

135.
136.

137.
188.
140.
141.
142.

143,

‘TABLE OF CONTENTS. _ xvii

Determination of Magistrate not Conclusive upon the
President.
Review of Proceedings upon Habeas Corpus.
State as well as Federal Courts have Jurisdiction to In-
quire into Cause of Restraint.
Extent of Inquiry.
Trial for Other Offenses than that for which Extradited.
Extradition of Deserter from Army.

CHAPTER XVI.
INTERSTATE EXTRADITION,

Constitutional Provision.
Act of Congress Giving Effect to such Provision.
The Constitution includes as Crimes every Offense Punishable
by the Law of the Demanding State.
Fugitives from Justice.
What Constitutes.
Must be Charged with Crime in the Demanding State.
Must be Charged in Judicial Proceedings.
Persons Forcibly brought into the State where not a Fu-
gitive.
Forcible Abduction or Kidnapping.
Trial for Other and Different Crime.
Arrest before Demand Made.
The Complaint; what must Appear.
The Requisition.
The Demand.
The Copy of the Indictment; the Affidavit.
The Indictment; Sufficiency of.
The Affidavit.
The Certificate of Authenticity of Affidavits; how Far Con-
clusive.
Duty of Executive not Mandatory.
The Executive must Satisfy Himself that the Accused is a
Fugitive from Justice.
The Warrant.
Agent Appointed by State; Delivery to.
Jurisdiction of Federal and State Courts.
State Courts do not Proceed when it Appears Petitioner is
held under Federal Authority.
State Courts not Prohibited because Federal Rights or Laws
are Involved.
Nature and Extent of Inquiry.
Affidavit or Indictment may be Examined.
Xviil TABLE OF CONTENTS.

Determination of the Executive that the Accused is a Fu-
gitive; how Far Conclusive.

The Executive Warrant; Effect.

Determination whether Act Charged Constitutes a Crime
in State where Committed.

Identity of Alleged Fugitive.

Guilt or Innocence; Question of.

144. Immunity of Extradited Person from Civil Process

CHAPTER XVII.

CUSTODY OF CHILDREN.

§ 145. Purpose of Writ.
146. Not Essential Child be within the Territorial Jurisdiction of
Wrongdoer.
147. Whether Demand should First be Made.
148. Petitioner must Affirmatively show Right to Custody of Child.
149, Right to Custody as between Parents.
150. Voluntary Surrender of Custody of Child by its Parents.
151. Welfare of the Child.
152. Abandonment of Child.
153. Exercise of Choice by Child.*
154. Commitment to Public or Charitable Institution.
155. Illegitimate Children.
156. Apprentice.
157. Ward.
158. Jurisdiction of Federal Courts.

BOOK IL

CERTIORARI.

Chapter.
I. Scope OF THE WRIT IN GENERAL, secs. 159-176.
II. GENERAL CONSIDERATIONS, secs. 177-185.
III. Review or PROCEEDINGS, secs. 186-190.
IV. FEDERAL COURTS; JURISDICTION; PROCEEDINGS, secs. 191-196.

CHAPTER I.
SCOPE OF THE WRIT IN GENERAL.

§ 159. Nature and Office of the Writ.
160. Classification of Subject.
‘TABLE OF CONTENTS. xix

I. Courts or GENERAL JURISDICTION PROCEEDING ACCORDING TO THE
CouRSE oF THE Common Law.

161. In General.
Review of Proceedings prior to Final Judgment.
162. Superintending Power of Control over Inferior Courts.

.

II. Courts oF GENERAL. JURISDICTION NOT PROCEEDING ACCORDING TO
THE COURSE OF THE CommoN LAw.

163. In General.
Where Record Discloses an Attempt, but not Strict Com-
pliance with the Statute.
Summary Proceedings.
Preliminary Statement.
Proceedings Classed as Summary.
Distinction between Special Powers Conferred and Gen-
eral Powers Extended.
164, Distinction between Jurisdiction and Error of Judgment.
165. Ordinarily Writ will not Lie where there is another Ade-
quate Remedy. ' : \
166. Allowance of Writ when Discretionary...

III. InFeriozg Courts or Limitep JURISDICTION.

167. In general.
Remedy by Appeal does not Preclude the Writ.
168. Distinction between Courts of General and Inferior Courts
of Limited Jurisdiction.
169. Probate Courts,
170. Statutory Courts.

IV. TRIBUNALS, OFFICERS AND Boarps EXERCISING QUASI JUDICIAL

Functions.
171. In General. .
172. Executive Legislative and Ministerial Acts not Subject to Re-

view.
173. Judicial and Nonjudicial Acts.
Appointment and Removal of Officers.
Boards of Audit; Proceedings.
Boards of Health; Acts of.
Boards of County Supervisors; Proceedings.
Highway Commissioners; Proceedings.
Municipal Corporations; Proceedings.
In General. :
Licenses; Granting, Refusing, Revoking.
Land Commissioners; Acts of.
174.

175.

176,

177,

178.

179.

180.
181.

482.

183.

184.
185,

186.
187,
188.
189.

TABLE OF CONTENTS,

-Civil Service and Other Commissioners; Acts of.
Canvassing Boards; Proceedings.
Taxing Officers and Boards; Proceedings.

In General.

Assessors.

Boards of Review and Equalization.

V. Warr ANCILLARY TO OTHER PROCEEDINGS.

General Review.

VI. Review or Hapeas Corpus PRocEEDINGS,

General Review.

VII. Revirw or ConTEMPT PROCEEDINGS.

General Review.

CHAPTER IL.
GENERAL CONSIDERATIONS,

Discretion; Exercise of in Respect to.
In General.
Void Proceedings; Rule.
At what Stage of Proceedings the Writ will Issue.
In General.
Justices’ Court.
Tribunals Other than Courts.
Municipal Corporations.
Who may Prosecute the Writ.
The Petition.
Application for the Writ.
Rule in Massachusetts and other States.
Rule in Several States.
Allowance of Writ not Conclusive on the Courts,
Time within which Writ should be Applied for.
Direction of Writ.
The Return; Conclusive Effect of.

CHAPTER III.
REVIEW OF PROCEEDINGS.

In General.
Evidence; when and to what Extent Reviewable.
Discretionary Acts.
The Judgment.
In General.
TABLE OF CONTENTS. Xxi

Statutes; Effect of.
Inferior Court without Jurisdiction.
Dismissal of Proceedings.
Power to Affirm or Reverse in Whole or in Part.
Conclusive Effect of.
Costs; Question of.
190. Review of the Judgment of the Court of Review by the Ap-
pellate Court. i

CHAPTER IV.
FEDERAL COURTS; JURISDICTION; PROCEEDINGS,

§ 191. When Writ may Issue.
192. Writ Addressed to Circuit Court of Appeals.
198. Use of Writ Generally.
194. What may be Considered.
195. The Mandate.
196. Circuit Courts of Appeals may Issue,
c

 
TABLE OF CONTENTS
VOLUME II.

 

BOOK III.

MANDAMUS.
Chapter,
I. GENERAL CONSIDERATIONS, secs. 197-203.
II, JURISDICTION oF CouRTS, secs. 204-207.
III. ManpAMuUs TO INFERIOR CoURTS, secs. 208-223.
IV. Manpamus TO STATE OFFICERS AND Boarps, secs. 224-280.

V. MANDAMUS TO PUBLIC OFFICERS OTHER THAN FEDERAL OR STATE,
secs. 231-241.
VI. RieHT anp TiTLE To OrFice; EsEct, secs. 242-249.
VII. ManpAMuS TO MUNICIPAL AND PUBLIC CORPORATIONS, secs. 250-
268.
VIII. ScHoots anp ScHoon Boarps, secs. 269-280.
IX. MANDAMUS TO PRIVATE CORPORATIONS, secs. 281-298.
X. Manpamus To PRIVATE CORPORATIONS; INTERNAL AFFAIRS,
secs. 299-314,

CHAPTER TI.
GENERAL CONSIDERATIONS.

§ 197. Character and Origin of the Writ.
198. The Modern Writ in the United States an Ordinary: Proceed-
ing or Action at Law. :
199. Office of the Writ.
In General.
Enforcement of Criminal Law.
Duty Required to be Performed.
Duty not only Absolute but Imposed by Law.
Where Time for Performance of Statutory Duty has Ex-
pired or Term of Office has Expired.
Writ will not Issue to Undo what has been Done.
Distinction between Judicial and Ministerial Acts.
Where Act not within the Power of Defendant to Perform.
Demand; when Necessary.
TABLE OF CONTENTS. XXili

200. The Relator.
In General.
Where Private Interests Involved.
Clear Right to the Writ must Appear.
Enforcement of Public Duties by Corporations.
201. Discretion in Allowing the Writ.
In General.
Where Granting of Writ will Result in Injustice.
Where the Writ if Issued will be Unavailing.
Not allowed to Refuse a Clear Legal Right where there is
no Other Remedy.
Abuse of Discretion when Controlled.
When Exercised with Manifest Injustice.
202. When Writ will be Withheld.
In General.
Will not Lie to Compel Performance of Illegal Act.
Writ will not Lie to Compel either Useless or Unlawful
Acts.
Whether will be Granted in Anticipation of a Defect of
Duty or Error of Conduct.
Laches; Effect upon Right to the Writ.
Statutes of Limitations; Whether Applicable.
2038. Writ only Lies where there is no other Adequate Remedy.
In General.
Adequate Remedy Defined and Illustrated.
Existence of Remedy in Equity.
Proceedings Pending in Chancery,
Legal Remedy must be Prompt.
Action for Damages.
Coercing Payment of Bonds.
Enforcing Payment of Salaries.
Remedy Provided by Statute.
Remedy by Certiorari.
Remedy by Appeal or Writ of Error.
Remedy by Proceedings in Quo Warranto,
Indictment, Party Subject to.

CHAPTER II.
\ JURISDICTION OF COURTS.
I, Fenerat Courts.

§ 204. Federal Supreme Court.
In General. '
Appellate Jurisdiction.
205. Circuit and District Courts.
Power Solely in Aid of Jurisdiction in Pending Cases.
XXiV

206.

207.

208,

TABLE OF CONTENTS.

Without Authority to Issue Writ to State Courts.
Matters within the Competency of Interstate Commerce
Commission.
Courts of the District of Columbia,
In General.
Control of Public Officers.
Distinction between Judicial and Ministerial Acts.
Public Lands; Acts Respecting.
Warrants; Issue of.
II. StaTE Courts.
Supreme Court.
In General.
Superintending Control over Inferior Courts.
Circuit Courts and other Constitutional Courts of Original
Jurisdiction.
In General.
Removal of Causes,
In Matters within the Competency of the Interstate Com-
merce Commission.
National Banks; Inspection of Books.

CHAPTER III.
MANDAMUS TO INFERIOR COURTS.

§ 208a. Compels Judicial Action; not to Review it.

209.

210.

211.
212.
213.
214.
215,
216.
217.
218.
219.

220.

221,

Rule which Denies the Writ where there is an Adequate
Legal Remedy, does not Apply where the Purpose is to set
Inferior Courts in Motion.

Jurisdiction; Courts may be Compelled to Assume.

Rule in Federal Courts.

Rule in State Courts.

Questions Preliminary to a Hearing upon the Merits.
Existence of Remedy by Appeal; Effect.

Judgments; Entry of,

Judgments; Enforcement of.

Appeal Dismissed; Reinstatement.

Continuances; Granting or Refusing.

Supersedeas; Granting of.

Change of Venue; Compelling or Vacating Order Granting.

Vacating Orders; Rule.

Setting Aside Service of Process.

Injunctions; Granting or Dissolving.

Doctrine of Federal and Other Courts.

Other Orders; Granting or Vacating.

Bill of Exceptions; Compelling Signing of.

In General,
222.

223.

224.
225.
226.

227.
228.

229,

TABLE OF CONTENTS. xXXV

Judge to Determine Finally what Occurred at the Trial.
The Return or Answer to the Alternative Writ.
Compelling Signing by Referee.
Rule in Chancery.
,Alteration of by Judge after Signing.
‘Laches in Presenting.
Where Term of Office of Judge has Expired.
Doctrine Extends to all Tribunals upon which the Duty is
Imposed.
Cannot be Compelled where Prisoner has Escaped.
Revocation of Alternative Writ; Amendment,
Attorneys.
Admission of.
Suspension and Disbarment.
Notice and Opportunity to be Heard.
District Attorney; Compelling Court to Recognize.
Compelling Court to Appoint Attorney to Defend a Per-
/ son Non Compos.
Justices’ Courts and Justices of the Peace.

CHAPTER IV.

MANDAMUS TO STATE OFFICERS AND BOARDS.

Preliminary Statement.
General Principles.
Writ only Issues to Officers having the Power and whose
Duty it is to Perform the Act.
Discretion of Public Officers will not be Controlled.
Governor; Whether Writ Lies in any Case.
Doctrine of Ohio Court.
Doctrine of other Courts.
Doctrine of New York Court.
Instances where Writ Addressed to.
Executive Officers of State.
General Rule.
Contrary Doctrine in Other States.
State Treasurer.
State Auditor.
Warrants for Salaries; Issue of by State and Other
Officers.
Attorney General.
Insurance Commissioner.

230. State Boards.
Xxvi TABLE OF CONTENTS.

CHAPTER V.

MANDAMUS TO PUBLIC OFFICERS OTHER THAN FEDERAL
OR STATE.

231. Writ Does not Lie to Private Persons.

232, Rights and Duties Incident to a Public Office.

233. Retiring Officer; Delivery of Record, etc., to Successor.
234. Judicial and Discretionary Duties.

om

PARTICULAR OFFICERS,
235. Clerks of Court.
In General.
Approval of Bonds.
Execution, Issue of.
Writ of Assistance.
Certificates of Jurors and Witnesses.
Filing Papers.
Commission to take Depositions.
Transmitting Record upon Appeal,
Certificate of Election, Issue of.
Inspection of Record and Papers.
236. District Attorneys.
237. Sheriffs.
Duties Largely Executive.
Executing: Conveyance of Land.
Amending Return.
Sale of Property.
Duty in Respect to Restitution.
238. Auditing Officers. ~
In General.
Warrants for Awards and other Purposes; Issue of.
Duty in some Instances Judicial, in others Ministerial.
239. Disbursing Officers.
Payment of Awards and other Claims.
In General.
Duty Ordinarily Ministerial.
Warrants Drawn on Special Fund.
Right of Action when will not Exclude Writ.
240. County Clerks.
241, Register of Conveyances and Documents.

CHAPTER VI.
RIGHT AND TITLE TO OFFICE; ELECTIONS.

242. Ordinarily Determined by Proceedings in the Nature of Quo
Warranto.
243. Admission to Office.

a
TABLE OF CONTENTS. xxv

244. Possession of Office.
245. Appointment to Office; when Compelled.
Boards having Joint Authority.
Confirmation of Appointment.
Civil Service; Regulations.
Preference of Veterans.
Distinction between Officers and Employes.
Duplicate Appointments.
246. Acceptance of Office.
247, Election of Officers.
Preliminary Statement.
Nomination for Office.
Apportionment of Election Districts.
Compelling Election.
Appointment of Election Officers.
Inspectors of Election.
Boards of Canvass.
In General.
Duty of Ascertaining Number of Votes, Ministerial.
Issue of Certificate.
Writ does not Lie where Election Unauthorized or
not held at Proper Time.
State Board can only Act upon Returns Received.
Defective Ballot.
Duties that are Judicial.
Writ will not Lie until after Default.
Question of Eligibility not Determined.
Peremptory Writ will not Issue upon Motion where Right
not Clear or Disputed.
Where Title Determined by Lot, Statute must be Strictly
Pursued.
248. Removal and Restoring of Public Officers.
Rule where upon Removal the Office has been Filled.
Cause of Removal; Jurisdiction.
Writ will lie at Instance of one Appointed to Obtain Pos-
session of Records.
Whether Incumbent can Question Right to Remove or
Legality.of Proceedings.
Compelling a Corporation to Remove an Officer.
249. County Seat; Election to Determine Location.
Question of Removal Determined by Mandamus,
Petitions.
Rule in Minnesota in Respect to Petition.
Rule in Nebraska.
Rule in Nevada.
Canvassing the Votes.
Where Canvassers Act under Special Law.
XxVill TABLE OF CONTENTS.

CHAPTER VII.

MANDAMUS TO MUNICIPAL AND PUBLIC CORPORATIONS
OTHER THAN STATE.

§ 250. Preliminary Statement.
251. Character of Duties; Judicial and Ministerial.
252. Meeting of the Board Compelled.
253. Claims; Duties Respecting.
Auditing.
Payment.
Where Amount has been Fixed by other Officers.
Expenses of Board of Health.
254. Judgments.
Providing for Payment; Levy of Tax.
Not Compelled to Levy Tax in Excess of Maximum AIl-
lowed by Law.
Merits of Action not Open.
Jurisdiction; Want of may be Shown.
The Mandate; Broad enough to Secure Fund.
Discretion Conferred as to Manner of Providing Fund
where Optional; Not Controlled.
Writ not Granted Pending Appeal from Judgment.
State Courts may Issue to Enforce Payment of Judgment
of Federal Court. :
255. Bonds.
Providing for Payment; Levy of Tax.
Law Authorizing Debt Presumes Power to Levy Tax to
Pay.
Amount of Tax cannot be Restricted after Debt Con-
tracted.
Demand; Whether Required.
Irregularity of Proceeding not Available as a Defense.
Payment of Money Collected.
Distinction between Negotiable Bonds and Ordinary War-
rants.
Issue of; Enforcing Subscription.
Statute must be Pursued.
Fraud in Enacting Ordinances.
For Public Improvement.
256. Levy of Taxes for other Purposes.
Public Improvements. ‘
Awards, Payment of.
Water Rentals.
257. Other Duties Relating to Public Funds.
Turning over Funds.
Creating Public Funds and Sinking Fund.
258.

259.

260.

261.
262.

263.
264.
265.
266.
267.
268.

269,
270.
271.
272.
273.
274,
275.
276.
277.
278.
279.

TABLE OF CONTENTS. Xxix

Enforcement of Proceedings to Enable Contractor to Collect
Amount of Special Assessments.
Highways.
Opening.
Damages; Determination of and Payment.
Keeping in Repair.
Obstruction; Removal.
Electric Poles and Wires in.
Improvement; Duty must be Plain.
Right of Appeal on Allowance of Writ.
Bridges.
Construction and Repair.
Where Duty Fixed by Judgment of a Court.
Over Stream Dividing Counties.
Licenses; Duty in Reference to.
Contracts.
Letting of.
For Public Printing.
Performance.
Ordinances; Enforcement of.
Production of Books and Papers; Corporation may Enforce.
Delivery of Bonds; Corporation may Compel.
Delivery of Books, Papers, etc., to Successor in Office.
Correction of Record.
Reversing Action taken; when may and may not be Com-
pelled.
In General.
Fixing Water Rates.
Award of Damages.
Location of County Seat.

CHAPTER VIII.
SCHOOLS AND SCHOOL BOARDS.

In General.
Erection of School Houses.
Division of Districts.
Direction and Control upon Creation of City.
Levy of Taxes for School Purposes.
Levy of Taxes for Joint School Districts.
Compelling County Board to Transfer School Fund,
Payments out of School Fund.
Text Books, Duties in Respect to Use.
Reading Bible in.
Teachers.

Examination of.
280.

281.

282.
283.
284.
285.
286.
287,

288

289

290.

291.

TABLE OF CONTENTS.

Appointment of.
Reinstatement of.
Payment of Wages.
Pupils.
Admission of Colored Children.
Rejection; Expulsion.

CHAPTER IX.
MANDAMUS TO PRIVATE CORPORATIONS.

Preliminary Statement.

I, GENERAL CONSIDERATIONS.
Visitorial or Superintending Power of State.
Discretion, Control of:
Performance of Duties Resting Purely in Contract.
Another Adequate Remedy.
Charters; Effect as Contracts.
Manner of Performance of Duties.

II. Pusric DUTIEs.
In General.

Particular Corporations.
Railroads.
Quasi Public Corporations.
Construction of Road and Structures.

In General.

Deviation from Established Route.

Abandonment of Part of Line.

Continuous Line.

Viaducts; Construction of.

Restoring Highway to Suitable Condition,

Private Crossings.

Fences; Duty in Respect to.

Cattleguards.

Stations and Depots.
Abandonment and Restoration.
Legislature may Impose Additional Burdens and Re-

strictions and Repairs.
May Direct Changes and Repairs.
Operation of Road. r

Writ Lies to Compel Performance of Specific Duties.

Carriage and Delivery of Freight.

Discrimination.

Regulating Charges.

Orders of Railroad Commissions,

Manner of Operating Trains. 7
TABLE OF CONTENTS. XXxi

Commutation Tickets.
292. Street Railways.
Quasi Public Corporations.
Paving Streets.
Operating Road. :
Safeguarding Electric Wires.
Removal of Poles.
Other Requirements.
Poverty as an Excuse.
Poverty as an Excuse on the Part of Other Quasi Public
Corporations.
Sprinkling Streets.
293. Waterworks Companies,
Public Character.
Supplying Water.
Rates.
Legislative Control.
Authority of Courts.
Pure and Wholesome Water.
Construction of the Term.
Extension of Mains.
Changing Location of Pipes.
Restoring Condition of Street.
294, Gas and Hlectric Light Companies,
Public Character and Duties.
May not Discriminate.
Removal of Poles.
295. Telephone and Telegraph Companies,
Public Character and Duties.
May not Discriminate.
Removal of Poles.
296. Log Driving Companies.
Operating under Charters.
297. Canal Companies.
Public Character.
298. Cemetery Associations.

CHAPTER X.

MANDAMUS TO PRIVATE CORPORATIONS; INTERNAL
-AFFAIRS.

299. Rule, Statement of.
300. Specific Duties; Enforcement of.
301. Elections; Compelling Holding of.
302. Inspection of Books and Papers.
Writ will not Issue to Gratify mere Curiosity.
XXxXil

303.

304.
305.
306.
307.
308.

309.
310.
311.

312.

313.

314.

TABLE OF CONTENTS.

Discretion; Exercise of in Allowing the Writ.
Demand and Refusal.
Transfer of Stock on Corporate Books.
Exception to the Rule.
Issue of Stock.
Delivery of Corporate Books and Papers to Proper Custodian.
Affixing Corporate Seal.
Admission to Society.
Reinstatement of Members; Generally.
Merits of Controversy not Open to Review.
Whether Act Violation of By-law Ordinarily a Question
for the Courts.
By-laws must be Reasonable and Germane to the Object
of the Society.
Procedure.
Charges must be Specific and Record Kept.
Remedy by Appeal within the Order.
Society must Act within its Jurisdiction.
Breach of Contract; Absence of Moral Delinquency.
By-law not Providing for Determination of Contract
Relations.
Right to Diploma; Enforcement of.
Suit in Equity to Dissolve.
Grand Lodge to Determine Conflicting Rights of Representa-
tives.
Religious Corporations.
In General.
Ministers Unlawfully Deposed,
Execution of Trusts.
Mutual Benefit Societies.
Expulsion of Members.
Notice when Required.
4 Jurisdiction; Effect of Want of.
Grounds for Expulsion or Forfeiture.
Effect of Changes in Constitution and By-laws.
Waiver of Forfeiture.
Subsequent Assessment after Default.
Waiver of Performance of other Conditions.
Waiver of Forfeiture by Inconsistent Acts.
Omission to Pay .Assessments Resulting from Acci-
dent or other Uncontrollable Causes.
Reinstatement; Effect upon Contract.
Remedies of Member.
Jurisdiction of Superior Body Incorporated under Laws of
another State.
TABLE OF CONTENTS. xXxili

BOOK IV.

QUO WARRANTO.

Chapter.
I. Score or Writ, secs. 315-333.
II. FRANCHISES, MUNICIPAL CorPoRATIONS, secs. 334-338,
ITI. FRANCHISES, PRIVATE CORPORATIONS, secs. 339-354.

CHAPTER I.

SCOPE OF THE WRIT.

§ 315. Nature and Office of the Writ.
316. Power of the Legislature to Control the Use of the Remedy.
317. Statutory Proceeding Quite Generally a New Proceeding.
Such Statutes Merely Change the Form of the Proceeding
318. Another Adequate Remedy.
In General.
When Exclusive or Cumulative.
' In General.
Where Legislative Body Judge of the Election and
Qualification of its Members.
Where Municipal Board Judge of the Election and
Qualification of its Members.
319. Proceeding Double in its Purpose.
320. Proceeding Available only in Respect to an Office or Fran-
chise.
321. Proceeding Lies only where one is in Possession of an Office.
322. Incumbent of Office may not Resort to Proceeding.
323. Vacancy of Office Tested by Quo Warranto.
324. Relator; Interest Required.
In General.
Taxpayer.
Discretion of Attorney General.
General Rule Stated.
325. Application to the Court for Leave to Institute Proceedings.
Whether a Writ of Right or Discretionary.
Rule in Courts of Last Resort.
326. Practice and Pleading under Statutes,
327. Parties Defendant.
328. Trial by Jury.
329. Burden of Proof.
330. Character and Extent. of Inquiry.
In General.
Matters Relating to the Office.
Constitutionality of Act Creating Office.
XXXIV. TABLE OF CONTENTS.

Conduct of Election.
Legality of Votes.
Oath of Office; Whether Properly Taken.
Eligibility.
In General.
Persons who have Declared their Intentions,
Alien Holding Office.
Persons Holding Another Office.
Persons Convicted of Crime.
Bribery; Effect.
331. Expiration of Term; Effect on Proceedings,
332. The Judgment.
333. Appeal, Execution of Judgment not Stayed.

CHAPTER II.
FRANCHISES.

I. MUNICIPAL CORPORATIONS,

§ 334. Writ Addressed to Municipal Corporations.
835. The Relator Ordinarily the Attorney General.
336. Proceedings will Lie where Lands are not Adjacent to Vil-
lage Settlements or Contiguous.
337. Municipal Corporations not Dissolved.
338. Proceedings of Public Corporations not Interrupted, Re-
viewed or Amended.

CHAPTER III.
FRANCHISES (CONTINUED).

II. PRIvATE CORPORATIONS."

§ 339. Use of Writ to Determine Right to Office.
340. Statutory Remedies; Their Effect.
341, Remedy in Equity.
342. Parties; Relation.
3438. Scope of Writ Respecting Use and Usurpation of Franchise.
In General.
Equitable Remedies. _
344. Where Offense is against the Public Prosecuted by Attorney
General.
345. Statutes; Effect.
346. Distinction to be Observed between Corporate Franchises
and Franchises Conferred.
347. Usurpation of Particular Franchise,
In General.
Ultra Vires Acts.
TABLE OF CONTENTS. XXXV

348. Quo Warranto the Exclusive Remedy to Set Aside a Fran-
chise Irregularly or Fraudulently Granted.
349, Effect of Statutes Extending the Remedy to Include Abuse
of Powers.
3850. Forfeiture of Charter.
Abuse of Franchise.
Discretion of the Court.
Ultra Vires Acts as a Ground.
Distinction between Misuse of a Franchise and Acts Ultra
Vires.
851. Exceptional Determination by the Illinois Court.
351a. Implied Powers; General Rule.
351b. Monopoly; Use of Franchise to Create.
351c. Acts.and Omissions Held to have been Sufficient to Warrant
the Proceeding.
352. Nonuse or Abandonment.
In General.
As Ground for Vacating Franchise or Charter.
Insolvency and Suspension.
Partial Nonuse.
Noncompliance with Statutory Requirements.
353. Proceedings to Oust from Exclusive Right to Exercise a
Franchise.
Other Remedies Existing.
Waiver of Right of Forfeiture by State.
854. Estoppel; Private Relator.

BOOK V.
PROHIBITION.
Chapter.
I. GeneraL REVIEW, secs. 355-369.
CHAPTER I.

GENERAL REVIEW.

§ 355. Definition and Nature of the Writ.
Writ only Lies to Restrain Exercise of Judicial Functions.
356. Jurisdiction; Question of.

In General. —

Contempt Proceedings.
In General.
California, Rule in.
Iowa, Rule in.
Disobedience, Void Order.
Distinction between Void and Voidable Orders.
XXxXVi

357.

TABLE OF CONTENTS.
Change of Venue.
Former Jeopardy.
Splitting Demands,
Excess of Jurisdiction.

357a, Existence of Another Remedy.

By Appeal or Writ of Error.

By Habeas Corpus.

By Certiorari..

Other Proceedings.

Rule not Applicable where Court is Proceeding against
Express Prohibition of Statute.

3570, Inferior Courts Having Jurisdiction to Issue Writ.

358,
359.
360.
361.
362.

363.
© 364.
365.
366.
367.

Jurisdiction of the Person.
When Granting of Writ Discretionary.
Judge Disqualified.
State Court Proceeding after Removal of Cause.
Legislative Bodies; How far Subject to Control.
Removal of Officers.
Administrative Action.
Executive Officers.
Ministerial Officers; Taxing Officers; Sheriffs, ete,
Boards of Review.
Courts Martial.
Title to Office.

s 368. "Stage of Proceedings when Writ will Issue,

369.

Suggestion First Made in Court Below.
BOOK I.

HABEAS CORPUS

II.

III. -
Iv.

VI.

VII.

VIII.
IX.

XI.
XII.

XIII.
XIV.
XV.

XVIL

 

GENERAL ConsSIDERATIONS, §§ 1-6.
JURISDICTION OF CRIMES AND OFFENSES; FEDERAL AND STATE
CouRTS; WHEN EXCLUSIVE AND WHEN CONCURRENT, §§ 7-14.
JURISDICTION oF Courts, §§ 15-28.
Review OF PROCEEDINGS AND JUDGMENTS, §§ 29-48.
Excess oF JURISDICTION; Review By Hapeas Corpus, §§ 49-58.
THE JUDGMENT UPON Review; Res ApsupicaTa, §§ 59-61.
ConteMpTS; GENERAL REVIEW AND SCOPE oF Writ oF HABEAS
Corpus, §§ 62-76.
WITNESSES, §§ 77-99.
MIScoNDUCT oF OFFICERS OF COURT AND OTHERS, § 100.
Power To PUNISH ror ContTEMPT, § 101.
PROCEEDINGS AND JUDGMENT, §§ 102-104,
Persons RESTRAINED BY OTHER THAn JUDICIAL PROCESS,
§§ 105-107.
Courts MarriaLt; Miirary Services, §§ 108-110.
Bart; ADMITTING oF, §§ 111-115.
INTERNATIONAL EXTRADITION, §§ 116-126.
INTERSTATE EXTRADITION, §§ 127-144.
CUSTODY OF CHILDREN, §§ 145-158.
2 HABEAS CORPUS.

CHAPTER I.
GENERAL CONSIDERATIONS.

. History of the Writ.

. Nature and Purpose of the Writ.

. Legislative Control.

. Character of the Proceedings.

Writ; whether One of Right.

. Actual Confinement or Present Means of Enforcing it, Essential.

Ooankrwone

§ 1. History of writ.

In an opinion by Chief Justice Chase, the supreme
court of the United States elaborately reviewed the
history, purpose and nature of this great writ. Thus
it is stated: ‘‘The great writ of habeas corpus has been
for centuries esteemed the best and only sufficient de-
fense of personal freedom. In England, after a long
struggle, it was firmly guaranteed by the famous
Habeas Corpus Act of May 27, 1679, 3 Brit. Stat. at
1397, 3 Hallam, Const. Hist. 19, ‘‘for the better secur-
ing the liberty of the subject,’’? which, as Blackstone
says, ‘‘is frequently considered as another Magna
Charta.’’ 3 Bl. Com. 135.

It was brought to America by the colonists and
claimed as among the immemorial rights descended
to them from their ancestors. Naturally, therefore,
when the confederated colonies became United States,
and the formation of a common government engaged
their deliberations in convention, this great writ found
prominent sanction in the Constitution. That sanc-
tion is in these words: ‘‘The privilege of the writ of
habeas corpus shall not be suspended unless when
in cases of rebellion or invasion, the public safety may
require it.”’

‘‘The terms of this provision necessarily imply judi-
GENERAL CONSIDERATIONS. 3

cial action. In England all the higher courts were
open to applicants for the writ, and it is hardly sup-
posable that under the new government, founded on
more liberal ideas and principles, any court would be
intentionally closed to them.

‘We find accordingly, that the first congress under
the Constitution, after defining by various sections of
the Act of September 24, 1789, the jurisdiction of the
district courts, the circuit courts and the supreme
court in other cases, proceeded in the 14th section to
enact ‘that all the aforesaid mentioned courts of the
United States shall have power to issue writs of scire
facias, habeas corpus and all other writs not specially
provided by statute, which may be necessary for the
exercise of their respective jurisdictions, and agreeable

to the principles and usages of law.’ 1 Stat. at L. 81.

In the same section it was further provided: ‘that
either of the justices of the supreme court as well as
judges of the district courts, shall have power to grant
writs of habeas corpus for the purpose of inquiry into
the cause of commitment; provided that writs of habeas
corpus shall in no case extend to prisoners in jail, un-
less they are in custody, under or by color of authority
of the United States, or are committed for trial before
some court of the same, or are necessary to be brought
before the court to testify.’

“‘That this court is one of the courts to which the
power to issue writs of habeas corpus is expressly
given by the terms of this section, has never been ques-
tioned. It would have been indeed a remarkable anom-
aly if this court, ordained by the constitution for the
exercise in the United States of the most important
powers in civil cases, of all the highest courts of Eng-

‘land, had been denied, under a constitution which
absolutely prohibits the suspension of the writ, except
under extraordinary exigencies, that power in cases of

!
4 HABEAS CORPUS.

alleged unlawful restraint, which the Habeas Corpus
Act of Charles II expressly declares these courts
possess. But the power vested in this court is, in an
important particular, unlike that possessed by the Eng-
lish courts. The jurisdiction of this court is con-
ferred by the constitution and is appellate; whereas,
that of the English courts, though declared and defined
by statutes, is derived from the common law and is

original.

‘‘The intent in respect to the writ of habeas corpus is
manifest; it is that every citizen may be protected by:
judicial action from unlawful imprisonment.’’!

1 Bx parte Yerger, 8 Wall. 85,
19 L. Ed. 332. Mr. Hill in his

note to the McLeod Case, 3 Hill,

647, states the origin and his-
tory of the writ of habeas cor-
pus. He says: “The immediate
cause of passing the habeas cor-
pus act of 31, Car, II, ch. 2, was
the oppression practiced toward
an obscure individual by the
name of Jenkes. Jenkes had
made a speech in London urg-
ing the call of a new parliament
and of petitioning the King to
make the call. For this he was
summoned before the King
(Charles II) in Council, who,
with the Lord Chancellor and
others of the council, browbeat
him, and finally committed him
to prison, under a warrant is-
sued by the council, assigning
on its face the above trivial
cause. Through the _ evasions
practiced by the Chancellor and
Chief Justice, who then held
their office during the King’s
pleasure, kes lay in jail sev-
eral weeks before he was let to
bail. This statute introduced no

new principle, though the occa-
sion for passing it was entirely
adequate, viz., the arbitrary im-
prisonment of the subject by the
King himself. The nation had
been partially awakened to the
question by several instances
of a like character in that and
the previous reign, attended
with other acts of evasion by
which trials were greatly de-
layed. This was the reason for
that part of the habeas corpus
act, directing the bailing or dis-
charging of persons properly im-
prisoned, if their trials were un-
reasonably postponed. Of all the
tyrannical acts which ruined the
family of the Stuarts, the in-
stances mentioned, when taken
individually, were the most petty
and contemptible; yet consid-
ered collectively, they were the
most dangerous. The evil ap-
prehended was, that this royal
power of manufacturing offenses
not known to the law would
grow into precedent; and the
practice proceeded so insidiously
through the greater part of two
GENERAL CONSIDERATIONS. 5

Thus it was expressed by another court, with respect
to its use in the state courts: ‘‘Relief from illegal im-
prisonment by means of this remedial writ, is not the

creature of any statute.

The history of the writ is lost

in antiquity. It was in use before magna charta, and
comes to us as part of our inheritance from the mother
country, and exists as a part of the common law of

this state.

It is intended and well adapted to effect

the great object secured in England by magna charta,

reigns, being mainly asserted
against commoners, that the ar-
istocracy were scarcely brought
to appreciate the consequences
even when the habeas corpus act
became a law. It had several
times before passed the House
of Commons, but had as often
been defeated by the House of
Lords. Indeed its final passage,
by the latter, if Burnet is to be
believed, was owing to a mere
trick of Lord Grey. Burnet re-
lates the circumstance thus: ‘It
(the act) was carried by an off
artifice in the House of Lords.
Lord Grey and Lord Norris were
named to be the tellers. Lord
Norris, being a man subject to
vapours, was not at all times
attentive to what he was doing;
so a very fat Lord coming in,
Lord Grey counted him for ten,
as a jest at first, but seeing Lord
Norris had not observed it, he

went on with his misreckoning ~

of ten. So it was reported to
the House, and declared that they
who were for the bill were the
majority; though indeed it went
on the other side.’

“The provisions of the statute,
31 ch, 11, were subsantially re-
enacted in New York shortly af-

ter the Revolution, and were
continued in the subsequent re
visions down to 1813 (R. L. 354).
This statute being loosely word-
ed, and omitting the recital of
the English statute, a doubt
arose in Cable v. Cooper, 15
Johns. 152, decided in January
Term, 1818, whether the third
section extended to imprison-
ment for any other than crim-
inal causes. The case itself drew
in question a commissioner’s
discharge from imprisonment of
a casa. The ca-sa being re-
turned to the habeas corpus as
the ground of imprisonment, it
was held that the return could
not be avoided by showing a dis-
charge under the Insolvent Act,
1R. L. 348, 349, secs. 1, 2. The
decision furnished occasion for
passing the statute of April 21,
1818, ch. 277. This and the
former New York Act compre-
hended nearly the same pro-
visions with the 31 Car. II, sec.
2 and 57 Geo. III, ch. 100. The
substance of these statutes, with
some additions, was incorpo-
rated in 2 Rev. Stat. 465, A.
D. 1830. The provisions in New
York for thwarting imprison-
ment are probably more volu-
6 HABEAS CORPUS.

and made a part of our constitution that no person
shall be deprived of his liberty ‘without due process of
law.’ Whenever the virtue and applicability of the
writ has been attacked or impugned, it has been de-
fended, and its vigor and efficiency reasserted, as the
great bulwark of liberty.’’ ?

The federal courts having no common-law jurisdic-
tion, derive their power in respect to the writ, from
the constitution of the United States, and the laws
passed in pursuance thereof, while the power is in-
herent in the state courts of original jurisdiction by
virtue of the common law, preserved by the constitu-
tion of the states.

§ 2. Nature and purpose of the writ.

It is a perogative writ, not ministerially issuable,
that is not of course; and yet a writ of right on a proper
foundation being made by proof. At common law it:
stood on the same footing with other perogative writs, |
such as mandamus, quo warranto, certiorari, prohibi-
tion, etc., and was issued and dealt with upon the like
general grounds and principles. Thus as to the affidavit
and motion for allowance, the form of the writ, the re-
turn, the right to question the truth of the return the
right to amend, etc., the common-law doctrine respect-
ing other perogative ‘writs is aplied to the writ of
habeas corpus, and may still be resorted to by way of
throwing light on the rules relating to the latter. The
proceedings on all perogative writs are appellate in
their character, looking to the case as it stands upon

minous than those of any other Charles. Instead of abuses of
common-law country; and the imprisonment, he complains that
power of executing them is com- the writ of habeas corpus is
mitted to so many that accord- abused.”

ing to a late message of Gov- 2 People ex rel. Tweed v. Lis-
ernor Seward, the writ is re- comb, 60 N. Y. 559, 565, 19 Am.
yersed from what it was under Rep. 211. , ,
GENERAL CONSIDERATIONS. 7

the return (unless otherwise provided by statute).
Hence the habeas corpus is said to be in the nature of a
writ of error.’

The writ lies in all cases of imprisonment by com-
mitment, detention, confinment or restraint for what-
soever cause or under whatever pretence. In this re-
spect the statute and common law are the same.

The great object of the writ is the liberation of those
who may be imprisoned without sufficient cause. It is
in the nature of a writ of error to examine the legality
of the commitment, detention or restraint; + the proper
remedy for all unlawful imprisonment both in civil and
criminal cases;> the remedy which the law gives for
the enforcement of the civil right of personal liberty.
While it becomes necessary ofttimes to resort to it,
where enforcement of laws for the punishment of crime
has been attempted, yet the proceeding under the writ
is not to inquire into the criminal act which is com-
plained of, but the right to liberty notwithstanding

- the act.®

§ 3. Legislative control.

‘“‘Tt is beyond the power of the legislature to abrogate
this writ or curtail its efficiency. The common-law
scope of the writ as to remedying restraints upon per-
sonal liberty, before or after judgment, cannot until the
people voluntarily surrender the right to this the great-
est of all writs, by an amendment of the organic law, be
placed beyond its reach and remedial action.

“The courts take their power from the constitution,
not from the legislature. They look only to the organic

8 Hill’s Notes, 3 Hill, 650. 8 Ex parte McCullough, 35 Cal.
4Ex parte Watkins, 3 Peters, 97.
193, 7 L. Ed. 650; Wales v. Whit- ¢Ex parte Tom Tong, 108 U.
ney, 114 U. S. 564, 29 L. Hd. 277, 8. 566, 27 L. Ed. 836, 2 Sup, Ct.
5 Sup. Ct. Rep. 1050, Rep. 871; Ex parte Milligan, 4
Wall. 2, 18 L. Ed, 281.
8 HABEAS CORPUS.

law for the source of their authority. They jealously
guard against any invasion by the legislature of their
constitutional authority. The legislature may make
reasonable regulations of the exercise of such author-
ity, but that is the limit of their authority or control.’’*

This was declared where a statute in New York, as
well as in Wisconsin, provided ‘‘ No person shall be en-
titled to prosecute such writ who shall have been com-
mitted or detained by virtue of the final judgment or
order of any competent tribunal of civil or criminal
jurisdiction or by virtue of any execution issued upon
such order or judgment. * * * The court or judge
must make a final order to remand the prisoner if it
shall appear that he is detained in custody * * *
by virtue of the final judgment or order of any com-
petent court of civil or criminal jurisdiction or of any
execution issued upon such judgment or order.’’

It was said, if the legislature proposed by such sec-
tions to take away from circuit courts the common-law
power, exercisable by use of the writ of habeas corpus,
it misconceived its authority. A law providing that
the writ cannot issue to vindicate the right to personal
liberty, where the imprisonment, though it be pursuant
to a judgment of a court and with all the forms of law,
is nevertheless void, would be clearly such an inva-
sion.’’§

It is held that the prohibitive features of such statute
as to inquiring into the validity of a judgment in habeas
corpus proceedings, are but mere declarations of the
common law, and are in harmony with the constitution.
They are to the effect that the writ shall only be used
to correct jurisdictional error, resulting in the wrong-
ful restraint of personal liberty.®

7 People ex rel. Tweed v. Lis- 8 Servonitz v. State, 133 Wis.
comb, 60 N. Y. 559,19 Am. Rep. 231, 113 N. W. 277,

211; Servonitz v. State, 133 Wis. ®Servonitz v. State, 133 Wis.
231, 113 N. W. 277, 231, 118 N. W. 277,
GENERAL CONSIDERATIONS. 9

It was also declared by another court, that the prohi-
bition stated in the statute, ‘‘does not and cannot take
from the court or officer the power or relieve him from
the duty or determining whether the process judgment,
decree or execution, emanated from a court of com-
petent jurisdiction, and whether the court making the
judgment or decree or issuing the process had the legal
and constitutional power to give such judgment or send
forth such process.’’ 1° ;

The independent power of the courts in respect to
the writ of habeas corpus, was declared also by the
supreme court of the United States where it said:
“‘Neither the President nor Congress nor the Judiciary
can disturb any of the safe guards of civil liberty in-
corporated into the constitution, except so far as the
right is given to suspend in certain cases the privilege
of the writ of habeas corpus.’’ 14

The purpose of the writ as regulated by statute, is

the same as at common law.” -

10 People ex rel, Tweed v. Lis-
comb, 60 N. Y. 559, 19 Am, Rep.
211.

11 Ex parte Milligan, 4 Wall. 2,
18 L. Ed. 281.

12 People ex rel. Pruyne v.
Walts, 122 N. Y. 238, 25 N. B.
266; People ex rel. Tweed v. Lis-
comb, 60 N. Y, 559, 19 Am. Rep.
‘211,

Statutes regulating the use of
the writ: The use of the writ in
such cases Has in subsequent
years quite generally, in many
of the states, been regulated by
statute, which provides (the pro-
vision may not be uniform in
the different states) that if it
appears that the person is in
custody by virtue of civil process
of any court legally constituted,

or issued by any officer in the
course of judicial proceedings
before him authorized by law,
such prisoner can only be dis-
charged in one of the following
cases:

1. Where the jurisdiction of
such courts or officer has been
exceeded, either as to matter,
place, law or person.

2. Where, although the orig-
inal imprisonment was lawful,
yet by some act, omission or
event, which has taken place af-
terward, the prisoner has be
come entitled to be discharged.

3. Where the process is defec-
tive in some matter of substance
required by law, rendering such
process void.

4. Where the process, though
10 HABEAS CORPUS.

§ 4, Character of the proceeding.

, Much controversy has arisen with respect to the pro-
ceeding, as to whether it is a civil or criminal action,
or a special proceeding; also whether it is a proceeding
in the original action or proceeding or an independent
action or proceeding. The determination of this ques-
tion often arises and becomes important upon the ques-
tion of review, and especially in respect to the jurisdic-
tion of the reviewing court.

It is held by the supreme court of the United States,
that the writ of habeas corpus is a new suit brought by
the petitioner to enforce a civil right, which he claims
as against those who are holding him in custody. The
proceeding is one instituted by himself for his liberty,
and not by the government to punish for his crime. The
judicial proceeding, under it is not to inquire into the
criminal act which is complained of, but into the right’
to liberty notwithstanding the act. It is not a proceed-
ing in the original action. Thus, where a federal
statute provided, in substance, that upon division of
opinion upon any question on the trial or hearing of a
criminal proceeding before a circuit court, the point of
difference might be certified to the supreme court, it
was held that the supreme court had no. jurisdiction
where a question was so certified, where the prisoner
was held under criminal process for the reason that the

in the proper form, has been is-
sued in a case not allowed by
law.

5. Where the person having
the custody of the prisoner un-
der such process is not the per-
son empowered by law to detain
him; or

6. Where the process is not
authorized by any judgment or
order of any court, nor by any
provision of law.

This power to discharge is lim-
ited by a general provision relat-
ing to civil and criminal ‘cases,
in effect that no court or officer
upon such writ shall have power
to inquire into the legality or
justice of any final judgment or
order of any competent court of
civil or criminal jurisdiction, or

‘of any execution issued upon

such judgment or order,

u
GENERAL CONSIDERATIONS. 11

writ of habeas corpus was a civil suit or proceeding,
and there had been no final judgment in the circuit
court. It was further held that if it were a criminal
proceeding it had jurisdiction.12*

It is stated by the supreme court of Wisconsin: ‘‘The
’ issuance of a writ of habeas corpus is to all intents and
purposes the commencement of a civil action, not an
action strictly so called within the meaning of the
statute (Sec. 2629) but in the same sense that proceed-
ings to enforce the remedy by mandamus and proceed-
ings by writ of error are civil suits as has been repeat-
edly held. * * * Whether the issuance of such a writ
be called by the Code the commencement of a civil
action or a special proceeding, it is to all intents and
purposes the commencement of a suit and the final
determination thereof is a final judgment in a suit
or proceeding, in the nature of a civil action.’ 1%

It was subsequently held that by force of the statute
granting the benefit of the writ of error to obtain a re-
view of a judgment in a habeas corpus action, the suing
out of such writ is in effect the commencement of an
action wherein there is a plaintiff and defendant."*

The Georgia court, however, does not seem to be in
accord with other courts with respect to their classi-
fication. It is not in accord with the supreme court of
the United States and those courts which hold the writ
a civil proceeding, nor in accord with those courts which
hold that it is a proceeding within the action or pro-
ceeding in which the prisoner is restrained and par-

12a Ex parte Tom Tong, 108
U. S. 556, 27 L. Bd. 826, 2 Sup.
Ct. R. 871; Cross v. Burke, 146
U. S. 82, 36 L. Ed. 896, 13 Sup.
Ct. R, 22; Farnsworth v. Mon-
tana, 129 U. S. 104, 32 L. Ed.
616, 9 Sup. Ct. R. 253; Kurtz v.
Moffit, 115 U. S. 487, 29 L. Hd.

458, 6 Sup Ct. R. 148; Hx parte
Burrus, 136 U. S. 586, 34 L. Ed.
500, 10 Sup. Ct. Rep. 850.

18 State ex rel. Durner v.
Huegin, 110 Wis. 189, 85 N. W.
1046, 62 L. R. A. 700.

14 State ex rel. Garter v. Whit-
cher, 117 Wis. 668, 94 N. W. 787.
12 HABEAS CORPUS,

takes of the nature of that proceeding whether civil or
criminal as the case may be. In fact it does not desig-
nate it'as a special proceeding, but characterizes it as
an independent summary remedy.

Thus it is said, ‘‘The proceeding by habeas corpus
was, strictly speaking, neither a civil nor criminal
action. It was not a proceeding in a suit, but was a
summary application by the person detained.’’ * * *
‘“‘The proceeding was sometimes characterized as a
‘cause’ or ‘action,’ but erroneously so; and it has been
called a civil or criminal proceeding according to
whether the person is held in custody on a criminal
charge or by private restraint. * * * It may be
analogised to a proceeding in rem, and is instituted for
the sole purpose of having the person restrained of his
liberty produced before the judge in order that the
cause of detention may be inquired into. * * *
There is no plaintiff and no defendant and hence there
is no suit in a technical sense.’’ 15

In Kansas, Indiana and Texas it is held that the pro-
ceedings under such a writ, where the petitioner is held
under a criminal charge, is a criminal case.‘®

The supreme court of South Dakota characterizes
the proceedings under the writ as special proceedings.
It states, however, that proceedings in habeas corpus’
are civil in their nature. That when instituted in the
circuit court, its decision will be a final order affecting
a substantial right made in a special proceeding, from
which an appeal will lie to the supreme court.17

The supreme court of North Dakota, however, re-
fuses to recognize the doctrine last above expressed and

15 Simmons v. Georgia Iron & 281; Mulligan v, State, 92 Ind.
Coal Co., 117 Ga, 305, 43 S. B. 355.
780, 61 L. R. A. 739. 17In re Hammil, 9 S. Dak. 390,
16 Gleason v. McPherson Coun- 69 N. W. 577; the same is held
ty, 30 Kan. 53, 1 Pac. 384; Legate in Minnesota; State v Buckham, .
v. Legate, 87 Tex. 248, 28 S. W. 29 Minn. 462, 13 N. W. 902.
GENERAL CONSIDERATIONS. 13

distinctly hold that proceedings in habeas corpus are
not special proceedings of such a character as to permit
an appeal from the order or judgment therein, notwith-
standing the statute is identical with those of Minne-
sota and Dakota. The court concedes that the pro-
ceeding is of a civil nature, yet asserts that it is not a
civil action nor is it a criminal action.18

In Iowa the right to appeal is expressly given by
statute, yet it is held that an order discharging a
prisoner is not appealable.

§ 5. Writ; whether one of right.

The rule is that a person restrained of his liberty
is entitled as matter of right to the writ, upon presen-
tation to the proper officer or tribunal of his petition
showing proper ground therefor.2°

The expression.has been used that the officer or tri-
bunal has a discretion which he may exercise in the
matter. With the exception that the federal courts in
cases of application to them to inquire into the legality
of the custody of a person held under state authority,
where such courts may, as hereafter more fully ap-
pears, await the final action of the state court before
issuing the writ, and where upon appeal from the de-
cision of an inferior federal court, its decision is sub-
ject to review by the appellate court, the duty to issue
the writ where there appears sufficient grounds there-
for, is absolute.?+

True, it was held, where it was obvious that before a
return to the writ could be made, or any other action
taken, the restraint of which the petitioner complains,

18 Carruth v. Taylor, 8 N. Dak. Georgia Iron Co., 117 Ga. 305, 43

166, 77 N. W. 617. S. E. 780, 61 L. R. A. 739;
19 State v. Kirkpatrick, 54 O’Malia v. Wentworth, 65 Me.

‘Iowa, 378, 6 N. W. 588, 129; Hill’s Notes, 3 Hill, 650. |
20Ex parte Milligan, 4 Wall. 21 Hill’s Notes, 3 Hill, 650,

2, 18 L. Ed. 281; Simmons v.
14 HABEAS CORPUS.

would have terminated, the court declined to grant
leave to file the petition for a writ of habeas corpus and
certiorari; the court stating: ‘‘It is well settled that
this court will not proceed to adjudication where there
is no subject matter upon which the judgment of the
court can operate.’’ 2?

However, it can be said, that such refusal was based
upon the reason that sufficient grounds did not appear
to justify the granting of the writ.

True, also, it was said, application for leave to file
a petition for a writ of habeas corpus will be denied if
it be apparent that the only result, if the writ were
issued, would be remanding the prisoner.?*

This ruling was in effect that proper or sufficient
grounds for issuing the writ did not appear.

In most of the states, statutes have been enacted pro-
viding for heavy penalties in case any officer authorized
to grant the writ, shall wilfully refuse to grant it.

It seems, however, it has been held that an officer
authorized to grant the writ, not in term time, acts in a
ministerial capacity, and such allowance or refusal is
not a judicial act. Where the act is judicial, as by the
court, then the statute imposing the penalty cannot
apply, as court and judges when thus acting, are not '
responsible civilly for their judicial acts.?4

22 Bx parte Baez, 177 U. S. 378,
44 L, Ed. 818, 20 Sup. Ct. Rep.
673.

23 In re Boardman, Application
of Durant, 169 U S. 39, 42 L, Ed.
653, 18 Sup. Ct. Rep. 291,

24 Yates v. Lansing, 5 Johns.
(N. Y.) 282. I can understand
why the federal courts assert
that they should exercise a dis-
cretion in refusing to issue the
writ, where the matter has not
been determined finally in the
courts of the states, where the

proceedings are pending. This
is due to the relations that exist
between the governments. But
when applied to state courts, to
refuse to issue the writ until the
proceedings are finally deter-
mined in their courts does not
rest upon principle; in effect it
is a denial of the writ Only ju-
risdictional questions are sub-
ject to review upon habeas cor-
pus, and to hold that such ques-
tion ought not and will not be
determined in advance of final
GENERAL CONSIDERATIONS. 15

It is doubtful if in any case the act of granting the

writ is ministerial.

It does not issue of course, but

only upon sufficient grounds appearing therefor, and

hence is judicial.

§ 6. Actual confinement or present means of enforc-

ing it.

The general rule is that in order to make a case
for habeas corpus there must be actual confinement or

determination, is without rea-
son. Why thus detain the pris-
oner in confinement, depriving
him of his right to liberty? Why
compel him to bear the burden
of a defense, which ultimately
will be successful? Why incur
the expense on the part of the
state of a trial which may and
should be avoided? The writ is
one of right. Stated by a learned
court: “The writ of habeas cor-
pus, as its history shows, is a
summary proceeding to secure
personal liberty. It strikes at
unlawful imprisonment or re-
straint of the person by state or
citizen, and by the most direct
method known to the law, learns
the truth and applies the rem-
edy. It tolerates no delay, ex-
cept of necessity, and is hin-
dered by no obstacle except the
limits set. by the law of its crea-
tion.” People ex rel. Durgee v.
Durgee, 188 N. Y. 440.

Yet the same court stated:
“We are of the opinion that ex-
cept in rare cases, where the
facts before the court cannot be
materially changed, qualified or
explained, the determination of
important issues ought not to be
made in a habeas corpus pro-
ceeding, as it is not calculated

to thoroughly develop the facts
as in the case when a regular
trial is had, witnesses examined
and cross-examined, alleged error
reviewed on appeal and counsel
present throughout, protecting
the interest of both parties.”
People ex rel. McLaughlin, 194
N. Y. 556. The supreme court
of the United States has re-
cently announced its adherence
to this doctrine. In Riggins v.
United States, 199 U. S. 547, 548,
Mr. Chief Justice Fuller states:
“Ordinarily the writ will not be
granted when there is a rem-
edy by writ of error or appeal,
yet in rare and _ exceptional
cases it may be issued although
such remedy exists.”

This is certainly inconsistent
with the prior declaration of the
court referred to. It is in direct
conflict with the purposes of the
writ as established for more
than a century. It is directly
opposed to the causes which led
to its creation in England. It
manifestly turns the right into
one of discretion instead of one
of right, and impairs, if it does
not destroy, this great and pre-
cious bulwark of personal lib-
erty.
16 HABEAS CORPUS.

the present means of enforcing it. Mere moral re-
straint is not sufficient.?5

Its purpose ordinarily is to enable the court to in-
quire first, if the petitioner (or some other person in
certain cases) is restrained of his liberty. If he is not,
the court can do nothing but discharge the writ. If
there is such restraint, the court can then inquire into
the cause of it, and if the alleged cause be unlawful it
must then discharge the prisoner. It was said by
Miller, J., in Wales v. Whitney, 114 U. S. 564, 571:
‘‘There is no very satisfactory definition to be found
in the adjudged cases of the character of the restraint
or imprisonment suffered by a party applying for the
writ of habeas corpus which is necessary to sustain the
writ. This can hardly be expected from the variety of
restraints for which it is used to give relief. Confine-
ment under civil and criminal process may be so re-
lieved; wives restrained by husbands, children with-
held from the proper parent or guardian, persons held
under arbitrary custody by private individuals, as in
a mad house, as well as those under military control,
may all become proper subjects of relief by the writ of
habeas corpus. Obviously, the extent and character of
the restraint which justifies the writ must vary accord-
ing to the nature of the control which is asserted over
the party in whose behalf the writ is prayed.’’ Some-
thing more than moral restraint is necessary to make
a case for habeas corpus. There must be actual con-
finement or the present means of enforcing it. What
is meant by this expression is illustrated by the facts to
which it was applied. A court-martial was ordered to
try a surgeon general of the navy after he had vacated
that office under charges and specifications for conduct
as chief of the bureau and surgeon general; and the

28 Wales v. Whitney, 114 U. S. Sup. Ct. Rep. 1050; Dodge’s Case,
564, 29 L. Ed, 277, 5 Sup. Ct. 6 Mar. (La.) 569.
GENERAL CONSIDERATIONS. 17

secretary of the navy notified him thus: ‘‘You are.
placed under arrest, and you will confine yourself to
in the limits of the city of Washington.’’ ‘‘It was stated
that it was evident that the petitioner was under no
physical restraint. As a naval officer, the secretary
of the navy could order him to remain at Washington,
and he could not leave without obtaining a leave of
absence. There was no more restraint of his personal
liberty by the order of arrest than there was before.
In cases of military officers, who are more or less at all
times subject in their movements to the orders of their
superior officers, it should be made clear that some
unusual restraint upon his liberty of personal move-
ment exists to justify the issue of the writ. The dis-
tinction was made in case of an officer with a writ in his
hands for the arrest of a person whom he is required
to take into custody, to whom the person to be arrested
submits without force being applied. The officer has
the authority to arrest and the power to enforce it.
If the party named in the writ resists or attempts to
resist, the officer can summon bystanders to his assis-
tance, and may himself use personal violence. Here
the force is imminent and the party is in presence of it.
It is physical power which controls him, though not
called into demonstrative action.’’ 7°
The expression first referred to is further illustrated
by cases where parties under indictment have given
bail for appearance to answer the indictment. They
may be under moral restraint, but are not under such.
physical restraint that habeas corpus will lie.?”
In the last case cited it was said: ‘‘The sheriff did
‘ not restrain him, since he had admitted him to the bene-
fits of the bonds; the doors of the jail were not closed
26 Wales v. Whitney, 114 U. S.. Yeates 263; Wales v. Whitney,.
564, 29 L, Hd. 277, 5 Sup. Ct. 114 U. S. 564, 29 L, Ed. 277, 5.
Rep. 1050. Rep. 1050, Dodge’s Case, 6 Mar--

27Respublica v. Arnold, 3 tin (La.) 569.
2
18 HABEAS CORPUS.

upon him; and if he was detained, it was not by the
sheriff or jailer. If his was a moral restraint it could
not be an illegal one.’’ All the provisions of legisla-
tive acts concerning this writ contemplate a proceed-
ing against some person who has the immediate custody
of the party detained, with the power to produce the
body of such person before the court or judge, that he
aay be liberated if no sufficient reason is shown to the
contrary. In case of a person going at large with no
one controlling or watching him or detaining him, his
body cannot be produced by the person to whom the
writ is directed, unless by consent of the alleged pris-
oner or by his capture and forcible production into the
presence of the court.28

28 Wales v. Whitney, 114 U. S. 564, 29 L. Ed. 277, 5 Sup. Ct. Rep.
1050. :
JURISDICTION OF CRIMES AND OFFENSES. 19

CHAPTER I.

JURISDICTION OF CRIMES AND OFFENSES; FEDERAL AND
STATE COURTS; WHEN EXCLUSIVE AND WHEN CONCUR-
RENT.

. State Courts; Offenses against the State.

. Federal Courts.
. Where same Act an Offense against Federal and State Laws;
an Offense against Two Sovereignties.

oOo oO

10. Offenses against the National Banking Law; Embezzlement.
11. Perjury in Proceedings before Federal Tribunals or Officers.

12. Illegal Voting for Federal officers.
18. Extortion under Threat of Accusation of a Crime against the

United States.
14, Conspiracy against Exercise of a Federal Right.

§ 7, State courts; offenses within the state.

The jurisdiction of the state courts extends to all
cases of crimes and misdemeanors committed within
the confines of the state where the jurisdiction of the
Federal courts is not made exclusive.

§ 8. Federal courts.

Section 711 of the federal statutes provide that ‘‘the
jurisdiction vested in the cases and proceedings herein-
after mentioned shall be exclusive of the courts of the
several states: (1) Of all crimes and offenses cogni-
zable under the authority of the United States. (2) In
all suits for penalties, etc. (3) In all civil cases in
admiralty. (4) Seizures under the laws of the United
States. (5) Cases arising under the patent laws. (6) Of
all cases arising in bankruptcy, and two other classes.

This is substantially the law as it was enacted
prior to the revision of 1878 with respect to the general
20 HABEAS CORPUS.

clause that the jurisdiction shall be exclusive of the
courts of the several states. The sixth clause, relating
to cases arising in bankruptcy, was enacted March 2,
1867. Under the general title of crimes, which declares
statutory offenses, section 5328 thereof provides that
‘nothing in this title shall be held to take away or im-
pair the jurisdiction of the several states under the
laws thereof.’’? The federal courts have no common-law
jurisdiction in criminal cases. ‘The course of reason-
ing which leads to this conclusion is simple. The pow-
ers of the general government are made up from con-
cessions from the several states. Whatever is not given
to the former the latter expressly reserve. The judicial
power of the United States is a constituent part of
these concessions. That power is to be exercised by
courts organized for that purpose, and brought into ex-
istence by an effort of the legislative power of the
Union. Of all the courts which the United States may
under its powers constitute, only one, the supreme
court, possesses jurisdiction derived immediately from
the constitution, and of which the legislative power can-
not deprive it. All other courts created by the general
government possess no jurisdiction but what is given
by the power that creates it, and can be vested with
none but what the power ceded to the general govern-
ment will authorize it to confer.

Again, the power to make municipal regulations for
the restraint and punishment of crime, for the preser-
vation of the health and morals of her citizens and the
public peace, has never been surrendered by the states,
or restrained by the constitution of the United States.
Every state has the power of defending officers and of
punishing offenders against the laws.”

1 United States v. Hudson &  negsee v. Davis, 100 U. S. 257,
Goodwin, 7 Cranch 32, 3 L. Ed. 25 L. Hd. 648.

259; Wheaton v. Peters, 8 Pet. 2Moore v. The People, 14 How.
591, 658, 8 L. Ed, 1050; Ten- 138, 14 L. Ed. 306.
JURISDICTION OF CRIMES AND OFFENSES. - 21

The state courts are independent of and.beyond the
power of congress, hence congress cannot confer any
judicial power upon a state court.’

Yet the statutes of the United States are as much the
law of the land in any state as are those of the state;
and although exclusive jurisdiction for their enforce-
ment may be given to the federal courts, yet where it is
not given, either expressly or by necessary implication,
the state courts, having competent jurisdiction in other
respects, may be resorted to. In such case the state
courts do not exercise a new jurisdiction conferred upon
them, but their ordinary jurisdiction derived from
their constitution under the state law.*

A state court, therefore, can exercise concurrent ju-
risdiction with the federal courts in cases arising under
the constitution, laws and treaties of the United States,
where it is not excluded by express provision or by in-
compatibility in its exercise arising from the nature of
the particular case.®

§ 9. Where same act an offense under Federal and
‘State laws.

The question is thus presented whether the statute,
section 711, has the effect to deprive the several states
of the power to punish offenders against their laws,
where the general government has also declared by
statute the same act to be an offense against its laws
and prescribed a punishment therefor. It is not, strict-
ly speaking, a question of exclusive jurisdiction in the
federal courts, because they do not seek to assume ju-
risdiction to punish for offenses against the laws of a
state; nor is it a question of concurrent jurisdiction, for

8 Claflin v. Houseman, 93 U. S. 4Claflin v. Houseman, 93 U. S. ;
130, 23 L, Ed. 833; Ex parte 130, 23 L. Ed, 833.
Knowles, 5 Cal. 301. 5 Claflin v. Houseman, 93 U. S.

130, 238 L. Ed. 833,
22 HABEAS CORPUS.

the same reason. This question, but not exactly in the
same form, has been presented to the federal courts
several times; first, in Fox v. Ohio, 5 How. 431, 12 L.
Ed. 213. There the state courts had assumed jurisdic-
tion of an action where the defendant was charged with
passing counterfeit coin in the similitude of that of the
United States. It was said ‘‘the punishment of a cheat
or misdeameanor, practiced within a state, and against
those whom she is bound to protect, is peculiarly and
appropriately within her functions and duties, and it is
difficult to imagine. an interference with those duties
and functions which would be regular and justifiable. ’’
It was insisted that the statute of Ohio was repugnant
to the fifth and sixth clauses of the eighth section of the
first article of the constitution, which invest congress
with the power to coin money and regulate the value
thereof and of foreign coin, and to provide for the
punishment of counterfeiting the current coin of the
United States, contending that those clauses embrace
not only what their language directly implies, but all
other offenses which may be denominated offenses
against the coin itself. On the other hand, the con-
tention was that if any act of congress should be con-
strued as asserting the meaning as above stated in the
constitution, and as claiming for it the power contended
for, it would not be a law passed in pursuance of the
constitution nor one deriving its authority regularly
from that instrument. The court rejected the conten-
tion made on the part of the plaintiff in error. To the
argument that as a result of such a conclusion a double
punishment for the same act might be inflicted—one by
the state and the other by the federal government and
which would be a violation of the fifth article of the
amendment of the constitution, it was said: ‘‘The pro-
hibition alluded to, as contained in the amendments to
the constitution, as well as others with which it is as-
JURISDICTION OF CRIMES AND OFFENSES. 23

sociated in these articles, were not designated as limits
upon the state governments in reference to their own
citizens. They are exclusively restrictions upon fed-
eral power, intended to prevent interference with the
rights of the states and of their citizens.”’

An offense against two sovereignties.

In United States v. Marigold, 9 How. 261, it was said.
the stress of the argument of that case (Fox v. State,
supra) was to show that the right of the state to punish
for that cheat had not been taken from her by express
terms nor by any necessary implication of the constitu-
tion. It was held that under the provision of the con-
stitution conferring upon congress the power to coin
money and to punish the offense of counterfeiting the
same, it may also provide for the punishment of the
offense of bringing into the United States from a
foreign place, forged, false and counterfeit coins, made
in the similitude of the coins of the United States, and
also punishment for the offense of uttering and passing
the same. The court declared the doctrine announced
in the case of Fox v. State, supra, as sound in sub-
stance, that the act might constitute an offense against
two sovereignties, punishable by each. In Moore v. Peo-
ple, 14 How. 13, 14 L. Ed. 306, the question was as to the
power of the state to enact laws which punish any per-
son who shall harbor or secrete a fugitive negro slave,
or which unlawfully prevents the owner thereof from
arresting him, it being contended that such an act was
in conflict with the federal constitution, and laws of
congress upon the same subject passed in pursuance
thereof. It was held that such power existed in the
state and was not in conflict with the constitution or
laws of congress. It was said: ‘‘Every citizen of the
United States is also a citizen of a state or territory.
He may be said to owe allegiance to two sovereigns,
24 HABEAS CORPUS.

and may be liable for an infraction of the laws of either.
The same act may be an offense or transgression of the
laws of both. Thus, an assault upon the marshal of
the United States and hindering him in the execution of
a legal process is a high offense against the United
States, for which the perpetrator is liable to punish-
ment; and the same act may also be a breach of the
peace of the state—a riot, assault or murder—and
subject the same person to a punishment under the
state laws for a misdemeanor or felony.’’

Again, in United States v. Cruikshank, 92 U. S. 542,
23 L. Ed. 588, it was said: ‘‘The people of the United
States resident within any state, are subject to two
governments—one state, the other national; but there
need be no conflict between the two. The powers which
the one possesses the others do not. True, it may
sometimes happen that a person is amenable to both
jurisdictions for one and the same act.’’ After using
the illustration of an assault upon a marshal and pass-
ing counterfeit coin, the court proceeds to say: ‘‘This
does not, however, imply that the two governments
possess powers in common or bring them into conflict
with each other. It is the natural consequence of a
citizenship which owes allegiance to two sovereigns
and claims protection from both. He owes allegiance
to two departments, so to speak, and within their re-
spective spheres. must pay the penalties which each
exacts for the disobedience of its laws.’? Again, in
Cross v. North Carolina, 132 U.S. on p. 189, 33 L. Ed.
287, 10 Sup. Ct. 47, it was said in reply to the conten-
tion that the forging of a note payable at a national
bank was exclusively an offense cognizable by the
federal court: ‘‘Its (the federal government) legisla-
ture does not assume to restrict the authority which the
states have always exercised, of punishing, in their own
tribunals, the crime of forging promissory notes and
JURISDICTION OF CRIMES AND OFFENSES. 25

other commercial securities executed by private per-
sons and used for the purpose of private business. The
forgery of such instruments is none the less injurious
to the welfare of the people of the state because they
happen to be made payable through or at a banking
association which came into existence under the author-
ity of the United States. The forgery may have been
committed in order that the instrument forged might
thereafter become the basis of false entries upon the
books of the bank. But that circumstance cannot de-
feat the authority of the state, charged with the duty
of protecting its own citizens, from punishing the
forgery as in itself a distinct, separate offense, com-
mitted within its limits and against its laws.’’ I have
thus quoted at length from the expressions of the fed-
eral court for the purpose of demonstrating that in all
the cases the idea has been paramount that the federal
government has not the power to restrict the states in
the exercise of their acknowledged right to punish
offenders against their laws; that the jurisdiction of
the state and federal authorities are entirely distinct
and separate; that the former is invoked upon the
ground of the exercise of the police power of the state,
for the benefit and in behalf of the integrity of the
state, the other for the integrity of the national govern-
ment, and in some cases as well for the mere violation
of the provisions of a federal statute. The former
punishes for a crime against the people, the latter for
an offense against the government. The former does
not seek to enforce or vindicate the federal statute, but
its own. The latter does not seek to enforce or vindi-
cate the laws of the state, but its own. The jurisdic-
tions are distinct and separate, and in no manner con-
current, though each is exacting penalties for the same
act. The very conclusion thus reached answers incon-
trovertibly in the negative that other question in-

t
26 HABEAS CORPUS.

volved, whether it was the intent of congress, in in-
serting the clause as to the exclusive jurisdiction, to
include more than that the federal court should, exer-
cise exclusive jurisdiction over the offense against the
federal government. The very language is that such
jurisdiction vested in the courts of the United States
shall be exclusive of the courts of the several states:
First: Of all crimes and offenses cognizable under the
authority of the United States, which means that the
state courts shall not exercise jurisdiction in such
cases. It does not express or mean that the state
courts cannot exercise jurisdiction of all offenses
cognizable under the authority of the state if it happen
that the same act constitutes an offense against each.
If the doctrine of the federal court was that the same
act can constitute but one offense, then it would be
plausible to say the federal court had exclusive juris-
diction of that act, and consequently of the offense;
but where the doctrine is that the act may constitute
two offenses, one national and the other state in char-
acter, it necessarily follows that it was intended by the
act of congress that the exclusive jurisdiction to punish
for the offense was limited, not only by the powers of
the government, but by the evident intent, to the offense
against the government.

§ 10. Offenses against the national banking laws.

Thus far, from the authorities cited, it would seem
that the doctrine pronounced would apply in cases of
embezzlement from national banks, and it would be so
were it not for the conclusion reached by some courts,
that the federal courts have exclusive jurisdiction of
the offense of embezzlement by an officer or servant
thereof, unless the states have not the power to make
such acts criminal by their laws.®

6 People v. Fonda, 62 Mich. 401; Commonwealth y. Felton, 101
Mass. 204.
JURISDICTION OF CRIMES AND OFFENSES. 27

The judiciary act of 1789 provided that the circuit .
courts should have exclusive cognizance of all crimes
and offenses and misdemeanors cognizable under the
authority of the United States, except where this act
otherwise provides or the laws of the United States
otherwise direct. The act related entirely to the juris-
diction of the circuit courts, and it finally was amended
so as to give the district court jurisdiction of certain
offenses. Thereafter the district court was given ju-
risdiction of certain offenses and proceedings arising
under the bankrupt act. The provision which is now
5328 of the Revised Statutes, under title 70, of Crimes,
Chapter 1, General Provisions, provides that ‘‘nothing
in this title shall be held to take away or impair the
jurisdiction of the courts of the several states under the
laws thereof.’? The national banking act was enacted
in 1863 and 1864. In the revision of the statutes after-
wards, the offenses of embezzlement from and falsify-
ing records of a national bank were placed in the chap-
ter relating to crimes, and the provision heretofore
stated, section 5328, was retained. The language of
the act of 1789 was somewhat changed in the order of
words, and numbered section 711. Other changes are
that section 711 is made general as to all courts, and
uses the term ‘‘exclusive of the courts of the several
states,’’ which is inserted in place of the expression
‘exclusive cognizance of all crimes,’’ etc.; and the pro-
viso in the act of 1879, ‘‘except where this act other-
wise provides, or the laws of the United States other-
wise direct,’’ is dropped. Section 563 of the revised
statutes confers jurisdiction upon the district court, in
effect, of all crimes and offenses cognizable under the
authority of the United States, committed within their
respective districts or upon the high seas, the punish-
ment of which is not capital, except in the cases men-
tioned in section 5412, title Crimes; and section 629
28 HABEAS CORPUS.

confers upon the circuit courts, in effect, ‘‘exclusive
cognizance of all crimes and offenses cognizable under
the authority of the United States, except where it is
or may be otherwise provided by law, and concurrent
jurisdiction with the district courts of crimes and
offenses cognizable therein.’’ It will thus be observed
‘that is was no longer necessary (if it ever was) to re-
tain, as part of section 711, the proviso omitted. That
section applied to both courts and their jurisdiction
specially defined. The interpolation of words, ‘‘of the
courts of the several states,’’ did not add to the mean-
ing of the law. It more concisely expressed it. It was
exclusive before. It is therefore self evident that the
law as expressed in the revision of 1878 did not have
nor was it intended to have any effect with respect to
any change of jurisdiction on the part of the state
courts, where such jurisdiction existed prior to such re-
vision, and therefore section 5328 had the same force,
effect and application after the revision as before. In
New York v. Eno, 155 U.S. 89, 39 L. Ed. 80, 15 Sup. Ct.
Rep. 30, the supreme court of the United States, in
making a statement of the several provisions of law
applicable to the crime of embezzlement from a na-
tional bank, insert section 5328, as applicable in some
manner to the propositions involved.

That no change was made in the law by the revision
is exemplified by what was said in Cross v. North Car-
olina, 132 U.S. 161, 33 L. Ed. 287, decided in 1889. The
doctrine that the act may be an offense against two
sovereignties is recognized and reiterated. It was
there said: ‘‘If the punishment by the state of the crime
of forgery of which the defendants were found guilty
leaves them exposed to punishment by the United
States for having made false entries upon the books
of the bank of which they were officers, with the intent
to deceive the agent appointed by the general govern-
ment to examine its affairs, it results from the fact
JURISDICTION OF CRIMES AND OFFENSES. 29

that they are amenable to the laws of the United States
as well as of the state of North Carolina, and may be
subjected to punishment for violating the laws of each
government.’’ Again it was stated: ‘‘If it were com-
petent for congress to give exclusive jurisdiction to
the courts of the United States of the crime of falsely
making or forging promissory notes, purporting to be
executed by individuals and made payable to or at a
national bank, or of the crime of uttering or publishing
as true any such falsely made or forged notes, it has
not done so.’’ It will be further noticed that the pro-
visions of section 711 apply as well to all matters and
proceedings in bankruptcy proceedings as to crimes.
The question was presented to the supreme court of
the United States in 1876, whether the language of that
section excluded action on the part of the state court.
It was said ‘‘it is a mistake to suppose that the bank-
rupt law avoids of its own force all judicial proceedings
in the state or other courts the instant one of the par-
ties is adjudged a bankrupt. There is nothing in the
act which sanctions such a proposition.’’ Again, ‘‘the
debtor of a bankrupt, or the man who contests the right
to real or personal property with him, losses none of
those rights by the bankruptcy of his adversary. The
same courts remain open to him in such contests, and
the statute has not divested those courts of jurisdiction
in such actions. If it has for certain classes of actions,
conferred a jurisdiction for the benefit of an assignee
in the circuit courts of the United States, it is con-
current with and does not divest that of the state
courts.’’7

This case is also authority for the position that the
state courts can exercise concurrent jurisdiction with
the federal courts in cases arising under the constitu-

7 Claflin v. Houseman, 93 U. S. 130, 23 L, Ed. 833, clting many
cases.
30 HABEAS CORPUS.

tion, laws and treaties of the United States, subject to
the qualification that where a right arises under a law
of the United States, congress may, if it see fit, give to
the federal courts exclusive jurisdiction. The most
that can be claimed with respect to the purpose of the
change made by the revision was to take away from
the state courts their concurrent jurisdiction.

Embezzlement.

To complete the discussion it only remains to con-
sider whether the act of embezzlement is such an offense
or crime against the people of a state that, in the exer-
cise of the police power, the state can define it to be
a crime and declare the punishment for the commission
thereof. Embezzlement is a crime unknown to the
common law. It depends entirely upon statutory en-
actments and it is sometimes called a statuory larceny.®

It is not an infamous crime within the meaning of the
fifth amendment of the constitution, and hence may be
tried without the intervention of a grand jury.

_ Statutes relating thereto, both in this country and in
England, had their origin in a design to supply a defect
which was found to exist in the criminal law.’°

The act of embezzlement has been made a crime in
practically all of the states, and punishment pre-
scribed, and the power of state legislature to so enact
has never been questioned. It certainly would not be
questioned but that, in the absence of legislation on the
part of the general government declaring embezzle-
ment from a national bank a crime, the language of the
state statutes in respect to declaring embezzlement a
crime would include the act of embezzlement from a
national bank. If this be conceded, then the question

8 State v. Mason, 108 Ind. 48. Ketner, 92 Pa, St. 372, 37 Am.
®United States v, Reilly, 20 Rep. 692.
Fed. 46; State v. Fuller, 34 10 Commonwealth v. Hays, 80
Conn. 280; Commonwealth v. Mass, 63.
JURISDICTION OF CRIMES AND OFFENSES. 31

is simply whether, after the states have so declared,
congress has the power to nullify those statutes and
arrogate to itself jurisdiction to punish such an offense,
where the party injured derives its corporate power
or existence solely from the federal government. It

must be conceded that the public interests are as much

concerned in the punishment of offenders against such
institutions as those against state institutions or pri-
vate individuals. As well stated by Justice Harlan in
delivering the opinion in Cross v. North Carolina, 132
U. S. 181, 189, 33 L. Ed. 287, 10 Sup. Ct. Rep. 47,
speaking with reference to notes forged by an officer of
a national bank, and payable there: ‘‘The forgery of
such instruments is none the less injurious to the wel-
fare of the people of the state because they happen to
be made payable to or at national banking associations
which come into existence under the authority of the
United States. The forgery may have been committed
in order that the instrument forged might thereafter
become the basis of false entries upon the books of the
bank. But the circumstance cannot defeat the author-
ity of the state, charged with the duty of protecting its
own citizens, from punishing the forgery, as in itself a
distinct, separate offense, committed within its limits
and against its laws.’’ “Might it not as well be urged
that the general government could arrogate to itself
the exclusive jurisdiction to try and punish an offender
who should murder an officer of a national bank or of a
railroad corporation deriving authority from that gov-
ernment, or an offender who should burglarize the
vaults of any such corporation? Such offenses are
none the less a crime against the laws of the state be-
cause the subject injured derives its corporate exist-
ence from federal sources, and no reason can be as-
signed why the offense of embezzlement should be made
an exception, unless such offense is a fraud against the

United States as such. The power of congress to de-'

i
32 HABEAS CORPUS.

clare the jurisdiction of the federal courts exclusive of
crimes against the laws of a state, or to prohibit the
state from enacting laws making acts that are essen-
tially criminal, within the police power of the state, and
which interrupt the peace and good order of her citi-
zens, offenses against the state, may well be doubted.
This question has been ably discussed in many cases,
and the conclusion reached that no such grant of power
was made by the constitution, but that the state courts,
except in certain cases, retained their original juris-
diction, except as by, that instrument made con-
current.1!

It has been shown that the act of forgery of a note
payable at a national bank was not an offense under
section 5418 of the federal statutes, upon the ground
that the act was not committed for the purpose of de-
frauding the United States, but rather constituted a
fraud upon the bank or its stockholders.1?

It follows that if an act of embezzlement from such
a bank is no more than a fraud upon the bank or its
stockholders, certainly it is within the power of'a state
to provide for the punishment of such an offense, in-
dependent of what the federal government may pro-
vide as a punishment for violation of its statute. The
doctrine so strenuously maintained by the supreme
court of the United States that the same criminal act
may constitute a distinct offense against two sovereign-
ties, and the guilty offender may be twice punished for
the criminal act, was forced from the peculiar complex
system of our form of government. The effect of such
doctrine is abhorrent to all lovers of law and justice,
and perhaps the only effect it was intended the declara-
tion of it should have, was to settle a vexed question

11 Teall v. Felton, 1 Comst. 12 Cross v. North Carolina, 132
537; Delafield v. Illinois, 2 Hill, U. S. 131, 33 L. Ed. 287, 10 Sup.
159; Teall v. Felton, 12 How. Ct. Rep. 47.

AU. S.) 136, 13 L. Ed. 990.
JURISDICTION OF CRIMES AND OFFENSES. 33:

and prevent conflict between national and state author-
ity. It was not intended, except in severe cases, that
the double punishment would be enacted. It was said
in Fox v. State, 5 How. 431, 12 L. Ed. 213: ‘‘It is al-
most certain that in the benignant spirit in which the in-
stitutions, both of state and federal systems, are ad-
ministered, an offender who should have suffered the
penalties denounced by the one would not be subjected
a second time to punishment by the other, for acts essen-
tially the same, unless, indeed, this might occur in in-
stance of peculiar enormity, or where the public safely
demanded extraordinary rigor.’’ And in another case it
was said, as a reason for not assuming jurisdiction by
a state court, ‘‘there would be the possible danger of
subjecting an offender to double punishment, an enor-
mity which no court would permit if it had power to
prevent it.’? 18

It is the accepted doctrine, however, that the juris-
diction of the federal courts is exclusive.

§ 11. Perjury in proceedings before federal tribunals
3 or officers.

The federal courts have exclusive jurisdiction to try
and punish for perjury committed in proceedings be-
fore federal tribunals and officers. It is a crime
against one sovereignty only; hence the state courts
have no jurisdiction of such a crime committed in an
examination before a commissioner under the United
States bankrupt act;!* nor where committed before a.
commissioner of the circuit court of the United
States; 1 nor where committed in making an affidavit.
under the act of congress relating to the sale of the
public lands.1¢

18 Commonwealth v. Ketner, 92 15 Ex parte Bridges, 2 Woods,
Pa. St. 372, 87 Am. Rep. 692. 428; State v. Shelley, 11 Lea, 594.
14 State v. Pike, 15 N. H. 83; 16 State v. Adams, 4 Blackf..

In re Loney, 134 U. S. 372, 833 L. 146; People v. Kelley, 38 Cal. 145;.
Eid. 949, 10 Sup. Ct. Rep, 384, State v. Kirkpatrick, 32 Ark. 117.
3
34 HABEAS CORPUS.

‘An act of congress designating certain officers or
persons before whom depositions may be taken in con-
tested election cases of members of the national house
or representatives includes among others state judges,
mayors, recorders of cities and notaries public. It
was held that such officers, though appointed by or
elected in the state, perform functions not under any
authority derived from the state, but solely under the
authority conferred upon them by congress, and in a
matter concerning the government of the United States,
and perjury in giving such testimony is punishable in
the courts of the United States to the eeolusien of the
state courts.'7

State courts, however, have jurisdiction of perjury
committed in a proceeding for naturalization before a
court of the state under authority of congress. Such
a proceeding is a judicial proceeding in a state court.'®

§ 12. Illegal voting for federal officers.

The courts of the state, however, have jurisdiction
of an indictment for illegal voting for electors of
president and vice-president of the United States, and
a person sentenced to imprisonment upon such an in-
dictment cannot be discharged by writ of habeas cor-
pus, although the indictment and sentence include
illegal voting for a representative in congress. If it be
conceded that the state court has not concurrent juris-
diction with the federal courts to punish fraudulent
voting for representatives in congress (a question not
determined, though the court state ‘‘maybe it has’’), it
having such power in regard to votes for presidential
electors, the including in one indictment and sentence
of illegal voting both for a representative in congress

17In re Loney, 134 U. S. 372, 33 L. Ed. 949, 10 Sup, Ct. Rep.
33 L. Hd. 949, 10 Sup, Ct. Rep. 384; Rump v. Commonwealth, 30

384. Pa. St. 475; State v. Whittemore,
18In re Loney, 134 U. S. 372, 50 N. H, 245.
JURISDICTION OF CRIMES AND OFFENSES. 35

and for presidential electors does not go to the juris-
diction of the state court, but is at most mere error,
which cannot be inquired into by writ of habeas cor-
pus.??

§ 13. Extortion under threat of accusation of a crime
against the United States.

It was held that under sec. 5328 R. S., and the pro-
visions of the California Criminal Code, the state
courts of that state have concurrent jurisdiction, with
the courts of the United States, to try a person for
extortion, where the basis of the extortion was a threat
to accuse a person of having committed an act which is
a crime, exclusively against the United States and
made so by federal statute.?°

That is, the crime charged, if it had been committed
and the offender charged therewith, the federal courts
would have had exclusive jurisdiction. The crime of
extortion, however, was a crime against the state and
under federal statutes. However, the section of the
federal statutes making extortion an offense in respect
to the particular matter, is contained in Title 70, de-
nominated Crimes, and in that title is found another
section (5328) which provides that, ‘‘Nothing in this
title shall be held to take away or impair the jurisdic-
tion of the courts of the several states under. the laws
thereof.’’ The judgment of the supreme court of the
United States was based upon such statute.

§ 14. Conspiracy against exercise of a federal right.

The act of March 2, 1907, ch. 2564, authorized the
United States to prosecute writs of error in criminal

19In re Green, 184 U. S. 377, 20 Sexton v. California, 189 U.
33 L. Hd. 951, 10 Sup. Ct. Rep. S. 319, 47 L. Ed. 833, 23 Sup. Ct.
586, Rep. 543.
36 | HABEAS CORPUS.

cases on certain points, from the circuit or district
courts direct to the supreme court.

1. From a decision or judgment quashing or setting
aside or sustaining a demurrer to any indictment or
any count thereof, where such decision or judgment is
based upon the invalidity or construction of any statute
upon which the indictment is found.

2. From a decision arresting a judgment of convic-
tion for insufficiency of the indictment, where such de-
cision is based upon the invalidity or construction of
the statute upon which the indictment is founded.

3. From the decision or judgment sustaining a spec-
ial plea in bar when the defendant has not been put in
jeopardy.

Persons were indicted in the federal court for violat-
ing secs. 5508 and 5509 of the federal statutes. Section
5508 provided in substance for punishment of the
crime of conspiracy therein defined, to injure, oppress,
threaten or intimidate any citizen in the free exercise
or enjoyment of any right or privilege secured to him
‘by the constitution or laws of the United States, ete.
Section 5509 provided that if in the act of violating such
provision, ‘‘any other felony or misdemeanor be com-
mitted, the offender shall be punished for the same
with such punishment as is attached to such felony or
misdemeanor by the laws of the state in which the of-
fense is committed.’’

The indictment in question charged such conspiracy
as against officers or agents in the employ of the gov-
ernment, in performing their official duties, and also
charged in the same count, that in pursuance of such
unlawful and felonious conspiracy and to effect the ob-
ject thereof, the defendants did kill and murder one
Joseph A. Walker.

The defendants filed a special plea in bar, in sub-
stance, that they had been charged in the state court
JURISDICTION OF CRIMES AND OFFENSES. 37

with the commission of the same murder, tried, acquit-
ted and discharged from custody.

The federal court adjudged such plea in bar to be
sufficient, and discharged the defendants from that part
in each count of the indictment which related to the
charge of their having murdered Walker in violation
of the laws of the state, in the act of committing the
alleged conspiracy in violation of the statute of the
United States. The United States then prosecuted
writs of error under the statute mentioned.

It was held the reference in the federal act to an of-
fense committed against the state, was for the pur-
pose only of measuring the punishment for conspiracy
charged by the United States, upon its being found at
the trial in the federal court, that such conspiracy in
violation of the federal statute, had been aggravated
by the commission of an offense against the state,—‘‘an
aggravation merely of the substantive offense of con-
spiracy,’’ not a distinct, separate offense against the
United States to be punished by it without reference to
the conspiracy charged in the indictment. (Citing
Rakes v. United States, 212 U. 8. 55, to the same ef-
fect.)

The murder, if committed at all, was a distinct of-
fense,—a crime against the state,—and after the de-
fendants were acquitted of that crime by the only tri-
bunal that had jurisdiction of it as an offense against
the state, it is to be taken that no such crime of murder
as charged in the indictment was in fact committed by.
them.

It was further held that such interpretation of the
statute (sec. 5509) will not prevent the trial of the de-
fendants upon the charge of conspiracy and their pun-
ishment if guilty according to sec. 5508, namely, by a
fine not exceeding five thousand dollars and imprison-
ment not more than ten years. 1

21 United States v. Mason, 218 U. S. 115, 53 L. Hd. 725.
388

§ 15

16.

17.
18.
19.

20.
21,

22,
23.

24

25,

HABEAS CORPUS.

CHAPTER III.

JURISDICTION OF COURTS.

I, FeprRaL Courts.

. Constitutional and Legislative Provisions.

Repeal of a Provision of Act of 1867 Relating to Appeals; Ef-
fect.

Repeal of the Repealing Act; Effect.

Act of March 8, 1891, Creating Circuit Court of Appeals.

Act of March 10, 1908, Relating to Process Issued out of State
Courts. |

Review of Proceedings.

1. Review oF PRocEeDINGs oF INFERIOR FEDERAL CouRTS,

In General.
Application of the Rule.

2. REVIEW OF PROCEEDINGS oF STATE CouRTs,

In General.
Discretion of Court.
Writ not Issued in Advance of Final Determination in
Other Court Except in Exceptional Cases.
Constitutional Questions not Determined where Other
Grounds Sufficient Appear.
Where Large Interests and Rights of the Public are In-
volved.
Discretion of Circuit Court not Conclusive upon Review
by Supreme Court.
Writ Refused where Cause no Longer Exists.
. Exceptions to the Rule; Cases Within.
Prisoner in Custody for Act Done in Pursuance of the
_ Laws of the United States.
Perjury Committed in Matter within Exclusive Cogni-
zance of Federal Courts.
Officers or Agents in the Service of the Government.
Person in Custody for an Act done Pursuant to an Order
of the Federal Court.

8. REVIEW OF FINAL JUDGMENT AND SENTENCE,
. General Rule.
JURISDICTION OF COURTS. 39

II. State Courts,

26. By What Authority and When Writ Will Issue.
In General.
27. Persons in Custody Under Authority of the United States.
In General.
In Custody of United States Marshal.
In Custody of Officers of the Army.
28. Distinction between Persons in Custody and Where Federal
Laws Violated.

I. Feperat Courts.

§ 15. Constitutional and legislative provisions.

The constitution of the United States, art. IIT, secs
1 and 2, provides: ‘‘The judicial power of the United
States shall be vested in one supreme court and in such
inferior courts as the congress may from time to time
ordain and establish. The judicial power shall extend
to all cases in law or equity arising under this constitu-
tion, the laws of the United States and treaties made
or which shall be made under their authority; to all
cases affecting ambassadors, other public ministers
and consuls; to all cases of admiralty and maritime
jurisdiction; to controversies to which the United
States shall be a party; to controversies between two
or more states; between a state and citizens of another
state; between citizens of different states; between citi-
zens of the same state, claiming lands under grants of
different states, and between a state or the citizens
thereof and foreign states, citizens and subjects.
_ In all cases affecting ambassadors, other public min-
isters and consuls and those in which a state shall be
a party, the supreme court shall have original jurisdic-
tion. In all the other cases before mentioned the su-
preme court shall have appellate jurisdiction, both as
to law and fact, with such exceptions and under such
regulations as the Congress shall make.’’

The constitution, art. I, sec. 9, also provides the priv-
Ss

40 HABEAS CORPUS.

ilege of the writ of habeas corpus shall not be sus-
pended unless when in cases of rebellion or invasion
the public safety may require it.

The first congress, by the 14th section of the act of
September 24, 1789 (1 Stat. at Large 81), to establish
the judicial courts of the United States, among other
things, enacted: ‘‘That all the before mentioned courts
shall have power to issue writs of scire facias, habeas
corpus, and all other writs not especially provided for
by statute, which may be necessary for the exercise of
their respective jurisdictions, and agreeable to the
principles and usages of law, and that either of the
justices of the supreme court, as well as judges of the
district courts, shall have power to grant writs of
habeas corpus for the purpose of and inquiry into the
cause of commitment. Provided, that writs of habeas
corpus shall in no case extend to prisoners in jail un-
less they are in custody under or by color of the au-
thority of the United States, or are committed for trial
before some court of the same, or are necessary to be
brought into court to testify.’’

By statute of 1833 (5 Stat. at Large 634), the writ
was extended to prisoners confined under any author-
ity, whether state or national, for any act done or
omitted in pursuance of a law of the United States or
of any order, process or decree of any judge or court of
the United States, and by an act of 1842 (5 Stat. at
Large 539) to prisoners being subjects or citizens of a
foreign state in custody under national or state au-
thority for acts done or omitted by or under color of
foreign authority and alleged to be valid under the law
of nations.

The act of 1789, was again amended in 1867 (14 Stat.
at Large 385), and provided: ‘‘That the several courts
-of thé United States and the several justices and judges
of such courts, within their respective jurisdictions, in
addition to the authority already conferred, by law,
JURISDICTION OF COURTS: 41

shall have power to grant writs of habeas corpus in all
cases where any person may be restrained of his or her
liberty, in violation of the constitution or of any treaty
or law of the United States.’’

It further provided: ‘‘From the final decision of any
judge, justice or courts inferior to the circuit court, ap-
peal may be taken to the circuit court of the United
States for the district in which the said cause is heard,
and from the judgment of said circuit court to the su-
preme court of the United States.’’

§ 16. Repeal of a provision of acts of 1867, relating to
appeals; effect.

The act of March 27, 1868 (15 Stat. at Large 44),
provided : ‘‘That so much of the act approved February
5, 1867, entitled an act to amend an act to establish the
judicial courts of the United States, approved Septem-
ber 24, 1789, as authorized an appeal from the judg-
ment of the circuit court to the supreme court of the
United States, or the exercise of any such jurisdiction
by said supreme court on appeals which have been or
may hereafter be taken, and the same is hereby re-
pealed.’’

The reasons for thus repealing the former statute
are peculiar in that it was sought to prevent the su-
preme court from determining the constitutionality of
the reconstruction acts so called, which provided for .
military governments of the states which had been in
conflict with the government. One McCardle had been
arrested and held in custody for trial before a military
commission upon charges of publishing libelous and in-
cendiary articles. He petitioned the circuit court for
the southern district of Mississippi for the writ of
habeas corpus. The writ was issued and a return was
made, and upon hearing the court decided that the re-
straint was lawful and remanded him to custody. Mc-
Cardle prayed an appeal under the act of 1867, to the
42 HABEAS CORPUS.

supreme court, which was allowed and perfected. A
motion was made in the supreme court to dismiss the
appeal which was denied. The case was then argued
at the bar, and the argument having been concluded on
the 9th of March, 1869, was taken under advisement by
the court. While the cause was thus held and before
the court had time to consider the decision proper to
be made, the repealing act of 1868 was introduced into
congress. It was carried through both houses, sent to
the president, who returned it with his objections as
he had the so-called reconstruction act, when it was
repassed by the constitutional majority, in each house
and became a law on the 27th day of March, within
eighteen days after the conclusion of the argument.
The effect of the act was to oust the supreme court
of its jurisdiction of the particular case, then before it
on appeal, and such was the effect intended. The ques-
tion came before the supreme court later as to the ap-
pellate jurisdiction of the supreme court, notwithstand-
ing such repealing act, and it was determined that the
supreme court derived its jurisdiction, both original
and appellate, from the constitution. That its original
jurisdiction cannot be extended by congress to any
other cases than those expressly defined by the con-
stitution. That its appellate jurisdiction conferred by
the United States, extends to all other cases within the
judicial power of the United States. That such appel-
late jurisdiction is subject to such exceptions, and must
be exercised under such regulations as congress, in the
exercise of its discretion, has made or may see fit to
make. That congress not only has not excepted writs
of habeas corpus and mandamus from its appellate
jurisdiction, but has expressly provided for the exer-
cise of this jurisdiction by means of these writs. !
The foregoing was declared to be the state of the law

1Ex parte Yerger, 8 Wall 85, 19 L. Ed. 332,
JURISDICTION OF COURTS. 43

as it existed prior to the acts of 1867 and 1868. The
particular question involved in Ex parte Yerger, was
the effect of the act of 1868 upon the appellate jurisdic-
tion of the court. The appellate jurisdiction conferred
by the constitution and exercised prior to the act of
1867, was by means of the writ of habeas corpus and
mandamus. By the provisions of the act of 1867, the
additional jurisdiction was authorized by means of an
appeal direct from the circuit court to the supreme
court, and it further determined that the repealing act
of 1868 only was intended and only had the effect to
take away this remedy by direct appeal from the cir-
cuit court, and left untouched the appellate jurisdiction
of the court by means of the writs of habeas corpus and
mandamus.

To the argument advanced that ‘‘to bring a case
within the appellate jurisdiction of the supreme court
in the sense requisite to enable it to award the writ of
habeas corpus under the judiciary act, it is necessary
that the commitment should appear to have been by a
tribunal whose decisions are subject to revision by that
court, it was said the proposition which it regarded as
established upon principle and authority is, that the
appellate jurisdiction by habeas corpus extends to all
cases of commitment by the judicial authority of the
United States; not within any exception made by con-
gress.

In obedience to the writ, in the case issued by the
circuit court, the petitioner was brought into the cir-
cuit court by Major General R. 8S. Granger, who made
return certifying the cause of detention to be that the
petitioner had been arrested and was held for trial
upon a charge of murder by a military commission un-
der the act of congress of the 2nd of March, 1867, ‘‘to
provide for the more efficient government of the rebel
states.’’ The circuit court, upon hearing, dismissed
44: HABEAS CORPUS.

the writ and remanded the prisoner. To obtain re-
versal of that order and relief from imprisonment, the
petitioner requested from the supreme court a writ of
certiorari to bring to the supreme court for review, the
proceedings of the circuit court and for a writ of habeas
corpus to be issued under the authority of the supreme
court to the officers to whose custody he was remanded.
The only question presented and considered upon this
application, was the jurisdiction of the court to issue
the writ. Such jurisdiction was affirmed.

-§ 17. Repeal of the repealing act of 1868; effect.

The provisions of the several amendments were car-
ried into the revised statutes, secs. 751 to 756.

The next amendment was the act of March 3, 1885
(Laws of 2nd sess. 48th congress ch. 353, page 437),
which provided that section 754, R. S., be amended so
that the same shall read as follows: ‘‘From the final
decision of such circuit court an appeal may be taken
to the supreme court in the cases prescribed in the pre-
ceding section.’’

It was held that the amendment restored to the-su-
preme court appellate jurisdiction in habeas corpus
cases over decisions of the circuit court of the United
States, and decisions of the supreme court of the dis-
trict of Columbia. 2

Subsequently it was held that the amendment did
not apply to appeals from the supreme court of the dis-
trict of Columbia by reason of the provisions of an act
of congress approved on the same 3rd of March, 1885,
entitled ‘‘An act regulating appeals from the supreme
court of Columbia and the supreme court of the several
territories’? (23 Stat. 448, ch. 355), which did not in-
clude a review by appeal in criminal cases.

2 Wales v. Whitney, 114 U. S. 8 Cross v. Burke, 146 U. S. 82,

564, 29 L. Ed, 277, 5 Sup. Ct. 36 L. Ed. 896, 18 Sup. Ct. ED,
Rep. 1050. 22.
JURISDICTION OF COURTS. 45

§ 18. Act of March 3, 1891, creating circuit courts of
appeals.

The act of congress of March 3, 1891, establishing
circuit courts of appeals, and defining and regulating
the jurisdiction of the courts of the United States (26
Stat. 826, ch. 517), provided among other things, Sec-
tion 4: ‘‘The review by appeal by writ of error or
otherwise, from the existing circuit courts shall be had
only in the supreme court of the United States, or in
the circuit court of appeals according to the provisions
of this act regulating the same.’’

Section 14. ‘‘ All acts and parts of acts relating to
appeals or writs of error, inconsistent with the pro-
visions for review by appeals or writs of error in the
preceding sections five and six of this act,’’ were re-
pealed.

Under section 5, appeals or writs of error may be
taken from the circuit courts directly to the supreme
court in six specified classes of cases, namely:

“1, In any case in which the jurisdiction of the court
is in issue; in such cases the question of jurisdiction
alone shall be certified to the supreme court from the
court below for decision.

‘‘2. From the final sentences and decrees in prize
cases.

‘3. In cases of conviction of a capital or otherwise
infamous crime.

_**4, In any case that involves the construction or ap-
plication of the constitution of the United States.

‘¢5, In any case in which the constitutionality or con-
struction of any treaty made under its authority is
drawn in question.

‘6. In any case in which the constitution or law of
a state is claimed to be in contravention of the constitu-
tion of the United States.’’

By section 6, the circuit court of appeals ‘‘shall ex-
46 HABEAS CORPUS.

ercise appellate jurisdiction to review by appeal or
writ of error’’ final decisions of circuit courts ‘‘in all
cases other than those provided for in the preceding
section of this act.’’

It was held that the appellate jurisdiction not vested
in the supreme court was thus vested in the court cre-
ated by the act and the entire jurisdiction distributed.‘

The section (sec. 6) then provides that ‘‘the judg-
ments or decrees of the circuit courts of appeals shall
be final in all cases in which jurisdiction is dependent
entirely upon the opposite parties to the suit or con-
troversy being aliens, and citizens of the United States
or citizens of different states; also in all cases arising
under the patent laws, under the revenue laws and un-
der the criminal laws in admiralty cases, excepting that
in every such subject, within its appellate jurisdic-
tion, the circuit court of appeals may certify to the su-
preme court of the United States any questions or prop-
ositions of law concerning which it desires the instruc-
tion of that court for its proper decision, and thereupon
the supreme court may either give its instructions on
the questions and propositions certified to it, which
shall be binding upon the circuit court of appeals in
such case, or it may require that the whole record and
cause may be sent up to it for its consideration in the
same manner as if it had been brought there for review
by a writ of error or appeal. And excepting also that
in any such case as hereinbefore made final in the cir-
cuit court of appeals, it shall be competent for the su-
preme court to require by certiorari or otherwise, any
such case to be certified,’’ for its determination as if
brought up by appeal or writ of error. ‘‘In all cases
not hereinbefore in this section made final, there shall
be of right an appeal or writ of error or review of the
case by the supreme court of the United States where

4McLish v. Roff, 141 U. S. 661, 85 L. Hd. 893, 12 Sup. Ct. Rep. 118.
JURISDICTION OF COURTS. 47

the matter in controversy shall exceed one thousand
dollars, besides costs.’’

It was held that it was competent for the supreme
court upon application, by certiorari, to direct any case
to be certified by the circuit court of appeals, whether
its advice is requested or not, except those which may
be brought here by appeal or writ of error. ®

Prior to the appeals act of 1891, is will be observed,
provision was made for an appeal to the circuit court
in habeas corpus cases, from the final decision of any
court, justice or judge inferior or to the circuit court.
The law remained in this condition until the court of
appeals act of March, 1891, supra, was passed, the fifth
section of which permits an appeal directly from the
district court, in any case in which the constitutionality
of any law of the United States, or the validity or con-
struction of any treaty is drawn in question.

It is held that final orders of the circuit or district
courts of the United States in habeas corpus proceed-
ings, can only be reviewed by appeal and not by writ
of error.®

§ 19. Act of March 10, 1908, relating to process issued
out of state courts.

Congress, by an independent act (March 10, 1908, 35
Stat. 40), restricted the right of appeal as was before
provided. It is entitled ‘‘An act restricting in certain
cases the right of appeal to the supreme court in habeas
corpus proceedings,’’ and provides: ‘‘That from a
final decision by a court of the United States in a pro-
ceeding in habeas corpus where the detention com-
plained of is by virtue of process issued out of a state

sLau Ow Bew v. United éFisher v, Baker, 203 U. S.
States, 144 U. S. 47, 36 L. Ed. 174, 51 L. Ed. 142, 27 Sup Ct.
340, 12 Sup. Ct. Rep. 517. Rep. 135.
48 HABEAS CORPUS.

court, no appeal to the supreme court shall be allowed
unless the United States court, by which the final de-
cision was rendered, or a justice of the supreme court
shall be of opinion that there exists probable cause for
an appeal, in which event on allowing the same, the
said court or justice shall certify that there is probable
cause for such allowance.’’ This requirement was held
jurisdictional.? :

Review of Proceedings.

1. Review or Proceepines or Inrerion FEDERAL Courts.
§ 20. In general.

The rule has been several times declared, that the
writ of habeas corpus will not be granted when there
is a remedy by writ of error or appeal, except in rare
and exceptional cases. Thus it is stated by the su-
preme court: ‘‘We are impressed with the conviction
that the orderly administration of justice will be better
subserved by our declining to exercise appellate juris-
diction in the mode desired until the conclusion of the
proceedings. If judgment goes against the 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 su-
preme court of the district was absolutely without ju-
risdiction, the petitioner may then seek his remedy
through application by a writ of habeas corpus.8

7Bilik v. Strassheim, 212 U. Sup. Ct. Rep. 4; Ex parte Mirzan,
S. 551, 53 L. Ed, 649. 119 U. S. 584, 30 L, Ed. 513, 7

8In re Chapman, 156 U. S. Sup. Ct. Rep. 341; Riggins v.
211, 39 L, Ed. 401, 15 Sup. Ct. United States, .199 U. S. 547, 50
Rep. 331; In re Lancaster, 137 L. Ed. 303, 26 Sup. Ct. Rep. 147;
U. S. 393, 34 L. Ed. 718, 11 Sup. Ex parte Royall, 117 U. S. 241,
Ct. Rep. 117; In re Huntington, 29 L, Hd. 868, 6 Sup. Ct. Rep.
137 U. S. 63, 34 L, Hd. 567, 11 784,
JURISDICTION OF COURTS. 49

§ 21. Application of the rule.

In In re Chapman, 156 U. S. 211, 39 L. Ed. 401, 15
Sup. Ct. Rep. 331, the petitioner was indicted in the
supreme court of the district of Columbia, as for con-
tempt in refusing to answer certain questions pro-
pounded by a committee of one of the branches of con-
gress. He demurred to the indictment, the demurrer
was overruled. An appeal was allowed by the court of
appeals from the order overruling the demurrer; the
court of appeals gave judgment affirming the order of
the supreme court, and remanded the cause to said
named court. The prisoner then made application to
the supreme court of the United States for leave to file
a petition for the writ of habeas corpus. That court
applied the rule above stated and in effect, that they
would not determine the constitutionality of the act,
for a violation of which he was arrested and im-
prisoned, it being alleged in the petition that the ques-
tions proposed were in regard to his private business
which he was not bound to answer and was protected
from answering by provisions of the constitution and
laws of the United States.

In Ex parte Mirzan, 119 U. S. 584, 30 L. Ed. 513, 7
Sup. Ct. Rep. 341, upon motion to file a petition for a
writ of habeas corpus, where the petitioner alleged he
was unlawfully restrained of his liberty by the warden

_of a penitentiary and in violation of his constitutional
rights, the court denied the motion and upon the ground
that since the act of March 3, 1885, an appeal lies to
that court from the judgment of the circuit court in
habeas corpus cases, that the court will not issue the
writ in cases where it may as well be done in the proper
circuit court, if there are no special circumstances in
the case making direct action necessary or expedient,
and held there were no such special circumstances in
the case as presented.

4
50 HABEAS CORPUS.

Tn In re Lincoln, 202 U. 8. 178, 50 L. Ed. 984, 26 Sup.
Ct. Rep. 602, the supreme court declined the petition
for a writ of habeas corpus after conviction and sen-
tence, for the offense of selling liquor to certain In-
dians. The petitioner alleged that the law under which
the indictment was drawn, was unconstitutional and
void in so far as it applied to the Winnebago reserva-
tion. The term of imprisonment had expired, but it
did not appear that the costs and fine had been paid.
It was held that the petitioner should have proceeded
by writ of error, that it is a question in every: case
whether the exercise of jurisdiction by habeas corpus
is appropriate.

The rule that the writ will not be granted except in
rare and exceptional cases, prior to the final determin-
ation of the proceedings in the court below, was ap-
plied where the writ was issued by the circuit court,
and upon hearing, the writ was discharged, and an ap-
peal was prayed, allowed and perfected to the supreme
court.

It was said: ‘‘Defendant might have raised his objec-
tions to the indictment by motion to quash or other-
wise. If the indictment were held good, as we are ad-
vised 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 rem-
edy by writ of error. was open to him.’’®

In In re Heff, 197 U.S. 488, 49 L. Ed.-848, 25 Sup. Ct.
Rep. 506, the supreme court granted a writ of habeas
corpus direct upon the petition of a person who had
been convicted by the district court of the United States
of the offense of selling intoxicating liquor to an In-
dian. It appeared that the Indian to whom it was al-
leged the liquor was sold, was an allotee of land made.

9 Riggins v. United States, 199 U. S. 547, 50 L. Ed. 303, 26 Sup. Ct.
Rep.. 147.
JURISDICTION OF COURTS. 51

under the direction of the government, and the deter-
mination was in substance that under the act of con-
gress (February 8, 1887, 24 Stat. 338), such Indian be-
came a citizen of the United States and of the state
in which he resided, and not within the reach of Indian
police regulations on the part of congress, and that
therefore the district court was without jurisdiction.

The question was not raised of the bringing of the
case by writ of error to the supreme court, instead of
by direct proceedings in habeas corpus.

2. Review or Proceepines oF State Courts.
§ 22. In general.

The jurisdiction of courts of the United States to
issue writs of habeas corpus, is limited to cases of per-
sons alleged to be restrained of their liberty in viola-
tion of the constitution or of some law or treaty of the
United States, and cases arising under the laws of na-
tions.?°

That a resolution or law may be repugnant to the
constitution of the particular state, presents no ground
for interference by federal courts by means of habeas
corpus.}?

A circuit court of the United States issued a writ of
habeas corpus upon petition of a person held in custody
under an attachment for failure to appear and testify
before a committee of the legislature of the state ap-
pointed to investigate certain matters. It was claimed
and so held by the circuit court, that the legislature had
no power under the constitution of the state to appoint
such committee, and clothe it with power to sit and

10Carfer v. Caldwell, 200 U. Sup. Ct. Rep. 389; Storti v. Mas-
S. 293, 50 L. Ed, 488, 26 Sup. Ct. sachusetts, 183 U. S, 188, 46 L.
Rep. 264; In re Burrus, 136 U. L, Ed. 120, 22 Sup. Ct. Rep. 72.
S. 586, 34 L. Ed. 500, 10 Sup. Ct. 11Carfer v. Caldwell, 200 U.
Rep. 850; Andrews: v. Swartz, S. 293, 50 L. Ed. 488, 26 Sup. Ct.
156 U. S. 272, 89 L, Ed. 422,15 Rep. 264.
52 HABEAS CORPUS.

compel the attendance of witnesses in vacation. The
circuit court discharged the prisoner. Upon appeal to
the supreme court, the question of the jurisdiction of
the circuit court to entertain the proceedings being cer-
tified, it was held that the issue of the writ and the
judgment of the circuit court ignored the settled law
that the circuit court of the United States has no juris-
diction to issue the writ to release a citizen from im-
prisonment by another citizen of the same state, merely
because the imprisonment is wrongful. If the com-
mittee did not have the power they assumed to exer-
cise, it was because the resolution or the law or both,
was, or were repugnant to the state constitution, and.
the courts of the state are the appropriate tribunals
for the vindication of the state constitution and laws.”

§ 23. Discretion of court.—WYrit not issued in advance
of final determination in other court except in
exceptional cases.

It was held in Ex parte Royal, 117 U. S. 254, and the
same doctrine as there pronounced has been stead-
fastly adhered to, that while the federal courts may
have jurisdiction in the premises, there is a discretion
whether in any case the writ should be issued, in ad-
vance of his trial in the court in which he is indicted.
It was there stated: ‘‘That discretion should be exer-
cised in the light of the relations existing under our
system of government, between the tribunals of the
Union and of the states, and in recognition of the fact
that the public good requires that those relations be
not disturbed by unnecessary conflict between courts
equally bound to guard and protect rights secured by
the constitution. When the petitioner is in custody by
state authority for an act done or omitted to be done
in pursuance of a law of the United States or of an

12 Carfer v. Caldwell, 200 U. S. 293, 50 L. Ed. 488, 26 Sup. Ct. Rep.
264.
JURISDICTION OF COURTS. 53

order, process or decree of a court or judge thereof;
or where being a subject of a foreign state and domi-
ciled therein, he is in custody under like authority, for
an act done or omitted under any alleged right, title,
authority, privilege, protection or exemption claimed
under the commission or order, or sanction of any for-
eign state, or under color thereof, the validity and ef-
fect whereof depend upon the law of nations; in such
and like cases of urgency, involving the authority and
operations of the general government, or the obliga-
tions of this country to or its relations with foreign
nations, the courts of the United States have fre-
quently interposed writs of habeas corpus and dis-
charged prisoners who were held in custody under
state authority. * * * That these salutary princi-
ples may have full operation and. harmony with what
we suppose was the intention of congress in the enact-
ments in question, this court holds that where a person
is in custody under process from a state court of orig-
inal jurisdiction, for an alleged offense against the
laws of such state, and it is claimed that he is re-
strained of his liberty in violation of the constitution
of the United States, the circuit court has a discretion
whether it will discharge him upon habeas corpus, in
advance of his trial in the court in which he is indicted,
that discretion, however, to be subordinated to any
special circumstances requiring immediate action.
When the state shall have finally acted upon the case,
the circuit court has still a discretion whether under
all the circumstances then existing, the accused, if con-
victed, shall be put to his writ of error from the highest
court of the state, or whether it will proceed by writ of
habeas corpus, summarily, to determine whether the
petitioner is restrained of his liberty in violation of the
constitution of the United States.’’ 13

18In re Lincoln, 202 U. S. 178, 50 L. Ed. 984, 26 Sup. Ct. Rep.
602.
54 HABEAS CORPUS.

The cases in the foot note are cited by the court in
In re Lincoln, as sustaining the proposition above de-
clared.14

Another reason why the jurisdiction should not be
assumed in advance of the trial in the state court, was
stated later to be that ‘‘It is an exceedingly delicate
jurisdiction given to the Federal courts, by which a
person under an indictment in a state court and sub-
ject to its laws, may by the decision of a single judge of
the Federal court, upon a writ of habeas corpus, be
taken out of the custody of the officers of the state, and
finally discharged therefrom, and thus a trial by the
state courts, under an indictment found under the laws

of a state be finally prevented.15
In New York v. Eno, 155 U. S. 89, 39 L. Ed. 80, 15
Sup. Ct. Rep. 30, the facts were that the president of a

14Hix parte Fonda, 117 U. S.
516, 29 L. Ed. 994, 6 Sup. Ct.
Rep. 848; In re Duncan, 139 U.
S. 449, 35 L. Ed. 219, 11 Sup. Ct.
Rep. 573; In re Wood, 140 U. S.
278, 35 L. Hd. 505, 11 Sup. Ct.
Rep, 738; Cook v. Hart, 146 U.
S. 183, 36 L. Ed. 934, 13 Sup. Ct.
Rep. 40; In re lrederich, 149
U. S, 70, 37 L. Ed. 653, 13 Sup.
Ct. Rep. 793; New York vy. Eno,
155 U. S. 89, 39 L. Ed, 80, 15 Sup.
Ct. Rep. 30; Pepke v. Cronan,
155 U. S. 100, 39 L. Ed. 84, 15
Sup. Ct. Rep. 34; Andrews v.
Swartz, 156 U. S. 272, 39 L, Ed.
422, 15 Sup. Ct. Rep. 389; Whit-
ten v. Tomlinson, 160 U. S, 231,
40 L. Ed. 406, 16 Sup. Ct. Rep.
297; Kohi v, Lehlback, 160 U. 8S.
293, 40 L. Ed. 432, 16 Sup. Ct.
Rep. 304; Iasigi v. Van De Carr,
166 U. S, 391, 41 L. Ed. 1045, 17

Sup. Ct. Rep. 595; In re Eckart, —

166 U. S. 481, 41 L. Ed, 1085, 17

Sup. Ct. Rep. 638; Baker v.
Grice, 169 U. S. 284, 42 L. Ed.
748, 18 Sup. Ct. Rep. 323; Tins-
ley v. Anderson, 171 U. S. 101,
43 L. Ed. 91, 18 Sup. Ct. 805;
Fitts v. McGhee, 172 U. S. 516,
43 L. Ed. 535, 19 Sup. Ct. Rep.
269; Markuson v. Boucher, 175
U. S, 184; 44 L. Ed. 124, 20 Sup.
Ct. Rep: 76; Davis v. Burke, 179
U. S. 399, 45 L. Ed. 249, 21 Sup.
Ct, Rep. 210;; Gusman v. Mar-
rero, 180 U. S. 81, 45 L. Hd. 436,
21 Sup. Ct. Rep. 293; Minnesota
v. Brundage, 180 U. S. 499, 45.
L. Ed. 639, 21 Sup. Ct. Rep. 455;
Storti v. Massachusetts, 183 U.
S. 188, 46 L. Ed. 120, 22 Sup. Ct.
Rep. 72.

15 Baker v. Grice, 169 U. S.
284, 42 L. Ed. 748, 18 Sup. Ct.
Rep. 323; Tinsley v. Anderson,
171 U. S. 101, 48 L. Ed. 91, 18
Sup. Ct. Rep. 805.
JURISDICTION OF COURTS. 55

national bank was indicted for forgery, that is, making
false entries in the books of the corporation, which was
made an indictable crime by the laws of the state of
New York. He presented a petition to the circuit court
for a writ of habeas corpus alleging as the principal,
ground for his release from imprisonment, that the of-
fense for which he was charged was exclusively cogni-
zable by the courts of the United States. Upon the hear-
ing upon the return to such writ, he was discharged
from custody, the circuit court determining that such.
offense was only cognizable by the federal courts. The
supreme court, upon appeal from such judgment, dis-
posed of the case by reversing the judgment of the
circuit court and assigned the following as reasons
for its determination: ‘‘ Whether the offenses described
in the indictments against Eno, are offenses against
the state of New York and, punishable under its laws,
or are made by existing statutes offenses also against
the United States, and are exclusively cognizable by
courts of the United States, and whether the same acts
upon the part of the accused may be offenses against
both the National and State governments and punish-
able in the tribunals of each government without in-
fringing upon the constitutional guaranty against be-
ing twice put in jeopardy of limb for the same offense;
these are questions which the State court of original
jurisdiction is competent to decide ‘in the first instance ;
and its obligation to render such decision as will give
full effect to the supreme law of the land and protect.
any right secured by it to the accused, is the same that.
rules upon courts of the United States. When the claim
of the accused of immunity from prosecution in a state
court for the offenses charged against him has been
passed upon by the highest court of New York in which
it can be determined, he may then, if final judgment of
that court be adverse to him, invoke the jurisdiction of
56 HABEAS CORPUS.

this court for his protection in respect of any Federal
right distinctly asserted by him, but which may be
denied by such judgment.’’

It has subsequently been held by state and federal
courts, that the jurisdiction of the federal courts in
respect to false entries in the books or embezzlement
of the funds of national banks, is exclusive.

Constitutional questions not determined where.
other grounds sufficient appear.

In Baker v. Grice, 169 U. S. 284, 42 L. Ed. 748, 18
Sup. Ct. Rep. 323, the defendant was held in custody
for the offense of violating the Texas anti-bond law.
He was discharged upon habeas corpus by the circuit
court of the United States which held that the law was
unconstitutional. An appeal was perfected to the
United States supreme court. In the opinion of that
court it is stated: ‘‘It is the duty of the state court,
as much as it is that of the Federal courts, when the
question of the validity of a state statute is necessarily
involved as being in alleged violation of any provision
of the Federal Constitution, to decide that question
and to hold the law void, if it violate that instrument.
But the state court is not bound to decide the constitu-
tional question, when there are other grounds for re-
versing a conviction under the law, upon pain of having
its omission furnish a ground for federal interference.
* * * Tt is a matter of common occurrence, indeed it
is almost the undeviating rule of the courts, both state
and Federal, not to decide constitutional questions
until the necessity for such decision arises in the
record before the court.’’

Where large interests or rights of the public are
involved.

In Minnesota v. Brundage, 180 U. S. 499, 45 L. Ed.
639, 21 N. W. 455, the facts were that the person in
JURISDICTION OF COURTS. 57

custody was arrested upon complaint of the inspector
of the state dairy and food department of the state
of Minnesota, charging him with having violated a
statute of that state entitled ‘‘An act to prevent fraud
in the sale of dairy products, their imitations and
substitutes, to prohibit and prevent the manufacture
of unhealthy or adulterated dairy products, and to
preserve the public health.’’ The specific offense was
having in possession and exposing for sale, oleomar-
garine. He was adjudged to be guilty and to pay a
fine of twenty-five dollars and costs, or in default
thereof to be committed to the work house to undergo
hard labor for thirty days, unless he sooner paid the
fine and costs or was thence discharged by due process
of law. The accused applied to the circuit court of
the United States, for a writ of habeas corpus, which
was granted, and upon hearing he was discharged from
custody. The ground upon which such ruling was
made, was, that the statute in question was void as
being in conflict with the federal constitution, and had
been so declared by the supreme court in two cases
(Schollenberger v. Pennsylvania, 171 U.S. 1, 43 L. Ed.
49, 18 Sup. Ct. Rep. 757, and Collins v. New Hamp-
shire, 171 U.S. 30, 43 L. Ed. 60, 18 Sup. Ct. 768). The
circuit court, in its opinion, recognized the general rule
herein stated, with respect to the federal courts assum-
ing jurisdiction in advance of the final determination of
the matter in the highest court of the state, stating,
however, an exception as follows: ‘‘Unless large in-
terests affecting the business of many or the rights of
the public are so involved that serious consequences
will follow from the delay which will be caused by the
prosecution of a writ of error to a final decision, or un-
less the question has already been decided by the
Supreme Court of.the United States, whose decisions
the state court has disregarded in the proceeding.
58 HABEAS CORPUS.

State statutes prohibiting the importation from other
states and sale of articles of commerce, especially
articles of food, or adapted for general use, are re-
garded as affecting general interests and the rights of
the public; and habeas corpus has frequently been re-
sorted to in cases of imprisonment for violation of
such statutes.”’

The supreme court of the United States (the case
having been taken to that court by appeal), however,
did not agree with the circuit court, that such consider-
ations were sufficient to take the case out of the general
rule, and stated: ‘‘It is undoubtedly true that the state
enactment in question may in its operation, affect the
business of many and in some degree, but indirectly,
the rights of the public. But that consideration is not
sufficient to justify such interference by the Federal
Court, as will interrupt the orderly course of proceed-
ings in the State Court. We do not think that the ex-
ercise by the Federal Court of its power upon habeas
corpus to discharge one held in custody by the state
authorities and charged with the violation of a state
enactment, should be materially controlled by any con-
sideration of the extent of particular business interests
that may be affected by a prosecution instituted in a
state tribunal against him, or of the indirect effect of
his detention in custody upon the rights of the general
public. Nor do we think that the court should have
interfered with the custody of the appellee, because
in its opinion the action of the municipal court of
Minneapolis was inconsistent with the judgments of
this court in the Schollenberger and Collins cases.
Upon that question the state court was entitled to form
its own opinion. As disclosed by the record, the case is
not one of urgency within the meaning of our de-
cisions. ’’
JURISDICTION OF COURTS. 59°

Discretion of circuit court not conclusive upon re-
view by supreme court..

It will be noted that in practically all the cases cited,
it was expressed that the circuit court had jurisdiction,
and was clothed with discretion as to its exercise. It
is a fundamental rule that where a court has a discre-
tion as to whom, where and in what manner it shall ex-
ercise that discretion, such discretion will not be inter-
fered with by a reviewing court, unless it can be said:
the case presents a clear abuse of that discretion. Such
rule does not seem to prevail in the matter under dis-
cussion, but that the reviewing court considers the
matter as an original proposition, and supplants the
discretion exercised by the circuit court, with that of
its own. This appears from the fact that in most
cases, the discretion exercised by the circuit court was
overruled. No question of law is involved, simply one
‘of discretion.

Writ refused where cause no longer exists.

It is well settled that the court will not proceed to
an adjudication where there is no subject matter on
which the judgment of the court can operate. Hence,
where it is obvious that before a return to the writ can
be made or any other action can be taken, the restraint
under which the prisoner complains will have termi-
nated, the writ will be refused.¢

And where an application for the writ had been re-
fused, because the writ had been suspended, and there-
after before appeal taken was allowed, the suspension
was revoked, the question of the power to suspend the

16 Ex parte Baez, 177 U. S.378, 178, 50 L, Ed. 984, 26 Sup. Ct.
44 L, Ed. 813, 20 Sup. Ct. Rep. Rep. 602.
673; In re Lincoln, 202 U. S.
60 HABEAS CORPUS.

writ becomes a moot one, not calling for determination
by the court.17

§ 24, Exceptions to the rule; cases within.—Prisoner
in custody for act done in pursuance of the
laws of the United States.

We now reach and consider the cases in which the
doctrine of urgency, within the rule of the decisions as
hereinbefore stated, was applied. The first and per-
haps the most important is that of In re Neagle, 135 U.
S. 1, 34 L. Ed. 55, 10 Sup. Ct. Rep. 658. The facts,
briefly stated, were that while Justice Field, of the su-
preme court of the United States, was on his way from
Los Angeles, California, where he had been in attend-
ance upon the circuit court, to San Francisco, to attend
the circuit court at that city, he was assaulted by one
Terry, and a deputy United States marshal, who had
been duly detailed under orders of the department of
justice to attend and protect Justice Field (there hav-
ing been sufficient reason to believe that he might or
would be assaulted from previous acts and threats on
the part of said Terry and his wife), believing from
the then present actions of said Terry and his wife, that
he intended to take the life of said Justice, shot and
killed said Terry. Neagle was arrested upon a war-
rant issued by a justice of the peace, wherein it was re-
cited that information had been made on oath charging
him with having wilfully, unlawfully, feloniously and
with malice aforethought, shot, killed and murdered
one David 8. Terry.

Upon the petition of Neagle, reciting the facts, a
writ of habeas corpus was issued by the federal circuit
court and upon full hearing he was discharged from
custody. Upon appeal from the judgment the supreme

17 Fisher v. Baker, 203 U. S. 174, 51 L. Hd. 142, 27 Sup. Ct. Rep.
135.
I s
JURISDICTION OF COURTS. 61

court reviewed the testimony, as it determined it might
under the provisions of sec. 764, Rev. Stat., as amended
by the Act of March 3, 1885, and affirmed the judgment
of the circuit court.

After a review of the testimony upon which the
court determined that Neagle was justified in the com-
mission of the act charged, the opinion states: ‘‘But
such a justification would be a proper subject for con-
sideration on a trial of the case for murder in the
courts of the State of California, and there exists no
authority in the courts of the United States, to dis-
charge the prisoner while held in custody by the state
authorities for this offense unless there be found some
element of power and authority asserted under the
government of the United States.

‘“‘This element is said to be found in the facts that
Mr. Justice Field, when attacked, was in the immediate
discharge of his duty as judge of the Circuit Courts of
the United States (judges of the Supreme court are
also judges of the Circuit Court) within California;
that the assault upon him grew out of the animosity of
Terry and his wife, arising out of the previous dis-
charge of his duties as Circuit judge, in the case for
which they were committed for contempt of court; and
that the deputy marshal of the United States who killed
Terry in defense of Field’s life, was charged with a
duty under the law of the United States to protect
Field from the violence which Terry was inflicting,
and which was intended to lead to Field’s death.’’

It was held that in the act of Neagle in killing Terry,
he was within the provisions of. sec. 753 of the Rev.
Stat., and that he was in custody for an act done in
pursuance of a law of the United States. It is fur-
ther stated in the opinion: ‘‘In the view we take of the
Constitution of the United States, any obligation fairly
and properly inferable from that instrument, or any
62 HABEAS CORPUS.

duty of the marshal to be derived from the general
scope of his duties under the laws of the United States,
is ‘a law’ within the meaning of this phrase.’’

After disposing of ‘the question propounded, the
court considered the question of the federal courts tak-
ing jurisdiction by habeas corpus in advance of the
final proceeding in the courts of California, but con-
fined its argument and decision to the question of the
power of the courts, not touching upon the question of
‘urgency. True it held as matter of fact and of law,
that Neagle was not guilty of the offense charged. As
will appear later, the courts quite generally in such
cases, upon habeas corpus, will not consider in advance
of the trial, whether the act as charged is or is not a
crime.

Perjury committed in matter within exclusive
cognizance of federal courts.

In In re Loney, 134 U. 8. 372, 33 L. Ed. 949, 10 Sup.
Ct. Rep. 384, the prisoner was held under a warrant of
arrest from a justice of the peace upon a complaint
charging him with wilful perjury committed in giving
his deposition as a witness before a notary public, in
the case of a contested election of a member of the
house of representatives of the United States. He
was brought before the circuit court of the United
States upon habeas corpus and discharged upon the
ground that the offense charged against him ‘was
punishable only under sec 5392, Rev. Stat., and was
within the exclusive cognizance of the courts of the
United States. Upon appeal to the supreme court, it
was so held by that court, that any person authorized
to take depositions in such a case, performs this func-
tion not under any authority derived from the state,
but solely under the authority conferred upon him by
congress, and in a matter concerning the government
of the United States.
JURISDICTION OF COURTS. 63

The question here decided is not the same as others
referred to in this connection, as the state court had
no jurisdiction whatever, and the question whether
the act was or was not a crime, was foreign to the case.

Officers or agents in the service of the government.

In Ohio v. Thomas, 173 U. S. 276, 43 L. Ed. 699, 19
Sup. Ct. Rep. 453, the prisoner was held in custody by
virtue of a warrant of arrest from a justice of the
peace, upon a complaint charging him with violating an
act of the legislature of the state of Ohio, in relation
to the use of oleomargarine. The accused declined to
plead, on the ground that the act complained of was
performed by him as governor of the soldiers’ home
located in that state, and what he did, was done by
authority of the board of managers of the home. He
therefore moved to dismiss the complaint for want of
jurisdiction in the magistrate. This motion was de-
nied. He then cansented to be tried upon an agreed
statement of facts, from which it appeared that as such
governor and in charge of the eating house he furnished
such articles to the inmates of the home. He was con-
victed and sentenced to pay a fine of $50 and to be im-
prisoned until such fine was paid. He refused to pay
the fine and applied to the circuit court of the United
States for a writ of habeas corpus on the ground that
such justice had no jurisdiction to try him. The writ
was granted and upon hearing the court made an order
discharging him. The state appealed from that order
to.the circuit court of appeals where it was affirmed,
and the state then appealed to the supreme court.

It was held that the home was a federal creation and
is under the direct and sole jurisdiction of congress.
That the inmates are subject to the rules and articles
of war, the same as if they were in the army. That the
governor in making provision for the feeding of the in-
mates, is engaged in the internal administration of a
64 HABEAS CORPUS.

federal institution and a state legislature has no con-
stitutional power to interfere with such manage-
ment as is provided by congress, and hence the state
court had no jurisdiction to try the appellee for the
offense charged.

It was further held that this was one of the cases
where it is proper to issue a writ of habeas corpus from
the federal court instead of waiting the slow progress
of a writ of error from that court to the highest court
of the state where a decision could be had.

In In re Boske v. Comingore, 177 U. 8. 459, 44 L. Ed.
846, 20 Sup. Ct. Rep. 701, a United States collector
of internal revenue was adjudged by a court of limited
jurisdiction in Kentucky, to be in contempt because he
refused, while giving his deposition in a case pending in
a state court, to file copies of certain reports made by
distillers, and which reports were in his custody as a
subordinate officer of the treasury department. He
based his refusal upon a regulation of that department
which provided: ‘‘ All records in the office of collectors °
of internal revenue or of any of their deputies are in
their custody and control for purposes relating to the
collection of the revenues of the United States only.
They have no control of them and no discretion with
regard to permitting the use of them for any other pur-
pose.’’ This regulation was made by the secretary of
the treasury under the authority conferred upon him
by section 161 of the revised statutes of the United
States, which authorized that officer as the head of
an executive department of the government, ‘‘to pre-
seribe regulations, not inconsistent with law, for the
government of his department, the conduct of its
officers and clerks, the distribution and performance of
its business, and the custody, use and preservation of
the records, papers and property, appertaining to it.’’
The collector having been arrested, sued out a writ of
JURISDICTION OF COURTS. 65

habeas corpus before the district court of the United.
States for the Kentucky district, and upon hearing the:
collector was discharged upon the ground that his im-
prisonment and detention was in violation of the Con-
stitution of the United States. There was an appeal
direct to the supreme court. That court held:

1. That the case was properly brought directly from
the district court to the supreme court, as one involv-
ing the construction or application of the Constitution
of the United States.

2. As the petitioner was an officer in the revenue
service of the United States, whose presence at his post.
of duty was important to the public interests, and
whose detention in prison by the state authorities.
might have interfered with the regular and orderly
business of the department to which he belonged, it was
proper for the district court to consider the question
raised by the writ of habeas. corpus and to discharge
the prisoner if held in violation of the Constitution and
laws of the United States. That it was a case of ur-
gency within the rule of the decisions of that court.

3. That the regulation in question was authorized
by sec. 161 of the revised statutes, and that section
was consistent with the Constitution of the United
States.

The judgment of the district court was affirmed.

Person in custody for an act done pursuant to an.
order of a United States court.

In Hunter v. Wood, 209 U. 8. 205, 52 L. Ed. 747, the
circuit court of the United States had issued an in--
junction against the enforcement of a state railroad
statute, and in such order directed the conditions under
which tickets should be sold at rates higher than those-
prescribed under the state statute. After its issue and.
service, the defendant Wood, in pursuance of such in-

5
66 HABEAS CORPUS.

junction, sold the railroad tickets at the usual price
and complied with the conditions of the order by giving
coupons for the difference in the price, and while so
doing, was arrested and proceeded against criminally
for disobedience of the act fixing rates, and convicted.
While in custody he applied to a United States cir-
cuit judge for a writ of habeas corpus, which was
granted, and upon hearing the prisoner was discharged.
An appeal was taken direct to the supreme court from
that order.

It was held that he had a right to apply for the writ
to the circuit judge, and that judge had power to issue
the writ, and to discharge him as he was then in custody
for an act done pursuant to an order, process or decree
of a court or judge of the United States.

3. Review or Finan JuDGMENT aND SENTENCE.
§ 25. General rule.

In the chapter on Excess of Jurisdiction, infra, this
branch of the subject has been quite fully considered.
‘The authority of the federal courts may again be briefly
stated in this connection.

The general rule applicable in the state courts, in
effect that the judgment of a court of competent juris-
diction is binding until reversed, and that another court
cannot by means of habeas corpus look beyond the
judgment and re-examine the charges on which it is
based, are not controlling to its fullest extent upon the
federal courts. Section 761 Revised Statutes of the
United States, provides as to habeas corpus cases, that
“‘the court or justice shall proceed in a summary way
to determine the facts in the case by hearing the testi-
mony and arguments, and thereupon to dispose of the
party as law and justice require.’’ ‘‘This of course
means,’’ as stated by the court, ‘‘that if he is held in
custody in violation of the Constitution or a law of the
United States, or for an act done or omitted in pur-
JURISDICTION OF COURTS. 67

suance of a law of the United States, he must be dis-
charged.’’ 18

It was also held that such mandate was applicable to
the supreme court, whether it is exercising its original
or appellate jurisdiction.1®

Habeas corpus is a means, by which a judgment may
be reviewed whether rendered by a state or federal
court, where a person is held in alleged violation of
the Constitution, or a law of the United States, to de-
termine that question, to be exercised only when and
under the circumstances as herein before stated. It
presents a question of jurisdiction as no court has juris-
diction to imprison a person or detain him in custody
in violation of the Constitution or a law of the United
States.

Thus it will appear, infra, if a court should pro-
nounce judgment and sentence a person in excess of
the term prescribed by law, the court will discharge
him upon habeas corpus, after the term of the lawful
sentence that might have been imposed, has expired.?°

IL. State Courts.

§ 26. By what authority and when writ will issue—In
general,

The power and authority to issue the writ of habeas
corpus in the states is generally provided by the consti-
tution or the laws of each particular state, and the man-
ner of the exercise of such power is also generally the
subject of legislative grant. In most of the states,
however, courts of appellate jurisdiction and the judges
thereof are invested with such power as well as courts

18In re Neagle, 135 U. S. 1, U.S. 188, 46 L. Ed. 120, 22 Sup.
34 .L. Ed, 55, 10 Sup. Ct. Rep. Ct, Rep. 72.
658. 20 Nielson, Petitioner, 131 U.
19 Storti v. Massachusetts, 183 S. 176, 33 L. Hd. 118, 9 Sup, Ct.
Rep. 672.
68 HABEAS CORPUS.

and judges of general jurisdiction. In some states
the power in cases of felony is conferred only upon the
supreme court or judges thereof.

The writ lies at any stage of the proceedings. The
rule of the federal courts that unless in cases of urgency
the writ will be withheld, until after a final determina-
tion by the courts, does not generally prevail in the
states. Whenever it is made to appear that. the peti-
tioner is held in custody by the order, process of a
judicial officer or judgment of a court not having juris-
diction in the premises, the writ lies and the prisoner
will be discharged.

The state courts have jurisdiction to issue the writ
and make inquiry by means thereof in all cases where
a person is held in restraint and deprived of his
liberty. ,

There is no limitation upon its power in this respect.
If, as before stated, it appears that he is in custody un-
der or by virtue of the authority of the United States,
it must proceed to remand the prisoner. It cannot dis-
charge him.

The supreme court of the United States has very
clearly defined the power and authority of the state
court, in respect to the use of the writ of habeas corpus,
not only in respect to persons held in custody, under
and by virtue of the authority of the United States, but
in other respects as well, where the question of rights
are involved under the federal constitution and laws
made in, pursuance thereof.

Persons in custody under authority of the United
States.—In general.

The constitution of the United States not only de-
elares ‘‘that this constitution and the laws of the
United States which shall be made in pursuance
thereof, shall be the supreme law of the land and obli-
JURISDICTION OF COURTS. 69

gatory upon the judges in every state,’’ but also in con-
ferring judicial power upon the federal government,
that the jurisdiction of its courts shall extend to all
cases arising under the constitution and the laws of the
United States. Hence, where the federal court has
taken jurisdiction of a suit or proceeding arising under
the constitution or laws of the United States, such ju-
risdiction is exclusive and a state court cannot interfere
by habeas corpus or otherwise.”4

In custody of United States marshal.

A conflict arose between the supreme court of
Wisconsin and the federal court in respect to the juris-
diction of the former to release a person held under a
commitment, and also a judgment of the federal court,
for the violation, of an act of congress, by habeas cor-
pus. The action of the state supreme court was far
reaching in its effect, and in direct refusal to obey or
recognize the authority of the federal court. It, how-
ever, called for a determination, which the supreme
court of the state sought to thwart.

One Sherman M. Booth, was charged before a United
States court commissioner with having aided and
abetted at Milwaukee, the escape of a fugitive slave
from a deputy marshal who had him in custody under
a legal warrant. Upon examination before the com-
missioner, he was held to bail to appear and answer
before the district court of the United States. There-
after his bail delivered him to the marshal in the pre-
sence of the commissioner, and he was committed to
the custody of the marshal. Booth, the next day, made
application to one of the justices of the state supreme
court for a writ of habeas corpus alleging that his im-

21 Ableman vy. Booth, 21 How. 13 Wall. 397, 20 L. Hd. 597, 3
506, 16 L. Ed. 169; Tarble’s Case, Am. Rep. 85.
70 HABEAS CORPUS.

prisonment was illegal, because the act of congress
creating the offense was unconstitutional and void, and
also that the warrant was defective and did not de-
scribe the offense created by the act. The writ was
issued, the marshal made return, stating that Booth
was received into his custody as marshal, and held in
custody by virtue of the warrant of the commissioner,
a copy of which he annexed to and returned with the
writ. Booth interposed a demurrer to the return and
upon the hearing the justice decided his detention was
illegal and ordered the marshal to discharge him which
was done.

Subsequently the marshal applied to the supreme
court of the state for a certiorari setting forth in his
application, the proceedings hereinbefore mentioned
and charging that the release of Booth was erroneous
and unlawful, and praying that the proceedings might
be brought before the supreme court for revision. The
certiorari was allowed and due return made, and upon
argument judgment was pronounced affirming the de-
cision of the justice discharging Booth from imprison-
ment. Subsequent to the rendition of this judgment,
the marshal sued out a writ of error returnable to the
supreme court of the United States, and the record
was duly certified by the clerk of the state court to that
court.

At the January term of the district court and before
the matter pending in the supreme court of the United
States upon the writ of error had been determined, the
grand jury found a true bill of indictment against
Booth for the offense with which he was charged before
the commissioner, and from which the state court had
discharged him. A motion was made in behalf. of
Booth to quash the indictment, which was denied,
whereupon he. plead not guilty, was duly tried, found
guilty and was duly sentenced. Booth then filed his
JURISDICTION OF COURTS. 71,

petition in the supreme court of the state, and with his
petition a copy of the proceedings in the district court,
stating his imprisonment was illegal, because the fu-
gative slave law was unconstitutional, that the district
court had no jurisdiction to try him and that the pro-
ceedings and sentence of the court were absolute nulli-
ties. Writs of habeas corpus were issued, the marshal
made his return as did the sheriff to whom one of the
writs was directed. Upon the hearing the state court
decided that the imprisonment was illegal and ordered
and adjudged that Booth be and he was by the judg-
ment forever discharged from that imprisonment.
The next step in this matter was the allowance of a
writ of error out of the supreme court of the United
States to the supreme court of the state. The state
court made no return to this writ, the clerk having been
instructed to make no return and to enter no order
upon the journals or records of the court concerning
the same. An order was issued directed to the clerk of
the state court to make return, which was not obeyed.
The court then ordered a certified copy of the record of
the state supreme court, to have the same effect and
legal operation as if returned by the clerk with the
writ of error.

The court charged that thus, a judge of the supreme
court of the state of Wisconsin, in the first of these
cases, claimed and exercised the right to supervise and
annul the proceedings of a commissioner of the United
States, and to discharge a prisoner who had been com-
mitted by the commissioner for an offense against the
laws of the government, and that the exercise of power
by the judge was afterward sanctioned and affirmed by
the supreme court of the state.

In the second case, the state court had gone a step
further, and claimed and exercised jurisdiction over
the proceedings and judgment of a district court of the
72 HABEAS CORPUS.

United States, and upon a summary and collateral pro-
ceeding, by habeas corpus, had set aside and annulled
its judgment, and discharged a prisoner who had been
tried and found guilty of an offense against the laws of
the United States and sentenced to imprisonment by
the district court. That the state court not only
claimed and exercised this jurisdiction, but also deter-
mined that their decision is final and conclusive upon
all the courts of the United States, and ordered its
clerk to disregard and refuse obedience to the writ of
error issued by the federal court. _

It was said in reference to these propositions, that
they ‘‘are new in the jurisprudence of the United
States, as well as of the states; and the supremacy of '
the state courts over the courts of the United States in
cases arising under the constitution and the law of the
United States, is now for the.first time asserted and
acted upon in the supreme court of the state.’

The court very appropriately sets forth the almost
inevitable fatal results that would follow if such were
the law, and directs attention to a law upon the statute
books of the state of Wisconsin, which declared that a
person brought up on a habeas corpus shall be re-
manded if it appears he is confined, 1st, By virtue of
process, by any court or judge of the United States, in
a case where such court or judge has exclusive juris-
diction, or 2nd, By virtue of the final judgment or de-
cree of any court of civil or criminal jurisdiction.

The United States court then determines the power
and the extent of it that may be exercised by a state
court, under such or similar conditions as originally
existed here.

The court or officer having the power to issue the
writ may issue it in any case where the party im-
prisoned is within its territorial limits, provided it does
not appear when the application is made, that the per-’
JURISDICTION OF COURTS. 73

son imprisoned is in custody under the authority of the
United States. The court or judge has a right to in-
quire in this mode of proceeding, for what cause and
by what authority the prisoner is confined within the
territorial limits of the state sovereignty.

That it is the duty of the marshal or other person
having the custody of the prisoner, to make known to
the judge or court, by a proper return, the authority by
which he holds him in custody. This right to inquire
by process of habeas corpus, and the duty of the officer
to make a return, grows, necessarily, out of the com-
plex character of our government, and the existence of
two distinct and separate sovereignties, within the
same territorial space, each of them restricted in its
powers, and each within its sphere of action, prescribed
by the constitution of the United States, independent
of each other. But, after the return is made, and the
state judge or court judicially apprised that the party
,is in custody under the authority of the United States,
they can proceed no further. They then know that the
prisoner is within the dominion and jurisdiction of
another government, and that neither the writ of

: habeas corpus nor any other process issued under state
authority, can pass over the line of division between the
two sovereignties. He is then within the dominion and
exclusive jurisdiction of the United States. If he has
comitted an offense against their laws, their tribunals
alone can punish him. If he is wrongfully imprisoned
their judicial tribunals can release him and afford him
redress, and although, as we have said, it is the duty of
the marshal or other person holding him, to make
known by a proper return the authority under which
he detains him, it is at the same time imperatively his
duty to obey the process of the United States, to hold
the prisoner under it, and refuse obedience to the man-
date or process of any other government, and conse-
74 HABEAS CORPUS.

quently it is his duty not to take the prisoner or suffer
him to be taken before a state judge or court upon
habeas corpus issued under state authority and if the
authority of a state in the form of judicial process or
otherwise, should attempt to control the marshal or
other authorized officer or agent of the United States
in any respect, in the custody of his prisoner, it would
be his duty to resist it, and to call to his aid any force
that might be necessary to maintain the authority of
law against illegal interference. No judicial process,
whatever form it may assume, can have any lawful
authority outside of the limits of the jurisdiction of
the court or judge by whom it is issued, and an attempt
to enforce it beyond these boundaries is nothing less
than lawless violence.’’ 2?

In custody of officers of the army.

Notwithstanding this clear exposition of the law and
the character of the relation existing between the states
and the federal government, and the jurisdiction inci-
dent to the courts of each such government, the su-
preme court of Wisconsin, years afterwards in 1870,
disregarded such law and refused to obey it. It may
be said, however, that the state court attempted to:
evade the law as declared by the highest court of the
land. The right of a state court to liberate a party in
custody, under sentence of the federal courts, when
such federal court had jurisdiction, was not asserted.
But the right of the state courts to decide whether the
federal court had jurisdiction to pass upon the sub-
ject at all, was considered by the court as within its
competence to pass upon; and if on full consideration
of the case the state court was satisfied that the federal
court had no jurisdiction at all in the matter, it was
the duty of such court to disregard what the federal
court had done.

22 Ableman vy. Booth, 21 How. 506, 16 L. Ed. 169,
JURISDICTION OF COURTS. 79.

A circuit court commissioner discharged upon
habeas corpus an enlisted soldier upon the ground
that he was under the minimum age. The supreme
court of the state affirmed such determination upon
review of the proceedings, holding that the question of
jurisdiction was involved, in substance, that if the sol-
dier was under the minimum age, the federal authori-
ties had no jurisdiction over him, and would determine
this question upon habeas corpus; precisely the same
contention as was made in Booth y. Ableman, supra,
which was that the prisoner there was being held for
the violation of an unconstitutional law. It was a
question of the jurisdiction of the federal authorities
in both cases.

The supreme court of the United States reversed the
judgment of the state court, and reaffirmed what had
been stated in the case of Booth v. Ableman, stating
further, that all that was meant by the language used
in that case was that the state judge or court should
proceed no further, when it appears from the applica-
tion of the party or the return made, that the prisoner
is held by an officer of the United States, under what
in truth purports to be the authority of the United
States; that is, an authority the validity of which is
to be determined by the constitution and laws of the
United States. If a party thus held be illegally im-
’ prisoned, it is for the courts or judicial officers of the
United States, and those courts or officers alone, to
grant him release.”*

The jurisdiction, therefore, upon habeas corpus of
the federal and state courts respectively, to inquire
into the cause of detention of persons restrained of
their liberty, is by the reasoning of the federal court
in the cases referred to most clearly defined, so that it
would seem in the future no conflict could possibly
arise.

28 Tarble’s Case, 18 Wall. 397, 20 L. Ed. 597, 3 Am. Rep, 85.
76 HABEAS CORPUS.

§ 28. Distinction between persons in custody and where
federal laws violated.

The distinction should not be lost sight of between
the authority of a state court to inquire into the legal-
ity of the imprisonment of a person, notwithstanding
such illegality may arise from a violation of the con-
stitution and the laws of the United States, and where
a person is in custody under the judgment or orders of
the judicial tribunals of the United States or by the
order of a commissioner of the circuit court or by the
officers of the United States acting under their laws.

The power of the state was expressly declared by the
supreme court of the United States, subsequent to the
decisions last above referred to, as follows: ‘‘Subject
to the exclusive and paramount authority of the
national government, by its own judicial tribunals to
determine whether persons held in custody by author-
ity of the court of the United States or by commis-
sioners of such courts, or by officers of the general
government acting under its laws, are so held in con-
formity with law, the states have the right by their
own courts or by the judges thereof, to inquire into
the grounds upon which any person within their re-
spective territorial limits, is restrained of his liberty
and to discharge him if it be ascertained that such re-
straint is illegal and this notwithstanding such illegal-
ity may arise from a violation of the constitution and
laws of the United States.’’

The party aggrieved, however, if rights, privileges
or immunities secured by the constitution and laws of
the United States are denied him may bring the case
from the highest court of the state to the supreme
court, for final and conclusive determination.?4

24 Robb v. Connolly, 111 U. S. 624, 28 L. Ed. 542, 4 Sup. Ct. Rep.
544.
BEVIEW OF PROCEEDINGS AND JUDGMENTS. 77

CHAPTER IV.
REVIEW OF PROCEEDINGS AND JUDGMENTS.
§ 29. Preliminary Statement.

30. Jurisdiction and Validity of Process; the Inquiry.
31. Jurisdiction Defined.
32, Jurisdiction; Subject Matter Defined.
33. Mere Errors and Irregularities not Subject of Review.
34. Jurisdictional Questions to be Determined from the Record.
35. Record; What Constitutes.
36. Law and Practice Stated.
37. Unconstitutional Law; Effect on Jurisdiction.
Extraneous Proof not Admissible.
38. Statute and Municipal Ordinances in Conflict with Personal
Rights.
In General.
Constitutionality of Legislative Acts. Federal Court will
Determine.
-——-; Requiring License of Nonresidents Selling Goods,
Wares, etc.
-——-; Ordinances Restricting Operation of Laundries.
——; Ordinances Declaring Structures or Other Matters
a Nuisance.
——; Where not in Violation of Federal Constitution De-
cision of State Court, Final.
——; Conferring Discretionary Power upon Mayor to Or-
der Removal of Engines.
-——; Statutes Limiting Hours of Labor.
39. Unconstitutional Procedure.
In General.
40. Former Jeopardy Ordinarily not a Question of Jurisdiction.
Exception to the Rule.
Former Trial a Nullity.
41, Indictments, Validity of.
Must Precede Conviction.
Cannot be Altered or Amended.
Prosecutions upon Information within the Power of the
States.
78 HABEAS CORPUS.

§ 42. Not Stating an Offense or Otherwise in Conformity to Law.
Whether act Charged is or is not a Crime,
Rule in Indiana.
Rule in California. /
Where Offense Charged not Within the Statute.
Rule in Federal Courts.
43. Charging an Offense not within the Jurisdiction of the Court.
44. Grand Jury Disqualified.
In General.
Exclusion of Persons on Account of Race or Color.
45. Trial by Jury; Waiver of Constitutional Right.
In General.
Exception Stated where Statute gives an Accused an Op-
tion.
The Ohio Cases Referred to.
Doctrine in Michigan.
Alien Juror; Failure to Object.
Exception, Independent of Statute.
Question not Directly Passed upon by the Federal Su-
preme Court.
46. Trial in County or District wherein the Offense shall have
been Committed. ‘
47. Refusal to Change Venue.
48. Review of Commitments by Magistrate.
In General; Review of the Evidence.
Doctrine Stated by the Wisconsin Court.
Doctrine Stated by the Minnesota Court.
Doctrine in Indiana.
Statutes; Extent of Inquiry under.
Decision of Federal Supreme Court not in Accord with
Doctrine Stated.
Writ Ordinarily will not Issue Pending Examination.
Writ may Issue Prior to Examination.
Iowa Statute.
Title of Judge or Magistrate or Legality of Court not
Subject to Inquiry.

§ 29. Preliminary statement.

In this connection the use of the writ in cases of un-
lawful restraint of children, and in cases of extradi-
tion are not considered, but such questions form the
subject of later chapters. We consider here only the
use of the writ for the purpose of reviewing: judg-
ments and orders made by a judge or court or officer.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 79

§ 30. Jurisdiction and validity of the process; the in-
quiry.

The writ of habeas corpus has not been given for the
purpose of reviewing judgments or orders made by a
judge or court or officer acting within their jurisdiction.
To put it to such a use would be to convert it into a
writ of error, and confer upon every officer who has
authority to issue the writ appellate jurisdiction over
the orders and judgments of the highest judicial tri-
bunals in the land. It is well settled that habeas cor-
pus cannot be put to such use, and that its functions,
where the party who has appealed to its aid is in cus-
tody under process, do not extend beyond an inquiry
into the jurisdiction of the court by which it was issued
and the validity of the process upon its face.

§ 31. Jurisdiction defined.

Jurisdiction is the power to hear and determine the
subject matter in controversies between parties to a
suit; to adjudicate or exercise any judicial power over
them. The question of jurisdiction must be considered
and decided before any court can move one step fur-
ther in the cause, as any movement is necessarily the
exercise of jurisdiction. The real question is whether,
in the case before a court, its action is judicial or extra
judicial, with or without the authority of law to render
a judgment or decree upon the rights of the litigant
parties. If the law confers the power to render a
judgment or decree, then the court has jurisdiction.
What shall be adjudged or decreed between the parties,

1 People v. Cassels, 5 Hill, 164; _titioner, 131 U. S. 267; 33 L. Ed.
Ex parte Gibson, 31 Cal. 619, 150, 9 Sup. Ct. Rep. 699; In re
91 Am. Dec. 546; Ex parte Me- Coy, 127 U. S. 731, 32 L. Hd. 274,
Cullough, 35 Cal. 97; Savin, Pe- 8 Sup. Ct. Rep. 1263.
80 HABEAS CORPUS.

and with which is the right of the case, is judicial ac-
tion and judgment, by hearing and determining it.?

Bracton defines jurisdiction to be authority to judge
or declare the law between parties brought into court.
It was said by Ryan, C. J. (In re Pierce, 44 Wis. 454),
that this definition had never been bettered, probably
never would be, and is of universal authority.

If a tribunal is authorized to act upon a certain state
of facts, and also to try whether the facts exist, then,
if they are properly alleged before it, and the parties
are legally notified and have an opportunity to contest
them, the finding of such a tribunal upon those ques-
tions would be the finding of a competent tribunal, and
ought to be conclusive until reversed in a direct pro-
ceeding. The jurisdiction of the tribunal does not de-
pend upon the actual facts alleged, but upon the
authority to determine the existence or nonexistence
of such facts, and to render judgment according to its
findings. If such authority exists, then the tribunal
has jurisdiction of the subject matter. The mere de-
cision of a tribunal, however, that it has authority to
try and determine a case, when no such power exists. in .
the eourt, does not give it the power. Its judgment
may be questioned anywhere for want of jurisdiction.*

It is coram judice whenever a case is presented that
brings the power to hear and determine a cause into
action. But before this power can he affirmed to exist,
it must be made to appear that the law has given the
tribunal capacity to entertain the complaint against
the person or thing sought to be charged or affected,
that such complaint has actually been preferred, and
that such person or thing has been properly brought

2Rhode Island v. Massachu- Pet, 6915 Spoors v. Cowen, 44
setts, 12 Pet. 657, 9 L. Ed. 1233; Ohio St. 497, 9 N. E. 182,
United States vy. Arredondo, 6 8 Wanzer v. Howland, 10 Wis. 7.
_ REVIEW OF PROCEEDINGS AND JUDGMENTS. 81,

before the tribunal to answer the charge therein con-
tained.*

§ 32. Jurisdiction; subject matter defined.

The courts in treating the question of jurisdiction
usually use the terms ‘‘of the subject matter’’ and ‘‘of
the person.’’ These expressions are generally well
understood by the profession, and scarcely need to be
specifically defined, yet a treatise would not be con-
sidered complete without it. It was stated by one
court: ‘‘By jurisdiction of the subject matter is meant
the nature of the cause of action and of the relief
sought, and this is conferred by the sovereign author-
ity which organizes the court, and is to be sought for in
the general nature of its powers, or in authority
specially conferred. The power to render the judg-
ment or decree which the court may undertake to make
in the particular cause depends upon the nature and

4Sheldon v. Newton, 3 Ohio
St. 494; State ex rel, Moreland
_ Vv. Whitford, 54 Wis. 150, 11. N.
W. 424; Ex parte Walker, 25
Ala. 577; Jones v. Brown, 54
Iowa, 74, 6 N. W. 140; Succession
of Weigel, 17 La, Ann, 70; Mills
vy. Commonwealth, 13 Pa. St. 627;
Goodman v. Winter, 64 Ala. 410;
Tramwell v. Town, 34 Ark. 105;
Hickman v, O’Neill, 10 Cal. 292;
Ex Parte Bennett, 44 Cal. 84;
Bush v. Hanson, 70 ‘Ill. 480;
Schroeder v. Insurance Co., 104
Ill. 71; Brownsville v. Basse, 43
Tex. 440; People v. Sturtevant,
9 N. Y. 268. In People v. Sturte-
vant, 9 N. Y. 268, the judge who
wrote the opinion had occasion
to say, after quoting the doc-
trine first herein given: “This, I

6

apprehend, points to the true line
of inquiry to determine the ques-
tion of jurisdiction.” In that
case a person had been adjudged
guilty of contempt in not obey-
ing an injunction. It was fur-
ther stated in the opinion: ‘We
are not called upon to say
whether the court decided right
or not in granting the injunc-
tion, but whether it became their
duty to decide either that it
should be granted or denied. If
such was their duty then they
had jurisdiction, and their de
cision, be it correct or erroneous,
is the law of the case until it
shall be reversed upon appeal,
and can only be questioned upon
a direct proceeding to review it,
and not collaterally.”
82 HABEAS CORPUS.

extent of the authority vested in it by law in regard to
the subject matter of the cause.’’®

It was stated by another court, that ‘‘jurisdiction of
the subject matter is power to adjudge concerning the
general question involved, and is not dependent upon
the state of facts which may appear in a particular
case, or which is claimed to have arisen; under that
general question. One court has jurisdiction in crim-
inal cases, another in civil cases; each in its sphere has
jurisdiction of the subject matter; yet the facts, the
acts of the party proceeded against, may be the same in
a civil case as in a criminal case; as for instance, in a
civil action for false and fraudulent representations
and deceit, and in a criminal action for obtaining prop-
erty under false pretenses. We should not say that
the court of civil powers had jurisdiction of the crimi-
nal action, nor vice versa. So that there is a more-gen-
eral meaning to the phrase ‘subject matter,’ in this
connection, than power to act upon a particular state
of facts. It is the power to act upon the general, and,
so to speak, abstract question, and to determine and
adjudge whether the particular facts presented call.
for the exercise of the abstract power. Jurisdiction
of the subject matter is the power lawfully conferred
to deal with the subject involved in the action.’ ®

§ 33. Mere errors and irregularities not subject of re-
view.

While the writ of habeas corpus is not a writ of er-
ror, yet there are some cases where the court issuing
it has appellate power over the court by whose order
the petitioner is held in custody, where it may be used
with the writ of certiorari for that purpose, to examine
into the authority of the inferior court.”

5 Cooper v. Reynolds, 10 Wall. 6 Hunt v. Hunt, 72 N. Y. 217.
308, 77 U. S. 308, 19 L. Ed. 981. 7 Wales v. Whitney, 114 U. S.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 83

It is only when the court pronounces a judgment in
a criminal case which is not authorized by law under
any circumstances in the particular case made by the
pleadings, whether the trial has proceeded regularly or.
otherwise, that judgment can be said to be void so as
to justify the discharge of the defendant held in cus-
tody by such judgment.®

It was said in a noted case: ‘‘The court had juris-
diction of the person of the accused, and of criminal
offenses committed within the county of New York, and
necessarily had jurisdiction to pass upon the form and
sufficiency of the indictment and the order and course
of the trial, and decide every question that arose in
its progress; and whether the determination of the
court upon any or all the questions was right or wrong
did not affect the jurisdiction. In other words, the
court had jurisdiction to make wrong as well as right
decisions in all the stages of thé prosecution; and
whether those made were right or wrong cannot be
raised on habeas corpus.’’ ®

This language must be taken with the qualification
that the court must have authority to render the par-
ticular judgment; that is, a judgment of the character
which is rendered and one which is embraced in the
issue, and for an offense for the commission of which
the defendant stands charged. ‘‘It matters not what
the general powers and jurisdiction of a court may be,
if it act without authority in the particular case, its
judgment and orders are merely nullities; not voidable,
but simply void; protecting no one acting under them,

564, 29 L. Ed. 277, 5 Sup. Ct. 9 People v. Liscomb, 60 N. Y.

Rep. 1050, 559. This language was quoted
8 State v. Sloan, 65 Wis. 647, with approval by the Wisconsin

27 N. \W. 616; People v. Liscomb, court. State v. Sloan, 65 Wis.

60 -N. Y. 559, 19 Am. Rep. 211; 647, 27 N. W. 616.

Ex parte Gibson, 31 Cal. 619, 91

Am. Dec. 546.
84 HABEAS CORPUS.

and constituting no hindrance to the prosecution of any
right.’? 1°

To warrant the discharge of a prisoner, the sentence
under which he is held must be not only erroneous and
voidable, but absolutely void.

Any errors committed by the inferior court can only
be reviewed by writ of error, and cannot be reviewed
at all if no writ of error lies.!”

It has been stated that ‘‘an error which will render
a judgment in a criminal case voidable only is the want
of adherence to some prescribed rule or mode of pro-
ceeding in conducting the action or defense. An il-
legality which renders such a judgment void is such an
illegality as is contrary to the principles of law as dis-
tinguished from rules of procedure.’’ 18

It was further stated: ‘‘An entry of a judgment in
a criminal case in the minutes of the court ought to
show that the acts required by the statute to be done up
to that stage of the case have been performed; yet it
does not follow that the omission of some or any of
them will render the judgment void. If it appears in
the judgment thus entered in the minutes that the court
had jurisdiction of the subject matter and the person
of the defendant, the judgment is not void, however
erroneous it may be, unless it is so uncertain in its
terms as to be void on that ground. Such a judgment
is not void on the ground of not stating the offense of
which the prisoner was convicted, if it shows he was in-
dicted for some offense and tried and convicted, and
that the sentence passed upon him was one which the
court had jurisdiction to pronounce for some offense of
which he might have been convicted under the indict-

10Ex parte Lange, 18 Wall. 12 Ex parte Siebold, 100 U. S.
168, 21 L. Bd. 872; Elliott v. 371, 25 L. Ed. 717.
Piersol, 1 Pet. 328, 7 L. Hd. 164. 18 Ex parte Gibson, 31 Cal. 619,
11 Ex parte Reed, 100.U. S. 13, 91 Am. Dee, 546.
25 L. Ed. 538,
BEVIEW OF PROCEEDINGS AND JUDGMENTS. 85

ment;’’ nor for omitting to show that the defendant
was present in person, though it be in a case where it
is not lawful for the court to proceed to judgment in
the absence of the defendant.1*

The reason for the rule stated lies in the fact that a
habeas corpus proceeding is a collateral attack of a civil
nature to impeach the validity of a judgment or sen-
tence of another court in a criminal proceeding, and it
should therefore be limited to cases which the judg-
ment or sentence attacked is clearly void by reason of
its having been rendered without jurisdiction or by
reason of the court having exceeded its jurisdiction in
the premises.1°

While the statement of the rule which determines
jurisdiction is seemingly explicit, yet courts have some-
times found it difficult to avoid confounding judgment
with jurisdiction, and, as we shall see, apparent and
sometimes actual conflict has been the result of the ap-
plication of the rule.**

This result most frequently appears where the valid-
ity of state laws are in question and conviction had
under such laws subsequently declared invalid, and
also where the court exceeded its powers in the char-
acter or term of the sentence, and also where there has
been a departure from the prescribed methods of pro-
cedure. This particular subject is fully considered and
illustrated in the subsequent chapter relating to Excess
of Jurisdiction.

14Ex parte Lange, 18 Wall. we discuss the subject with re-

1638, 21 L. Ed. 872; Ex parte Vir-
ginia, 100 U. S. 339, 25 L. Ed.
676.

‘6In re Frederich, 149 U. S.
0, 76, 37 L. Hd. 653, 18 Sup. Ct.
Rep. 798. In subsequent pages

spect to questions relating to in-
dictments, sentences and other
proceedings. Secs. 41 et seq.

16 United States v. Pridgeon,
153 U. S. 48, 38 L. Hd. 631, 14
Sup. Ct. Rep. 746.
86 HABEAS CORPUS.

§ 34. Jurisdictional question to be determined from
the record.

Where the inquiry is upon a writ of habeas corpus
issued after judgment, the question of jurisdiction can
only be determined from the record. The inquiry is
necessarily, in every case, whether the process is void,
and the officer or the court having jurisdiction of the
writ must pass upon it. It therefore is no justifica-
tion for the detention of the prisoner that the process
is good in form. The court will determine from the
whole record whether the judgment was warranted by
law and within the jurisdiction of the court.7

The record imparts a verity and cannot be impeached
by extrinsic evidence.?§

Hence, if there is a question raised as to whether the
crime charged was committed within the territorial
limits of the jurisdiction of the court, and that question
is submitted to the jury, who find that it was so com-
mitted within such jurisdiction, their finding cannot be
impeached by showing that the crime was committed
without such jurisdiction.’®

The general rule is that parties to collateral proceed-
ings are bound by the jurisdictional averments in the
record and will not be permitted to dispute them ex-
cept so far as they may have contained a false recital
with respect to such parties.?°

17 People ex rel. Tweed v. Lis- 19 People ex rel. Tweed v. Lis-
comb, 60 N. Y. 559, 19 Am. Rep. comb, 60 N. Y. 559, 19 Am. Rep.
211; Ex parte Lange, 18 Wall. 211; Ex parte Lange, 18 Wall.
163, 21,L. Ed, 872; Deckard v. 163, 21 L. Ed. 872; Deckard v.
State, 38 Md. 186; State v. Fen- State, 38 Md. 186; State v. Fen-
derson, 28 La. 82; Ex parte Phil- derson, 28 Pa. 82; Ex parte Phil-
lips, 57 Miss. 357. lips, 57 Miss. 357.

18 People ex rel. Tweed v. Lis- 20In re Lennon, 166 U. S. 548,
comb, 60 N, Y. 559, 571, 19 Am. 41 L, Ed. 1110, 17 Sup, Ct. Rep.
Rep. 211. 658,
REVIEW OF PROCEEDINGS AND JUDGMENTS. 87

'’ Tt is the facts found by the court that are not subject
to dispute.

\

§ 35. Record; what constitutes.

The record proper is the petition and the return.
Statutes usually provide what shall be stated in the
return. 1. Whether the officer has the party in cus-
tody. 2. If so, the authority and true cause of such
imprisonment or restraint setting forth the same at
large. 3. A copy of the warrant or other written au-
thority for such detention shall be annexed and the
original produced.

If this was all that was to be examined, then it would
be that it must appear therefrom that the court had no
jurisdiction in order to justify a discharge of the pris-
oner, and.it can only be conceived that want of jurisdic-
tion in such a case would be that the court had no juris-
diction to issue the process of arrest.”4

The proceedings before a court or a committing mag-
istrate do not constitute a part of the record. How-
ever, statutes usually contain a provision for a traverse
of the return, in which the party in custody may deny
any of the material facts set forth in the return, or
allege any fact to show either that his imprisonment or
detention is unlawful or that he is entitled to his dis-
charge, which allegations and denials shall be verified
by the oath of the party; and such court or officer shall
proceed in a summary way to examine into the facts,
contained in the return, and to hear the allegations and
proof of the parties in support of such imprisonment
or detention or against the same whether the same shall
be upon commitment for any criminal or supposed
criminal matter or not.

21In re Milburn, 59 Wis. 24, 17 N. W. 965.
88 HABEAS CORPUS.

It is held that upon such hearing, that only the ques-
tion of jurisdiction can be determined, and hence the
evidence introduced must be confined to that question.??

This statute received construction at an early day. It
was stated by Justice Cowen, delivering the opinion of
the court, and in reply to the contention of counsel that
the accused had the right to go behind the indictment
and prove that he is not guilty, by affidavit as he may
by oral testimony before a jury. ‘‘We have already
seen the absurdity of such a proposition in practice,
and its consequent repudiation by the English criminal
courts, and we are not disposed to admit its adoption
by our legislature, without clear words or necessary
construction. We think its object perfectly plain, with-
out a resort to the rules of construction. Its words
are satisfied by being limited to the lawfulness of the
authority under which the prisoner is detained, with-
out being extended to the force of the evidence upon
which the authority was exerted, or which it may be in
the power of the prisoner to adduce at the trial. * * *

The statute was passed to obviate the oppression that
‘sometimes arises from the necessity of holding a re-
turn to be final and conclusive which is false in fact, de-
pending for its validity on the act of a magistrate or
court, which can be shown by proofs aliunde to have
been destitute of jurisdiction, whereby an innocent man
may be and sometimes is, unfortunately imprisoned.
* * * There are various cases in which the enact-
ment allowing proof extrinsic to the return may have
effect. It must, I apprehend, for the most part apply
to cases where the original commitment was lawful,
but in consequence of the happening of some subse-
quent event the party has become entitled to his dis-

22State ex rel, Durner v. ex rel. Danziger v. Protestant
Huegin, 110 Wis. 189, 85 N. W. Episcopal House of Mercy, 128
1046, 62 L. R. A. 700; People v. N. Y. 180, 28 N. E. 473; In re
McLeod, 25 Wend. 483; People Milburn, 59 Wis. 24,17 N. W. 965.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 89

charge, as if he be committed until he pay a fine, which
he has paid accordingly and the return states the com-
mitment only. So after conviction, he may allege a
pardon, or that the judgment under which he was im-
prisoned has been reversed.’ 28

It appears that the supreme court of Vermont did
not accord with the foregoing statement, and held
where upon such a traverse, a party who had been ad-
judged in contempt for not disclosing from whom he
purchased the liquor that caused him to become intoxi-
cated, offered to prove before the justice who com-
mitted him that he was not in fact intoxicated, which
evidence the justice excluded, that such evidence should
have been admitted, and being thus erroneously ex-
cluded, his detention was illegal.”4

§ 36. Law and practice stated.

The law and the practice is stated, in People ex rel. ,
Danziger v. Protestant Episcopal House of Mercy,
128 N. Y. 180, 189, 28 N. E. 473, in a case where a young
girl had been committed to the institution named by a
magistrate, charged with being found in a reputed
house of prostitution. She was released upon habeas
corpus and upon review in the court of appeals, the
following statement appears in the opinion of tha
court: ‘‘We are of the opinion that the order of the
judge was erroneous, in that it having been established
by the conceded facts that the prisoner was held under
the final judgment of a competent tribunal of criminal
jurisdiction, under the express provisions of the Code,
she should have been remanded. The writ issued in
this case, did not call for a return of the evidence given
on the trial, as it required the defendent therein to re-
turn only the day and cause of the imprisonment and

23 People v. McLeod, 25 Wend. 24In re Hardigan, 57 Vt. 100.
483, a
90 HABEAS CORPUS.

this requirement was sufficiently complied with by a
‘return of a proper and sufficient warrant of commit-
ment alone. If a warrant thus returned showed the
jurisdiction of the officer making it, to render the
judgment described therein, it was sufficient under the
requirements of the statute. It would of course, have
been competent for the petitioner in such a case to
have disputed the facts upon which the jurisdiction of
the magistrate was predicted, or to have alleged ex-
trinsic facts tending to show the want of jurisdiction
on its part to render the judgment. The statute (sec.
2039), requiring the judge to proceed in a summary
manner to hear the evidence, has no application unless
the material allegations of the return showing jurisdic-
tion are controverted by a proper traverse. When that
is done, the requirement is imperative and imposes upon
the judge the duty of hearing the evidence of the par-
ties in respect to the issues made.’’ "We have seen the
record imports a verity and cannot be impeached by
extrinsic evidence.”®

And hence the language of the court above stated,
that the person in custody could dispute the facts upon
which the jurisdiction of the magistrate depended,
would not be considered an impeachment of the return.
I apprehend, as the facts upon which the jurisdiction
of a magistrate depends in such case, is that there shall
be a proper complaint on oath, alleging facts which con-
stitute jurisdiction of the subject matter, and further
appearing that the court had jurisdiction of the person,
and that the judgment was such as the magistrate was
authorized by law to make, that such were the facts
which the party could dispute and question by extrinsic
evidence. It may be that in proceedings before a tri-
bunal, whose jurisdiction depends in all things in con-
formity to the statuory requirements, that the record

25 People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 19 Am. Rep.
211. :
REVIEW OF PROCEEDINGS AND JUDGMENTS. 91,

kept by the magistrate may be introduced to show non-
compliance with such statuory requirements, in the
conduct of the case; in other words, to show a jurisdic-
tion once obtained to have been lost. But not so with
respect to conviction in courts of record having general
jurisdiction.

In all cases, I assume, that the record may be in-
troduced upon the traverse to show that the person de-
tained has been deprived of some constitutional right
or privilege, but not to show errors of law in the con-
duct of the proceedings.

§ 37. Unconstitutional law; effect on jurisdiction.

There has been some controversy as to the effect
upon the jurisdiction of a court, where it proceeds to
determine the rights of parties or the guilt of the ac-
cused of an offense under an act or statute which in fact
is in violation of a provision of the constitution. It is
conceded as a general rule that a court of general juris- -
diction has the power to decide all questions of law that
may arise in the particular case, that the question of the
validity of any law that may be applicable must be de-
cided when the question is raised, in the first instance,
by the court, which is proceeding with the trial. It is
also true that such question may be reviewed by an
appellate court upon a writ of error. Certainly it is
purely a question of law. Yet the courts quite gen-
erally hold the doctrine that proceedings under an un-
constitutional law are absolutely void; that the act
being void has no effect to confer jurisdiction; that the
power to determine is wanting; therefore any decision
the court may make is without the power to make it,
and must be void. An unconstitutional law, is no law. |
An offense created by it is not a crime.2¢

26 Ex parte Yarbrough, 110 U. U, 8. 371, 25 L. Ed. 717; Nielson,

S. 651, 28 L. Ed. 274, 4 Sup. Ct. Petitioner, 131 U. S. 176, 33 L.
Rep. 152; Ex parte Siebold, 100 Ed. 118, 9 Sup. Ct. Rep. 672;
92 HABEAS CORPUS.

The supreme court of Missouri, having, in an ‘earlier
case, through inadvertence, held a contrary doctrine,
it later stated the doctrine in that state to be estab-
lished ‘‘That it will interfere by means of the writ of
habeas corpus to look into and investigate the constitu-
tionality of a statute or ordinance, on which a judgment
which results in the imprisonment of a petitioner is
founded, and if it be true, as must be true, that an un-
constitutional law is no law, then the constitutionality
is open to attack at any stage of the proceedings, and
even after conviction and judgment, and this upon the
ground that no crime is shown, and therefore the trial
court had no jurisdiction, because its criminal jurisdic-
tion extends only to such matters as the law declares
to be criminal, and if there is no law making such dec-
laration, or what is tantamount thereto, if the law is
unconstitutional, then the court which tries a party for
such an assumed offense, transcends its jurisdiction,
and he is consequently entitled to his discharge just
the same as if the nonjurisdiction of the court should
in any other manner be made apparent.’’ 27

The general proposition was stated: ‘‘If the court
which renders a judgment has not jurisdiction to ren-
der it, either because the proceedings or the law under

27 Ex parte Smith, 135 Mo. 223,
36 S. W. 628, 33 L. R. A. 606, 58
Am. St. Rep. 576. The particular
question involved was the valid-
ity of a municipal ordinance
which in terms forbade any one
knowingly to associate with per-
sons having the reputation of

being thieves, burglars, pick-
pockets, pigeon droppers, bawds, |

Andrews v. Swartz, 156 U. S.
272, 39 L. Hd. 422, 15 Sup. Ct.
Rep. 389; Herrick v. Smith, 67
Mass. 1, 61 Am, Dec. 381, 1
Gray, 1; Ex parte Rollins, 80 Va.
314; Brown v. Duffies, 66 Iowa,
1938, 23 N. W. 396; Ex parte
Rosenblatt, 19 Nev. 489, 14 Pac.
298, 3 Am, St. Rep. 901; In re
Kline, 6 Ohio Cir. Rep. 215; Ex

parte Pitts, 35 Fla. 149, 17 So.
76; Servonitz v. State, 133 Wis.
231, 118 N. W. 277; People ex
rel, Kemmler v. Durston, 119 N.
Y. 569, 24 N. E. 6.

prostitutes or lewd women or
gamblers or any other person for
the purpose or with the intent
to agree, conspire, combine or
confederate, first, to commit any
REVIEW OF PROCEEDINGS AND JUDGMENTS. 93

which they are taken is unconstitutional, or for any
other reason, the judgment is void, and may be ques-
tioned collaterally, and a defendant who is imprisoned
under and by virtue of it, may be discharged from cus-
tody on habeas corpus.?8

In commenting upon a statute, which in terms pro-
vided that no person convicted or detained by virtue
of the final judgment or order of any competent tri-
bunal of civil or criminal jurisdiction, or by virtue of
any execution issued upon such order or judgment,
shall be entitled to prosecute the writ of habeas corpus,
the supreme court of Wisconsin stated: ‘‘If the legis-
lature proposed by such action to take away from cir-
cuit courts the common-law power, exercisable by use
of the writ of habeas corpus, it misconceived its author-
ity. The circuit courts take their power in the matter
from the constitution, not from the legislature,’’ and
held that such prohibitory features are to the effect
that the writ shall only be used to correct jurisdic-
tional error resulting in the wrongful restraint of per-
sonal liberty; that when a judgment is based on an un-
constitutional law, it has no legitimate basis at all. It
is not a judgment, there is no law, hence no jurisdiction
to give it force; no jurisdiction over the subject matter
or of the person within the meaning of the decisions.?®

Extraneous proof not admissible.
Extraneous proof cannot be resorted to for the pur-
pose of showing that in fact a statute is unconstitu-
tional. If it cannot be made to appear that a law is in

offense, and, second, to cheat or
defraud any person of any money
or property, etc. The ordinance
was held invalid, and one con-
victed thereunder and sentenced
was discharged upon habeas cor-
pus on the ground that the legis-

lature had not the power to regu-
late one’s associates.

*8In re Nielson, 131 U. S. 176,
35 L. Ed. 118, 9 Sup. Ct. Rep.
672,

29 Servonitz v. State, 133 Wis.
231, 113 N. W. 277,
\

94 HABEAS CORPUS.

conflict with the constitution by argument deduced
from the language of the law itself, or from matters
of which a court can take judicial notice, then the act.
must stand. The testimony of expert or other wit-
nesses is not admissible to show that in carrying out a
law enacted by the legislature, some provision of the
constitution may possibly be violated.*°

It was held that the provisions of the New York code
of criminal procedure, changing the mode of inflicting
the death penalty, do not, upon their face, nor in their
general purpose and intent, violate any provision of
the constitution, including that provision which pro-
hibits the infliction of cruel and unusual punishments,
also that extraneous evidence was not admissible upon
the question whether the changed method was in fact
cruel or unusual.*!

§ 38. Statutes and municipal ordinances in conflict
with personal rights.—In general.

There is a growing tendency on the part of municipal
governments, under the guise of the exercise of the
police power, to enroach upon the rights and liberties
of the citizen or inhabitant. It is manifested by creat-
ing unreasonable restrictions upon the carrying on of
lawful business pursuits, as well as imposing unreason-
able restraint upon personal action and conduct and in
the enjoyment of property. Penalties are prescribed
for the violation of ordinances of such character which
may result in imprisonment. Where a person has
been thus imprisoned, the federal courts are open to
him to test the constitutionality of such laws or re-
gulations by habeas corpus. Definitions of the police

80 People ex rel. Kemmler vy. 31 People ex rel. Kemmler v.
Durston, 119 N. Y. 569, 24 N., Durston, 119 N. Y. 569, 24 N.
E. 6. E. 6.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 95

power must, in the language of the supreme court of
the United States, ‘‘be taken subject to the condition
that the state cannot in its exercise, for any purpose
whatever, encroach upon the powers of the general gov-
ernment or rights granted or secured by the supreme
laws of the land. Objects not within its scope cannot
be secured at the expense of the protection afforded
by the federal constitution.’’ #2

The following language was uttered by Mr. Justice
Swayne in the famous Slaughter House Cases, 16 Wall.
36, (p. 127), 21 L. Ed. 394: ‘‘Life is a gift of God, and
the right to preserve it is the most sacred of the rights
of man. Liberty is freedom from all restraints but such
as are justly imposed by law. Beyond that line lies the
domain of usurpation and tyranny. Property is every-
thing which has an exchangeable value, and the right
of property includes the power to dispose of it accord-
ing to the will of the owner. Labor is property, and
as such merits protection. The right to make it avail-
able is next in importance to the rights of life and
liberty. It lies to a large extent at the foundation of
most other forms of property.’’ In the same connec-
- tion, Justice Bradley gave utterence to the following:
‘‘In my view a law which prohibits a large class of
citizens from adopting a lawful employment, or from
following a lawful employment previously adopted,
does deprive them of liberty as well as property with-
out due process of law. Their right of choice is a
portion of their liberty. Their occupation is their prop-
erty. Such a law also deprives those citizens of the
equal protection of the laws, contrary to the last clause
of the section.’’> Page 122. The words ‘‘privileges
and immunities’’ as used in the constitution, say the
court in Ward v. Maryland, 12 Wall. 418, 430, 20 L. Ed.

22 New Orleans Gas Light Co. 8. 650, 6 Sup. Ct. Rep. 252, 29 L.
v. La. Light & Heat Co, 115 U. Hd. 516.
96 HABEAS CORPUS.

260, ‘‘are words of very comprehensive meaning; but
it will be sufficient to say that the clause plainly and
unmistakably secures and protects the right of a citizen
of one state to pass into any other state of the Union
for the purpose of engaging in lawful commerce, trade
or business without molestation; to acquire personal |
property; to take and hold real estate; to maintain
actions in the courts of the state, and to be exempt from
any higher taxes or excises than are imposed by
the state upon its own citizens.’’ Applying this prin-
ciple to the facts of the case under consideration it
was further said: ‘‘And inasmuch as the constitution
provides that the citizens of each state shall be en-
titled to all privileges and immunities of citizens in the
several states, it follows that the defendant might law-
fully sell, or offer or expose for sale, within the district
described in the indictment, any goods which the per-
manent residents of the state might sell, or offer or ex-
pose for sale, in that district, without being subject to
any higher tax or excise than that exacted by law of
such permanent residents. ’’

The repugnacy of a state statute to the constitution
of the state will not authorize a writ of habeas corpus
from a court of the United States, unless the prisoner
is in custody by virtue of such statute, and unless also
the statute conflicts with the federal constitution.??

As the laws of congress are only valid when they are
within the constitutional power of that body, the valid-
ity of the statute under which a prisoner is held in
custody may be inquired into under a writ of habeas
corpus as affecting the jurisdiction of the court which
ordered his imprisonment.®4

3s Andrews v. Swartz, 156 U. 200 U. 8. 298, 50 L. Ed. 488, 26
S, 272, 39 L. Ed. 422, 15 Sup. Ct. Sup. Ct. Rep. 264; In re Staff,
Rep. 389; In re Coy, 127 U. S. 63 Wis, 285, 23 N. W. 587.

731, 32 L. Ed. 274, 8 Sup. Ct. 84In re Coy, 127 U. S. 731, 32
Rep. 1263; Carfer v. Caldwell, L. Ed. 274, 8 Sup. Ct. Rep. 1263.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 97

A court has no authority to take cognizance of a
case under an unconstitutional law, and it has no
authority to proceed to judgment in an unconstitutional:
method, or where the court violates in its judgment the
constitutional rights of the prisoner,** or where it vio-

‘lates such rights in the method of procedure.**

In Platt v. Harrison, 6 Iowa, 79, 71 Am. Dec. 389, the
constitutionality of the ordinance was not involved, but
rather the question was the power and authority of the
city, under its charter, to enact the ordinance. If there
existed such power, then, as I understand, no question
was involved respecting its constitutionality. The court
were of the opinion, and so decided, that the question of
the authority of the common council in the premises,
was one which it had the power and which it was its duty
to decide, and hence was within its jurisdiction. In the
Matter of Underwood, 30 Mich. 502, the case was some-
what different. There no question was involved as to
the power to enact the law; if in fact the exercise of
such power was not violative of some constitutional

_ provision. The court, however, did not recognize any
distinction, but simply held that the question could only’
be reviewed upon writ of error.

Constitutionality of legislative acts; federal courts
will determine.

That the validity of legislative acts under which in-
dictments are found is a proper subject of inquiry, was.
emphatically stated in another case by the supreme
court of the United States. They state that such ques-.
tion lies’ at the foundation of the whole proceedings...
An unconstitutional law is void, and is no law; an.
offense created by it is not a crime; a conviction under:

85 In re Nielson, 131 U. S. 176, 86In re Staff, 63 Wis. 286, 23°
83 L. Ed. 118, 9 Sup. Ct. Rep. N. W. 587,
672,
q
98 HABEAS CORPUS.

it is not merely erroneous, but is illegal and void, and
cannot be a legal cause of imprisonment. It is true,
if no writ of error lies, the judgment may be final in
the sense that there may be no means of reversing it.
But personal liberty is of so great moment in the eyes
of the law, that the judgment of an inferior court af-
fecting it, is not deemed so conclusive but that the
question of the court’s authority to try and imprison
the party may be reviewed upon habeas corpus by a
superior court or judge having authority to issue the
writ.37 ;

This is not only the doctrine of the federal courts,
but that recognized and declared by the courts of many
states as well.38

The federal courts will thus inquire upon habeas cor-
pus, though the prisoner may be held under state pro-
cess, if in violation of the federal constitution.®®

The jurisdiction of the courts has been exercised
where the prisoner was held for violation of a state law
which was invalid by reason of an unlawful attempt to
interfere with the regulation of interstate commerce; *°
and also where the state law provided for the licensing
of drummers, and attached penalties for violation
thereof. }

In a suit brought to the United States supreme court
which involves the constitutionality of ordinances

87x parte Siebold, 100 U. S.
371, 25 L. Hd. 717.

38 Darrah v. Westerlage, 44
Tex. 388; Cropper’s Case, 2 Rob.
(Va.) 842; In re O’Connor, 6
Wis. 288; Ex parte Rosenblatt,
19 Nev. 439, 14 Pac. Rep. 298, 3
Am. St. Rep. 901; Brown v. Duf-
fies, 66 Iowa, 193, 23 N. W. 396;
Whitcomb’s Case, 120 Mass. 118,
21 Am. Rep. 502; Ex parte Bur-
nett, 30 Ala. 461; In re Payson,

23 Kan, 757; Ex parte Delaney,
43 Cal. 478; Ex parte Rollins,
80 Va. 314.

89 Ex parte Royal, 117 U. S.
241, 29 L. Ed. 868, 6 Sup. Ct.
Rep. 734.

40 Ex parte Rollins, 80 Va. 314.

41 Ex parte Rosenblatt, 19 Nev.
439, 14 Pac. Rep. 298, 8 Am. St.
Rep. 901; Robbins v. Shelby Co.
Taxing Dist., 120 U. S. 489, 30
L. Ed. 694, 7 Sup. Ct, Rep. 592.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 99

made by a municipal corporation in the state, that court
will, when necessary, put its own independent construc-
tion upon the ordinance.*?

— requiring license of nonresidents selling
goods, wares, etc.

‘Chapter 96, section 16, Statutes of Tennessee, enact-
ing that ‘‘all drummers and all persons not having a
regular licensed house of business in the taxing district
of Shelby county, offering for sale, or selling goods,
wares or merchandise therein by sample, shall be re-
quired to pay to the county trustee the sum of ten
dollars per week or twenty-five dollars per month for
such privilege,’? was held to apply to all persons
soliciting the sale of goods on behalf of individuals or
firms doing business in another state, and so far as it
applies to them, is a regulation of commerce among the
states, and violates the provisions of the Constitution of
the United States, which grants to congress the power
to make such regulations.*?

The court at length determined as to’the power of
the states in the legitimate exercise of its police power,
etc., but held that the statute is not such a law.

True, this determination was made upon writ of
error to the supreme court of Tennessee. However, in
In re Rosenblatt, 19 Nev. 439, 14 Pac. 298, 3 Am. St.
Rep. 901, the question came before the court upon writ
of habeas corpus, and it was there held, that a state
statute is regulation of interstate commerce and is un-
constitutional and void, as to a citizen of another state
soliciting orders for goods to be delivered from that
state, where it provides for the licensing of traveling

42 Yick Wo v. Hopkins, 118 43 Robbins v. Shelby Co, Tax-
U. S. 356, 30 L. Hd. 220, 6 Sup. ing Dist., 120 U. S. 489, 30 L. Ed.
Ct. Rep. 1064. 694, 7 Sup. Ct. Rep, 592.
100 HABEAS CORPUS.

salesmen and makes it a misdemeanor for them to carry
on their business without first obtaining a license.

—-; ordinance restricting the operation of
laundries.

It was held on habeas corpus that an ordinance was
void, under the fourteenth amendment to the national
constitution, on the ground that as a condition of ob-
taining a license the party desiring to carry on the busi-
ness of laundry, must obtain the consent of the board
of supervisors, which could only be granted upon the
recommendation of not less than twelve citizens and
taxpayers in the block in which the laundry was to be
carried on. It was held that licenses could not be re-
quired as a means of prohibiting any avocation of life
which is not injurious to public morals, not offensive
to the senses, not dangerous to the public health or
safety, nor could conditions be attached to their issue
which would tend to such prohibition.*+

The ordinance was thereafter amended by striking
out the clause, requiring the consent of twelve resident
taxpayers of the block, and again it came before the
same court in a similar manner. The court did not re-
cede from its former opinion, but as the ordinance had
been before the supreme court of the state, which held
it valid, the federal court, in deference to the opinion of
such state court, would not overrule it, but adopted a
course of policy. It'was stated: ‘‘This court has no
appellate power over the courts of the state, and the
writ of habeas corpus cannot be used to perform the
functions of a writ of error. Upon the question of
habeas corpus there is only a concurrent jurisdiction
with the supreme court of the state.’’ "While it was an-
nounced that by statute it was made the duty of the

44Laundry Ordinance Cases, 13 Fed. 229.
 

federal court to investigate the particular matter, yet
they did not conclude that it thus became their duty to
override the decision of the highest court of the state
under the peculiar circumstances. The statute having
given a right of appeal from their decision, and a writ
of error to the state court would lie from the supreme
court of the United States, they would let that mode be
pursued.*®

Where an ordinance making it an offense for per-
sons who carry on the business of laundrying to wash
clothes within the habitable portions of a city was vio-
lated, and persons imprisoned as a punishment there-
for (In re Tie Loy, 26 Fed. Rep. 611), such an ordi-
nance was held to be unconstitutional and in violation
of the fourteenth amendment to the constitution. It
was. condemned by the court in very emphatic terms.
It was said: ‘‘No decision of any court in this state
(California) or elsewhere has been brought to the
notice of the court holding an ordinance so sweeping
and exclusive in its provisions to be valid, since or even
before the adoption of the fourteenth amendment to
the national constitution. This ordinance does not
regulate, it extinguishes. It absolutely destroys, at its
chosen location, an established ordinary business,
harmless in itself and indispensable to the comfort of
civilized communities, and which cannot be so con-
veniently, advantageously or profitably carried on else-
where. * * * Indeed, if this ordinance be valid, it
is difficult to perceive what right the people of Califor-
nia have which a municipal corporation is bound to
respect. Of course no one can doubt the purpose of
this ordinance. It means, ‘the Chinese must go;’ and,
in order that they shall go, it is made to encroach upon

45In re Wo Lee, 26 Fed. 471. See also Mayor of Baltimore v.
Radecke, 49 Md. 217.
102 HABEAS CORPUS.

one of the most sacred rights of citizens of the state of
California—of the Caucasian race as well as upon the
rights of the Mongolian. It should be remembered that
the same clause of our constitution which protects the
rights of every native citizen of the United States, born
of Caucasian parents, equally protects the rights of the
Chinese inhabitant who is lawfully in the country.
When this barrier is broken down as to the Chinese, it
is equally swept away as to every American citizen,
and, in this instance, the ordinance reaches American
citizens as well as Chinese residents. * * * This
occupation is not a nuisance per se, nor one that is
prima facie a nuisance, like a slaughter house, a house
for the manufacture or storage of gunpowder or dyna-
mite. It can only become a nuisance by gross careless-
ness, or gross imperfections in the arrangements and
appliances by means of which it is carried on. * * *
The right to labor in this or any other honest, neces-
sary, and, in itself, harmless calling, where it can be
the most conveniently, advantageously and profitably
carried on, without injury to others, is one of the high-
est privileges and immunities secured by the constitu-
tion to every American citizen and to every person re-
siding within its protection.’’ **

468A municipal ordinance to
regulate the carrying on of pub-
lic laundries within the limits
of the municipality, it was held,
violates the provision of the con-
stitution of the United States, if
it confers upon the municipal
authorities arbitrary power at
their own will, and without re-
gard to discretion in the legal
sense of the term to give or to
withhold consent as to persons
or places without regard to the
competency of the persons ap-
plying, or the propriety of the

place selected, for the carrying
on of the business. It also vio-
lates the provisions of the con-
stitution of the United States, if
it makes arbitrary and unjust
discriminations founded on dif-
ferences in race, between persons
otherwise. in similar circum-
stances.

This rule or doctrine was ap-
plied to an ordinance of the city
of San Francisco providing that
‘ft shall be unlawful for any
person or persons to establish,
maintain or carry on a laundry
REVIEW OF PROCEEDINGS AND JUDGMENTS.

103

—-; ordinances declaring structures or other
matters a nuisance.

With respect to ordinances declaring structures or
other matter or thing to be a nuisance, it was said
by the supreme court of the United States in Yates v.
Milwaukee, 10 Wall. 497, 505, 19 L. Ed. 984: ‘‘The mere
declaration by a city council that a certain structure was

within the corporate limits of
the city and county of San Fran-
cisco, without having first ob-
tained the consent of the board
of supervisors, except the same
be located in a building con-
structed, either of brick or stone.
Another section providing that
it shall be unlawful for any per-
son to erect, build or maintain
or cause to be erected, built or
maintained, over or upon the
roof of any building, now erected
or which may hereafter be
erected, within the limits of said
city and county, any scaffolding,
without first obtaining the writ-
ten permission of the board of
supervisors, which permit shall
state fully for what purpose said
scaffolding is to be erected and
used, and such scaffolding shall
not be used for any other pur-
pose than that designated in
such permit.”

This ordinance, like others of
a similar character, enacted in
California, had for their object
and purpose the exclusion of
Chinese. It had the effect of its
purpose, and the discretion con-
ferred upon the board of super-
visors was so exercised as to ac-
complish its purpose. Yick Wo
v. Hopkins, 118 U. S. 356, 30 L.
Bd. 220, 6 Sup. Ct. Rep. 1064.

It was said: (the ordinance)
“It does not prescribe a rule
and conditions for the regulation
of the use of property for laun-
dry purposes, to which all sim-
ilarly situated may conform. It
allows, without restriction, the
use for such purpose of buildings
of brick or stone, but as to
wooden buildings constituting
nearly all those in previous use,
it divides the owners or occu-
pants into two classes, not hav-
ing respect to their personal
character and adaptation of the
building themselves, but merely
by an arbitrary line, on one side
of which are those who are per-

‘mitted to pursue their industry

by the mere will and consent of
the supervisors, and on the
other, those from whom that
consent is withheld, at their
mere will and pleasure, and both
classes are alike only in this
that they are tenants at will,
under the supervisors of their
means of living.”

The court distinguishes the
ordinance in this case from that
involved in Barbier v. Connolly,
113 U. S. 27, 28 L. Ed. 923, 5
Sup. Ct. Rep. 357, and Soon Hing
v. Crowley, 118 U. S. 703, 28 L.
Ed. 1145, 5 Sup. Ct. Rep. 730.
“In both these cases,” it is said,
104 HABEAS CORPUS.
an enroachment or obstruction did not make it so; nor
could such declaration make it a nuisance, unless it in
fact had that character. It is a doctrine not to be toler- —
ated in this country that a municipal corporation, with-
out any general law either of the city or the state, within
which a given structure can be shown to be a nuisance,
can, by its mere declaration that it is one, subject it to
removal by any person supposed to be aggrieved, or
even by the city itself. This would place every house,
every business, and all the property of the city, at the
uncontrolled will of the temporary local authorities.’’

——; where not in violation of federal constitu-
tion, decision of state court final.

In so far as the question relates to the ‘provisions of
the constitution of the state, the decision of the court of
that particular state is binding; but if the particular
law or ordinance is violative of provisions of the fed-
eral constitution, they are of no force.*?

——; conferring discretionary power upon mayor

to order removal of engines.
' The validity of an ordinance, while permitting the
use of steam engines within the municipality, yet con-
in a city composed largely of

wooden buildings like San Fran-
cisco, in the application of which

“the ordinance involved was
simply a prohibition to carry on
the washing and ironing of

clothes in public laundries and
wash houses, within certain pre-
scribed limits of the city and
county of San Francisco from
ten o’clock at night until six
o'clock in the morning of the
following day. This provision
was held to be purely a police
regulation, within the compe
tency of any municipality pos-
sessed of the ordinary powers
belonging to such bodies; a
necessary measure of precaution

there was no invidious discrim-
ination against any one within
the prescribed limits, all persons
engaged in the same business
being treated alike, and subject
to the same restrictions and en-
titled to the same privileges
under similar conditions.”

47In Matter of Underwood, 30
Mich, 502; In Matter of Harris,
47 Mo. 164; Ex parte Boeming-
hausen, 91 Mo, 301; Platt v. Har-
rison, 6 Iowa, 79, 71 Am. Dec. 389.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 105

ferring authority upon the mayor to order their re-
moval after six months’ notice to that effect, was before
the Maryland court of appeals (City of Baltimore v.
Radecke, 49 Md. 217). In that case the defendant had
erected and used a steam engine, in the prosecution of
his business as a carpenter and box maker, under a
permit from the city council, which contained a con-
dition that the engine was to be removed after six
months’ notice to that effect from the mayor. The
court, in its opinion, in critizing the ordinance, state:
“It does not profess to prescribe regulations for their
construction, location or use, nor require such precau-
tions and safeguards to be provided by those who own
and use them as are best calculated to render them
less dangerous to life and property, nor does it restrain
their use in box factories and other similar establish-
ments within certain defined limits, nor in any other
way attempt to promote their safety and security with-
out destroying their usefulness. But it commits to
the unrestrained will of a single public officer, the
power to notify any person who now employs a steam
engine in the prosecution of any business in the city of
Baltimore, to cease to do so, and providing compulsory
fines for every day’s disobedience of such notice and
order of removal, renders his power over the use of
steam in that city practically absolute, so that he may
prohibit its use altogether. But if he should choose
not to do so, but only to act in particular cases, there
is nothing in the ordinance to guide or control his
action. It lays down no rules by which its impartial
execution can be secured or partiality and oppression
prevented. It is clear that giving and enforcing those
notices may, and quite likely will, bring ruin to those
against whom they are directed, while others from
whom they are withheld, may be actually benefited by
what is thus done to their neighbors; and when we re-
106 HABEAS CORPUS.

member that this action or nonaction may proceed
from enmity or prejudice, from partisan zeal and ani-
mosity, from favoritism and other improper influences.
and motives, easy of concealment and difficult to be de-
tected and exposed, it becomes unnecessary to suggest
or to comment upon the injustice capable of being
brought under cover of such a power, for that becomes
apparent to every one who gives to the subject a mo-
ment’s consideration. Infact, an ordinance which
clothes an individual with such power, hardly falls
within the domain of law, and we are constrained to
pronounce it inoperative and void.’’

——; statutes limiting hours of labor.
Statutes limiting the hours of labor and providing

penalties for violation thereof, may be arranged into
two classes:

First: Employes in the service of state or municipal
corporations including their contractors, and

Second: Employes in the service of individuals or
private corporations.

The second class, however, may be further divided.

1. Where the occupations are dangerous to or in-
volve the health or morals of the employe, and

2. Where such occupations are not subject to such
conditions.

First Class. It will appear that in respect to the first
class the courts are in hopeless conflict. The question
involved in cases within this class, however, has been
confined to the violation of such statutes by contract-
ors in the performance of their contracts with munici-
palities. The reasons advanced for holding such
statutes valid and not violative of constitutional pro-
visions, are stated in the opinion of Justice Harlan in
Atkin v. State, 191 U. 8. 207, 48 L. Ed. 148, 24 Sup. Ct.
Rep. 124, where the court had under consideration a
REVIEW OF PROCEEDINGS AND JUDGMENTS. 107

statute of Kansas making it a criminal offense for a
contractor for public work to permit or require an
employe to perform labor upon that work in excess
of eight hours per day, in which he states: ‘‘We can
imagine no possible ground to dispute the power of the
state to declare that no one contracting to do work for
it, or for one of its municipal agencies, should permit
or require an employe on such work to labor in excess of
eight hours per day. * * * It cannot be deemed
a part of the liberty of any contractor that he be allowed
to do public work in any mode he may choose to adopt
without regard to the wishes of the state. On the con-
trary, it belongs to the state, as the guardian and trus-
tee for its people, having control of its affairs, to pre-
scribe the conditions upon which it will permit public
work to be done on its behalf or on behalf of its munici-
palities. No court has authority to review its action in
that respect. Regulations on this subject suggest only
consideration of public policy; and with such considera-
tion the courts have no concern. If it be contended to
be the right of every one to dispose of his labor upon
such terms as he deems best, as undoubtedly it is, and
that to make it a criminal offense for a contractor for
public work to permit or require his employe to per-
form labor upon that work in excess of eight hours
each day is in derogation of the liberty both of the em-
ployes and employer, it is sufficient to answer that no
employe is entitled of absolute right, and as a part of
his liberty, to perform labor for the state, and no con-
tractor for public work can excuse a violation of his
agreement with the state, by doing that which the
statute under which he proceeds distinctly and lawfully
forbids him to do.’’ Chief Justice, Justice Brewer
and Justice Peckham dissented.

The reason thus given is far from satisfactory. It
may be that it might be accepted in so far as the viola-
108 HABEAS CORPUS.

tion of the contract between the municipality and the
contractor is concerned, to establish a civil liability for
its breach, and as held by some courts, but that the
power exists to make the violation of a civil contract
a crime may well be doubted.

The legislature has not unlimited power in respect to
declaring acts as crimes. A liberty to adopt or follow
for a livelihood a lawful industrial pursuit and in a
manner not injurious to the community, is infringed
upon if not destroyed by legislation which restricts
it. ‘‘Liberty, in its broad sense as understood in this
country, means the right not only of freedom from serv-
itude, imprisonment or restraints, but the right of
one to use his faculties in all lawful ways to live and
work where he will to earn his livelihood in any lawful
calling and to pursue any lawful trade or avocation.’’ #8

The reasoning of Justice Harlan, as stated, has been
adopted in several instances and such statutes up-
held.*®

It was said by the supreme court of the United States
in an earlier case: ‘‘The breach of a contract for per-
sonal service has not, however, been recognized in this
country, as involving a liability to criminal punish-
ment, except in cases of soldiers, sailors and possibly
some others, nor would public opinion tolerate a statute
to that. effect.’ 5°

The Louisiana court held that a municipal ordinance
regulating the hours of labor on public works, and
which made its violation an indictable offense, was

48 People v. Gillson, 109 N. Y.
389, 17 S. BE. 348, and cases cited.
49In re Broad, 36 Wash. 449,
78 Pac. 1004, 70 L. R. A. 1011;
State v. Livingston Concrete &

Bldg. & Mfg. Co. (Mont.), 87 Pac.

980; Ellis v. United States, 206
U. S. 246, 51 L. Ed. 1047, 27 Sup.

Ct. Rep. 600; United States v.
Martin, 94 U. S. 400, 24 L. Ed.
128; Keefe v. People (Colo.), 87
Pac. 791.

50 Robertson v. Baldwin, 165
U.S. 275, 41 L. Ed.-715, 17 Sup.
Ct. Rep. 326.
109

REVIEW OF PROCEEDINGS AND JUDGMENTS.

void on the ground, however, that the general assembly
of the state alone had power to create the offense.®4

However, the great weight of authority is contrary
to the doctrine expressed by the federal court in the
case referred to.*2

The grounds upon which the determination of the
courts, which hold such statutes invalid, may be stated:

(a) That the legislature of a state has no control
or authority over municipal corporations in respect to
the affairs of the latter which are private as distin-
guished from their public duties as an integral part of
the state government, and to which certain powers
have been delegated. That as to the exercise of such
private duties, it is not the agent of the state, nor sub-
ject to its direction, and hence the legislature cannot
direct the manner or methods of its contracts.

(b) That such statutes have no relation to the exer-
cise of the police power.

(c) That such a statute is in violation of the Consti-
tution of the states, because it violates and abridges
the right of parties to contract as to the number of
hours labor that shall constitute a day’s work, and in-
vades and violates the right both of liberty and prop-
erty, in that it denies to municipalities and to contract-
ors and subcontractors the right to agree. with their
employes upon the terms and conditions of their con-
tracts.

Their reasoning, as appears from the language of the
courts, is in part, as to the constitutional right of par

81 State v. McNally, 48 La. Ex parte Kubach, 85 Cal. 274,

Ann. 1450, 21 So. 27,°36 L. R. A.
533.

52 People v. Orange County
Road Const. Co., 175 N. Y. 84, 67
N. E. 129, 65 L. R. A. 33; People
ex rel. v. Grout, 179 N. Y, 417,72
N. BE. 464, 89 N. Y. Supp, 1118;

24 Pac, 787, 9 L. R. A. 482, 20
Am. St. Rep. 226; Cleveland v.
Clements Bros. Censt, Co., 67
Ohio St. 197, 65 N. E. 885, 59 L.
R. A. 775, 93 Am. St. Rep. 670;
Fisk v. People; 188 Il]. 206, 58
N. E. 985, 52 L. R, A. 291.
110 , HABEAS CORPUS.

ties to contract, as follows: It is said: ‘‘Thus it is ap-
parent that this statute which is peremptory in its
terms, is more than a mere direction by a principal to
his agent, and that its provisions apply not only to offi-
cers and agents of the state, but that they apply with
equal force to all persons who would enter into con-
tracts with the state or any of its political subdivisions,
and undertakes to limit and restrict such persons in
their right to contract by prohibiting the making of con-
tracts for day’s work of more than eight hours. What
the terms and stipulations of a contract shall be is mat-
ter to be determined by the contracting parties, and the
right has not been delegated to nor is it within the pow-
er of the general assembly by mandatory laws to pres-
cribe the terms and provisions that shall be inserted in
contracts that may be made between persons legally
competent to contract. Doubtless the legislature might
in the absence of contract between the parties, prescribe
the number of hours labor that should constitute a day’s
work; but it is not in the power of the legislature, by
the enactment of a positive law, to abridge the right
of parties to fix by contract the number of hours that
shall constitute a day’s work, nor to deny effect to the
stipulation and agreements of the parties themselves
touching such matter only as the exercise of such
power may be authorized for the common welfare;
and the right to so exercise this power of restraint ex-
tends only to matters affecting the public welfare or
the health, safety and morals of the community. The
number of hours labor that shall be performed in a
day is an important factor and constitutes an essential
part of every contract of service; and to deny effect to
the stipulations or agreements between employer and
employe touching the number of hours the employe
shall labor each day, in effect, either to impair the
obligation of their contract, or to deny to them the

~~
REVIEW OF PROCEEDINGS AND JUDGMENTS. 111

right to stipulate or contract touching that matter. The
latter is the right denied by the statute here in ques-
tion. It is, we take it, axiomatic, that in service con-
tracts, the right to contract necessarily includes the
right to fix by agreement the number of hours that shall
constitute a day’s work for the person employed; but
by the terms and provisions of the statute the parties
are not left to negotiate in respect to this matter be-
tween themselves, but the number of hours which shall
constitute a legal day’s work for the laborer employed
on work done for the municipality, is by the statute
arbitrarily fixed and determined, and the statute fur-
ther provides just what stipulations in this respect
shall by the contracting parties be incorporated in
their contract, and enacts that noncompliance with the
provisions of said statute shall be deemed a misde-
meanor, punishable by fine or imprisonment or both at
the diseretion of the court. The privilege of making
and entering into contracts is more than a mere license
or liberty. It is a property right. It is an essential
incident to the acquisition and protection of property,
and is such right as the legislature may not arbitrarily
and without sufficient cause abridge or take away.’’ *?

With respect to the assent of.the contractor implied
merely from entering into the contract, and hence that
he voluntarily assumes the penalty which may be im-
prisonment, it is said: ‘‘ While a valid statute regulat-
ing contracts is, by its own force, read into and made a
part of such contracts, it is otherwise as to invalid stat-
utes.’ 54

The penalty, however, is not imposed for the viola-
tion of the contract, but for violation of the statute and

58 Cleveland v. Clements Bros. 54Palmer v. Tingle, 55 Ohio
Const. Co., 67 Ohio St. 197, 65 St. 433, 45 N. E. 313; Cleveland
N. EB. 885, 59 L. R. A. 775, 95 v. Clements Bros. Const. Co., 67
Am. St. Rep. 670. Ohio St. 197, supra.
112 HABEAS CORPUS.

hence if the statute is void, there can be no penalty for
violating it. A person eannot voluntarily assume the
penalty, and especially imprisonment under a void stat-
ute. The contract, notwithstanding the violation of the
statute, is valid and enforceable. This is distinctly
held in all the cases where the question has been in-
volved. That there is no estoppel. In practically all
of them except the Atkin’s case, there was a stipulation
in the contract to the effect that eight hours a day
should constitute a day’s work or for payment of aver-
age daily wages, and yet notwithstanding, the contracts
were enforceable, though the statute provided that
such stipulation should become a part of the contract.®®

And it was said: ‘‘The fact that certain provisions
of the labor law were actually incorporated into the
contract signed by the contractor, cannot change or add
anything to the strength of the position assumed by the
city. The relator is not estopped by the agreement,
when there is no element of estoppel in the case, and
the question is as to the validity of the statute, and not
the construction or effect of the contract in that regard.
Tf the law is valid, it governs the contract and the right
of the parties, whether actually incorporated in the
writing or not, since all contracts are assumed to be
made with a view of existing law upon the subject. If
it is not valid, the contractor has not made it so by
stipulating in writing to obey it, and prescribing the
penalty for his own disobedience which is a forfeiture
of all rights under the agreement. It is not in the
power of the legislature to protect an invalid law from

55 Cleveland v. Clements Bros.
Const. Co., 67 Ohio St. 197, 65 N.
B, 885, 59 L. R. A. 775, 93 Am.
St. Rep. 670, supra; People ex
rel. v. Grout, 179 N. Y. 417; su-
pra; People ex rel. v. Orange

County Road Const. Co., 175 N.
Y. 84, 67 N. E. 129, 65 L. R.A.
33, supra; People ex rel, Rod-
gers v. Coler, 166 N. Y. 1, 59 N.
BH. 716, 52 L, R. A. 816.
REVIEW OF PROCEEDINGS AND JuDGMENTS. 113
judicial scrutiny by providing it must receive the as-
sent of the parties to carry it into effect. * * *
The contract is in the form we find it, not because the
parties so elected to contract, but for the reason that
the statute would not permit them to contract in any
other way.’’ °°

Speaking with reference to the power of the legisla-
ture to create the act of violation as a crime, it is said:
“Of course if the legislature could make it a misde-
meanor to permit this (employes to work five minutes
more than eight hours a day, even though the servant.
wanted to work, and the employer was willing to pay
extra wages), it could make it a felony, and if all this is
so, there would seem to be no limit to the power of the
legislature in that respect. Whatever may be the law
of Kansas, or the law in the federal courts, in that re-
spect, it is quite certain that this court has held that
the power is limited, and that the legislature has no
power to denounce as crimes, acts which in their nature
and consequences are innocent and harmless,’’ citing
eases in the note.”

The first ground stated has become fundamental
law.58

86 People ex rel. Rodgers v. Y. 417, 433, 72 N. E. 646, 89 N.

Coler, 166 N. Y. 1, 59 N. E. 716,
52 L. R: A. 814; Cleveland v.
Clements Bros. Const. Co., 67
Ohio St. 197, 65 N. E. 885, 59 L.
R. A. 775, 98 Am. St. Rep. 670.

57 People v. Gillson, 109 N. Y.
389, 17 N. E. 348; People v.
Arensberg, 103 N. Y. 388, 8 N.
BH. 786; People v. Marx, 99 N. Y.
877, 2 N. EL 29; People v. Haw-
kins, 157 N. Y. 1, 51 N. E. 257,
42 L. R.A. 490; Matter of Jacobs,
98 N. Y. 98; Justice O’Brien in
People ex rel. vy. Grout, 179 N.

8

Y. Supp. 1118.

58 New Orleans M. & C. R. Co.
v. New Orleans, 26 La. Ann, 481;
Atkins v. Randolph, 31 Vt. 237;
People ex rel. v. Detroit, 28 Mich.
228, .15 Am. Rep. 202; Western
College, etc. v. Cleveland, 12
Ohio St. 375; Cincinnati v. Cam-
eron, 33 Ohio St. 366; Cleveland
v. Clements Bros. Const. Co., 67
Ohio, 197, 65 N. E. 885, 59 L. R.
A. 775, 93 Am, St. Rep. 670. This
question was evidently over-
looked by the federal court.
114 HABEAS CORPUS.

With respect to the second ground, practically all the
cases herein referred to are to the effect that no ques-
tion of public policy is involved.

The Montana court, however, sustained the statute
on the ground of the exercise of the police power.®®

Second Class. Employes in the service of individ-
uals or private corporations.

1. Where the occupations are dangerous to or involve
the health or morals of the employe.

The right of the state to regulate the manner or
method in which certain employments shall be con-
ducted, is under what is termed an exercise of the police
power, which as stated by the United States supreme
court ‘‘is a vaguely termed power, the exact descrip-
tion and limitations of which has not been attempted
by the courts. This power broadly expressed relates
to the safety, health, morals and general welfare of the
public. Both property and liberty are held on such rea-
sonable conditions as may be imposed by the govern-
ing power of the state in the exercise of those powers
and with such conditions the fourteenth amendment
was not designed to interfere.’’ ®°

The power of the state to exercise this power, has
been asserted and upheld in a great number and vari-
ety of cases, where the conditions were such that it
properly could be held a reasonable exercise thereof.

Among the later cases which have been determined
by the federal supreme court, are those limiting the
employment of workmen in all underground mines or
workings, to eight hours per day, except in cases of
emergency where life and property is in danger. The
same in smelting and other institutions for the refining

59 State v. Livingston Concrete 60 Lochner v. New York, 198
Bldg. & Mfg. Co. (Mont.), 87 U.S. 45, 49 L. Ed. 937, 25 Sup.
Pac. 980. Ct. Rep. 539.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 115
of ores and metals.*t The same has also been held in
California.°1#

It has also been held that statutes regulating the
hours of labor of females in stores, factories and the
like, were within the police power of the state, but this
on the ground of the peculiar physical structure and
maternal functions of women, and hence could justly be
regarded as a protection of the health of such females,
and as incident thereto the promotion of the welfare of
the public.®?

The statute, however, involved in the Colorado stat-
ute, was held invalid however, on the ground that the
provisions of the act did not correspond with its title
as it included or might be construed to include occupa-
tions entirely safe and healthful.

So also statutes regulating the employment of chil-
dren have been held within the power of the state.*

However, without further illustration, it may be
said, as before stated, that such statutes must reason-
ably tend to the end in view, that of protection of
health, and morals of the workmen, and in the interest
of the public welfare.**

2. Where such occupations are not subject to such
conditions.

The power of the legislature of a state to decide what
laws are necessary to secure the public health, safety
or welfare is subject to the power of the court to decide

61 Holden v. Hardy, 169 U. S.
366, 42 L. Hd. 780, 18 Sup. Ct.
Rep. 383.

61a Ex parte Martin (Cal.),
106 Pac. 235. :

62 Burcher v. People, 41 Colo.
495, 93 Pac. 14, 124 Am. St. Rep.
143; W. C. Ritchie & Co. v. Way-
man, 91 N. E. 695.

63 Starnes v. Albion Mfg. Co.,
147 N. C. 556, 61 S. B. 525, 17
L. R. A. (N. S.) 602; State v.
Shorey, 48 Or. 396, 86 Pac. 881,
24 L. R. A. (N. 8.) 1121.

64 Hden v. People, 161 Ill. 296,
43 N. E. 1108; People v. Gillson,
109 N. Y. 389, 17 N. EB. 343.
116 HABEAS CORPUS.

whether an act purporting to promote the public health
or safety has such a reasonable connection therewith
as to appear upon inspection to be adapted to that end,
and the court may take judicial notice of the fact of the
common belief of the people upon that subject.©

The general right to make a contract in relation to
his business is part of the liberty of the individual pro-
tected by the fourteenth amendment of the federal con-
stitution. Under that provision no state can deprive
any person of life, liberty or property without due proc-
ess of law. The right to purchase or to sell labor is a
part of the liberty protected by this amendment, unless
there are circumstances which preclude this right.®

Therefore, as stated by the court: ‘‘In every case
that comes before this court, where legislation of this
character is concerned, and where the protection of the
federal constitution is sought, the question necessarily
arises: Is this a fair, reasonable and appropriate exer-
cise of the police power of the state, or is it an unrea-
sonable, unnecessary and arbitrary interference with
the right of the individual to his personal liberty or to
enter into those contracts, in relation to labor which
may seem to him appropriate or necessary for the sup-
port of himself and his family? Of course the liberty
of contract relating to labor includes both parties to
i
_ It is further said, in reference to a statute limiting
the hours of labor of a baker to ten per day: ‘‘Statutes
of the nature of that under review, limiting the hours
in which grown and intelligent men may labor to earn
their living, are mere meddlesome interferences with
the rights of the individual, and they are not saved
from condemnation by the claim that they are passed

65 In re Viemeister, 179 N. Y. 66 Lochner v. New York, 198
235; Lochner v. New York, 198 U.S. 45, 49 L. Hd. 937, 25 Sup.
U. S. 45, 57, 49 L. Ed. 937, 25 Ct. Rep. 539.

Sup. Ct. Rep. 539.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 117

in the exercise of the police power and upon the subject
of the health of the individual, whose rights are inter-
fered with, unless there be some fair ground, reason-
able in and of itself, to say that there is material dan-
ger to the public health or to the health of the em-
ployes, if the hours of labor are not curtailed.’’ 7

The court aptly draws the conclusion, that if such
legislation is a proper exercise of the police power of
a state, then it may be applicable to all other vocations
in life, bank clerks, lawyers, clerks, broker clerks and
the like. That it may be applied to printers, tinsmiths,
locksmiths, carpenters, etc.

It also illustrates the soundness of the reasoning as
well as its determination by reference to several cases,
where it has been applied.

§ 39. Unconstitutional procedure. —In general.

It is stated by the supreme court of the United
States: ‘‘It is difficult to see why a conviction and pun-
ishment, under an unconstitutional law, is more viola-
tive of a person’s constitutional rights, than an uncon-
stitutional conviction and punishment under a valid
law. In the first case it is true, the court has no au-
thority to take cognizance of the case, but in the other,
it has no authority to render judgment against the de-
fendant.’’ %

That court, in a prior case, had stated that there were
exceptions to the general rule, that a regular judg-
ment of conviction cannot be impeached collaterally
on habeas corpus, which have more than once been
acted upon by the court. ‘‘It is firmly established that
if the court which renders a judgment, has not juris-
diction to render it, either because the proceedings or
the law under which they are taken are unconstitu-

67 Lochner vy. New York, 198 68 In re Nielson, 131 U. S. 176,

U.S. 61, 49 L. Ed. 937, 25. Sup. 33 L. Ed. 118, 9 Sup. Ct. Rep.
Ct. Rep. 539. 672.
118 HABEAS CORPUS.

tional, or for any other reason, the judgment is void,
and may be questioned collaterally, and a defendant
who is imprisoned under and by virtue of it may be
discharged from custody on habeas corpus,’’ ®

The doctrine was further declared in another case:
‘“While it is true that a writ of habeas corpus cannot
generally be made to serve the purposes of a writ of
error, yet when a prisoner is held without any lawful
authority, and by an order beyond the jurisdiction of
any inferior federal court to make, the supreme court
will grant the writ, not to review the whole case, but to
examine the authority to act at all.’’ 7°

§ 40. Former jeopardy ordinarily not a question of
jurisdiction.

From what has been said in reference to unconstitu-
tional proceedings, as being ground for the issue of the
writ and discharge of the prisoner from custody, it
might possibly be inferred that the question of a second
jeopardy was reviewable upon a writ of habeas corpus.
Such is not the rule. Such question does not go to the
jurisdiction or authority of the trial court, but involves
the judgment of the court which, if wrongfully exer-
cised, is but mere error, which is not reviewable upon
habeas corpus. However, it may be stated there are
exceptions to this rule which appear in the discussion
of this question.

This particular question was before the supreme
court of the United States and considered in Ex parte
Bigelow, 113 U. S. 328, 29 L. Ed. 1005, 5 Sup. Ct. Rep.
542. The facts were that fourteen indictments were
pending against the petitioner for embezzlement, and it
was ordered by the court that they be considered and
tried together. A jury was empaneled and sworn and

69 Hx parte Lange, 18 Wall. 70 Ex parte Virginia, 100 U. S.
163, 21 L. ld. 872. 839, 25 L. Ed. 676,
REVIEW OF PROCEEDINGS AND JUDGMENTS. 119

the case opened by the district attorney, when the court
took a recess. Upon reconvening, the court decided that
the indictments could not well be.tried together and di-
rected the jury to be discharged from further considera-
tion of them, and rescinded the order of consolidation.
The prisoner was thereupon tried before the same jury
on one of the indictments and found guilty, all against.
his protest and without his consent. The contention in,
the federal supreme court was, that he had been once
placed in jeopardy by the proceedings and his trial and
conviction were illegal. In the course of the opinion the
court said: ‘‘The trial court had jurisdiction of the of-
fense described in the indictment on which the prisoner
was tried. It had jurisdiction of the prisoner who was
properly brought before the court. It had jurisdiction
to hear the charge and the evidence against the pris-
oner. It had jurisdiction to hear and decide upon the
defense offered by him. The matter now presented is
one of those defenses. Whether it was a sufficient de-
fense was a matter of law, on which the court must
pass, so far as it was matter of law, and on which the
jury, under the instruction of the court, must pass, if
we can suppose any of the facts were such as required
submission to the jury. Clearly the court had not only
jurisdiction to try and decide the question raised, but
it was its imperative duty to do so. If the court makes
a mistake on such a trial, it is error, which may be cor-
rected in the usual modes of correcting such errors;
but that the court had jurisdiction to decide upon the
matter raised by the plea, both as matter of law and of
fact, cannot be doubted.’’

The further statement appears: ‘‘In the present case
no verdict or judgment was rendered, no sentence en-
forced, and it remained with the trial court to decide
whether the acts on which he relied were a defense to
any trial at all.’’ It is to be noted that the application
was direct to the supreme court for the writ.
120 HABEAS CORPUS.

Exception to the rule,

The question of former jeopardy, not the exact ques-
tion involved in the Bigelow case, was before the same
- court in a later case. It was determined on appeal from
a final order of a district court refusing to issue the
writ. The petitioner was convicted upon a charge of
adultery and sentenced. He had been convicted on a
plea of guilty upon an indictment charging unlawful
cohabitation with more than one woman, including the
woman mentioned in the indictment, charging him with
adultery and sentenced. The charge of adultery was
within the time of the alleged unlawful cohabitation.

The indictment for adultery was not prosecuted until
after the accused had suffered the penalty imposed by
the sentence for unlawful cohabitation. The accused,
by leave of the court, entered orally a more formal plea
of former conviction, in which he set up the said in-
dictment for unlawful cohabitation, his plea of guilty
thereto, and his sentence upon such plea, and claimed
that the charge of unlawful cohabitation, though for-
mally made only for the period from October 15th to
May 13, 1888, yet in law covered the entire period from
October, 1885, to the time of finding the indictment,
September 27, 1888, and thus embraced the time within
which the crime of adultery was charged to have been
committed; and he averred that the Caroline Neilson
with whom he was charged to have unlawfully cohab-
itated as a wife, was the same person with whom he
was now charged to have committed adultery; that the
unlawful cohabitation charged in the first indictment
continued without intermission to the date of finding
that indictment; and that the offense charged in both
indictments was one and the same offense, not divisible,
and that he had suffered the full penalty prescribed
therefor.
REVIEW OF PROCEEDINGS AND JuDGMENTS. 121

The district attorney demurred to the plea which was
sustained.

The court, in disposing of the questions, stated the
‘first question to be considered is whether if the peti-
tioner’s position is true, that he had been convicted
twice for the same offense, and that the court erred in
its decision, he could have relief by habeas corpus,’’
and it held he was entitled to the writ. and to be dis-
charged from custody.

It was further held that the charge of adultery was
included in that of unlawful cohabitation. That such
cohabitation being continuous was but one offense un-
der the statute.”

The court, in the opinion, states: ‘‘In the present
case it is true, the ground for the habeas corpus was
not the invalidity of the act of congress under which the
defendant was indicted, but a second prosecution and
trial for the same offense, contrary to an express pro-
vision of the constitution. In other words, a constitu-
tional immunity of the defendant was violated by the
second trial and judgment. It is difficult to see why a
conviction and punishment under an unconstitutional
law is more violative of a person’s constitutional rights —
than an unconstitutional conviction and punishment
under a valid law. In the first case, it is true, the court
has no authority to take cognizance of the case, but
in the other, it has no authority to render judgment
against the defendant. ’’

Referring to the case of In re Snow, 120 U. S. 274, 30
L. Ed. 658, 7 Sup. Ct. Rep. 556, wherein it was held that
only one indictment and conviction of the crime of un-
lawful cohabitation, under the act of 1882, could be had
for the time preceding the finding of the indictment, be-
cause the crime was a continuous one and was but a sin-
gle crime until prosecuted ; that a second conviction and

71In re Nielson, 131 U. S. 176, 33 Ed. 118, 9 Sup. Ct. Rep. 672.
122 HABEAS CORPUS.

punishment of the same crime for any part of said pe-
riod was an excess of authority on the part of the dis-
trict court of Utah; and that a habeas corpus would lie
for the discharge of the defendant, imprisoned on such
conviction, it was said: ‘‘The court had authority over
the case, but we held that it had no authority to give
judgment against the prisoner. He was protected by a
constitutional provision securing to him a fundamental
right. It was not a case of mere error of law, but a
case of denying to a person a constitutional right. And
where such a case appears upon the record the party is
entitled to be discharged.’’

The court declared: ‘‘A party is entitled to a habeas
corpus not merely where the court is without jurisdic-
tion of the cause, but where it has no constitutional
power or authority to condemn the prisoner.’’ 7?

It was further stated in Ex parte Snow: ‘‘ These con-
siderations distinguish the case from that of Ex parte
Bigelow, and, bring it within the principle of such cases
as Ex parte Milligan, 4 Wall. 2, 131, 18 L. Ed. 281;
Ex parte Lange, 18 Wall. 163, 168, 21 L. Ed. 872; and
Ex parte Wilson, 114 U.S. 417, 29 L. Ed. 89, 5 Sup. Ct.
Rep. 935.’’

The exact question thus decided would seem to be
that the trial court has jurisdiction to decide whether
matter alleged by way of a defense, as constituting a
second jeopardy, is such in fact or not, and a wrong
decision in this respect is but error. But where it ap-
pears by the record such as the appellate court may
examine, that the accused has suffered the penalty first
imposed for the commission of the offense, and it is
sought to enforce further punishment for the same of-
fense, the court will protect the accused by the writ of
habeas corpus, and discharge him, on the ground that

72 In re Nielson, 131 U. S. 176, 35 L. Ed. 118, 9 Sup. Ct. Rep. 672.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 123

such further punishment is in excess of the jurisdiction
of the court. Where, however, no penalty by imprison-
ment has been imposed, or if imposed has not been sat-
isfied, so that there is no punishment exacted beyond
the jurisdiction of the court for the offense, then habeas
corpus will not lie.73

The question of second jeopardy was also before the
supreme court of the United States for review upon
habeas corpus, in Ex parte Lange, 18 Wall. 163, 21 L.
Ed. 872. The writ was directed to be issued by the cir-
cuit court, accompanied by a writ of certiorari to bring
before the supreme court the proceedings in the circuit
court under which the petitioner was restrained of his
liberty. The petitioner had been found guilty of pur-
loining certain mail bags belonging to the post-office
department, the value of which was less than twenty-
five dollars, the punishment for which offense was im-
prisonment for not more than one year or a fine of not
less than ten dollars or more than two hundred dollars.
He was sentenced to one year’s imprisonment, and to
pay two hundred dollars fne. He was committed to
jail in execution of the sentence, and on the following
day the fine was paid to the clerk of the court, who in
turn within three days thereafter, paid the same into
the treasury of the United States. The next day there-
after, the petitioner was brought before the court on a
writ of habeas corpus, the same judge presiding, and
an order was entered vacating the former judgment,
and the prisoner was again sentenced to one year’s im-
prisonment from that date; and the return of the mar-
shal to the writ of habeas corpus showed that it was
under this latter judgment he held the prisoner. A
second writ of habeas corpus was issued. This writ was

78 The principle is further discussed in Chapter V, infra, under
head of Excess of Jurisdiction.
124 HABEAS CORPUS.

discharged and the prisoner remanded to the custody
of the marshal.

The court determined that when the prisoner had
fully suffered one of the alternative punishments to
which alone the law subjected him, the power of the
court to punish further was exhausted. That he was
thus punished a second time for the same offense; was
twice placed in jeopardy, and it thus appearing from
the record, the court would discharge him upon the
writ. The court remarked: ‘‘It is no answer to say
that the court had jurisdiction of the person of the
prisoner, and of the offense under the statute. It by.
no means follows that these two facts make valid, how-
ever erroneous it may be, any judgment the court may
render in such a case. If a justice of the peace having
jurisdiction to fine for misdemeanor, and with the
party charged properly before him, should render a
judgment that he be hung, it would simply be void.
Why void? Because he had no power to render such a
judgment. So if a court of general jurisdiction, should
on an indictment for libel, render a judgment of death,
or confiscation of property, it would for the same rea-
son be void. Or if on an indictment for treason, the
court should render a judgment of attaint, whereby the
heirs of the criminal could not inherit his property,
which should by the judgment of the court be confis-
cated to the state, it would be void as to the attainder,
because in excess of the authority of the court, and for-
bidden by the constitution.’’

Former trial a nullity.

In a case where the record disclosed that the prisoner
was convicted upon the verdict rendered by a jury
composed of but eleven men, though it was contended
and offered to be shown that the jury in fact was com-
posed of twelve men, and that the recital in the record
REVIEW OF PROCEEDINGS AND JUDGMENTS. 125

was the result of a clerical mistake, it was held upon
habeas corpus that the judgment was void and the
judgment was reversed. The prisoner was not dis-
charged, but remanded, to be held for trial upon the
indictment, it having been further held that the trial
was a nullity—that there had been no trial."*

§ 41. Indictments; validity of; must precede convic-
tion.

The fifth amendment to the federal constitution pro-
vides: ‘‘No person shall be held to answer for a capital
or otherwise infamous crime, unless on presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in
actual service in time of war or public danger.’’

Section 1022 of the revised statutes, derived from the
civil rights acts of May 30, 1870, chap. 114, sec. 8, au-
thorized certain offenses to be prosecuted either by in-
dictment or information. It was held that such pro-
vision does not preclude the prosecution by informa-
tion of other offenses of such a grade as may be pros-
ecuted consistently with the constitution of the United
States.75

The court discusses the question of what may con-
stitute an infamous crime within the meaning of the
constitution, and held that imprisonment at hard labor
in the state prison or penitentiary or other similar in-
stitution is an infamous punishment, and hence no
court of the United States had jurisdiction to try or
punish a person so charged except upon presentment
or indictment by a grand jury.7®

74 Scott v. State, 70 Miss. 247, 7¢ Kix parte Wilson, 114 U. S.
35 Am. St. Rep. 649. 421,.29 L. Ed. 89, 5 Sup. Ct

75x parte Wilson, 114 U. S. Rep. 935; Mackin v. United
421, 29 L. Hd. 89, 5 Sup. Ct. Rep. States, 117 U. S. 348, 29 L. Ed.
935. 909, 6 Sup. Ct. Rep. 777.
126 HABEAS CORPUS.

Cannot be altered or amended.

The doctrine announced in the case of Ex parte Wil-
son, was reiterated in a subsequent case, and it was
further held that when an indictment is filed with the
court, no change can be made in the body of the instru-
ment by order of the court, or by the prosecuting at-
torney without a resubmission of the case to the grand
jury, and the fact that the court may deem the change
immaterial, as striking out of surplus words as imma-
terial, makes no difference. The instrument as thus
changed is no longer the indictment of the grand jury
which presented it. Upon an indictment so changed,
the court can proceed no further. A trial on such an
indictment is void. There is nothing to try. Hence
a prisoner who stands sentenced to the penitentiary
on such trial is entitled to his discharge by habeas
corpus.”"

Prosecutions by information within the power of
states.

The constitution of California authorizes prosecu-
tions for felonies by information after examination
and commitment by a magistrate, without indictment
by a grand jury, in the discretion of the legislature.
Upon a writ of error to the supreme court of that state
by a party who had been convicted of the crime of mur-
der in the state. court upon an information instead of
an indictment, which was founded on the proposition
that the provision of the fourteenth amendment to the
constitution of the United States, that no state shall
‘‘deprive any person of life, liberty or property with-
out due process of law,’’ required an indictment as
necessary to due process of law, the supreme court of
the United States held otherwise and that it was within

77 Hx parte Gain, 121 U. S. 1, 78 Hurtado v. People of Cali-
30 L, Ed. 849, 7 Sup. Ct. Rep. fornia, 110 U. S. 516, 28 L. Ed.
781. 232, 4 Sup. Ct. Rep. 111.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 127

the power of the states to provide punishment of all

manner of crimes without indictment by a grand jury.”®

Evidently the court, in In re Bain, supra, did not
consider that such decision upon the writ of error in
the Hurtado case in any manner was in conflict with the
doctrine it there expressed, as it is referred to without
dissent, such provision with respect to indictments,
evidently being construed as applicable to prosecutions
in the federal court. In the majority opinion in the
Hurtado case, no reference is made of the provisions
of. the fifth amendment to the federal constitution,
while in the dissenting opinion it is argued that such
provision has general application the same as other
constitutional rights mentioned therein. That court
had early held that such provision only applied to
prosecutions in the federal courts,’?® and subsequently
that the first eight amendments are so limited.®°

The constitution of the state of Wisconsin, sec. 8,
art. 1, originally declared that ‘‘no person shall be
held to answer for a criminal offense unless on the pre-
sentment or indictment of a grand jury.’’ This clause
was amended in 1870 so as to read ‘‘no person shall
be held to answer for a criminal offense without due
process of law.’’ It was held that the words ‘‘due
process of law’’ in the amendment, did not require in
case of felony a presentment or indictment by a grand
jury.®!

- § 42. Not stating an offense or otherwise in conformity
to law.—Whether act charged is or is not a
crime.

It was early held that the question whether the act
charged was or was not a crime, was one which the
trial court was competent to decide and which the

7? Barron v. Baltimore, 7 Pe 591, 40 L. Ed. 819, 16 Sup. Ct.

ters, 243, 8 L. Ed. 672. 644,
80 Brown v. Walker, 161 U. S. 81 Rowan v. State, 30 Wis. 129.
128 HABEAS CORPUS.

supreme court of the United States would not review
upon habeas corpus. That the trial court had juris-
diction and hence habeas corpus would not lie.®?

The same determination was reached in a later case,
in which it was said: ‘‘ Whether an act charged in an
indictment is or is not a crime by the law which the
court administers (in this case a statute law of the
United States), is a question which has been met at
almost every stage of criminal proceedings; on motion
to quash the indictment, on demurrers, or motions to
arrest judgment, ete. The court may err, but it has ju-
risdiction of the question. If it errs there is no remedy
after final judgment, unless a writ of error lies in the
case.’? Quoting from the opinion of Chief Justice
Marshall in the case of Ex parte Watkins, supra: ‘‘To
determine whether the offense charged in the indict-
ment be legally punishable or not, is among the most
unquestionable of its (the court’s) powers.’’

In a'more recent case, the question came before the
supreme court of the United States upon a writ of
habeas corpus, prior to conviction and sentence, and it
was there held: ‘‘ Whether the act charged is or is not
a crime,’’ is one which the trial court is competent to
decide, and under the circumstances of the case, the
court would not review the validity of the indictment
upon habeas corpus.®4

A statute of New York in terms prohibited bookmak-
ing and declared such to be a crime, and prescribed the
punishment for violation of the statute. It was held
that there was a distinction between betting and book-
making, and where a person was prosecuted and con-
victed under said act, who simply engaged in betting

82 Ex parte Watkins, 3 Peters, 84 Hyde v. Shine, 199 U. S. 62,
193, 7 L. Ed. 650. 50 L. Ed. 90, 25 Sup. Ct. Rep.
88 Wx parte Parks, 98 U. S. 18, 760,
23 L. Ed. 787.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 129

upon the result of races, which was not a crime, he was
discharged upon habeas corpus. The court held that
the information failed to allege facts which constituted
the offense of bookmaking, thus assuming that upon
habeas corpus after conviction, the court will examine
the information and determine whether or not a crime
is charged.®*

Rule in Indiana,

The doctrine as hereinbefore expressed was recog-
nized by the supreme court of Indiana, where an affi-
davit formed the basis of the charge, and such affidavit
was insufficient and inadequate to charge the offense.
It was held that such insufficiency was not jurisdic-
tional and hence not ground for discharge upon habeas
corpus. It appeared also that a statute of that state
provided that ‘‘No court or judge should inquire into
the legality of any judgment or process whereby the
party is in custody or discharge him when the term of
commitment has not expired in either of the following
cases. * * * Upon any process issued on any
final judgment of a court of competent jurisdiction.’’
It was said: ‘‘The case came clearly within this pro-
vision of the statute.’’ ®*

We have heretofore stated, upon authority of the
New York court of appeals, and the Wisconsin supreme
court, that such or similar statutes do not preclude in-
quiry as to the jurisdiction.

Rule in California.

In California, it has been held that the sufficiency
of a complaint or indictment or of the evidence to sup-
port it, cannot be inquired into upon habeas corpus, but
when the acts charged and proved do not constitute a

85 People ex rel. v. Langan, 86 McLaughlin v. Etchison, 127
196 N. Y. 260, 89 N. E. 921. Ind. 474, 22 Am. St. Rep. 658.
9
130 HABEAS CORPUS.

public offense, the defendant will be discharged upon
such a writ.8?

Where offense charged not within the statute.

It was held that a statute which makes it a misde-
meanor to play cards or games of any kind on Sunday,
did not include athletic sports, including base ball on
that day, and that such sports are not unlawful unless
expressly made so by statute. That habeas corpus was
the proper remedy for obtaining the discharge of a
person illegally imprisoned and held for playing base

ball on Sunday.®®

37 Ex parte McNulty, 77 Cal.
164, 11 Am. St. Rep. 257.

88 Ix parte Neet, 157 Mo. 527,
57 S. W. 1025, 80 Am. St. Rep.
638.

On a requisition from the gov-
ernor of Alabama for the extra-
dition of a person arrested in
‘Texas for trial in Alabama, on
‘an indictment for embezzlement
and larceny, the accused sought
his discharge through a writ of
habeas corpus on the ground of
the invalidity of the indictment
under the laws of Alabama, be-
cause it was not alleged therein
that the offenses were committed
in the state of Alabama, and in
violation of her laws; that the
indictments were wholly void, in
that no time or place was laid
therein, and it did not appear
where the offenses were com-
mitted, nor that they were not
long since barred. Relator fur-
ther showed that he had been a
citizen of Texas for more than
three years, and that his where-
abouts were known fo interested
parties in Alabama, this proof

being made under the statute
of limitations, presumedly of
Texas, as it did not appear how
long the offenses were committed
prior to the February term,
1889, of the Mobile city court,
at which term the indictments
were found, nor what was the
statute of limitations in Ala-
bama, if any, for embezzlement
and theft. The relator did not
deny that he was a fugitive
from justice within the rule upon
that subject, or raise any issue
thereon. The record showed a
proper demand and requisition;
copies of the indictment duly
certified, and the warrant of
the governor of Texas. The
Texas court of appeals held that
its position was, that if it rea-
sonably appears upon the trial
of the habeas corpus, that the
relator is charged by indictment
in the demanding state, whethei
the indictment be sufficient or
not under the laws of that state,
the court trying the habeas cor-
pus case, will not discharge the
relator because of substantial
REVIEW OF PROCEEDINGS AND JUDGMENTS. 131

Rule in federal courts.

The court in Ex parte Yarbrough, 110 U. S. 651, 28 L.
Ed. 274, 4 Sup. Ct. Rep. 152, adhered to its former deci-
sions, stating: ‘‘ Whether the indictment sets forth in
comprehensive terms the offense which the statute de-
scribes and forbids, and for which it prescribes a pun-
ishment, is in every case a question of law, which must
necessarily be decided by the court in which the case or-
iginates, and is therefore clearly within its jurisdiction.
Its decision on the conformity of the indictment to the
provisions of the statute may be erroneous, but it is er-
ror of law which could be corrected on a writ of error,
but which cannot be looked into on a writ of habeas cor-
pus limited to an inquiry into the existence of jurisdic-

tion on the part of that court.’’ °°
I notice that the case of Ex parte Siebold, 100 U. S.
371, 25 L. Ed. 717, has been cited as sustaining a con-

courts of Alabama the duty of
protecting the accused in the
enjoyment of his constitutional
rights, and if any of those rights
should be denied him, which is
not to be presumed, he could
then seek his remedy in this
court. We cannot discover that
the court of appeals declining to
pass upon the question, raised
in advance of the courts of Ala-
bama, denied to plaintiff in error
any right secured to him by the
constitution and laws of the
United States, or that the court
in announcing that conclusion
erroneously disposed of a federal
question.” Pearce v. Texas, 155
U. S. 311, 39 L. Ed. 164, 15 Sup.

defects in the indictment under
the laws of the demanding state.
The supreme court concurred in
this view, and stated that the
question resolved itself, into one
of the validity of the statute (the
statute of Alabama dispensing
with the allegations of time and
venue) on the ground of its re-
pugnancy to the constitution of
the United States. The state
court did not determine that
question, the denial of such right
depending upon a decision in
favor of the validity of the stat-
ute. What it did, was to leave
the question as to whether the
statute was in violation of the
constitution of the United

States, and the indictments in-
sufficient accordingly to the de-
manding state. “Its action in
that regard,” says the supreme
court, “simply remitted to the

Ct. Rep. 116.

89 See also In re Coy, 127 U.
S. 731, 32 L. Hd. 274, 8 Sup. Ct.
Rep. 1263.
1382 HABEAS CORPUS.

trary view and that if it appears upon the face of the
indictment that no offense is charged, the writ will lie
and the prisoner be discharged. There is no such in-
timation in the case referred to. Undoubtedly the
author has reference to what was stated in In re Coy,
127 U. S., supra, as follows: ‘‘ And as the laws of con-
gress are only valid when they are within the constitu-
tional power of that body, the validity of a statute
under which a prisoner is held in custody may be in-
quired into under a writ of habeas corpus, as affecting
the jurisdiction of the court which ordered his impris-
onment. And if their want of power appears on the face
of the record of his condemnation, whether in the in-
dictment or elsewhere, the court which has the author-
ity to issue the writ is bound to release him.’’ Citing
Ex parte Siebold. This declaration only goes to the
extent, if it appear upon the face of the indictment,
that the law prescribing the offense is repugnant to
the constitution, the court will discharge the prisoner,
not, if it, the reviewing court, should be of the opinion
that the indictment did not charge an offense.

§ 43. Charging an offense not within the jurisdiction of
the court.

The habeas corpus proceeding being a collateral
attack of a civil nature, it must clearly and affirmatively
appear upon the face of the indictment, after convic-
tion and sentence, that the indictment charged an of-
fense of which the court had no jurisdiction, so that
its sentence was void. The indictment in question did
show on its face that an offense was committed, and
it was said, if it did thus appear that it was com-
mitted within the territory over which the court had
jurisdiction, it did not affirmatively appear that the
crime was committed elsewhere.®°

90 United States v. Pridgeon, 153 U. S. 48, 88 L. Ed. 631, 14 Sup.
Ct. Rep. 746.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 133

§ 44. Grand jury disqualified.

The fifth amendment to the constitution of the United
States requiring the presentment or indictment of a
grand jury,'does not take up unto itself the local law as
to how the grand jury should be made up, and raise
the latter to a constitutional requirement and hence is
no ground for writ of habeas corpus.*!

Where a defendant pleads not guilty to an indict-
ment and goes to trial without making objection to the
mode of selecting the grand jury, the objection is
waived; even though a law unconstitutional or assumed
to be unconstitutional, may be followed in making the
panel.®? .

The doctrine of the state courts quite generally, if
not universally, is in accord with that pronounced by
the supreme court of the United States, in substance,
that convictions upon indictments presented by a grand
jury illegally constituted, or even under a statute which
is unconstitutional, are not subject to review upon
habeas corpus. In most of the cases it is held that ju-
rors so drawn are de facto officers. That if the indict-
ments were irregular or even invalid, this did not go to
the jurisdiction of the court.

_ Thus an indictment for grand larceny drawn under

a void statute was not subject to review upon habeas
corpus. That it was a de facto jury.®

The same conclusion was reached where an indict-
ment was found under a law, void because unconstitu-
tional.*4

The fact that the grand jury which found the indict-

®1In re Moran, 208 U. S. 96, 93 People v. Petrea, 92 N. Y.
51 L. Ed. 105, 27 Sup. Ct. Rep. 25. 128,
-92 United States v. Gale, 109 84People v. Fitzpatrick, 66
U. S. 65, 27 L, Ed. 857, 3 Sup. How. Pr. 14; Dolan v. People, 64
Ct. Rep. 1. N. Y. 485; Carpenter v. People,
64 N. Y. 483.
134 HABEAS CORPUS.

ment was illegal, will not be considered upon the hear-
ing of habeas corpus, even in a capital case; *> nor the
fact that an indictment was found by a grand jury
which held over, notwithstanding a new grand jury
had been selected and returned.*®

Again it was said, disqualification of grand jurors
do not destroy the jurisdiction of the court in which
an indictment is returned, if the court has jurisdiction
of the case and of the person.®”

A deficiency in the number of grand jurors pres-
cribed by law, there being present and acting a greater
number than that required for the finding of an in-
dictment, is not such a defect as vitiates the entire
proceedings and compels the discharge of the petitioner
on habeas corpus,®® while if such an indictment is found
by a less number than that specified by law, the court
cannot proceed at all. It is without jurisdiction.”
The supreme court of Iowa determined otherwise.

Exclusion of persons on account of race or color.

The supreme court of the United States in Neal v.
Delaware, 103 U. S. 370, 26 L. Hd. 567, and in Virginia
v. Rives, 100 U. S. 313, 25 L. Ed. 667, held that in the
selection of jurors to pass upon the life, liberty and
property of a colored person, there shall be no exclu-
sion of his race and no discrimination against them be-
cause of their color. That such discrimination would
be a violation of the constitution and laws of the United
States, which the trial court was bound to redress.

9%’ Ex parte Springer, 1 Utah, 88In re Wilson, 140 U. S. 575,
214. See also Ex parte Hay- 35 L. Ed. 518, 11 Sup. Ct. Rep.
mound, 91 Cal. 545. . 870.

®¢In re Gannon, 69 Cal. 541; 99In re Bonner, 151 U. S. 242,
State ex rel. Dunn v. Noyes, 87 256, 38 L. Hd. 149, 14 Sup. Ct.
Wis. 340, 58 N,. W. 386, 27 L. R. Rep. 323.

A, 776, 41 Am. St. Rep. 45. 1 State v. Belvel, 89 Iowa, 405,

97 Keizo v. Henry, 211 U. S. 56 N. W. 5465.

146, 53 L. Ed. 125.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 135

However, it was subsequently held that if it were a
fact that in such case there had been discrimination on
account of race or color in the selection of jurors
either grand or petit, it was a matter arising in the
course of the proceedings against the prisoner and
during his trial. It was said: ‘‘Whether the grand
jurors who found the indictment and the petit jurors.
who tried the appellant, were or were not selected in
conformity with the laws of New York, which laws
we have seen are not obnoxious to the objection that
they discriminate against citizens of the African race,
was a question which the trial court was entirely com-
petent to decide, and its determination could not be re-
viewed by the circuit court of the United States upon
a writ of habeas corpus without making that writ serve
the purpose of a writ of error.’’

It was further said: ‘‘If the question of the exclusion
of citizens of the African race from the list of grand
and petit jurors had been made during the trial in the
court of general sessions, and erroneously decided
against the appellant, such error in decision would not
have made the judgment of conviction void or his de-
tention under it illegal, nor would that error of itself
have authorized the circuit court of the United States
upon writ of habeas corpus to review the decision or
disturb the custody of the accused by the state authori-
ties. The remedy in such a case for the accused was.
to sue out a writ of error from this court to the highest
court of the state having cognizance of the matter,
whose judgment if adverse to him in respect to any
right, privilege or immunity specially claimed under
the constitution or laws of the United States could
have been re-examined and reversed, affirmed or modi-
fied by this court as the law required.’’?

2In re Wood, 140 U. S. 278, 35 L. Ed, 505, 11 Sup. Ct. Rep. 738.
136 HABEAS CORPUS.

§ 45. Trial by jury; waiver of constitutional right—In
general,

Article III. of the constitution of the United States,

provides, Sec. 2: The trial of all crimes except in cases
of impeachment, shall be by jury, and such trial shall
be held in the state where the said crimes shall have
been committed; but when not committed in any state,
the trial shall be at such place or places as the congress
by law have directed.
_ Article IV of the amendment to the constitution pro-
vides, that ‘‘In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an
impartial jury of the state, and district, wherein the
crime shall have been committed, which district shall
have been previously declared by law, and to be in-
formed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor; and to have the assistance of counsel for his de-
fense.’’

These two amendments have no application to the
states but only to the federal government.?

’ These provisions mean not only trial for felonies,
but misdemeanors also, involving the deprivation of
liberty.*

The constitution of the several states, while not pre-
cisely in the same language, are generally the same in
effect and similar to the foregoing provision of the
federal constitution. The changes therefrom are
usually such only as are essential to adapt the pro-
visions to the situation or conditions of states, with
the exception in some states that the words ‘‘in prose-

8 Twitchell v. Pennsylvania, 7 4Callan v. Wilson, 127 U. Ss.
Wall. 321, 19 L. Ed. 223; Fox v. 6540, 32 L. Ed. 223, 8 Sup. Ct.
Ohio, 5 How. 431, 12 L. Hd. 213; Rep. 1301.

Barron v. Baltimore, 7 Peters,
248, 8 L. Hd. 672.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 137

cutions by indictment or information”’ are substituted
in place of the words ‘‘in all criminal prosecutions.’’

The doctrine is asserted that if, under the constitu-
tion, the accused cannot waive a jury trial, a court has
no jurisdiction to try him, the judgment would be void,
and habeas corpus is the proper remedy in case of one
thus convicted and imprisoned.5

The material question therefore is, whether the pro-
vision of the constitution referred to, confers merely
a privilege or guarantees a right, and, in either event,
whether it is such that the accused may waive. Upon
this question there is a direct conflict of opinion. It
was stated by Ryan, C. J.: ‘‘A plea of not guilty to an
information or indictment for crime, whether felony
or misdemeanor, puts the accused upon the country,
and he can be tried by a jury only. The rule is uni-
versal as to felonies; not quite so as to misdemeanors.
But the current of authority seems to apply it in both
classes of crime, and this court holds it to be safer and
better alike in principle and practice. The right of
trial by jury upon information or indictment for crime,
is secured by the constitution upon a principle of public
policy, and cannot be waived.’’ ®

It was said later by the same court, not in any way
overruling what was stated in In re Lockwood, supra,
that the constitution of Wisconsin, as well as that of
New York, differing from the original provision in the
federal constitution in the respect named, ‘‘in terms
grants privileges.’’ It was further stated, however,
that if the constitutional provision under consideration
was correctly interpreted (referring to the opinion in
Cancemi v. People, immediately referred to herein) by
the New York court; that is to say, if the constitution
prescribes the tribunal for the trial of criminal pros-

5In re Staff, 63 Wis. 285, 23 N. 6 State v. Lockwood, 43 Wis.
W. 587. 403.
138 HABEAS CORPUS.

ecutions, and makes a jury an essential part of it, it
is beyond the power of the legislature to change the
tribunal by eliminating the jury therefrom, or by al-
lowing the accused to do so.”

One of the best considered cases where this question
was involved arose in New York. There the defend-
ant was on trial charged with murder. He consented
that the trial might proceed with eleven jurors. He
was convicted, and upon writ of error the court of ap-
peals of that state held the conviction was unlawful,
and that the accused could not waive this provision of
the constitution, so as to authorize the tribunal to ren-
der a valid verdict and sentence. The reasoning was
that the provision of the constitution relating to trial
by jury prescribed the tribunal in which and before
which criminal prosecutions must be tried, and that
a jury is an essential part of such tribunal and cannot
therefore be dispensed with; that neither the prosecut-
ing officer nor the defendant has authority to consent
to a change, or rather that such consent cannot have
the effect to change the character of the tribunal and
establish one different from that which the law pro-
vided.

Early cases in Ohio, to which we refer later, are often
cited as holding a contrary doctrine. If, however, there
was reason for such conclusion, which there is not, as
they did not involve felonies, as that term was then un-
derstood, they were effectually overruled by a subse-
quent decision of that court wherein it is stated: ‘‘ Mr.
Attorney General appears in court and submits to a re-
versal of the judgment and sentence upon the ground
that upon the trial of an issue raised by a plea of not
guilty in the higher grades of crime, it is not in the
power of the accused to waive a trial by jury, and by

7In ré Staff, 63 Wis. 285, 23 8Cancemi v. People, 18 N. Y.
N. W. 587. 128.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 139

consent, submit to have the facts found by the court,
so as to authorize a legal judgment and sentence upon
such judgment, and the court is of opinion that such is
the law.’ ®

Judge Cooley, in his work upon the constitution,
states that the right to a trial in all cases of felonies,
by a common-law jury of twelve men, cannot be taken
away by the legislature, nor even waived by the ac-
cused. (319)

The contention was made that the act of the trial
court in overruling the prisoner’s challenge to the
competency of jurors, was in fact a denial of the right
of trial by an impartial jury, guaranteed as a constitu-
tional right. It appeared that after the accused had
exhausted the full number of peremtory challenges to
which he was entitled, under the law, there remained
two persons upon the panel whom he had challenged for
cause, but such challenge was overruled. Such jurors
had declared that they had not only read the reports in
the papers, but also the proceedings at the coroneér’s
inquest; that they formed fixed and decided opinions,
which they still entertained and which it would require
strong evidence to remove, one of them declaring
also, that he did not think he could bring in a verdict
based solely on the law and the evidence as he might
hear it in court.

The supreme court denied leave to file petition for
writs of habeas corpus and certiorari, merely stating
without more: ‘‘The ground of the application does
not go to the jurisdiction or authority of the supreme
court of the district (of Columbia) and mere error can-
not be reviewed in this proceeding.’’ 1°

® Williams & Haynes vy. State, 10In re Schneider, 148 U. S.
12 Ohio St. 622. 162, 37 L. Ed. 406, 18 Sup. Ct.
Rep. 572.
140 HABEAS CORPUS.

Exception where statute gives accused an option..

It has been held that one accused of crime may ef-
fectually waive his constitutional right or privilege of
trial by jury, that this is a matter subject to legislative
control, and where the legislature by enactment con-
fers upon one accused of crime an option to exercise
whether he shall be tried by jury or not, and a power
upon the court to proceed with such trial, if the accused
so elect, then there is such a waiver of the right of trial
by jury as does not infringe the defendant’s constitu-
tional right. It is difficult to understand how or in
what manner such a statute can operate upon one so
accused, with respect to his consent. Their operation
must necessarily operate upon the court, and grant to
it a power to proceed and try an accused before it with-
out a jury, if he so elects. Such would be a better title.

If a trial by jury is a constitutional right, then upon
principle and within the authorities cited, such right
cannot be waived, and the legislature is without power
to authorize a court to dispense with a jruy in any case.
‘In defense of this legislation, it has been said: ‘‘We
find no provision in the constitution which denies to the
legislature the power to permit a person charged with
crime to waive a jury and be tried by the court.’’

Such is not the question, but rather, is there to be
found in the constitution any provision empowering
the legislature to permit such a waiver? It might as
well be said, We find no provision in the constitution
which denies to the legislature the power to permit a
person to waive his right to be tried and sentenced by a
constitutional tribunal. Yet it could hardly be held
that the legislature had such power. It is to be as-
sumed that whatever is not prohibited in express terms,

11In re Staff, 63 Wis. 285, 23 N. W. 587.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 141

relating to life or liberty or property, is subject to
legislature will.

The subject was one in respect to which the constitu-
tion did provide. Its language is, the accused ‘‘shall
enjoy the right (not the privilege) to a speedy and pub-
lic trial by an impartial jury,’’ ete. If such right is the
subject of waiver, it could as well be waived without
as with a legislative permission.

It was said in defense of such determination: ‘‘In |
the absence of a statute conferring it, there may be
some good reason resting in considerations of public
policy (although not very apparent) why an accused
should not have such privilege. But when the legis-
lature said that he may have it, and thus establishes a
different public policy, what constitutional rule is vio-
lated? Public policy is to some extent a creation of
the legislature. The statutes embody much of the pub-
lie policy of the state, and that policy may be one
thing today and the opposite tomorrow, as its wisdom
may enact. It was the public policy of the state to
deny to persons about to be tried for crime, the power
effectually to waive a jury. It is now its policy to per-
mit such waiver in the municipal court of Rock county,
and in some other courts.’’ }?

It is hardly to be expected that the courts generally
will accept this declaration in respect to the power of
the legislature to change at will without a change of
conditions, the rights of persons in respect to their
liberty, whatever they may do in respect to govern-
mental affairs and rights in property.

It seems to the writer, that public policy is something
that actually exists, and not that which is merely so de-
clared. A legislature may legislate in respect to it,
but have not the power to declare an act as against

12In re Staff, 63 Wis. 285, 28 N. W. 587. See also State v. Warden,
48 Conn. 349.
142 HABEAS CORPUS.

public policy which is not so in fact, any more than it
has power to declare a condition to be a nuisance which
is not such in fact. It is not clothed with any such
despotic power. It. perhaps may declare a policy in
certain matters, but that is distinct from public policy
as universally understood.'®

The Ohio cases referred to.

The Ohio cases heretofore referred to were trials
for misdemeanors. Under an act defining and regu-
lating the practice of certain courts, providing that un-
der a plea other than that of guilty, if the defendant
do not demand a trial by jury, the probate judge shall
proceed to try the issue, it was held one tried and con-
victed for selling intoxicating liquors, where the record
showed he did not demand a jury, was lawfully con-
victed and that the accused in not demanding a jury
waived his constitutional right in that respect.'*

It is not doubted any where that a person accused
of crime can only be tried by a jury in case of felonies,
where demand is made, that such is a constitutional
right.

In a subsequent case, in the same state, the same con-
clusion was reached, the offense charged being that of
obtaining goods under false pretenses. The court
states, however, ‘‘that expressions of opinion under the
former constitution (presumably contrary) arose not
from any supposed infringement of the constitutional
right, but because no law then existed conferring upon
the court the power to try the issue upon a plea of not
guilty.’? 15

We have heretofore stated the doctrine of that court

18 Yates v. Milwaukee, 10 Wall. 16 Dillingham vy, State, 5 Ohio
497, 505, 19 L, Hd. 984. St. 280.

1#Dailey v. State, 4 Ohio St.
57.
BEVIEW OF PROCEEDINGS AND JUDGMENTS. 143

which expressly declares that the right of waiver does
not exist.16

Doctrine in Michigan.

So in Michigan, a statute provided that a justice may
proceed to the trial of one accused of a misdemeanor,
without a jury, if the accused so elects or if no jury be .
demanded. One accused before such a justice of as-
sault and battery, who so elected, was held to have
waived his constitutional right of trial by jury. It
was, however, stated that the mere failure to demand a
jury would not have such effect, and also that there
was nothing in Hill v. People, 16 Mich. 351, which was
in conflict with such conclusion.‘

Alien juror; failure to object.

The doctrine of this court in respect to the question
of waiver, was emphatically declared in the case re-
ferred to (Hill v. People), the opinion being written by
Christiancy, J., and concurred in by Chief Justice
Cooley and the other members of the court in review-
ing the effect upon a judgment of conviction, of an
alien juror. The question was whether neglect to chal-
lenge a juror who was an alien and therefore incompe-
tent was a waiver of the right of trial by a constitu-
tional jury. It was stated by the learned judge who
delivered the opinion, that ‘‘a criminal prosecution, in
which the people in their sovereign capacity prosecute
for a crime against the laws of the whole society and
seek to subject the defendant to punishment, must to.us,
it seems, be considered as a proceeding in invitum
against the will of the defendant throughout, so far as
it relates to a question of this kind, or any question as
to the legal constitution of the court or jury by which

16 Williams v. State, 12 Ohio 17 Ward =v. People, 30 Mich.
St. 622. 116.
144 HABEAS CORPUS.

he is to be tried. It would be adding materially to the
generally recognized force of the obligation of ¢on-
tracts to hold that a defendant charged with a crime
might, without trial, enter into a binding contract with
the prosecuting attorney to go to the penitentiary for
a certain number of years in satisfaction of the of-
fense, and yet it would approximate such a position to
hold that he might be bound by a contract providing
for a trial before a court or jury unknown to the con-
stitution or the laws, the result of which trial might be
to place him in the same. penitentiary. The true
theory, we think, is that the people in their political or
sovereign capacity assume to provide by law, the
proper tribunals and modes of trial for offenses without
consulting the wishes of the defendant as such, and
upon them, therefore, devolves the responsibility not
only of enacting such laws, but of carrying them into
effect, by furnishing the tribunals the panels of jurors
and other safeguards for his trials, in accordance with
the constitution which secures his rights. The govern-
ment, the officers of the law, bring the jurors into the
box; he has no control over the matter who shall be
summoned or compose the panel upon which he may
exercise the right of challange; and the prosecution
must see that electors only are placed there, as the law
requires.’’ The judge, further considering the ques-
tion in the light of the danger that accompanies an op-
posite view, says: ‘‘Let it once be settled that defend-
ant may thus waive this constitutional right, and no one
can foresee the extent of the evils which might follow;
but the whole judicial history of the past must admonish
us that very serious evils should be apprehended, and
that every step taken in that direction would tend to in-
crease the danger. One act of neglect might be recog-
nized as a waiver in one case and another in another,
until the constitutional safeguards might be substan-
tially frittered away. The only course is to meet the
REVIEW OF ‘PROCEEDINGS AND JUDGMENTS. 145

danger in limine, and prevent the first step in the wrong
direction. It is the duty of courts to see that the con-
stitutional rights of a defendant in a criminal case
shall not be violated, however negligent he may be in
raising the objection. It is in such cases emphatically
that consent should not be allowed to give jurisdic-
tion.’’ 18

The reasoning thus indulged in by the learned judge
is so eminently sound, in accordance with the true
spirit of the constitution, that I have felt it a duty to
quote at much length from the opinion. A sense of
justice should compel every man to protest against.
that doctrine which holds a man charged with crime
to a responsibility for the manner in which the courts
are constituted or trials conducted, where they are not
organized and do not proceed according to the law of
the land, simply because from ignorance or negligence
he fails to raise his voice against it. It seems the
supreme court of Wisconsin were not of the same mind
as the Michigan court. It was there held that the
alienage of a juror was ground of challenge, but not for
setting aside the verdict in a criminal case, not capital,
though the fact was unknown to the accused when the
jury was impaneled. It is broadly stated that there is
no distinction to be observed with respect to the ap-
plication of the doctrine of waiver in criminal and civil
cases.?®

Exception independent of statute. |

Another line of cases holds that it is competent for
one accused of a felony, not capital, to waive a part or
the whole of a jury independent of any: statute upon
the subject.”°

18 Hill v. People, 16 Mich. 351. wealth v. Daily, 12 Cush. 80;
1° State v. Vogel, 22 Wis. 471. Murphy v. Commissioners, 1

20 State v. Kaufman, 51 Iowa, Met. (Ky.) 365; Tyra v. Common-
578, 2 N. W. 275; Common- wealth, 2 Met. (Ky.) 1.

10
146 HABEAS CORPUS.

The argument seems to be in effect that this and
similar provisions of the constitution are in the nature
of privileges conferred upon an accused, and that he is
left to his option whether to avail himself of them or
not. That it may often be to his interest, as he views
it, to proceed with less than the constitutional number
of jurors, either in order to avoid unnecessary delay
or for other cogent reasons, and he ought not to be de-
prived of this right, as it is personal to himself. The
Iowa court, however, is firm in its opinion that this
waiver can only take place with the consent of the
eourt.?!

Question not directly passed upon by federal su-
preme court.

The supreme court of the United States took the
occasion in deciding Windsor v. McVeigh, 93 U. S. 274,
283, 23 L. Hd. 914, to say: ‘‘So a departure from regu-
Jar modes of procedure will often render a judgment
void; thus the sentence of a person charged with felony
upon conviction by the court, without the intervention
of a jury, would be invalid for any purpose.’’

The question was referred to by the same court, but
not determined. It was merely stated : ‘‘Upon the ques-
tion of the right of one charged with crime to waive a
‘trial by jury, and elect to be tried by the court, when
there is a positive legislative enactment giving the right
to do so and conferring power on the court to try the ac-
cused in such a case, there are numerous decisions by
state courts upholding the validity of such proceed-
ings.’? 2?

The same statement was made by that court.in In re

21 State v. Kaufman, 51 Iowa, 4 Ohio St. 57; Dillingham v.
578, 2 N. W. 275. - State, 5 Ohio St. 280; People v.
_ 22Hallinger v. Davis, 146 U.S. Noll, 20 Cal. 164; State v. War-
314, 318, 36 L. Ed. 986, 18 Sup.Ct. den, 46 Conn. 349; State v. Al-
Rep. 105; citing Dailey v. State, bee, 61 N. H. 428, 428.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 147

Belt, 159 U. 8. 95, 99, 40 L. Ed. 88, 15 Sup. Ct. Rep. 987,
citing additional cases. The court held though the
question of the validity of such a statute was to some
extent involved, that the supreme court of the district
of Columbia had jurisdiction and authority to determine
the validity of the act. That the supreme court could
not review the action of that court, on habeas corpus.
That it had before been decided that it had no appellate
jurisdiction over the judgment of the supreme court
of the district of Columbia in criminal cases or on
habeas corpus.

Plea of guilty; question not involved.

It has been argued that to hold that one accused of
crime could not, even under a statute which permitted
it, waive a trial by jury, would prevent a court from
accepting a plea of guilty. That such a plea is in effect
a waiver of the constitutional right. This argument
is met, that where such a plea is interposed, there is no
trial. No issue is joined upon which there could be a
trial. That such a condition was not within nor in-
tended to be within the constitutional prohibition.2?

§ 46. Trial in the county or district wherein the of-
fense shall have been committed.

The constitution of the states generally contain a
provision substantially stating that in prosecutions by
indictment (or information) that the accused shall en-
joy the right to a speedy trial by an impartial jury of
the county or district wherein the offense shall have
been committed, which county or district shall have
been previously ascertained by law.

It is conceded that this requirement is jurisdictional,
unless waived, that where not observed the proceed-

23 People v. Noll, 20 Cal. 164.
148 HABEAS CORPUS.

ings of the court are void, and in case of conviction
habeas corpus will lie for the discharge of the pris-
oner.

The language is of the ‘‘county or district’’ and
some conflict of opinion has resulted in determining
the precise meaning of this expression. The supreme
court of Kansas were of the opinion that the term
meant judicial district,4 while the supreme court of
Nebraska declined to accept such construction, and de-
termined that the term meant the precise portion or
division of the territory of the state over which the
court may in criminal matters, exercise power at any
particular sitting.?® .

And such seems to be the generally accepted defi-
nition. The reasoning is that the object of the pro-
vision is to secure to the accused a trial by a jury from
the neighborhood or vicinage where the crime is sup-
posed to have been. committed, where the accused is
known and where his good character will avail him.

It is also generally held that the constitution merely
confers a privilege which the accused may waive. It
is not conferred upon him from any consideration of
public policy.Ӣ

That it is waived upon an application by the accused
for a change of venue.??

It is not waived, however, where the change of venue
is had on the application of the state.?8

Nor is it waived when proceedings for a change are
had when the accused is not in court unless there is an
express waiver by the accused, nor unless an affidavit

24 State v. Knapp, 40 Kan. 148, 27 State v. Crinklaw, 40 Neb.
19 Pac. 728, 579, 59 N. W. 870; Bennett v.

25 Olive v. State, 11 Neb. 1, 7 State, 57 Wis. 69, 14 N. W. 912;
N. W. 444; State v. Crinklaw, 40 In re Staff, 63 Wis. 285, 23 N.
Neb. 759, 59 N. W. 370; Wegrich W. 587; State v. Lockwood, 43
v. People, 89 Ill. 90. Wis. 403.

26 State v. Crinklaw, 40 Neb. 28 Wheeler v. State, 24 Wis. 52.
759, 59 N. W. 370.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 149

for such change is presented to the court and:a motion
therefor based on the same.?9

A statute is not invalid, as repugnant to this consti-
tutional right, which provides that where a mortal
wound shall be given in one county, by means whereof
death shall ensue in another; the offense may be prose-
cuted in either county.®°

Nor where it provides that the prosecution of an
offense which was committed within one hundred rods
of the line dividing two counties, may be prosecuted
and punished in either county.*! |

A newly created county has jurisdiction of the of-
fense where the accused is charged with its commis-
sion, prior to its organization upon territory within its
boundary lines.®?

And it has thus been held although a prosecution
was actually pending in the old county at the time the
new county was created, which was dismissed prior to
the institution of the proceedings in the new county.*?

The constitutional provision includes the trial of
offenders for embezzlement; hence where an agent is
not required by statute to pay over money collected at
a particular place and to a particular person, he is not
triable on the charge of embezzlement of moneys col-
lected in other counties, in the county in which by con-
tract it was his duty to pay over the same, and where
he has failed to do so, unless it is shown that a demand
of payment was made there by the person who is en-
titled to receive such moneys or that they were there
converted to the defendant’s use.3*

29 Lester v. State, 91 Wis. 249, Bunker, 38 Kan. 737. See also

64 N. W. 850.

80 State v. Pauley, 12 Wis. 537.
81 Powell vy. State, 52 Wis. 117.
82People v. Stakes, 103 Cal.
193, 37 Pac. 207; McElroy vy.
Murrah v.
State v.

State, 13 Ark. 708;
State, 51 Miss. 675;

State v. Jones, 9 N. J. L. 357;
State v. Donaldson, 3 Heisk. 48.
33 People v. Stakes, 103 Cal.
198, 37 Pac. 207.
34 Dix v. State, 89 Wis. 250, 61
N. W. 760.
150 HABEAS CORPUS.

§ 47, Refusal to change venue.

Attention is directed to the fact that the provisions
of statutes in respect to change of venue in criminal
cases, are of two classes. One in which the court has a
discretion which he may exercise, as to the sufficiency
or merits of the application. The other, where the
statute is mandatory upon certain facts being made to
appear. Of the former class may be mentioned those
cases where the statute provides fora change of venue
on account of the prejudice of the people. Not, how-
ever, prescribing what shall be sufficient to warrant the
granting of the application, but leaving it to the judg-
ment of the court to determine the question from such
evidence as may be produced by the respective par-
ties. No question of jurisdiction is involved, nor even
error in the absence of a clear abuse of discretion.

Of the latter class are those where the statute com-
mands as in Oklahoma: ‘‘If the offense charged in the
indictment be punishable with death or imprisonment
for life, if it be made to appear by the affidavit of the
accused and two disinterested persons that a fair and
impartial trial cannot be had in such county, a change
must be granted.’’ If such affidavits are pre-
sented, it is evident the court has no discretion but to
change the place of trial. It is absolutely without
power to proceed, and where notwithstanding a com-
pliance with such statute the court has assumed juris-
diction and proceeded to judgment and sentence, the
party will be discharged upon habeas corpus. The
judgment of conviction declared void, the prisoner will
not be absolutely freed, but remanded to the custody
of the sheriff and a mandate issued to the court in
which he was tried, directing it to proceed with the
cause as expressed.*®

85 In re Justus (Okla. Crim. Ct. App.), 104 Pac. 933.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 151

In some of the states, notably Wisconsin, a statute
provides that upon presentation to the court that ‘‘the
accused has good reason to believe and does believe that
he cannot have a fair trial on account of the prejudice
of the judge,’’ naming him, it is made the duty of the
court to change the place of trial to some county in an
adjoining circuit, or he may call in another judge to try
the case, and it is held that thereafter the court is with-
out discretion; he loses all jurisdiction.*®

§ 48. Review of commitments by magistrate.——In gen-
eral.

It may be asserted that in reviewing commitments
made by examining magistrates in state courts, upon
habeas corpus, that the reviewing court is limited to a
determination of the question of jurisdiction. The dis-
tinction between the extent of the review in such cases
and where there has been a conviction and sen-
tence by a court, is, what may be deemed to consti-
tute jurisdiction. As we have seen, in the latter the
court only examines the record, in so far as to deter-
mine whether the court had jurisdiction of the subject
matter, and of the person, and had not exceeded in its
judgment the powers conferred upon it by law. That it
will not examine the indictment or information to dis-
cover whether an offense is charged, nor the evidence
introduced in support of the charge. That the rem-
edy to reach such question is by writ of error or other
remedy provided to correct errors committed by the
court. While in the former in many jurisdictions, ju-
risdiction depends not only upon jurisdiction of the
subject matter and of the person, but also whether
there is competent evidence supporting the charge.

36 Rines v. Boyd, 7 Wis. 155; W. 52; State v. Sasse, 72 Wis. 3,
Runals v. Brown, 11 Wis. 185; 88 N. W. 343; Spence v. Dick,
Fatt v. Fatt, 78 Wis. 6338, 48 N. 103 Wis. 407, 79 N. W. 421.
152 HABEAS CORPUS.

Not the sufficiency of the evidence to support it. That
is a question within the jurisdiction of the magistrate.

From a statement in the opinion of Chief Justice
Marshall in Ex parte Bollman, 4 Cranch, 75, 28 L. Ed.
554, it might be inferred that the court upon habeas cor-
pus, might determine the sufficiency of the evidence in
so far as to determine therefrom whether the charge
was wholly groundless. Thus it is said: ‘‘It is unimpor-
tant whether the commitment be regular in point of for
or not, for this court having gone into an examina-
tion of the evidence upon which the commitment was
grounded, will proceed to do that which the court below
ought to have done.’? Page 114. ‘‘This having been
a mere inquiry, which without deciding upon guilt,
precedes the institution of a prosecution, the question.
to be determined is, whether the accused shall be dis-
charged or held for trial * * * If, says a very
learned and accurate commentator, upon this inquiry
it manifestly appears that no such crime has been com-
mitted or that the suspicion entertained of the prisoner
was wholly groundless, in such case only is it lawful to
totally discharge him, otherwise he must either be com-
mitted to prison or give bail.’? Page 124.

However, the state courts do not interpret such lan-
guage as including a determination of the sufficiency of
the evidence.

Doctrine stated by the Wisconsin court.

It is stated by the Wisconsin court, in an elaborate
opinion by Justice Marshall: ‘‘That declaration (the
quotation from Ex parte Bollman) has always been
adhered to by the federal courts and followed gener-
‘ally by all courts where jurisdiction in habeas corpus
proceedings, or the practice therein, is not otherwise
regulated by statute.’ * * * ‘While it is true
that such writ never takes the place of a writ of error,
REVIEW OF PROCEEDINGS AND JUDGMENTS. | 153

and is confined to jurisdictional defects, when it is re-
sorted to, merely for the purpose of liberating a person
detained in custody to await his trial on a charge of
being guilty of a criminal offense, the question whether
there was any evidence for the magistrate to act upon
and whether the complaint charges any offense known
to the law, are jurisdictional matters. The reviewing
court in the exercise of its function, must necessarily
pass upon and reverse or affirm the decision of the
committing magistrate, if such matters are properly
presented for its consideration, according to its deter-
mination thereof, and in doing so, does not go beyond
jurisdictional defects. It can examine the evidence
only sufficiently to discover whether there was any sub-
stantial ground for the exercise of judgment by the
committing magistrate. It cannot go beyond that and
weigh the evidence. It can say whether the complaint
will admit of a construction charging a criminal of-
fense, or whether the evidence rendered the charge
against the prisoner within reasonable probabilities.
That is all. When it has discovered that there was
competent evidence for the judicial mind of the exam-
ining magistrate to act upon in determining the exist-
ence of the essential facts, it has reached the limit of
its jurisdiction on that point. If the examining magis-
trate acts without evidence, he exceeds his jurisdiction;
but any act upon evidence worthy of consideration in
any aspect is as well within his jurisdiction when he
decides wrong as when he decides right.’’ 3”

The court quotes from the opinion in Ex parte Jones
(C.C.), 96 Fed. Rep. 200, as follows, from the syllabus:
‘“‘The sufficiency of the evidence by which an accused
was committed by a magistrate is not open to review
in a proceeding by habeas corpus, but where, although

87 State ex rel. Durner v. Huegin, 110 Wis. 189, 236, 237, 85 N. W.
1046, 62 L, R. A. 700.
154 HABEAS CORPUS.

there was evidence of the commission of the offense,
there was no competent evidence, even tending to in-
criminate the person charged, he should be discharged
on habeas corpus.’’ And from the concluding part of_
the opinion: ‘‘Tt is true there was evidence before the
commissioner tending to show that the offense charged
had been committed by some one, but a careful exam-
ination discloses no legal evidence on which the com-
missioner could exercise his judgment in holding the
petitioner for trial. An order will be made discharg-
ing the petitioner.’’

Doctrine stated by the Minnesota court.

The Minnesota court is in accord with the doctrine
thus expressed. There it has been held that upon ha-
beas corpus the evidence before the committing magis-
trate may be examined for the purpose of determining
whether it reasonably and fairly tends to show the com-
mission of the offense charged and also whether it
fairly and reasonably tends to establish probable cause
for charging the accused with having committed it.
However, the weight of the evidence is not subject to
review further than necessary to determine that ques-
tion.88

There are courts, as has been stated, who make
the distinction between a review of proceedings had
before a committing magistrate and a review of the
final judgments of courts upon habeas corpus, but
many cases cited in encyclopedias and text books do
not bear upon this distinction, but state the general
rule applicable to review of judgments as applicable to
such preliminary examinations.

Doctrine in Indiana.

In Indiana it seems to have been held that extrinsic
evidence may be considered showing a want of juris-

88 In re Snell, 31 Minn. 110, 16 N. W. 692.

~
REVIEW OF PROCEEDINGS AND JUDGMENTS. 155
diction. Thus, where one charged with having ob-
tained property under false pretenses, was committed
by the magistrate in default of bail and applied for a
writ of habeas corpus upon the hearing thereon, it
seems from the report of the case, evidence was in-
troduced with respect to the place where the crime was
committed, whether permissible under statute or not,
is nét disclosed. The court below remanded the pris-
oner, but the supreme court reversed the judgment,
upon the ground that it appeared from the evidence
that the alleged crime was committed in another state.
The proceedings before the magistrate were attached to
the return, and the testimony of the prosecuting witness
may have disclosed that the crime was committed in
another jurisdiction. However, the decision is based
upon the evidence adduced before the court.®®

We have seen that the whole record including the
evidence, may be introduced upon traverse of the re-
turn,’° and that the court may determine therefrom
whether there was any competent legal evidence to es-
tablish the commission of the crime.

‘Where prior to commitment the writ was issued, and
the recitals in the complaint and warrant were tra-
versed, and it appeared that the dam erected which was
the nuisance alleged for the maintaining of which the
parties were charged, was so maintained in a different
county, the prisoners were discharged. The magistrate
was without jurisdiction, although it appeared that in-
jurious effects from such alleged nuisance were present
in the county in which the proceedings were pending.*!

so Stewart v. Jessup, 51 Ind.

418, 19 Am. Rep. 739.
40State ex rel.

nell, 103 Ind. 569, 2 N. H, 229;

Durner v.
Huegin, 110 Wis. 189, 85 N. W.
1046, 62 L. R. A. 700; Wright v.
State, 5 Ind. 290; Jones v. Dar-

In re Snell, 31 Minn. 110, 16 N.
W. 692.

41In re Eldred, 46 Wis. 530, 1
N. W. 175. It has been held with
respect to a proceeding in an in-
ferior court, where a person was
held on a mittimus issued by a
156 HABEAS CORPUS.

And again, where a return set forth a commitment
under a conviction before a court of special sessions,
it was held that the relator might impeach it by show-
ing that only two justices were in fact present, and that
the proceedings were therefore coram non judice.*?

Statutes; extent of inquiry under.

In many states statutes exist, to a certain extent pre-
scribing the powers and duties of an appellate court
upon review of the determination of a committing mag-
istrate upon habeas corpus, and it has been quite gen-
erally held that they contemplate the examination of
the proceedings before the committing magistrate so
far as necessary to determine whether he acted upon
competent evidence tending to establish the facts, and
also the introduction of new evidence on issue.joined
as provided.*®

It has been held that the proceedings before a mag-
istrate is not a judicial trial. That it is a mere judicial
inquiry, for the purpose of determining whether an of-
fense has been committed and there is a probability
that the accused was guilty thereof and should be placed
on trial therefor. No plea or issue is necessary. No
jury is demandable or proper. The doctrine of res
adjudicata does not apply so that the result of one in-
quiry will preclude another. It is a proceeding that

justice of the peace on a convic- such evidence was reversible
tion of vagrancy, where the ju- error. Smith v. Clausmeir, 136
risdiction of the justice was de- Ind. 105, 35 N. B. 904.

nied, that it was competent to 42 People v. Deonie, 5 Park. 62;
show that the affidavit set out in People v. Devine, 21 How. Pr. 80.
the record and purporting to be 48 People ex rel. v. New York

that on which the warrant issued C. Protectory, 106 N. Y. 604, 13
for petitioner, and on which he 'N. B. 485; People v. Tompkins,
was tried, was in fact not filed 1 Parker Cr. R. 187; State ex
with the justice until after the rel. Durner v. Huegin, 110 Wis.
trial and imprisonment of peti- 189, 241, 85 N. W. 1046, 62 L.
tioner; that the exclusion of R. A. 700.
‘REVIEW OF PROCEEDINGS AND JUDGMENTS. 157

was unknown to the common law—a mere statutory
creation, a mere personal privilege, which the accused
must be accorded, unless he waives it. Being statutory
and special, evidence tending to establish the facts jus-
tifying a commitment or holding to bail for trial, is ju-
risdictional the same as any other statutory essential.
The statute awarding the privilege provides that the
examining magistrate shall act in determining the facts,
upon evidence; and that contemplates that there must
be evidence and competent evidence tending to estab-
lish the facts. It is jurisdictional in the same sense
that the production of some competent evidence before
a quasi judicial body, authorized by statute to act only
upon evidence, is jurisdictional.**

Decision of federal supreme court not in accord
with doctrine stated.

In Horner v. United States, 143 U. 8. 570, 36 L. Ed.
266, 12 Sup. Ct. Rep. 522, on a complaint before a com-
missioner of the United States, against the petitioner
for a criminal offense in violation of a federal statute
prohibiting the sending by mail of circulars concerning
lotteries, the petitioner was committed to await the ac-
tion of the grand jury. A writ or habeas corpus issued
by the circuit court of the United States was dismissed
by that court. The petitioner appealed to the su-
preme court. It was contended in behalf of the -peti-
tioner, that the circular was not included in the prohibi-
tion of the statute.

It was said: ‘‘But we are of the opinion that ques-
tion ought not to be reviewed by us on this appeal. The
point raised is that the Austrian bond scheme is not a
lottery. That is a question properly triable by the
court in which an indictment may be found against
Horner. He is now held to await the action of a grand

44 State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046, 62
L, R. A. 700.
158 HABEAS CORPUS.

jury. His case is in the regular course of criminal
adjudication. It is not proper for this court on this
appeal, nor was it proper for the circuit court, on the
writ of habeas corpus, to determine the question as to
whether the scheme was a lottery. ‘The commissioner
had jurisdiction of the subject matter involved and of
the person of Horner and the grand jury would have
like jurisdiction. * * * The case presents for the
determination of the court in which the indictment may
be found the question as to whether the scheme was a
lottery, and it is not for any court to determine it in
advance on habeas corpus. If an inferior court or
magistrate of the United States has jurisdiction, a su-
perior court of the United States will not interfere by
habeas corpus.*®

The New York code of criminal procedure (sec. 149)
provides that the depositions upon which a warrant
may issue ‘‘must set forth the facts stated by the prose-
cutor and his witnesses, tending to establish the com-
mission of crime and the guilt of the defendant.’’ ‘‘If
the magistrate be satisfied therefrom, that the crime
complained of has been committed, he must issue a
warrant of arrest.’’ (Sec. 150.)

After the facts showing that a crime had been com-
mitted, were stated, it was stated in the deposition that
‘‘deponent believes and has reason to believe that said
store was broken into and burglarized by James H.
Swart and Wallace Van Evera and another, from the
fact that said parties were about that time, i. e., after
one o’clock that night, prowling around and near the
premises.’’ It was held that the statement of facts
was sufficient to give the magistrate jurisdiction and

45 See also Stevens v. Fuller, Oteiza y Cortes, 136 U. S. 330,
136 U. S. 468, 34 L. Ed. 461, 10 34 L. Ed. 464, 10 Sup. Ct. Rep.
Sup. Ct. Rep. 911; In re Luis 1081.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 159

to determine that there was reasonable ground to be-
lieve that the persons charged were guilty thereof.**

The court laid stress upon the word ‘‘prowling”’
which it defined to mean ‘‘to rove, or wander over in a
stealthy manner; to collect by plunder; to rove or wan-
der stealthily as one in search of plunder,’’ and held
that the deposition disclosed an offense had been com-
mitted in the night, and that at or near the time of its
commission the accused were roving stealthily around
the premises in search of plunder.

It was declared: ‘‘If the facts and circumstances.
stated in this deposition were sufficient to call for the
judicial determination of the justice as to whether
there was reasonable ground to believe that the accused
had committed the offense, then the defendant was pro-
tected (the action being for false imprisonment and
malicious prosecution, two counts) although he may
have erred in judgment.

““The court distinguishes the case from that of Blod-
gett v. Race, 18 Hun, 132, and similar cases, which were
to the effect that an affidavit or complaint upon which
a warrant of arrest is issued, made upon information
or belief only, or upon hearsay, or mere suspicion, is
insufficient to confer jurisdiction upon a magistrate as
to the person of a defendant and that a warrant issued
without such jurisdiction affords no protection against
a charge of illegal arrest. It was said in those cases
no facts were stated.”’

It seems that in New York a proceeding is authorized
to inquire into the commission of crime, commenced by
information. The proceeding evidently is somewhat
similar to that preliminary to the arrest and examina-
tion of offenders under the statute; wherein an infor-
mation is required tobe laid before the magistrate who

4¢ Swart v. Rickard, 148 N. Y. 264, 42 N. HE. 665.
160 HABEAS CORPUS.

must examine under oath the informant or prosecutor,
and any witnesses he may produce and take their de-
positions in writing and cause them to be subscribed
by the parties making them. The depositions must set
forth the facts, etc. In fact I assume it to be that it is
the preliminary step in such a proceeding. The code
further provides, that the magistrate before whom an
information is laid, may issue subpoenas for witnesses,
either in behalf of the people or the defendant.

An information having been laid before a magis-
trate, and a subpoena issued requiring the attendance
of a person as a witness, the latter sought by an al-
ternative writ of prohibition to prevent proceedings
against him for contempt in disobeying the commands

‘of the subpoena, thus raising a question of jurisdiction
which in that case involved the sufficiency of the infor-
mation.

The court stated there was some confusion as well as
doubt as to what an information was, and assumed that
there was a distinction between it and the deposition
provided for in the same statute, and in the absence of
any specific direction as to its requisites, it stated that
the deposition must state facts tending to show a crime
had been committed and that there is reasonable ground
to believe that the defendant committed it. The infor-
mation need not go so far as the deposition, yet it can-
not rest wholly on information and belief, but facts
enough must be stated to show that the complainant is
acting in good faith, and that he has reasonable grounds
to believe that a crime has been committed by some
person named or described, and must be upon oath. I
am of the opinion that prior to this determination, and
prior to this statute, that a proceeding was recognized
—whether it was sanctioned by judicial determination
I do not know—in the nature of an inquisition to ascer-
tain who the offender might be, and hence not required
that any person should be named.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 16f£

It was further said, ‘‘suspicion is not enough and in-
formation and belief are not enough, unless facts
are stated showing the source of information and the
grounds of belief. There is then a proper foundation
upon which to issue subpoenas and take depositions;
whereas without it the inquiry is prosecuted on the
mere chance that some crime may be discovered. The
highest care of the law is personal liberty, and, constru-
ing the statute in the light of principle, we think the
respondent was without jurisdiction to entertain the
proceeding or to require the attendance of witnesses,,
because sufficient proof was not laid before him.’’

It was held, however, that prohibition would not lie.
That the remedy was by writ of habeas corpus. The
person served with a void subpoena may properly re-
fuse to obey the subpoena and if any attempt is made
to punish him, he may have relief, through the writ of
habeas corpus, which, if denied him in the first instance,
may be secured on appeal.

It appeared that the application for the warrant was
based upon a letter written by the defendant, at the
request of the district attorney charging grand larceny,
containing an explanation of his acts, and affirmatively
disclaiming any purpose to violate the law. The in-
formation upon which the warrant was issued charged
the defendant with the crime of grand larceny, in the
first degree, and contained the following facts: The
president of an insurance company in whom was vested,.
and who had for years been exercising the power to
make disbursements of the corporate funds upon his
sole authority, had agreed that the insurance company
would contribute to the presidential campaign fund of
the republican national committee up to the amount of
$50,000; and to protect the company against other de-
mands for political purposes, he requested the defend-
ant, one of the company’s trustees, to personally carry

out the agreement by advancing the money. The de-
11
162 HABEAS CORPUS.

fendant acquiesced in the president’s request, advanced
the money, and subsequently the president brought up
the subject of reimbursement, informally, before a full
attendance of the finance committee of the company.
The president’s purpose was not that the finance com-
mittee should take official action in the matter, but that
the trustees should be informed of what he had done,
and that he might have their opinions in the matter.
It was the general opinion that the president should
cause the relator to be reimbursed for his advances out
of the corporate funds; what was brought before this
body of the company’s trustees was the claim or right
of the defendant to be paid the moneys he had paid out
by the procurement of the president in order that the
latter’s agreement might be carried out; the president,
exercising the executive power with which he appears
to have been clothed, directed the treasurer of the com-
pany to draw a check for the amount of the defendant’s
claim, which was made payable and delivered to the
firm of which he was a member.

It was held, the use of the letter by the district at-
torney for the purpose and as aforesaid, must be re-
garded as a prior declaration made by the defendant.
It was equivalent to his examination, and as such dec-
laration affirmatively denied the existence of any crim-
inal intent, and there was no inherent improbability
therein, and no other evidence from which such intent
could be inferred, the magistrate had no jurisdiction
to issue the warrant. It was further held that the de-
fendant might be regarded as having aided and abetted
the act of the president of the corporation in contri-
buting corporate funds for the purposes of a political
campaign; that such act, at the time in question, was
neither a common-law nor a statutory crime, although
it was beyond the purpose of the corporation and was
wholly unjustifiable and illegal; that when the defend-
ant took part in the appropriation of the moneys in
REVIEW OF PROCEEDINGS AND JUDGMENTS. 163

question, unless he did so animo furandi, with the in-
tent to steal it, he was not properly charged with the
crime of grand larceny, whatever might be the civil
consequences of his act; that the case was not only bar-
ren of any other evidence calling for the exercise of
the judicial judgment of the magistrate, as to whether
there was probable cause to believe that the crime had
been committed, but there being no inherent improbabil-
ity in defendant’s statement that he had acted in the
honest belief that he was benefiting the company, in the
absence of any evidence contradicting it, the magis-
trate had no jurisdiction to issue the warrant.**

Writ ordinarily. will not issue pending examina-
tion.

The rule, however, has been stated, that courts ordin-
arily will not interfere pending examination before a
magistrate, on the ground, that to deny inquiry is to
hinder the discovery of such facts as lawful inquiry is
alone competent to reveal. That it is not a fit exercise
of jurisdiction to interpose merely because in the prog-
ress of the inquiry, and before it is finished, the pur-
pose is yet unaccomplished, and it is not ascertained
that any crime has been committed, or that there is any
ground for holding the prisoner.*®

Writ may issue prior to examination.

The provision for an examination of one arrested
and accused of crime it is said, is for the benefit of such
a person, in order that he might be informed of the
charge and that he might have the opportunity to ex-
amine the witnesses, and to make any statement in re-
lation to the charge. He could waive these proceed-

47People ex rel. Perkins v. 48In re Peoples, 47 Mich. 626,
Moss, 187 N. Y. 410, 80 N. E. 14 .N. W. 112.
388, 11 L. R. A. (N. S.) 528.
164 HABEAS CORPUS.

ings, however, and immediately sue out the writs of
habeas corpus or certiorari, that the legality of his
detention under arrest might be inquired into. He is
not obliged to await an examination before a magis-
trate.

The question was whether the magistrate had juris-
diction to issue the warrant, and it was said ‘‘and the
court will look back of his warrant and see if the facts
stated in the depositions of the prosecutor and his wit-
nesses support the warrant. If they did not furnish
reasonable and just ground for a conclusion that the
crime charged had been committed, then jurisdiction
was lacking to hold the prisoner in custody for any
time.’’ 4°

The Iowa statute.

The Iowa statute provides (sec. 3482) that in a pro-
ceeding by habeas corpus, the petitioner may deny the
sufficiency of the testimony to justify the action of the
committing magistrate, and that upon the trial, the
testimony taken before the magistrate may be given in
evidence in connection with any other testimony which
may be then produced. Under this statute, the real
question to be tried is, whether the petitioner ought to
be held in view of all the testimony that may be pro-
duced; and it is clear that the petitioner should be dis-
charged in view of such testimony, if it appear that he
ought not to be held, even if the testimony taken simply
before the magistrate showed otherwise.*°

The fact that the prisoner waived a preliminary ex-
amination is not a waiver of his right to introduce testi-
mony at the hearing upon a writ of habeas corpus.™*

V
49 People ex rel. Perkins v. . 50 Cowell y. Patterson, 49 Iowa,
Moss, 187 N. Y. 410, 80 N. EH. 514.
383,11 L. R. A. (N. S.) 528. 51 Cowell v. Patterson, 49 Iowa,

614.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 165

But the officer holding him in custody cannot admit
the allegations in the petition to be true, and thus de-
prive the court of its duty and power to act upon all
the evidence.*?

Title of magistrate or judge or legality of court
not subject to inquiry.

The rule is well settled, that where a court or officer
has jurisdiction of an offense and of the accused, and
the proceedings are otherwise regular, a conviction is
lawful, although the judge holding court or the magis-
trate before whom the proceedings are conducted, may
be only an officer de facto, and the validity of the title
of such judge or magistrate to the office, or his right to
exercise judicial functions, cannot be determined upon
habeas corpus.®?

The only question involved in cases where authority
is exercised by one claiming it, is whether the particu-
lar officer is such de facto, as distinguished from a mere
intruder. Numerous definitions have been given as to
what may constitute one an officer de facto. It may be
broadly stated, that one who goes in under color of
authority, though without legal right is such an

“officer. However, an officer de facto must be in the ac-
tual possession of the office, exercising its functions.
One claiming the office and attempting to exercise its
functions or intruding while another is in the actual
possession is not an officer de facto. There cannot be
two de facto officers of the same office at the same time.

52 State ex rel. Hart v. Rose-

crans, 65 Iowa, 382, 21 N. W.
688.

583 Ex parte Ward, 173 U. S.
452, 48 L. Ed. 765, 19 Sup. Ct.
Rep. 459; McDowell v. United
States, 159 U. S. 596, 40 L. Ed.
271, 16 Sup. Ct. Rep. 111; Cocke

v. Halsey, 16 Pet. 71, 10 L. Ed.
891; Hussey v. Smith, 99 U. S.
20, 25 L. Ed. 314; Norton v.
Shelby County, 118 U. S. 425,
445, 30 L. Ed. 178, 6 Sup. Ct.
Rep. 1121; Ball v. United States,
140 U. S. 118, 35 L. Ed. 377, 11
Sup. Ct. Rep. 761.
166 HABEAS CORPUS.

Thus where one in actual possession steps out of the
place where the business is usually conducted, with no
intention of abandonment, and another intrudes and at-
tempts to exercise its duties, he is not an officer de
facto.°*

And where a person exercises the functions of an of-
fice, not in possession under color of right, as where a
lawyer is selected to act as judge, but not by any public
authority, he is not considered an officer de facto.*®

And also where a person exercised an office which
had never been lawfully created. In such case there is
no office.®

The rule is most generally applied where the office
has been lawfully established. Cases have arisen where
the rule has been adopted where the office was estab-
lished, but the incumbent provided therefor was not to
assume the duties thereof until a future day. The mu-
nicipal court of the city and county of Ashland in Wis-
consin was established by an act which was published
March 15, 1889, and provided for an election of a judge
thereof on the first Tuesday of April, 1889, and on the
first Tuesday of April every fourth year thereafter,
who shall hold his office for the term of four years
from the first Monday of January next succeeding his
election. The commencement of his regular term of
office therefore, would be the first Monday of January,
1890. A judge was duly elected on the first Tuesday of
April, 1889. Two days after such election, the governor
appointed the person so elected judge of said court
to hold the office until the first Monday of January,
1890. He entered upon the duties of the office and
while exercising the functions thereof, two persons
charged with the commission of a felony were tried in

54 Brady v. Theritt, 17 Kan. 464, 56 Fenelon v. Butts, 49 Wis.
ss Van Slyke v. Trempeauleau 342, 5 N. W. 784.
County F. & M. Co., 39 Wis. 390.
REVIEW OF PROCEEDINGS AND JUDGMENTS. 167

said court, convicted and sentenced. They each sought
to be discharged upon habeas corpus on the grounds,
first, that there was no such court in existence, and,
second, no such officer either de jure or de facto as
judge of said court. It was held that such court was
in existence at the time of the trial, conviction and sen-
tence of the accused, and that the incumbent was a
judge de facto of such court.®”

A precedent for such ruling was found, in In re
Boyle, 9 Wis. 264, where a somewhat similar question
was present, and a similar ruling, though thereafter in
a proceeding on quo warranto the person thus elected
as judge was ousted from the office.

The case of In re Manning was taken to the supreme
court of the United States, and the decision of the state
court affirmed.®®

57 In re Burke, 76 Wis. 357, 45 58In re Manning, 139 U. S.
N. W. 24; In re Manning, 76 504, 35 L. Ed. 264, 11 Sup. Ct.
Wis. 365, 45 N. W. 26. Rep. 624.
168 HABEAS CORPUS.

CHAPTER V.
EXCESS OF JURISDICTION; REVIEW BY HABEAS CORPUS.

§ 49. Doctrine Stated.
60. Authority to Render the Particular Judgment.
51. Rule Stated by which to Determine the Question of Jurisdic-
tion.
52. With Respect to Place of Confinement.
53. Judgment and Sentence in Excess of that Prescribed by Law.
In General.
54. Rule in Particular States.
Alabama.
California,
Idaho.
Iowa,
Michigan.
New York.
Ohio.
Nebraska.
Missouri.
South Dakota.
Wisconsin.
55. Cumulative Sentences.
56. Indeterminate Sentence.
67. Parole; Subsequent Arrest and Imprisonment.
58. Trial for Two Distinct Offenses at Same Time.

§ 49. Doctrine stated.

The general rule, in substance, that where a court
has jurisdiction, it has the right to decide every ques-
tion in the cause, and its judgment, until reversed, is
binding on every other court, has been stated supra,
and also that where the court has jurisdiction of the
person and the subject matter, it is competent and
clothed with authority to decide all questions that may
arise in the particular case. Such are general rules.
It by no means follows that because a court had juris-
diction of the person, and of the offense under the

1
EXCESS OF JURISDICTION. 169

statute, that these two facts make valid, however er-
roneous it may bé, any judgment the court may render
in such a case.!

A court must proceed and determine within the
limits of the power conferred. If it renders a judg-
ment or decree in an action or proceeding, where juris-
diction has attached, that it was not authorized or em-
powered to render at all, such judgment or decree is
in excess of its jurisdiction, and for that reason a nul-
lity. So if it renders a judgment or decree which is
within its authority as to part only, but includes also
_ that which is not within its power, the excess will be a
nullity, and if the valid and invalid parts are indepen-
dent of each other, the whole will not be void, but only
such part as is in excess of the powers of the court. ©

It was stated by the supreme court of the United
States, that the general rule stated was only correct
where the court proceeds after acquiring jurisdiction
of the cause, according to the established modes govern-
ing the class to which the case belongs, and does not
transcend in the extent or character of its judgment
the law which is applicable to it.?

§ 50. Authority to render the particular judgment.

It was further stated: ‘‘The jurisdiction having at-
tached in the case, everything done within the power
of that jurisdiction when collaterally questioned, is
held conclusive of the rights of the parties unless im-
peached for fraud.’’ And also: ‘‘Though the court
may possess jurisdiction of a cause of the subject mat-
ter and of the parties, it is still limited in its modes of
procedure and in the extent and character of its judg-
ments. It must act judicially in all things and cannot
transcend the power conferred by law. If, for instance,

1 Ex-parte Lange, 18 Wall. 163, 2Windsor v. McVeigh, 93 U.
21 L. Ed. 872. S. 274, 23 L. Hd. 914.
170 HABEAS CORPUS.

the action be upon a money demand, the court notwith-
standing its complete jurisdiction over the subject and
the parties, has no power to pass judgment of im-
prisonment in the penitentiary upon the defendant. If
the action be for a libel or personal tort, the court
cannot order in the case a specific performance of a
_ contract. If the action be for the possession of real
property, the court is powerless to admit in the case,
the probate of a will. Instances of this kind show that
the general doctrine is subject to many qualifications.
The judgments mentioned given in the cases supposed,
would not be merely erroneous, they would be abso-
lutely void, because the court in rendering them would
transcend the limits of its authority in those cases.’’®

As stated in another case, by the same court, the
‘language (of the general rule) must be taken with
the qualification that the court must have authority to
render the particular judgment; that is a judgment of
the character which is rendered, and one which is em-
braced in the issue and for an offense for the commis-
sion of which the defendant stands charged. It mat-
ters not what the general powers and jurisdiction of a
court may be, if it act without authority in the par-
ticular case, its judgment and orders are merely nul-
lities; not voidable but simply void; protecting no one
acting under them, and constituting no hindrance to the
prosecution of any right.’’ 4

Thus where a court had imposed a fine and imprison-
ment where the statute only conferred power to punish
by fine or imprisonment, and the fine had been paid, it
was held the court could not even during the same
term, modify the judgment by imposing imprisonment

3 Windsor v. McVeigh, 93 U. Piersol, 1 Peters, 328, 7 L. Ed.

8S. 274, 23 L. Ed. 914. 164; State v. Kinmore, 54 Minn.

4Ex parte Lange, 18 Wall. 185, 55 N. W. 830, 40 Am. St.
163, 21 L. Ed. 872; Billiot v. Rep. 305.
ry
EXCESS OF JURISDICTION. , 171

instead of the former sentence. The power to punish
was exhausted by the first judgment.®

Stated by another court: ‘‘ Jurisdiction includes not
only the power to hear and determine, but also the
power to rerider the particular sndgment 4 in the par-
ticular case.’’ ®

§ 51. Rule stated by which to determine question of
jurisdiction.

The supreme court of the United States laid down
a test of the jurisdiction of a court as to particular
judgments. Thus it is stated: ‘‘From a somewhat ex-
tended examination of the authorities, we will venture
to state a rule applicable to all of them by which the
jurisdiction as to any particular judgment of the court
in such cases may be determined. It is plain that such
court has jurisdiction to render a particular judgment
only when the offense charged is within the class of
offenses placed by the law under its jurisdiction; and
when in taking custody of the accused, and in its mode
of procedure to the determination of the question of
his guilt or innocence and in rendering judgment, the
* court keeps within the limitations prescribed by law,
customary or statutory. When the court goes out of
these limitations, its action to the extent of the excess
is void. Proceeding within these limitations, its action
may be erroneous, but not void. To illustrate: In
order that a court may take jurisdiction of a criminal
case, the law must in the first instance authorize it to
act upon a particular class of offenses within which the
one presented is embraced. Then comes the mode of
presentation of the offense to the court. That is speci-
fically prescribed. If the offense be a felony the ac-
cusation in the federal court must be made by a grand

5Ex parte Lange, 18 Wall. 6 Russell v. Shurtliff, 28 Colo.

163, 21 L. Ed. 872. 414, 65 Pac. 27, 89 Am. St. Rep.
216.
 

172 HABEAS CORPUS.

jury summoned to investigate the charge of the public
prosecutor against the accused. Such indictment can
only be found by a specified number of the grand jury.
If not found by that number, the court cannot proceed
at all. If the offense be only a misdemeanor, not punish-
able by imprisonment in the penitentiary, the accusa-
tion may be made by indictment of the grand jury or by
information of the public prosecutor. When the indict-
ment is found, or the information is filed, a warrant is
issued for the arrest of the accused to be brought before
the court, unless he is at the time in custody, in which
case an order for that purpose is made to the end in ei-
ther case, that he may be arraigned and plead to the in-
dictment or information. When he is brought before the
court, objections to the validity or form of the indict-
ment or information, if made, are considered, or issue

/is joined upon the accusation. When issue is thus
joined the court must proceed to trial by a jury, except
in case of the accused’s confession. It cannot then
proceed to determine the issue in any other way.
When the jury: have rendered the verdict the court
has to pronounce the proper sentence upon such ver-
dict, and the law,.in prescribing the punishment either
as to the extent or the mode or the place of it, should
be followed. If the court is authorized to impose im-
prisonment, and it exceeds the time prescribed by law,
the judgment is void for the excess. If the law pre-
scribes a place of imprisonment, the court cannot direct
a different place not authorized; it cannot direct im-
prisonment in a penitentiary when the law assigns that
institution for imprisonment under judgments of a
different character. If the case be a capital one, and
the punishment be death, it must be inflicted in the
form prescribed by law. Although life is to be extin-
guished, it cannot be by any other mode.’’?

7In re Bonner, 151 U. S. 242, 256, 38 L. Ed. 149, 14 Sup. Ct. Rep.
323.
EXCESS OF JURISDICTION. 173

The principle is well illustrated in another case de-
cided by the federal supreme court. Under the con-
fiscation acts of congress, certain lands of French For-
est had been condemned and sold, and one Bigelow
became the holder of the title conveyed by these pro-
ceedings. After Forest’s death, his son and heir
brought suit to recover the lands, contending that un-
der the joint resolution of congress, which declared
that condemnation under that act should not be held
to work a forfeiture of the lands of the offender be-
yond his natural life, the title of Bigelow terminated
with the death of the elder Forest. The decree con-
fiscating the property, in terms, ordered all the estate .
to be sold. It was argued in opposition that, though
this part of the decree might be erroneous, it was not
void. It was said by the court: ‘‘Here was a case of
a proceeding in rem where the property was within
the power of the court, and its authority to confiscate
and sell beyond question. The extent of that power
was limited by statute.’? To the argument that such
decree was conclusive it was said: ‘‘ Doubtless a decree
of a court having jurisdiction to make the decree can-
not be impeached collaterally, but under the act of con-
gress the district court had no power to order a sale
which should confer upon the purchaser rights out-
lasting the life of French Forest. Had it done so, it
would have transcended its jurisdiction.’’ ®
~ In commenting upon this language, the same court,
in Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872, say:
‘“But why could it not? Not because it wanted juris-
diction of the property or the offense, but because, in
the very act of rendering a judgment of confiscation,
it condemned more than it had authority to condemn.
In other words, in a case where it had full jurisdiction
to render one kind of judgment, operative upon the

8 Bigelow v. Forest, 9 Wall. 339, 76 U. S. 339, 19 L. Ed. 696.
174 HABEAS CORPUS.

\

same property, it rendered one which included that
which it had a right to render, and something more,
and this excess was held simply void.’’ Another illus-
tration of the exception to the general rule where the
distinction is aptly recognized is found in a case decided
by the supreme court of Wisconsin.®

There the mother of a child was committed to the
county jail for refusing to comply with an order of the
court in divorce proceedings commanding her to re-
store the child, which she had abducted, to the husband
and father. It was held that under the provisions of
the statute of that state, such form of punishment was
not authorized, therefore the order of commitment was
void. It was conceded that the court had jurisdiction
of the subject matter as well as of the person of the de-
fendant. It was devoid, however, of the power to
exercise its jurisdiction in that matter. Justice Ryan
makes a vigorous dissent, asserting that the court
merely erred in its judgment of the law, that is, the
proper construction of the effect of the statute, and
likens it to every other case where the trial court mis-
takes the law, claiming that the order was the result
of mere error of judgment and did not affect the juris-
diction of the court. This conflict of judicial opinion
serves to illustrate that oftentimes the dividing line is
close, and acts as an incentive to the courts to act with
caution and deliberation if they would avoid a conflict
of opinion.?°

9In re Pierce, 44 Wis. 411.

10 By section 284 of the New
York Penal Code (Penal law)
sec. 2175, a person who under
promise of marriage, seduces
and has sexual intercourse with
an unmarried female of previous
chaste character, is punishable
by fine or imprisonment or both.

By section 285 of the Penal Code
(Penal law sec. 2176) the subse-
quent intermarriage of the par-
ties is a bar to a prosecution for
the offense, and under this stat-
ute the fact of the subsequent
marriage is not required to be
pleaded. Such a prosecution is
not ended until judgment is

~
EXCESS OF JURISDICTION.

175

§ 52. With respect to place of confinement.

If the law prescribes a place of imprisonment, the
court cannot direct a different place not authorized; it .
cannot direct imprisonment in a penitentiary when the
law assigns that institution for imprisonment under

actually rendered, and when the
court is satisfied of the marriage
of the parties before judgment,
such marriage constitutes a bar
and brings the case within the
express terms of the statute, and
it is the duty of the court to dis-
charge the defendant from cus-
tody.

Where a defendant was sen-
tenced by a court which was ap-
prised of his marriage after the
commission of such an offense,
it was held, his remedy was to
move in arrest of judgment, and
upon denial of that motion to
review the action of the trial
court upon appeal. There is not,
however, such a lack of jurisdic-
tion to pronounce judgment, as
entitles him to relief by habeas
corpus. People ex rel. Scharff
v. Frost, 198 N. Y. 110.

Certainly this ruling is ex-
treme and illustrates how the
application of a legal principle
may result in injustice and deny
a person a right to liberty,
which he is entitled to under an
express law. Before the remedy
suggested’ by the court could
operate to his release from
state prison, his term would
ordinarily have expired.

It was expected that there
would be a dissent, the decision
being concurred in by a bare
majority of one. It is well said
in the dissenting opinion, want

of jurisdiction means want of
legal power to act and if there
was no legal power to render
the judgment or decree, or issue
the process, there was no com-
petent court and consequently
no judgment or process. It
might have been added, no ju-
risdiction of the subject matter,
as that had been lost, the judg-
ment being in excess of the ju-
risdiction of the court.

It was further stated, the stat-
ute prevents further prosecution,
prohibits any step in that direc-
tion, and makes illegal whatever
may be attempted toward that
end. A judgment forbidden by
statute is void, and a prosecution
prohibited. The act operates as
an unconditional repeal of sec-
tion 284, intermediate the plea
of guilty, on the 24th of April,
and the final judgment of the
6th of May.

The majority state in their
opinion, which is an admission
of the injustice of its judgment,
“as it does not appear that he
made any motion in arrest of
judgment or indeed that he has
taken any appeal, and as the
time for an appeal must have
expired, the case is obviously a
proper one for the exercise of
executive clemency, under the
view which we have taken as to
the proper construction of the
statute.”
176 HABEAS CORPUS.

judgments of a different character. The court is with-
out jurisdiction to pass any such sentence, and an or-
der directing such a sentence is void. It is not a case
of mere error, but one’in which the court would tran-
scend its powers.1!

Under the laws of the United States, imprisonment
in the penitentiary could not be imposed unless the sen-
tence was for a term exceeding one year.

A statute gave power to justices of the peace to
punish certain misdemeanors by imposing a fine not
exceeding $100, or imprisonment in the county jail not
exceeding ninety days or by both such fine and im-
prisonment. Another statute regulating and govern-
ing a state house of correction and reformatory pro-
vided that ‘‘all courts having criminal jurisdiction may
sentence (to such institution) all male persons duly
convicted of a felony before them, and who shall be at
the time of sentence of the full age of sixteen years;
and also all male persons duly convicted before them
of a misdemeanor, where the imprisonment shall not
be less than ninety days.’’

It was held that this latter statute should not be ap-
plied to causes tried and finally disposed of before jus-
tices of the peace, and where a person convicted of as-
sault and battery before a justice of the peace was
by him sentenced to the house of correction and re-
formatory at hard labor for ninety days, the prisoner
was discharged upon habeas corpus. The justice was
without jurisdiction to impose the sentence to that in-
stitution.”

The court stated it has never been the policy of the
state to invest these officers with the power to subject
the offender who had been found guilty of a misde-

11In re Mills, 1385 U. S. 263, 34 12In re Silverthorn, 73 Mich.
L. Ed. 107, 10 Sup. Ct. Rep. 762; 644.

In re Bonner, 151 U. S. 242, 38
L. Ed. 149, 14 Sup. Ct. Rep. 323.
EXCESS OF JURISDICTION. 177

meanor only, to the degradation and disgrace of un-
dergoing the punishment of a felon in a state prison.

It was further statéd: ‘‘Before the citizen should bé
deprived of his liberty and subjected to such a degrad-
ing penalty, he should be permitted to avail himself of
all his constitutional rights, which include ‘due process
of law’ in criminal cages, and which has not yet beet
conferred on these officers. He is not only entitled to
have the facts in his case passed upon by a jury, but to
have the jury properly instructed concerning the law
applicable to the facts, by a court competent to give
such instructions. He is also entitled to a common-
law jury and the aid of counsel in making his de-
fense.’’ .

The supreme court of Nevada has held, however,
that where a person convicted of a crime was sentenced
to the state prison or penitentiary for a term until the
fine imposed was satisfied by. the imprisonment, at a
specified allowance per day prescribed by statute, where
the court only had power to so sentence him to im-
prisonment in the county jail, that such sentence was
not void, so as to entitle the prisoner to be discharged
upon habeas corpus; that the erroneous part may be
rejected as surplusage, and the prisoner remanded to
the place of imprisonment required by statute.

The same in effect was held by the supreme court
of South Carolina, the court of appeals of New
York,® the supreme court of Vermont,!* and in Cali-
fornia, where the sentence was imprisonment in the
county jail, when the statute prescribed imprisonment:
in the penitentiary.17 The same in effect in Alabama.1§

18In re Tani, 29 Nev. 385, 91 1¢In re Harris, ‘68 Vt. 248, 35

Pac. 187, 138 L. R. A. (Ni 8S.) 518: = Ati. 55.
14 Bx parte Bond, 9 S.C.(N.S.)’ 17 Ex parte McGuire, 135° Cai.’

80, 30 Am: Rep. 20. 339, 67 Pac. 327, 87 Am. St. Rep.
15 People ex rel, v. Kelley, 97 105.

N. Y. 212. 18 Bx parte Simmons, 62 Ala:
416.

12
178 ' HABEAS CORPUS.

However, the California court held that where the
party imprisoned had served nearly two years of the
term he would be discharged on habeas corpus, it then.
being too late to enter the proper judgment in the
trial court.!®

§ 53. Judgment and sentence in excess of that pre-
scribed, by law.—In general.

The principle was said to be established, that
‘where a court has jurisdiction of the person and of
the offense, the imposition of a sentence in excess of
what the law permits does not render the legal or
authorized portion of the sentence void, but only leaves
‘such portion of the sentence as may be in excess open
‘to question and attack. In other words, the sound rule
is that a sentence is legal so far as it is within the pro-
visions of law and the jurisdiction of the court over
‘the person and the offense, and only void as to the ex-
cess, when such excess is separable, and may be dealt
with without disturbing the valid portion of the sen-
‘tence.’’ 2°

The supreme court of Wisconsin, however, held that
a judgment sentencing a person to imprisonment for a
longer term than the statute warrants, is merely er-
roneous and not void for want of jurisdiction. The
reasoning upon which this conclusion was based was
that as the court had jurisdiction of the subject mat-
ter or offense and of the person, the excess of punish-
ment was merely a mistake of judgment, mere error,
which could be corrected upon writ of error in that
court?!

19 Bx parte Moon Fook, 72 Cal. Case, 146 Mass. 489, 16 N. E.
10, 12 Pac. 803. ‘ 448, 4 Am. St. Rep. 344.

20 United States v. Pridgeon, 21In re Graham: In re Mce-
153 U. S. 48, 62, 38 L, Ed. 631, 14 Donald, 74 Wis. 450, 48 N. W. -
Sup. Ct. Rep. 746; Sennott’s 148, 17 Am. St. Rep. 174.
-EXCESS OF JUBISDICTION. 179

The court did not determine whether after the ac-
cused had suffered the lawful penalty, he would then:
‘be entitled to his discharge upon habeas corpus, and
thus accord with the decisions of the federal and other
courts. It is true the whole judgment was not void,
and equally true, that the prisoners could not be dis-
charged, until they had suffered the lawful part of the
punishment. The reason stated by the court, however,
is not entirely satisfactory, that because the court had
jurisdiction of the offense and the person, that an ex-
cessive punishment was but mere error. The true
doctrine was aptly expressed by another court as fol-
lows: ‘‘No court can give a judgment, valid for any
purpose, not authorized by law. A prisoner con-
demned for grand larceny, for which the statutory
punishment is imprisonment in the state prison for a
term not exceeding five years, and who is sentenced
for ten years, is not after the expiration of the first
five years, held by due process of law or- the judgment
of a court of competent jurisdiction. No court is or
can be competent to pronounce a sentence and give
judgment in open and palpable violation of a positive
statute, and a judgment thus given is simply void. If
a court having jurisdiction of the person of the ac-
cused and of the offense with which he is charged, may
impose any sentence other than the legal statutory
judgment, and deny the aggrieved party all relief ex-
cept upon writ of error, it is but a judicial suspension
of the writ of habeas corpus. That writ is alike a pro-
tection against encroachments upon the liberty of the
citizen by the unauthorized acts of courts and judges as
against any mere arbitrary arrest.’ 2?

A person having been prosecuted for unlawful co-
habitation under the federal statute, and sentenced

22 People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 19 Am. Rep.
211.
180 HABEAS CORPUS.

upon a plea of. guilty, a second prosécution: and sen-
tence for adultery, alleged to have been.committed with
the same alleged wife within the period of such alleged
unlawful:cohabitation, was held in excess of the powers
and jurisdiction. of the court, upon the ground that the
two alleged offenses, in fact and in the law, was but a
single offense.??

Notwithstanding the doctrine so emphatically ex-
pressed. and consistently adhered to by the federal —
court, it is not followed by the courts of several of the
states. We find that in some of. them a. sentence imposed
beyond the limit prescribed by the particular statute
for the offense, for the commission of which the ac-
cused was prosecuted, is absolutely void, not alone for
the excess beyond the jurisdiction of the court, but as
to the. valid part as well; while in others! it: is held
that the court, having jurisdiction of the offense and
the person of the accused, the imposition of exces:
sive punishment is. but error, not available by habeas :
corpus. It is a matter of regret: that the rule: is not
uniform.

§ 54. Rule in particular states.—Alabama.

It would seem from:an examination of the decisions
of the: supreme court of this state, that the doctrine is»
where: there has been a judgment and sentence in ex-
cess of that prescribed. by law, that. the whole judg-
ment is void. However, this deduction from its de-
cisions is not-to be absolutely reliable, and: for the rea-
son that the: system: of punishments in: that state is
_ somewhat complicated, especially that feature relating
to hard labor, costs, ete.. It may be that the sentences»
imposed: in: the cases: examined may have: been. con-
sidered as a limit, or without separable features.

28In re Nielgori, 131 U. 8. 176, 33° L, Ha. 118; 9° Sip. Ct Rep.
672,
EXCESS OF JURISDICTION. 181

Upon review of an order discharging a prisoner con-
‘vieted of larceny and sentenced to pay a fine of $100,
and the costs of the prosecution, and also sentenced
to six months’ hard labor, and in default of payment
of the fine and costs thus imposed, the sentence was
that he perform hard labor for the city for —— days.
The punishment prescribed upon conviction for such
an offense was fine or imprisonment, fine and imprison-
ment, or by hard labor upon the streets or public works
of the city, the fine not exceeding $100, the sentence to
imprisonment or hard labor not to exceed six months.

It was held that there could not be for one and the
same offense, a sentence of both fine and performance
of hard labor. That the ordinance gave the option of in-
flicting a fine or imprisonment, one or both, and also an
option of sentence to hard labor, but not, when either a
money fine or imprisonment had been imposed, except
as a means of coercing the payment of the fine and
costs, hence the prisoner was rightfully discharged.?*

In a later case, where sentence was the payment
of fine and costs, with a direction that in default of pay-
ment of the fine and costs the accused was to be taken
into custody and thus detained until he performed
twenty days’ hard labor for the county in satisfaction
of the fine, and sixty days’ hard labor in satisfaction
of the costs, subject to the board of revenue, hard
labor being in excess of the punishment prescribed, it
was held the sentence was void, not merely void as to
the excess, and the prisoner discharged.”*

And where a sentence imposed hard labor under an
ordinance of the municipality, when the state statute
only empowered such municipalities to punish by fine

24Hx parte Montgomery, 79 Ex parte McKiveft, 55 Ala. 235;
Ala. 275. Ex parte Anniston, 84 Ala, 21,

25x parte State, 87 Ala. 46. in which there was an excess of

Such ruling was in accord with punishment, and the sentences
previous decisions of the court. were held void.

 
182 HABEAS CORPUS.

and imprisonment, such sentence was wholly void, and
hence the petitioner was discharged upon habeas cor-
pus.?¢

California.

While there may have been some expressions by the
court in this state which warranted an inference that
the doctrine was, in case of excess of punishment, the
sentence was void, such inference having been drawn.
by the supreme court of South Dakota, in In re Taylor,
78. Dak. 382, 45 L. R. A. 136, 58 Am. St. Rep. 843, yet
I am not prepared to state that such is the rule in that
state in all cases.

What was said in Ex parte Bermert, 62 Cal. 524, may
justify the inference above stated, and also what was
said in Ex parte Kelley, 65 Cal. 154. In the latter
case, the petitioner was convicted of a battery, sen-
tenced to pay a fine of $650, or to be imprisoned in the
county jail in the proportion of one day’s imprison-
ment for every dollar of the fine until such fine, not
exceeding 650 days, was satisfied. Under such im-
prisonment the petitioner performed labor on the
streets. One provision of the penal code, section 243,
defined the offense as a misdemeanor, punishable by
a fine not exceeding $1,000, or by imprisonment in the
county jail not exceeding six months. Another pro-
vision, section 1446, empowered the court to direct im-
prisonment until the fine be satisfied, in proportion to
one day’s imprisonment for every dollar of the fine.
It was held that the court was without jurisdiction to
adjudge imprisonment for 650 days in default of pay-
ment of the fine, and that the accused perform labor
on the streets. That such portions of the sentence
were beyond the jurisdiction of the court; that the
judgment was a unit and void if any portion was in
excess of such jurisdiction.??

26 Ex parte Reynolds, 87 Ala. 27 Ex parte Kelley, 65 Cal. 154.
188.
EXCESS OF JURISDICTION. 183

In a prior case, the prisoner had served the limit of
punishment prescribed by the statute, and was ordered
discharged upon habeas corpus.”®

And such was the fact in the latest case to which my
attention has been called, and where the prisoner was
discharged.?®

Idaho.

In this state the doctrine is, as declared in the only
case which I have found, that where there is a sen-
tence for a term of imprisonment beyond the limita-
tions prescribed by the statute, the sentence is wholly
void, not being such a sentence as authorized by law,
and hence a prisoner so sentenced and in custody there-
under is entitled to be discharged upon habeas corpus.®°

Iowa.

The doctrine in this state apparently is that in case
of a sentence for a term in excess of that prescribed by
statute, it is void as to the excess but not as to the re-
mainder. That habeas corpus is not available to ques-
tion the correctness of the judgment. However, the
application of the writ was prior to serving the valid
part of the sentence, and to that extent is within the
doctrine of the federal and many other courts. It
differs from the doctrine of the Wisconsin court, which
holds that such a judgment and sentence is wholly
void.3!

The facts were that the petitioner was convicted of
a nuisance and sentenced to pay a fine of $300 and
costs, including an attorney’s fee of fifty dollars. The

28 Bx parte Bulger, 60 Cal. 438, 30 Hx parte Cox (Idaho), 32
29Eix parte Erdman, 88 Cal. Pac. 197.
579. See Ex parte Mitchell, 70 81 Hlsner v. Shrigley, 80 Iowa,
Cal. 1; Ex parte Jenshoaw, 73 30, 45 N. W. 393,
Cal. 486,
184 HABBAS CORPUS.

judgment further provided for imprisonment for fail-
ure to pay, at hard labor, until the fine and costs were
paid. The prisoner sent out a writ of habeas corpus,
claiming that the judgment was void, because it failed
to fix the time for which he was imprisoned. The
court said: ‘It is not of course to be understood that
a court has acted in a lawful manner, when the judg-
ment it pronounces is absolutely void, for such a judg-
ment has no support in the law. Neither the law in
its substance nor manner or form can aid it. But
if it is merely voidable, it has support until set aside in
a proper proceeding. The court in that proceeding
had jurisdiction of the subject matter and of the per-
son. It had a right to impose a fine and provide for
imprisonment until the fine was paid. In so doing it
could not make the imprisonment exceed one day for
each three and one-third dollars. If the judgment ex-
ceeded the limit of the law, it would be void as to the
excess but not as to the remainder.’’

Michigan.

Under a statute of Michigan, a person convicted of
any offense and who shall be duly sentenced to the state
prison for one year or more, and it shall be alleged in
the indictment on which such conviction is had and
admitted or proved on the trial, that the convict has
before been sentenced to a like punishment by any
court in the state, or in any other of the United States,
for a period not less than one year, he shall be sen-
tenced to imprisonment in the state prison, not more
than seven years in addition to the punishment pre-
scribed by law for the offense of which he shall then be
convicted. The petitioner was convicted of lewd and
lascivious cohabitation, an offense for which the im-
prisonment provided by statute was ‘‘imprisonment
in the county jail not more than one year or fine not
EXCESS QF JUBISDICTION. 185:

exceeding five hundred dollars.’’ He was sentenced to
be confined in the state prison at Jackson for a period
not less than two years and six months, and not more
than eight years from and including the day of his sen-
tence. He sued out a writ of habeas corpus and was
discharged by the supreme court of that state. It was
urged the prisoner should not be discharged, but should
be remanded for a legal sentence. To this the court
replied: ‘‘The trouble with this contention is that the
additional sentence authorized by the statute may be
imposed only in cases where one shall be duly sen-
tenced in the state prison in this state, for one year
or more, while in this case the sentence for the original
offense must not be more than one year, and could not
be in the state prison at all.’’ 2?

It is provided by statute in that state, that courts
of review shall not reverse criminal cases for exces-
sive sentences, but instead shall affirm them for the law-
ful penalty. By virtue of this statute, if the court
has imposed an illegal sentence, it has power to sub-
stitute for it a legal sentence, notwithstanding the
illegal sentence has been partly executed, though that
circumstance should be considered in determining the
extent of the new punishment.

Thus, where a person tried upon an information
for murder was convicted of manslaughter, which
operated as an acquittal of the crime of murder, and
on a subsequent trial was convicted of murder, it was
held the duty of the court who had sentenced the pris-
oner to confinement in the state prison for life, the ex-
treme penalty for murder, upon reversal of the con-
viction, to resentence him for manslaughter.**

It was subsequently held, however, in such cases,

82In re Bolden, 159 Mich, 629, 83 People v. Farrell, 146 Mich.
124 N. W. 548. 264, 109 N. W. 440.
186 HABEAS CORPUS.

the writ of habeas corpus would not lie. The remedy
is by writ of error.*+

New York.

The doctrine in New York applied in the case of
People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 19 Am.
Rep. 211, has been heretofore stated in substance, that
only the excess is void. That upon satisfaction of the
valid part of the sentence, habeas corpus will lie for the
prisoner’s discharge. It has been adhered to in sub-
sequent cases.®®

However, where a prisoner was sentenced to be im-
prisoned at hard labor in states prison for the term of
one year, the offense having been finally held to be only
a misdemeanor and punishable only by imprisonrhent
in a penitentiary or county jail for not more than one
year, or by a fine of not more than five hundred dollars
or both, the sentence was without authority of law and
void. It was held, that as the trial court exceeded
its. jurisdiction, its judgment cannot be enforced, but
the conviction is still valid and the prisoner is not en-
titled to his discharge. That he should be remanded
to the sheriff, in order that the trial court may deal
with him according to law. It will be noted that herein
the sentence was a unit.2° This latter question is fur-
ther considered in subsequent pages.

Ohio.

The doctrine of this state is plainly that habeas cor-
pus will not lie to discharge a prisoner under sentence
of conviction, in cases where the punishment is in ex-
cess of that prescribed by law for the offense. That
the sole remedy of a prisoner thus sentenced is by writ

384In re Vitali, 153 Mich. 514, 36 People ex rel. Trainor v.
116 N. W. 1066. See also In re Baker, 89 N. Y. 460.
. Butler, 138 Mich. 452, 101 N. W. 386 People ex rel. Devoe v. Kel-
630. ley, 97 N. Y. 212.
187

EXCESS OF JURISDICTION.

of error.
roneous.37

In the cases in which this doctrine is declared, the
application for the writ, was before the prisoner had
served the valid part of the sentence, and hence is only
authority, where such condition exists.?®

That such a sentence is not void, but er-

Nebraska.

In this state it was held that a sentence in excess of
that prescribed by law is a nullity. Thus, where a
petitioner held in custody, who had been sentenced to
pay a fine, and to be imprisoned, where under the
statute the court only had power to adjudge a fine or
imprisonment, it was held that the sentence of im-
prisonment was in excess of the power of the court
and void, and hence the prisoner was discharged, but
from what appears later it probably was intended only
to sentences of a particular character, and not to a

mere excess in the kind prescribed by law.®®

87 Dillon v. State, 38 Ohio St.
586; Bx parte Van Hagan, 25
Ohio St. 416; Ex parte Shaw, 7
Ohio St. 81.

38In Ex parte Van Hagan, 25
Ohio St. 426, the petitioner was
sentenced under a law not in
force at the time, but a general
act relating to the offense and
prescribing the punishment
therefor was in force, both laws
defining the offense in the same
language. It was held that the
court having jurisdiction of this
subject matter, the proceedings
would be referred to the law in
force and held to be valid to the
extent it conferred jurisdiction
although the court assumed to
act under the law not in -force.

That the punishment inflicted by
the sentence, in excess of that
prescribed by the law in force,.
was erroneous and voidable, but
not void. That habeas corpus
would not lie. That the remedy
was by writ of error.

In Dillon v. State, 38 Ohio St.
586, the accused was sentenced
merely to imprisonment, while
the statute under which the con-
viction was had, provided for
punishment by both fine and im-
prisonment. The court held that
the judgment and sentence was
not erroneous to the extent that
it would be reversed upon writ
of error. The defendant was not
prejudiced by the error.

39In re Stewart, 16 Neb. 193.
188 . HABEAS CORPUS.

‘The doctrine of this court, as later expressed, is
that a sentence imposed of the character, but in ex-
cess of that prescribed by law for the punishment of
such offense, is but error, and does not extend to the
jurisdiction of the court, and hence not reviewable upon
habeas corpus, prior to the valid part of the sentence
being satisfied. That only the excess is void.*°

Missouri.

In this state the doctrine is that a sentence in ex-
cess of that prescribed by law is a nullity, not merely
void as to the excess. Thus a sentence for a term of
ten years, the limitation prescribed by the statute was
seven years, was held absolutely void. It being in ex-
cess of the jurisdiction of the court, it was not in the
exercise of an authority prescribed by law.*!

And where the petitioner was convicted of the of-
fense of abortion and sentenced to pay a fine of $500,
and to imprisonment in the county jail for the term
of one year, the limit of imprisonment for such offense
under that statute being six months, the sentence was
held void as beyond the jurisdiction of the court, and
the petitioner was discharged.*?

Later it was expressly declared to be the settled law
of that state, that one imprisoned for the violation of
an order of judgment in excess of the jurisdiction of
the court rendering it; can be discharged by writ of
- habeas corpus.*?

South Dakota.

The supreme court of this state, in a very able and
exhaustive opinion, reviewed the authorities and the
doctrine as expressed therein in many states, and

40In re Fanton, 55 Neb. 703, 42 Ex parte Jilz, 64 Mo. 205, 27
76 N. W. 447, 70 Am. St. Rep. Am. Rep. 218.

418. 483 Ex parte Arnold, 128 Mo.
41 Ex parte Page, 49 Mo. 291. 256, 49 Am. St. Rep. 557.
EXCESS’ OF JURISDICTION. 189

reached the conclusion, following the doctrine of the
supreme’ court of the United States, and to the effect
that a judgment and sentence in excess of that pre-
seribed. by law, is not wholly void, but void only as to
the excess, and that one so sentenced was not entitled
to be discharged upon habeas corpus so long. as any
portion of the sentence which was within the power
of the court to adjudgé, remained unsatisfied, but that
after such satisfaction he was entitled to discharge
upon. such a writ.*4

Wisconsin.

The Wisconsin court had occasion to discuss this
question, and its decision is somewhat different from
that in any of the cases: examined. Upon an informa-
tion for assault with intent to kill, the jury found. a
verdict of guilty of assault and! battery, and the court |
sentenced the accused to six months’ imprisonment, to
pay a fine of $500; and: the costs of the action and to’ be
imprisoned: until such fine and: costs were paid, such
being the limit and extent of the punishment prescribed
by law for the offense of assault and battery, but be-
yond that prescribed for assault, the provisions in re-
spect to: the latter offense being imprisonment or fine.
At the expiration of the term of imprisonment, the de-
fendant' applied for his discharge upon habeas corpus,
not. having paid the fine and costs imposed, and. being
detained by virtue of the judgment in that respect. It
was assumed in behalf of the prisoner, that being thus
acquitted of the crime charged, that assault and bat-
tery was not included, but only assault, and hence the
verdict of assault and battery was wholly unauthorized
arid it was: beyond the power of the court to itnpose a
senterice for such offense. The court seems to have
conceded that the verdict was unauthorized. It was

44In re Taylor, 7 S. Dak. 38%, 45° L. BR: A. 186; 58 Am. St. Rep.
843.
190 HABEAS CORPUS.

said, if it were conceded that it was error to convict
under the information for assault and battery, yet
such error was not jurisdictional. The court had ju-
risdiction of offenses of that character. If there had
been no authority in law for the circuit court to punish
the petitioner by both fine and imprisonment, a clear
case of excess of jurisdiction would have been pre-
sented, and the prisoner would have been entitled to
such discharge on this writ. As the case now is, he is
not entitled to such discharge, but must be remanded
to the custody of the sheriff.**

This evidently is a harsh distinction. It being con-
ceded that the prisoner had been convicted of an of-
fense with which he was not charged in the particular
case, and sentenced for such offense, that it was but
mere error, while if the court had made a mistake in
the extent of the punishment, it would have been juris-
dictional. As stated by high authority, and in many
cases, it matters not what the general jurisdiction of
the court may be, or that it had jurisdiction of the of-
fense, and of the person of the accused, if it have no
authority to render the judgment in the particular case,
it did render, under any circumstances, within the
issue involved therein, then such judgment was beyond
the jurisdiction of the court.

It matters not, say the supreme court of the United
States, what the general powers and jurisdiction of a
court may be, if it act without authority in the par-
ticular case, its judgment and orders are mere nullities,
not voidable but simply void, protecting no one acting
under them and constituting no hindrance to the pros-
ecution of any right.*®

And by another court: ‘‘If a court having jurisdic-
tion of the accused and of the offense with which he

45In re Crandall, 834 Wis. 177. Lange, 18 Wall. 163, 21 L. Ed.
48 Elliot v. Piersol, 1 Peters, 872.
3338, 7 L. Hd. 164; Ex parte
EXCESS OF JURISDICTION. 191

is charged may impose any sentence other than the
legal statutory judgment, and deny the aggrieved party
all relief except upon writ of error, it is but judicial
suspension of the writ of habeas corpus.’’ 47

If the verdict was unlawful, one that the jury could
not find, within such issues in any event, then a sen-
tence based upon it, must be equally beyond the power
of the court.

Subsequent to the decision of the case above cited,
the same court pronounced a rule defining the question
of jurisdiction, as follows: ‘‘It is only when the court
pronounces a judgment in a criminal case, which it is
not authorized by law under any circumstances, in the
particular case made by the pleadings, whether the
trial court has proceeded regularly or otherwise, that
such judgment can be said to be void, so as to justify
the discharge of the defendant held in custody by such
judgment.’’ #8

This statement was approved in State ex rel. v. Hue-
gin, 110 Wis. 189, 85 N. W. 1046, and certainly does
not accord with the decision in In re Crandall.

In In re Ida Louisa Pierce, 44 Wis. 411, it was held,
that the order of commitment for contempt, was one
for the enforcement of a civil remedy in a case where
criminal punishment alone could lawfully be inflicted,
was invalid; that the court exceeded its jurisdiction
both as to matter and law, and such invalidity was
available upon habeas corpus.

In In re Crandall, supra, as stated, the petitioner
was convicted and sentenced for an offense of which he
was not charged. In the latter case the court had ju-
risdiction of contempts. The petitioner was guilty of
contempt. As well might the court in In re Crandall,

47 People ex rel. Tweed v. Lis- | 48 State ex rel. Welch v. Sloan,
comb, 60 N. Y. 559, 19 Am. Rep. 65 Wis. 647, 27 N. W. 616.

211,
192 HABEAS’ CORPUS.

have said that if the jury had found: the defendant
guilty of embezzlement, that it was within its juris-
diction to sentence for that offense:

The same court has also determined that a judg.
ment sentencing a person to imprisonment for a longer
term than prescribed by statuté, is merely erroneous
and not void for wait of: jurisdiction.*®

It was not stated that the judgment was void as to
the’ excess.

The supreme court: of the United. States, in review-
ing such judgment, assumed that the state court had
determined that the judgment was void as to the ex-
cess, as it is stated that the prisoner has no remedy by
habeas corpus until the time is reached which is pre-
scribed: by statute as the limit of the power of the
court to punish the prisoner. The state court had-not
so declared. The decision of the state court was
affirmed on the ground that the state court: had the
power to’ determine absolutely the law of the state in |
respect to what constituted jurisdiction, and that court
had no right to interfere.*°

There are several cases in the federal supreme court
where it has been held that that court will refuse the
writ of habeas corpus although a state statute violates
the federal constitution, where conviction has been had
in the state court. To these we refer later.

Subsequently the supreme court of the state, upon
writ of error, declined to hold that the sentences were.
valid: for ten’ years and void as to the residue of the
tine for which the accused was sentenced, but held
the whole sentence erroneous, and reversed it and re-
manded the accused for resentence.*!

40In ré Grahdni: In ré Mé 94’ L, Ba. 1061, 14 Sup. Ct: Rep.
Donald, 74 Wis. 450, 43 N. W. 363.

148, 17 An. St. Rep, 174: 81 In re’ MeDonald v. State,

50 In ré' Grdhath, 138 U. 8.461) Graham: v. State, 79 Wis. 651; 48

N. W. 863,
EXCESS OF JURISDICTION. 193

A statute of the state authorized general or indeter-
minate sentences. The prisoner convicted of burglary.
was sentenced under that statute to imprisonment. in
the state prison at hard: labor for not less than three
years nor more than eight years. Prior to serving the
minimum part of the sentence, he petitioned for his.
release upon habeas corpus, upon the ground that suck
statute contravenes the constitution in that it attempts
to confer upon the state board of supervision, both ex-
ecutive and judicial powers which are exclusively vested
by the constitution in the governor and the courts re-
spectively, hence the statute is void and the imprison-
ment illegal. It was stated by the court, assuming
such statute to be invalid, the error in imposing such
a sentence is not. jurisdictional and the remedy by the
person sentenced is not by writ of habeas corpus but
by writ of error.®?

Subsequently the prisoner convicted of assault with
intent to kill, was sentenced under the same statute to
imprisonment in the state prison for not less than one
or more than fifteen years. After he had served the
minimum sentence; he petitioned the court for discharge
upon habeas corpus. It was stated, the application is
based upon the proposition that the sentence is valid for
the minimum term only, and the court held that the
court merely erred in entering and enforcing the wrong:
judgment. That the supposed error was not jurisdic-
tional, and hence not available on habeas corpus.**

The supreme court of Michigan had held that a.
similar statute was valid for the minimum term of the-
sentence, and void in so far as it attempted to author-
ize the detention of the prisoner beyond that term.°*
While the Ohio court had held such a statute valid.®>

62In re Pikulik, 81 Wis. 158, 54People v. Cummings, 88.

51 N. W. 261. Mich. 249, 50 N. W. 310.
58 In re Schuster, 82 Wis. 610, 55 State ex. rel. v. Peters, 43;
52 N. W. 757. Ohio St. 629, 4 N. E. 81.

13
194 HABEAS CORPUS.

The New York and the federal supreme court, have
held that in cases of a void sentence, the court would
not discharge the prisoner on habeas corpus, but re-
mand him, for the trial court to impose the lawful sen-
tence.®®

A prisoner was convicted of the crime of murder
and sentence of imprisonment for life imposed.

Upon.the special plea of insanity, authorized by stat-
ute; the jury disagreed, and the trial then proceeded
before the same jury to verdict and sentence. It was
sought to effect his discharge by habeas corpus, upon
the ground that the statute, in so far as it prescribes the
procedure after a disagreement on the issue of insanity,
was invalid. It was held by the court if it were con-
ceded that the statute was invalid, it would not render
the judgment void. That the remedy was not by
habeas corpus, but by writ of error.*”

§ 55. Cumulative sentences.

In the Tweed case, the accused was tried for a num-
ber of separate and distinct misdemeanors at the
same time, separately stated and charged in one in-
dictment, and convicted. The court adjudged cumula-
tive sentences, the total imprisonment exceeding by
many years that for which he could have been sen-
tenced upon conviction for any one. It was held that
the punishment inflicted for more than one offense was
in excess of the jurisdiction of the court and void.*§

The court very aptly said: ‘‘A party held only by
judgments thus pronounced, and therefore void for
' want of jurisdiction, or by reason of the excess of juris-
diction, is not put to his writ of error, but may be re-

56 People ex rel. v. Kelley, 97 57In re French, 81 Wis. 597,
N. Y. 212; In re Bonner, 151 U. 51 N. W. 960.
S. 242, 38 L. Hd. 149, 14 Sup. 58 People ex rel. Tweed v. Lis-
Ct, Rep. 328. comb, 60 N. Y. 559, 19 Am, Rep.
' 211.
EXCESS OF JURISDICTION. 195

leased by habeas corpus. It will not answer to say
that a court having power to give a particular judg-
ment can give any judgment, and that a judgment not
authorized by law, but contrary to law, is merely void-
able and not void, and must be corrected by error.
This would be trifling with the law, the liberty of the
citizen and the protection thrown about his person by
the bill of rights and the constitution, and creating a
judicial despotism. It would be to defeat justice and
nullify the writ of habeas corpus by the merest techni-
eality and the most artificial process of reasoning.’’
The question whether separate and distinct offenses
may be charged in one indictment has been a subject
of frequent discussion in the courts, and the conclusion
reached that those of the same grade may be thus
united.5?

Where a person was sentenced to imprisonment for
one year, to commence upon the expiration of another
term, and one year afterwards, the first judgment and
sentence was adjudged void, it was held upon habeas
corpus, that the sentence either commenced to run im-
mediately on rendition and had expired, or it was void
for uncertainty, and in either case the prisoner was
entitled to his discharge.

A statute of the United States provided that three
separate offenses, in respect to the use of the mails for
fraudulent purposes, when committed within six
calendar months, might be joined, and when so joined
there is to be a single sentence. It was held that the
statute was valid and did not prevent other indict-
ments to the number of three, for other and distinct

_offenses under the same statute committed within the

59 People ex rel. Tweed v. Lis- Rawle, 459; State v. Smith, 5

comb, 60 N. Y. 559, 19 Am. Rep. Day, 175.
211; People v. Forbes, 22 Cal. 60 Ex parte Roberts, 9 Nev. 44,

135; Brown v. Commonwealth, 4 16 Am. Rep. 1.
196 HABEAS CORPUS.

same six calendar months. That each act constituted
a single and separate offense, and hence the satisfac-
tion of the penalty imposed for the former was no bar
to a conviction or punishment for the latter.*1

Practically the same question was before the same
court in a subsequent case, and it was held that the
trial court had the power to give a single sentence for
several offenses, in excess of that prescribed for one
offense.*

§ 56. Indeterminate sentences.

The power of the legislature to enact what has been
determined indeterminate sentence laws, has been
considered by the court in several instances, which
have not in all cases reached the same conclusion. Such
laws while not uniform in all respects, usually provide
a general sentence of imprisonment or an indefinite
sentence within the maximum and minimum punish-
ments provided by law for the offense, and further,
providing that the board of control of prisoners, by.
whatever name designated, may terminate such im-
prisonment, in their discretion at any time after the
minimum term provided by law has been satisfied, and
also conferring upon said boards the power of parole.

The objections urged against the validity of such
an act are twofold: 1. That the exercise of judicial
power is conferred upon such a board in the matter of
determining the term of imprisonment, and the dis-
charge of the prisoner.

- 2. Or an act of grace in bestowing of a pardon and
release of a prisoner before his term of imprisonment

had expired.
The supreme court of Ohio held such an act not re-

61In re Henry, 123 U. S. 372, 62 In re De Bara, 179 U. S. 316,
81 L. Ed. 174, 8 Sup. Ct. Rep. 45 L. Ed. 207, 21 Sup. Ct. Rep.
142, 110.
EXCESS OF JURISDICTION. 197

pugnant to the constitution of that state in respect to
either of the grounds stated.*

The supreme court of Michigan subsequent to the de-
cision of the Ohio court, held the statute of that
state, which in terms was similar, if not an exact copy
of the Ohio statute, repugnant to the constitution of the
state of Michigan, in respect to both of the objections
thus made.**

In the opinion rendered in People v. Moore, re-
iterated in People v. Cummings, the court discussed
the effect of the parole provided for in the statute, and
among other things, it was asserted that the right there
given to the warden of a prison, at any time to re-
claim the prisoner, upon grounds of violation of the
conditions of his parole, was contrary to fundamental
principles of the law, the personal right to liberty.
That the question of such violation, and subsequent
imprisonment, could only be determined by some judi-
cial proceeding conducted under judicial authority.

The court assumed that such a parole is a conditional
pardon and the same in effect as the pardon in refer-
ence to which the language which we quote was used
which was conditional, issued by the governor of the
state, which commuted the sentence originally imposed
to a less term. ‘‘On condition that he do absolutely
abstain from visiting places where intoxicating liquors
are sold, from using intoxicating liquors as a beverage
and from associating with bad characters having a
criminal reputation.’’

Thus it was reasoned: ‘‘When a person has been
set at liberty under the pardon or the commutation of
his sentence by the executive he becomes once more a
full citizen, clothed with all the rights, privileges and

63 State ex rel. v. Peters, 48 Mich. 249, 50 N. W. 310; People
Ohio St. 629, 4 N. E. 81, v. Moore, 62 Mich. 496, 29 N. W.
64People v. Cummings, 88 80. ;
198 HABEAS CORPUS.

prerogatives that belong to any other freeman. He
cannot be sent out half free and half slave. He is not
to be let out with a rope around his body, as it were,
with one end in the hands of the warden, to be hauled
back at the caprice of that officer. He must go out a
free man and remain a free man until he breaks the con-
dition of his pardon. He must enjoy the blessings and
benefits that belong to an American citizen, until he has
.violated the law of his release. His character may be
tarnished and his reputation soiled by his imprison-
ment, but his rights as a citizen are unimpaired: He
is clothed as he passes out of the prison door with the
same garb of freedom that was removed from him
when he went in.

‘‘He has a right to liberty the same as any other
citizen so long as he keeps the condition of his pardon,
and he cannot be deprived of that liberty save in the
mode prescribed by the constitution and laws of our
state as applied to any other citizen. If the breaking
of the condition is in the nature of a crime, or punish-
ment as such with penal consequences, that crime or
act punished as a crime, must be established as any
other crime would be. He is presumptively innocent
until proven guilty, and his guilt must be established
under due forms of law, and by the same processes as
applied to others. There can be no special legislation,
separating him in his rights and privileges from his
fellows, and shackling some of his prerogatives.’’

There is much of force in this language and in the
conclusion reached. The conditional pardon restores
the prisoner to all the rights of citizenship. If again
imprisoned for the same offense, that right is lost,
and how lost? Simply upon the mere suggestion of a
warden of a prison, without proof, or an opportunity
to be heard, and without any judicial determination.
It would seem that such a right is too valuable to be
EXCESS OF JURISDICTION. 199

made to depend upon the mere will or caprice of
another.

The court then declares the law under consideration
more pernicious than the one considered in which the
language quoted was applied, calling attention to the
fact that he is to be treated merely as an escaped pris-
oner, no allowance being made for the time he was out
of the prison under his parole; that the term of im-
prisonment under this law depends not upon the char-
acter of the crime committed, but upon the behavior
of the prisoner after he enters upon his sentence, that
the term of his imprisonment depends upon the ability
of the convict to please the prison officials, in his de-
partment, and not upon the enormity of the offense.

The Massachusetts statute is not the same. Strictly
speaking it does not involve the question of indeter-
minate sentence. It relates more particularly to the
question of release after statutory deduction for good
behavior. The statute there provided that the con-
vict ‘‘shall be entitled to a deduction,’’ and ‘‘shall re-
ceive a permit to be at liberty,’’ and ‘‘the board issu-
ing a permit may revoke it at any time.”’

A person was sentenced December 28, 1878, to nine
years’ imprisonment, such sentence expiring Decem-
ber 28, 1887. His sentence, as shortened for good be-
havior, expired July 23, 1886: On December 24, 1885,
he received a permit to be at liberty, leaving but seven
months of term unexpired. On December 20, 1887,
nearly two years after the date of the permit, and
nearly a year and a half after his term of imprisonment
would have expired, if no permit had been given, the
permit was revoked, and the convict rearrested to serve
out the unexpired term of his sentence, whether until
July 23, 1886, or December 28, 1887, the case does not
show. The act further provided that ‘‘the time be-
tween his release upon said permit and his return to
200 ‘HABEAS CORPUS.

the reformatory, shall not be taken to be any part of
the term of the sentence.’’

Upon habeas corpus, without discussing constitu-
tional or other questions, the court dismissed the writ
with the statement ‘‘The prisoner received his original
sentence and accepted his permit subject to such
liability. It is an instrument which enlarges, not one
which abridges his liberty and is not to be governed by
the same rules as a warrant of arrest.’ ©

The feature of this decision that does not meet ap-
proval, is that which declares that the permit may be
revoked, even after the term of the original sentence
has expired, from which it follows that a person once
a prisoner, could be arrested and again imprisoned,
though twenty or more years had intervened since his
release, and without any additional cause being shown,
upon the mere exercise of arbitrary will. It would
seem that it would have been more consistent for the
court to have held that the power to revoke the permit
was coextensive with the unexpired term of the im-
prisonment.

The reasoning and conclusion of the Michigan court
is based upon more humane and satisfactory principles.

Michigan, however, after the decisions referred to,
amended her constitution which provides: ‘‘The legis-
lature may, by law, provide for the indeterminate sen-
tences, so called, as a punishment for crime, on con-
viction thereof, and for the detention and release of
persons imprisoned or detained on such sentences.”’
A statute has been since enacted in conformity to the
constitution, and which it has been held is not repug-
nant thereto.®*

65 In re Conlon, 148 Mass. 168, 66In re Campbell, 138 Mich.
19'N. E. 164. 597, 101 N. W. 826; In re Manaca,
146 Mich. 697, 110 N. ‘W. 75.
EXCESS OF JURISDICTION. 201

§ 57. Parole; subsequent arrest and imprisonment.

The question of the power of an executive to revoke
a conditional pardon, or parole, after the term of im-
prisonment to which a prisoner was sentenced was de-
termined by the criminal court of appeals of Oklahoma,
concluding that the executive was clothed with such
authority, upon the reasoning that the prisoner was a
convict at large by executive clemency, which he has
accepted on conditions included therein; that. upon
violation of the conditions of his pardon he is merely
an escaped convict, and not entitled to invoke the con-
stitutional guaranty that ‘‘no person shall be deprived
of his liberty without due process of law,’’ and that
‘‘no warrant shall issue but upon probable cause sup-
ported by oath or affirmation. ’’

It was held, however, that upon habeas corpus the
court would inquire as to the facts of violation of the
condition of the parole, and in respect to any excuse
that may be offered, and if it should appear that such
conditions had not been violated, or that there was a
sufficient excuse, the court would discharge him.

It was further held that the convict was still entitled
to the credit allowed by law for good behavior and to
the lessening of the terms of the original sentence as
thus provided.*

A suspension of sentence, however, during good be-
havior, does not have the same effect. The court
can only set aside its order suspending sentence, at
the same term, and before the term of the sentence
has expired.®

67In re Redley (Okla. Crim. 832, 10 S. E. 611; In re Linden,
App. Rep.), 106 Pac. 549. See 112 Wis. 523, 88 N. W. 645.
also Ex parte Marks, 64 Cal. 29, 68Kx parte Clendenning, 1
28 Pac. 109, 49 Am. Rep. 684; Okla. Crim. Rep. 227, 97 Pac.
State v. Barnes, 38 8. C. 14, 6 650,19 L. R. A. (N. S.) 1041,
L. R. A, 743, 17 Am. St. Rep.
202 HABEAS CORPUS.

And where the sentence has not been carried into
effect by reason of a stay of proceedings or other
cause, the defendant may be arrested and the sentence
executed though the term for which sentenced has ex-
pired. Where the penalty is imprisonment, the sen-
‘tence of the law is to be satisfied only by the actual
suffering of the imprisonment imposed, unless re-
mitted by death or by some legal authority. The ex-
piration of time without imprisonment is in no sense
an execution of the sentence.®®

§ 58. Trial for two distinct offenses at the same time.

There is much force in the arguments which are
advanced to sustain the position that an accused ought
not to be tried for two distinct offenses at the same
time. Such a practice is fraught with danger to the
accused, and can never be done except at great risk
of doing him injustice. ‘‘Besides the confusion and
embarrassment in which a trial at one time for many
offenses would involve the accused, such a practice,
if tolerated, would break down and utterly obliterate
many principles of law that are not only well estab-
lished, but essential to the safety of the citizen. Noth-
ing is better settled than that the evil reputation of the
accused shall not be offered to strengthen the proofs
against him. That other misdeeds shall not be alleged,
proved or attempted to be proven is equally well known
law. If the public prosecutor or a common informer
in a penal action could put an unpopular person on
trial for every delinquency imputed to him by com-
mon fame, such a one, however innocent, might often,
sink under the weight of unmerited opprobrium.’’
(Utterances of Chas. O’Connor in the Tweed case, ap-
proved by the court.) Again, the joinder of felonies
is disallowed in England, because the prisoner’s right

69 Ex parte Eldridge (Okla. Crim. App. Rep.), 106 Pac. 980.
EXCESS OF JURISDICTION. 203

of challenge would be reduced; and the same result
follows here, not only as to felonies, but misdemeanors
also, as the right of challenge in this country is se-
cured in both cases, while not so in England. Prior
to 1847 no such right existed in New York. The re-
sult of the rule which would permit the trial of dis-
tinct offenses at the same time would be that the ac-
cused should be entitled to the number of challenges
permitted for each offense, multiplied by the number
of offenses charged, or else he is deprived of the right
of challenge in respect to all of such offenses except
one. The doctrine quite generally prevails that dis-
tinct offenses, not of the same grade or class,. not in-
cident to the same act, cannot be united in the same in-
dictment or information. It, however, was held that
such question did not go to the jurisdiction of the court
and can only come up on error from the judgment.”

It is uniformly held that the same act, constituting
a single offense, may be charged in different ways in
different counts in the same indictment.”

But whether, where several distinct offenses have
been so separately stated, upon the limit prescribed -
. upon conviction for one such offense only may be im-
posed, is a grave question, some courts maintaining
that there can be but one sentence (People v. Liscomb,
60 N. Y. 559, 19 Am. Rep. 211; In re Henry, 123 U. S.
372, 31 L. Hd. 174, 8 Sup. Ct. Rep. 142; In re De Bara,
179 U.S. 316, 45 L. Ed. 207, 21 Sup. Ct. Rep. 110), while
cthers maintain that, under statutes authorizing it, cu-
mulative sentences may be imposed.7?

70 People ex rel. Tweed vy. Lis- _72In re McCormick, 24 Wis.
comb, 60 N. Y. 559, 19 Am. Rep. 492; State v. Smith, 5 Day, 175;
211. Russell v. Commonwealth, 7

71 People v. Liscomb, 60 N. Y. Serg. & Rawle, 489; Brown v.
559, 19 Am. Rep. 211; People v. Commonwealth, 4 Rawle, 459;
Forbes, 22 Cal. 185; Brown v. People v. Forbes, 22 Cal. 135.
Commonwealth, 4 Rawle, 459;

State v. Smith, 5 Day, 175.
204 HABEAS CORPUS.

Where an indictment contained the double charge
of rape at common law and of the statutory offense of
carnally and unlawfully knowing a female child under
sixteen years of age, no motion being made to compel
the district attorney to elect on which charge he would
try the prisoner, and he was found guilty of the latter
charge, the trial court having charged that the allega-
tions respecting the will of the woman might be re-
jected, it was held there was no error in the ruling
of the court. That in any event the court had juris-
diction of the prisoner and it had jurisdiction both of
the offense of rape and of carnal knowledge of a female
under sixteen years of age. It was its duty to decide
whether there was a sufficient indictment to subject
the party to trial for either or both of these offenses.
If there was error, which the court held there was not,
it was not an error which went to the jurisdiction of
the ecourt.”8

An indictment contained the double charge, for
illegal voting for electors of president and vice-presi-
dent of the United States, and also of illegal vot-
ing for a representative in congress. The principal
question involved was whether the state court had ju-
risdiction of the offenses charged. The petitioner was
convieted and sentenced in the state court. The cir-
cuit court of the United States discharged him in
habeas corpus, upon the ground that the United States
courts had sole and exclusive jurisdiction of the of-
fense. The judgment was reversed upon appeal to the
supreme court.

It was held, that, although the electors are appointed
and act under and pursuant to the constitution of the
United States, they are no more officers or agents of
the United States than are the members of the legisla-
ture when acting as electors of federal senators, or the

73 In re Lane, 185 U. S. 443, 34 L, Ed. 219, 10 Sup. Ct. Rep. 760.
EXCESS: OF. JURISDICTION. ; 205

people of the state when acting as electors of represen-
tatives in congress. The federal statutes respecting
the election of representatives in congress, do not im-
pair or restrict the power of the state courts to punish
' fraudulent voting in the choice of its elevtors.

It was said: ‘‘The question whether the state has
concurrent power with the United States to punish
fraudulent voting for representative in congress is not
presented by the case before us. It may be that it has.
But even if the state had no such power, in regard to
votes for representative in congress, it clearly has such
power in regard to votes for presidential electors, un-
affected by anything in the constitution and laws of the
United States; and the including in one indictment and
sentence, of illegal voting both for representative in
congress and for presidential electors, does not go to
the jurisdiction of the state court, but is at the worst,
mere error which cannot be inquired into by writ of
habeas corpus.”4

74 In re Green, 134 U. S. 377, 33 L. Ed. 951, 10 Sup. Ct. Rep. 586.
206 HABEAS CORPUS.

CHAPTER VI.
THE JUDGMENT UPON REVIEW; RES ADJUDICATA,

§ 59. Remanding the Prisoner.
60. Discharging Prisoner.
61. Federal Statute.

§ 59. Remanding prisoner.

As a general rule res adjudicata has no application
to habeas corpus proceedings where there has been a
refusal to discharge on the writ. That a refusal to
discharge on one writ is not a bar to the issuance of a
new writ.

In some of the states, however, it is held that the writ
will be refused where it appears that it is based upon
the same grounds which were determined adversely to

. the petitioner? .

Within the doctrine first stated, a judgment on a
writ of habeas corpus remanding the prisoner is not
a bar to a subsequent action by him for false imprison-
ment for the same cause.* ‘

Where, however, a statute exists which authorized
a review of the proceedings upon appeal of writ of

1 Bradley v. Beetle, 153 Mass.
154, 26 N. EH. 429; Rogers v. San

Wyo, 392,58 Pac. 411, 49 L. R.
A. 831.

Francisco Super. Ct., 145 Cal.
88, 79 Pac, 344; Ex parte Cleve-
land, 36 Ala. 306; In re Snell, 31
Minn. 110, 16 N. W. 692; People
_v. Brady, 56 N. Y. 182; Ex parte
Kaine, 3 Blatchf. C. C. R. 1; In
re Graham: In re McDonald, 74
Wis. 450, 48 N. W. 148, 17 Am.
St. Rep. 174; In re Blair, 4 Wis.
522; MisKimins v. Shaver, 8

2Peery v. McLendon, 62 Ga.
598; People v. Foster, 104 Ill.
156; Ex parte Nichols, 62 Miss.
158; Ex parte Turner, 86 Mo.
App. 75; Ex parte Scott, 1 Dak.
140, 46 N. W. 512. ,

8 Bradley v. Beetle, 153 Mass.
154, 26 N. BE. 429; Castor v.
Bates, 127 Mich. 285, 86 N. W.
810.
THE JUDGMENT UPON REVIEW; RES aDJuDICATA. 207

error, the determination being held res adjudicata, it
would follow that it would constitute a bar to the pros-
ecution of such action.’ ;

In Wisconsin, it was the law prior to the enactment
of that statute, the statute which gives an appeal to
the supreme court from a final order affecting a sub-
stantial right, made in special proceedings, relates
only to such proceedings by parties for the enforce-
ment and protection of rights or the redress or pre-
vention of wrongs of a private nature, and does not
apply to proceedings by habeas corpus, and conse-
quently it was held that where a judgment debtor who
had been imprisoned for contempt in refusing to
answer questions put to him in supplemental pro-
ceedings, obtained his discharge on habeas corpus, -
such order could not be brought before the supreme
court by appeal. That although the proceeding by
habeas corpus grew out of the civil action, it is an
original proceeding by which a relator or petitioner
invokes the power and authority of the state to release
him from alleged unlawful imprisonment.

The statute, however, section 3043, authorizes writs
of error to issue of course out of the supreme court in
vacation as well as in term time, to review the order
or judgment of any court, discharging or remanding a
person brought before it by a writ of habeas corpus, or
an order or judgment reversing or affirming the orden
of any judge or court commissioner discharging or re-
manding a person thus brought before him. It was held
this statute effectually changed the common-law rule, so
that the doctrine of res adjudicata has now the same
applicability to habeas corpus proceedings as to other

suits.®

4State v. Whitcher, 117 Wis. 6State v. Huegin, 110 Wis.
668,.94 N. W. 787. 189, 85 N. W. 1046, 62 L. R. A.

5In re Fenelon, 87 Wis. 281. 700.
208 HABEAS CORPUS.

§ 60, Discharging prisoner.

The judgment of discharge on a writ of habeas cor-
pus, ordinarily is final and conclusive and cannot. be
reviewed except on certiorari in the absence of statutes
granting the right of review either by appeal, writ: of
error or other mode.”

Such is the common law which is based upon. the:
rule that appeal or writ of error does not lie.

While in the absence of such a statute granting re-
view by writ of error, the judgment remanding a pris-
oner could only be reviewed upon certiorari, the statute.
now supersedes such method by virtue of the principle:
that certiorari will not issue where there is an adequate:
remedy at law.

The statute only authorizes the writ of error to re-
view the action of a court not that of a judicial officer,
hence the practice to review the order of such an officer:
in habeas corpus proceedings before him, isto have the:
order by proper proceedings: reviewed by the circuit
or district court, and in case ofan adverse ruling, to ob-
tain a writ of error from the supreme court.®

In a subsequent case, however, it seems to have been
held that the writ of certiorari is still an available
remedy to determine whether the committing: magis-
trate had jurisdiction of the proceedings, that is, to act
at all in the matter. If it is desired to review it upon the:
merits, a motion should be made in the ordinary way for
a review before the circuit court, and if he desired there-
after to present the question of whether the decision
is right. A writ of error may be sued out of the su-
preme court for that purpose. That a decision in

7In re Crow, 60 Wis. 349, 19 9 Am. St. Rep. 816; Ex parte
N. W. 713; State v. Huegin, 110 Jilz, 64 Mo. 205, 25 Am. Rep. 218.
Wis, 189, 226, 85 N. W. 1046; 8In re Hammer, 113 Wis. 96,
62,L. R. A, 700; State v. Grott- 89 N. W. 111.
kau, 73 Wis. 589, 41 N. W. 80,.
THE JUDGMENT UPON REVIEW; BES aDJuDIcATA. 209

habeas corpus action stands in no different position
than one in any other proceeding.®

It was said: ‘‘The conclusion reached in the first in-
stance, whether it be by a judge at chambers or a cir-
cuit court commissioner, within the jurisdiction of the
officer to decide at all, is res adjudicata till set aside by
some subsequent proceeding in the same matter accord-
ing to the legal procedure for reviewing judicial
errors.’? 1°

It therefore follows that where such a statute exists
that where the prisoner is discharged either in the first
instance or upon the final hearing, he cannot be ar-
rested a second time for the same cause or offense.

§ 61. Federal statute.

The federal laws now provide for an appeal to the
supreme court from the final decision of the circuit
court in habeas corpus cases (Act of March 3, 1885, 23
Stat. 437).

It was stated by the supreme court of the United
States in reference to the statutes thus amended: ‘‘It
will be observed that in both the provisions of the re-
vised statutes and of this latter act of congress, the
mode or review whether by the circuit court' of the
judgment of an inferior court or justice or judge or
by this court of the judgment of the circuit court, the
word ‘appeal’ and not ‘writ of error’ is used, and as
congress has always used these words with a clear
understanding of what is meant by them, namely, that
by a writ of error only questions of law are brought
up for review as in actions at common law, while by an
appeal, except when specially provided otherwise, the
entire case on both law and facts is to be reconsidered,

9State v. Whitcher, 117 Wis. 10 State v. Whitcher, 117 Wis.
668, 94 N. W. 787. 689, 94 N. W. 787.

14
210 HABEAS CORPUS.

there seems to be but little doubt that, so far as it is
essential to a proper decision of this case, the appeal
requires us to examine into the evidence brought to
sustain or defeat the right of the petitioner to his dis-
charge.’? 1

The powers of the courts and judges was extended
by the act of congress (February 15, 1867, Stat. 385 c.
28), and declares that ‘‘said court or judge shall pro-
ceed in a summary way to determine the facts of the
case by hearing the testimony and the argument of the
parties interested, and if it shall appear that the peti-
tioner is deprived of his or her liberty, in contraven-
tion of the constitution or laws of the United States,
he or she shall forthwith be discharged and set at
liberty.’’

It follows, therefore, that the judgment of the circuit
court until reversed, and that of the supreme court, is
res adjudicata, and it was held in the case cited, that
such judgment was final and conclusive, and did not
conflict with the constitutional provisions respecting
trial by jury, where the judgment was that the prisoner
is unlawfully restrained of his liberty, and in that case
was final for all purposes, as the court found that the
act charged was not a crime.

11In re Neagle, 135 U. S. 1, 34 L. Ed. 55, 10 Sup. Ct. Rep. 658.
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 211

CHAPTER VII.

CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT.

I. Conremprs In GENERAL,

§ 62. Preliminary Statement.
63. What are Contempis.
May Consist in Manner of Speech.
Disrespectful Language, Use of; Manner in Pleading,
Both as to Substance and Language.
Insulting Letter Sent to Grand Jury.
Acts, Conduct, Speeches, etc.
Liberty of the Press; Bill of Rights.
64. Power of Courts to Adjudge and Punish.
65. Legislative Control of the Power; Extent.
' Doctrine Declared by Courts in Some States.
66. Contempts Within the Statute.
67. Distinction between Civil and Criminal Contempts.
As Declared by Federal Supreme Court.
As Declared by New York Court of Appeals.
Statutes Relating to Criminal Contempts.
Immediate Presence of the Court; Expression Construed.
68. Civil Contempts Defined.
69. Character of Proceedings.
70. The Judgment or Final Order.
In General.
Striking out Pleading.
Denial of Relief.

II. Scorz or rHE Writ or HaBeAs Corpus In REVIEWING ORDERS AND
JUDGMENTS OF CONTEMPT.
71. In General.
Disobedience or Violation of Orders or Judgments.
72. General Rule. :
Extent of Inquiry.
73. In General.

Petitioner May in the Federal Court Show, not Disputing
the Facts Found, that the Act Claimed was not a Con-’
tempt.

Order for Examination before Trial made in Federal
Court.

Illegal Punishment.

Facts not Subject to Review.
212 HABEAS ‘CORPUS.

74, Distinction between Jurisdiction and Judgment.
75. Particular Orders and Judgments.
Enjoining Removal of Officer.
Enjoining State Officers.
Judgment; Inforcement Stayed upon Appeal.
Enjoining Federal Officers.
Mandamus; Disobedience of Writ.
Order Respecting Possession of Realty.
Decree of Specific Performance; Refusal to Comply.
Injunction; Violation of.
Order Respecting Payment of Alimony.
Nonpayment; Ability to Pay.
Orders Directing Delivery of Documents or Other Papers.
Orders made in Other than Judicial Proceedings.
76. Interference with Process or Action of Court by a Third
Party. ‘
In General. :
Receivers; Interference with Their Possession.

I. Contemprts In GENERAL.

§.62. Preliminary statement.

The most frequent application for the writ of habeas
corpus is found in those cases where a party has been
adjudged in contempt, and placed in custody for re-
fusal to obey some mandate, order or direction of a
court or other body, or for some act of misconduct
or misbehavior either in or without the presence of the
court.

Contempts of court may be classified as either direct
or constructive, the distinction resting upon whether
the alleged offense was committed in the presence of
the court, in which case the court is clothed with the
power of summary punishment, or whether committed
elsewhere, in which case regular proceedings involving
an opportunity on the part of the accused to be heard
are requisite.

This distinction is very important in view of the
statutes which have quite generally been adopted, not
as a rule affecting the former, but attempting to regu-
late and prescribe the limits of the latter.
CONTEMPIS; GENERAL REVIEW; SCOPE OF WRIT. 213

§ 63. What are contempts.

Without attempting to enumerate the numerous acts
that may constitute contempt, as that would be prac-
tically impossible, it is sufficient for our purpose herein
to state in general, that it includes not only acts which
directly and openly insult or resist the power of the
court, or the person of the judge, but also such as ob-
struct the process, degrade the authority or contami-
nate the court. It has been said that ‘‘every case of
authority seen in the books will be found to proceed
upon the idea either remote or proximate, of disre-
spect of the court or the judge in reference to their
official character or conduct or matter in derogation of
the dignity of the courts, or are referable to that power
of self protection, which we have remarked is neces-
sarily inherent in judicial institutions.’’ +

Any words uttered by speech, by writing or printing
outside of the regular course of litigation, which are de-
signed to bring contempt upon the courts in the exer-
cise of their judicial functions, or to pervert in a pend-
ing case the administration of justice is contempt.”

May consist in manner of speech.

Contempt may consist in manner and tone as well
as by affirmative act or speech. A court may be in-
sulted by the most innocent words uttered in a peculiar
manner or tone. Words used may or may not be con-
temptuous according to the manner in which they were
spoken. The court to which the language addressed is
necessarily, in such a case, the judge in this respect,
and. its conclusion once formed is conclusive upon every
other court.*

Thus, where an attorney was required by an order
of the court to answer in writing upon which he re-

1Scott, J., in Neal v. State, 9 2In re Cheeseman, 49 N. J. L.

Ark, 259; Watson vy. Williams, 115, 6 Atl. 512,
36 Miss. 331. 8 Wilson’s Case, 7 Q. B. 984,
. 214 HABEAS, CORPUS.

plied ‘‘I will answer nothing.’’ Upon the question of
the prisoner’s. conduct constituting a contempt and the
power of review, it was said by the reviewing court:
‘Whatever contempt was committed by the petitioner
consisted i in tone and manner in which his language to
the court was uttered. On this hearing we are bound
to take the statement in that respect of the judge em-
bodied in his order as true, for the question before us
is not whether the court erred, but whether he had ju-
risdiction to bar the petitioner for alleged contempt.’? ‘

Another illustration is found where it appeared dur-
ing the progress of a trial, objection was made that a
question had been previously answered. Immediately,
upon the ruling of the court, the attorney for one of
the parties sprang to his feet, turned toward the court
and said in a loud and insulting manner, ‘‘She has not
answered the question,’’ whereupon the court fined him
for contempt. The appellate court in affirming the
conviction, remarked : ‘‘ We feel constrained to say that
such conduct was contemptuous and has a tendency to
impair the respect due to the authority of the court.
Whether the plaintiff’s manner was insulting, we are
unable to say, but that we must assume it to have been
so, we have no doubt.’’®

Disrespectful language, use of; manner in pleading
both as to substance and language.

The use of disrespectful language by an attorney in
‘dismissing an action, has been held to be a contempt.®
The manner of pleading and language used therein,
including its substance, may constitute a direct con-
tempt, although the language itself may not be offen-

4In re Robinson, 19 Wall. 505, 5 Russell v. French, 67 Iowa,
22 L, Ed. 205. 102, 24 N. W. 741.
: * 6@Ex parte Smith, 28 Ind. 47.
CONTEMPTS; GENERAL REVIEW}; SCOPE OF WRIT. 215

sive. ‘Thus where the defendant in a proceeding
brought against him for constructive contempt stated
in his answer, in substance, that not only attorneys, but
many of the general public, for a long time prior to
the election mentioned in said information, were con-
stantly and commonly charging that the decisions of
the court were rendered on that side of the cause where
the political interests of the judge were supposed to
lie, it was said that ‘‘whether there was any truth in
said charges, it was, of course, impossible for any one
but the judge to know positively, but that the defendant
deemed it a proper matter for publication in a news-
paper which was opposed to said judge politically, as
the newspaper of the defendant was.’’ As to other
charges, the answer stated generally that one of them
related to a past transaction, and another relative to a
loan—a purely personal matter. He denied he was ac- .
tuated by malice, and any intention to cast reflection
upon the judge. The language of the court is: ‘‘To the
concluding portion of the information, which charges
specifically that the meaning of the language and the
corrupt and improper intent with which the publica-
tions were made were such as constituted contempts,
the only reply made by the defendant in his answer is,
that the allegations are so vague, unintelligible and un-
certain that they are not sufficient in law to put the de-
fendant upon his answer. The fact that the defendant
denies generally that he was actuated by malice, and
denies any intention to cast any reflection upon the
judge, must be taken in connection with the language
which we have quoted. This certainly is most insult-
ing to the judge, in the presence of the court itself. To
any fair and candid mind it must be evident that in
making these publications the defendant’s object was
to insult the court and to degrade the judge in the eyes
216 HABEAS CORPUS.

of the community. They naturally tended to impede:
the due administration of justice in impending causes.
They conclusively establish that the defendant was
guilty of constructive contempt. The unnecessary and
wholly uncalled for attempted explanation of the rea-
sons that actuated him in making the publication tended
to scandalize and insult the judge, and was a direct
contempt for which summary punishment might be in-
flicted.’’ 7

Insulting letter sent to a grand jury.

The remarks made by the supreme court of Cali-
fornia, In Matter of Tyler, 64 Cal. 434, are particularly
appropriate in this connection. In speaking with re-
ference to an insulting letter sent to a grand jury it is
said: ‘‘Such criminal acts are also punishable as con-
tempts of court, for they taint with suspicion the pro-
ceedings which they touch, embarrass, hinder and de-
lay courts in the exercise of their functions, and, if
suffered to pass unrebuked and unpunished by. the
court whose proceedings are tainted by them, they re-
sult in a paralysis of judicial confidence. It is of the
highest importance that jurors and judicial officers
should be protected and preserved, not only from im-
proper influences, but even from suspicion of such in-
fluences. Any publication, whether by parties or
strangers, which concerns a case pending in court and
has a tendency to prejudice the public concerning the
mérits, or which reflects on the tribunal or its proceed-
ings, or on the part of the jurors, the witnesses or the:
counsel, may be visited as a contempt. It would be
strange if under a government of law it would be other-
wise.’?’

7Bloom v. People (Colo.), 48 etc, (Utah), 21 Pac. 523; Hol-
Pac, 519. See also United States man v, State, 105 Ind. 513, 5 N.
vy. Late Corporation of Church, E. 556.
CONTEMPTS; GENERAL REVIEW; SCOPE OF wEIT. 217

Acts, conduct, speeches, etc.

Other courts are equally emphatic in their declara-
tion of the law. Thus, the supreme court of Missis-
sippi (Watson v. Williams, 36 Miss. 331): ‘‘The power
extends not only to acts which directly and openly in-
sult or resist the powers of courts or the persons of the
judges, but to consequential and indirect and construc-
tive contempts which obstruct the process, degrade the
authority or contaminate the purity of the courts.’’

The supreme court of Pennsylvania (Williamson’s
case, 26 Pa. St. 9, 67 Am. Dee. 374): ‘‘ All courts must
have this power or else they could not protect, them-
selves from insult or enforce obedience to their
process.’?

The supreme court of the state of Arkansas (State
v. Morrill, 16 Ark. 388) : ‘‘The cases abundantly show
that, by the common law, courts possessed the power
to punish, as for contempt, libelous publications of the
character of the one under consideration upon their
proceedings pending and past, upon the ground that
they tended to degrade tribunals, and destroy that pub-
lic confidence and respect for their judgments and
decrees so essential to the well being and good order
of society, and must effectually obstruct the free course
of justice.’’

The supreme court of New Jersey (In re Cheeseman,
49 N. J. L. 115, 6 Atl. 512): ‘‘The supreme courts of
New Jersey, modeled after the English courts of com-
mon law, have authority to punish summarily for any
words uttered by speech, by writing or printing, out-
side of the regular course of litigation, which are de-
signed to bring contempt upon the courts in the ex-
ercise of their judicial functions, or to pervert in a
pending cause the administration of justice.’’

The supreme court of New Hampshire (Sturoc’s
ease, 48 N. H. 432): ‘‘Strictures on a court which
218 HABEAS CORPUS.
would reach jurors, and thus tend to obstruct the ad-
’ ministration of justice, must be held as a contempt.’’®

Liberty of the press; bill of rights:

It has been assumed by some courts that the press
were licensed to the utmost extent, by the bill of rights,
to scandalize courts and judges by malicious and dis-
graceful publications, and that the only remedy or
means of redress lay in a civil action for damages.
This may be true with respect to responsibility to the
injured party. In fact it has been held that an in-
junction will not lie upon the application of a private
individual to restrain the publication of a scandalous
article, upon the distinct ground that, under the bill
of rights, one cannot be restrained from publishing
what he pleases, being only responsible for the con-
sequences thereof.®

Some courts, however, maintain that the bill of
rights respecting the liberty of.the press does not in-
clude scandalous publications against the courts and
judges thereof with respect to their official action.1®

Be this as it may, it is very clear that the responsi-
bility therein referred is not limited to an action for
damages brought in behalf of the personal judge, but
extends to accountability to the courts and judges, as.
such, for the abuse of the privilege conferred; and if
the character of the publication be made such as to
impede or interfere with the due administration of
justice, it thus becomes a contempt, an offense against.

the people, in which their institutions are attacked,

8See Cooper v. People, 13
Colo. 378, 22 Pac. 790, 6 L. R. A.
430; State v. Frew, 24 W. Va.
416, 49 Am. Rep. 257; State v.
Judge, 45 La. Ann. 1250, 40 Am.

St. Rep. 282; In re Pryor, 18
Kan. 78, 26 Am. Rep. 747.
9State v. Judge, 45 La. Ann.
1250, 40 Am. St. Rep. 282.
1 State v. Morrill, 16 Ark.
388.
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 219°

necessarily public in character, and for which all par-
ties concerned may be punished as for contempt.”

§ 64. Power of courts to adjudge and punish.

The power to punish for contempts is inherent in
all courts.

Its existence is essential to the preservation of
order in judicial proceedings, and to the enforce-
ment of the judgments, orders and writs of the court,
and consequently to the due administration of justice.
The moment the courts of the United States were called
into existence and invested with jurisdiction over any
subject, they became possessed of this power.”

This power so concisely expressed is inherent in the
several courts of the states as well. :

However, congress and the legislatures of most of
the states have enacted laws limiting the exercise of
this power from that which existed at common law.
Whether the legislature has the power to so limit it,
in respect to such courts as are established by the
constitution of the respective jurisdiction, as stated by
Mr. Justice Field in the case referred to, may perhaps
be a matter of doubt. ‘‘Such courts derive their power
from the constitution, the same as legislatures derive
their power, and under well established authority. As
to other matters, legislatures cannot invade the pro-
vince of such courts or curtail or restrict their author-
ity. They may regulate, but not infringe or destroy.’’
This particular question has not in so far as the
writer is informed, ever been expressly determined.
The authority of the legislature has, however, in many
cases been assumed.

With respect to the federal courts, other than the
supreme court, there can be no question. These courts

11 State v. Judge, 45 La. Ann. 12 Justice Field in Ex' parte
1250, 46 Am. St. Rep. 282. Robinson, 19 Wall. 505, 22 L. Ed.
/ 205 :
220. HABEAS CORPUS.

are not in the strict sense constitutional courts, but.
rather creatures of congress. Their powers and duties:
depend upon the act calling them into existence or sub-
sequent acts, extending or limiting their jurisdiction.
Their power in the punishment of contempts is limited
by the power that created them-and can only be ex-
ercised to insure order and decorum in their presence,
to secure faithfulness on the part of their officers in
their official transactions, and to enforce obedience to
their lawful orders, judgments and processes.®

§ 65. Legislative control of the power; extent.

Says the late Chief Justice Ryan of Wisconsin (In re
Pierce, 44 Wis. 448) : ‘‘The constitution of this state, in
creating this court and the circuit courts, as courts
of record, vested in them ex vi termini this common-
law power to punish for contempt, as an absolute and
essential quality of superior courts, as much as the
power to sit in judicial order with open doors, in public
session. I do not question but that this power may be
regulated by statute. But no statute could be effectual
to take it away; no statutory regulation can be effectual

‘so to abridge, impair or cripple it, as to leave the courts
without effectual power, effectually to punish, as for
contempt, disregard of the respect due to judicial ad-
ministration and disobedience to judicial determina-
tion. And if the statute regulating contempts, fails to
make adequate provision for the contempt of the pris-
oner, I cannot doubt that the circuit court took ade-
quate common-law power with its creation by the con-
stitution. In this respect neither this court nor the cir-
cuit court are at the mercy of the legislature, and if
every statute of the state, providing for the punish-
ment of contempts, should be repealed, and another
passed purporting to abolish the power, the power
would survive as at common law by force of the con-

13 Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205.
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. ‘221

stitution itself. The legislature cannot destroy, the
courts cannot abdicate this judicial power, essential
to the exercise of all other judicial powers, essential to
all judicial authority.’’

This language so vigorous and strong by one of the
ablest judges of modern times, is the logical expres-
sion of what of necessity must be the result from our
complex system of government. The right of self
protection and self-preservation lies in the acceptance
of this doctrine; and be it said to the credit of many
courts who have not bowed to popular enthusiasm in
exciting times or yielded to the ‘‘fear of that mon-
ster, imagination,’’ to use the expression of Justice
Johnson, they unqualifiedly adhere to the doctrine ex-
pressed by Justice Ryan.

Thus, the supreme court of Minnesota (State v.
Court, 52 Minn. 283): ‘‘If the whole chapter 87 (that
being the chapter relating to contempts) were swept
away, there would remain unimpaired the inherent
power of the court to punish for contempts.’’

The Mississippi court and those of other states, de-
clare the same doctrine in equally emphatic words.
Thus, in Watson v. Williams, 36 Miss. 331: ‘‘So in
Mississippi, the power of the court to fine and im-
prison for contempt as a necessary incident to judicial
power, independent of statutory enactment, inherent
in the very nature of their organization, and derived
from the constitutional provision which gave them
being, ex necessitate rei, has been repeatedly recog-
nized by her judicial tribunals.”’

The supreme court of Massachusetts (Cartwright’s
case, 114 Mass. 230): ‘‘The summary power to commit
and punish for contempts tending to obstruct and de-
grade the administration of justice, is inherent in
courts of.chancery and other superior courts as essen-
tial to the execution of their powers and to the main-
tenance of their authority, and is a part of the law of
222 ' HABEAS CORPUS. .
the land, within the meaning of magna charta and of
the twelfth article of our declaration of rights.’’

The supreme court of Vermont (In re Cooper, 32
Vt. 253): ‘‘The power to punish for contempt is in-
herent in the nature and constitution of the court. It
is not a power arising from any statute, but arising
from necessity, implied ‘because it is necessary to the
exercise of all other powers. It is indispensable to
the proper transaction of business. It secures respect
and obedience to those who represent its authority.’’

The supreme court of Connecticut (Middlebrook v.
State, 43 Conn. 257): ‘‘Independently of the statute,
we think the power to ish for contempts is in-
herent in all courts. A court of justice must of neces-
sity have this power to preserve its own dignity and
protect itself.’’

The supreme court of Colorado (Cooper v. People, 13
Colo. 373, 22 Pac. 790, 6 L. R. A. 480) : ‘*We hold upon
principle and authority that common-law superior
courts of record have the inherent power summarily to
convict and punish as for a contempt of court those re-
sponsible for articles published in reference to a cause
pending, where such articles are calculated to interfere
with the due administration of justice; and neither the
statute of the state nor the constitutional provisions
quoted (bill of right) present any barrier to the exer-
cise of such power by the district courts of the state, but
that such power is inherent in the courts.”’

The supreme court of New Hampshire (State v.

; Matthews, 37 N. H. 450): ‘‘The authority to punish
for contempt is a necessary incident, inherent in the or-
ganization of all legislative bodies, and all courts of law
or equity, independent of statutory provisions.’’

The supreme court of Indiana (Holman v. State,
105 Ind. 513, 5 N. E. 556): ‘‘The power to punish for
direct contempt is, inherent in all courts of superior
jurisdiction. This power is not conferred by legisla-
CONTEMPTS; GENERAL, REVIEW; SCOPE OF WRIT. 223

‘tion, but is an inherent power residing in-all courts.
It is a power the legislature can neither create nor
destroy. It is as essential to the preservation of the
existence of courts as is the natural right of self-de-
fense to the preservation of human life. The judicial
is a co-ordinate department of the government, and
courts are not the mere creature of legislature; for if
they were, the judicial department would be a subordi-
nate one, dependent for existence and power upon the
will of the legislature. This it is not, as the constitu-
tion declares, and the united voice of the courts affirm.
As it is a co-ordinate branch of the government, and as
judicial power can only live in courts, it must follow
that courts possess inherent powers which they do not
owe to the legislature, and among these powers is the
right to punish for direct contempts. This subject has
been many times discussed and the doctrine often
affirmed, without diversity of judicial opinion, that
courts do possess the power to punish contempts inde-
pendent of legislation, and that this power is one the
legislature can neither destroy nor abridge. We are
therefore not to look to the statutes alone to discover
what constitutes a contempt.’’

The supreme court of Arkansas (State v. Morrill, 16
Ark. 388); ‘‘If a man has an important case in court,
and, willing to resort to desperate measures to succeed,
publishes on the eve of trial a libel alleging that the
judge has been bribed to charge the jury against him,
and that all witnesses who are to appear on behalf of
the opposing party have been corrupted and are un-
worthy of credit, it is no contempt, and the judge must
labor under the embarrassment of sitting in the case
under such circumstances with his mouth closed. Or if
a judgment is rendered against a man, as soon as the
judge leaves the bench he is met at the door, insulted
or assaulted by the party in consequence of his de-
cision, and then publication made in a newspaper charg-
224 HABEAS CORPUS.

ing him with corruption in rendering the judgment and
calling upon the community to disregard and resist the
execution, and yet this is not contempt. These cases
may be extreme, yet they may occur; and when we are
called upon to declare in effect that the courts have no
power to punish any.act as a contempt which is not enu-
merated in the statute, as we now are by defendant’s
plea, it is well to anticipate the results that may flow
from such a decision.’’ It was conceded that the publi-
cation referred to was not within the statute, yet the
court held that the power to punish was inherent and
therefore not subject to legislative destruction.

The supreme court of California (In re Shortridge,
99 Cal. 532): ‘‘No authority has been found which de-
nies the inherent right of a court, in the absence of a
limitation put upon it by the power which created it,
to punish as a contempt an act committed in or out
of its presence which tends to impede, embarrass or
obstruct the court in the discharge of its duties. Itisa
doctrine which is admitted in all its rigor by American
courts everywhere, and does not need the support of
foreign authorities based upon the fiction that the
majesty of the king, represented in the presence of the
judges, is always present in court. It is founded upon
the principle which is coeval with the existence of the
courts, and as necessary as the right of self-protection.
“Tt is a necessary incident to the execution of the
powers conferred upon the court, and is necessary to
maintain its dignity, if not its very existence. It ex-
ists independent of statute. The legislative depart-
ment may regulate the procedure and enlarge the
‘power; but it cannot, without intrenching upon the con-
‘stitutional powers of the court and destroying the auto-
mony of that system of checks and balances which is
one of the chief features of our triple department form’
-of government, fetter the power itself.’’

y
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 220

The supreme court of Michigan (In re Chadwick, 109
Mich. 588, 67 N. W. 1071): ‘‘The power to punish for
contempts is inherent in and as ancient as the courts
themselves. The contempts that are thus punishable
are either direct, which openly insult or resist the
powers of the court, or the persons of the judges who
preside there, or else consequential, which, without
such gross insolence or direct opposition, plainly tend
to create a universal disregard of their authority. It
is apparent this power should be lodged in the court.
The judicial department is entirely distinct from the
legislative, and the constitution leaves the power exist-
ing in the court as it was at common law.’’

The supreme court of Wisconsin (In re Rosenburg,
90 Wis. 581, 63 N. W. 1065): ‘‘Independently of any
statute the courts have inherent power to punish of-
fenses against their dignity and authority.’’ 14

Doctrine declared by the courts of some of the
states,

I have thus quoted at length the declarations of
courts in order that no mistake might be made in stat-
ing a conclusion as to the doctrine they announce.
Another purpose is that the practitioner may have
them at hand, and not be forced to wade through long
and elaborate discussions appearing in many volumes,
many of which are not easily accessible, to find the pre-:
cise declaration of the court. The question is one of
great importance, and, in view of conflicting rulings,.
the question should receive the fullest discussion. In.

14For other cases declaring
the same doctrine, see Territory
v. Murray (Mont.), 15 Pac. 145;
United States v. Hudson, 7
Cranch, 32, 3 L. Ed. 259; Clark
v. People, 12 Am. Dec. 177,
Breese, 340; State v. Woddfin,

15

42 Am. Dec. 161, 3 Iredell’s Law,.
199; Ex parte Adams, 25 Miss.
888, 59 Am. Dec, 234; Rottman
v. Bartling, 22 Neb. 375, 35 N.
W. 126; In re Wooly, 11 Bush,
111,
226 HABEAS CORPUS.

New York and Iowa-it appears to be held that the
statute is restrictive of the common law. The question
has not been raised before the New York court, as I
can find, but the cases all proceed upon that theory.
What, if anything, there is in the constitution of that
state with respect to the power of the courts or with
respect to the power of the legislature to exercise con-
frol over them, I have not ascertained.’®

In Illinois, South Dakota, North Carolina and
Nebraska, the doctrine seems to be that, with respect
to direct contempts, the legislature cannot abridge the
power of the court. As to indirect contempts, the
legislature may control.and determine what acts shall
not be punishable as contempt.'®

In Indiana, as we have seen, the court was very em-
phatic in its declaration that the power to punish direct
eontempts was beyond legislative control. This would
imply that the power of courts, with respect to indirect
er constructive contempts, might be within their
eontrol.17

The rule in that state, that publications which re-
late to past proceedings of the court are not punishable
as contempts, is a judicial modification of the law, not
legislative. In West Virginia it is held that the statute
restricting the power to punish for contempt is with-
out force as to the supreme court."8

It is effectual to control district courts, upon the
ground that such courts could punish the offending
parties as for a crime, while the supreme court had no
such power.?®

15 People v. Court, 101 N. Y.
245, 4 N. E. 259; People v. Court,
147 N. Y. 290, 41 N. W. 700;
State v. Anderson, 40 Iowa, 207;
Dunham y. State, 6 Iowa, 245,

16 Story v. People, 79 Ill. 45;
‘State v. Sweetland, 3 S. D. 503;
In re Robinson, 117 N. C. 533;

Percival v. State, 45 Neb. 741,
64. N. W. 221.

17Holman v. State, 105 Ind.
513, 5 N. HE. 556; Cheadle v.
State, 110 Ind. 301, 11 N. B. 426.

18 State v. Frew, 24 W. Va.
416, 49 Am. Rep. 257.

19 State v. McClaugherty, 33
W. Va. 250, 10 S. BE. 409.
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 227

In Ohio the question was before the court, but not
decided, though doubt was expressed whether the legis-
lature had any such power of control over the courts.?°

Very recently the power of the legislature to abridge
the inherent power of constitutional courts to punish
for contempts was considered and determined by the
supreme court of that state in Hale v. State, 55 Ohio
St. 210, 45 N. HE. 199, 36 L. R. A. 254. It was con-
tended in behalf of the petitioner that there was no
authority in the legislature to abridge the power of
the courts in this regard, and that it had been exercised
in the enactment of sections 6906 and 6907 of the re-
vised statutes of the state, which make certain acts,
formerly punishable as contempts, punishable by in-
dictment as ‘‘offenses against public justice.’’ The
former section provides for the punishment of persons
who, in the manner pointed out, evade the service of sub-
-poenas or refuse to appear and testify after service. It
contains the express provision that this section shall
not prevent summary proceedings for contempt. The
latter section provides for the punishment of persons
‘who corruptly or by threats of force endeavor to in-
fluence, intimidate or impede any juror or witness
* ¥* * in the discharge of his duty,’’ etc.; and it is
not by any express provision made cumulative to sum-
mary proceedings for contempt. The petitioner was
charged with contempt in corruptly inducing a wit-
ness under subpoena to go beyond the jurisdiction of
the court. It was also urged that the actual removal
of the witness from the jurisdiction of the court is
wholly comprehended within the attempt to influence,
to which the statute affixes a penalty; and that from the
omission of words making the section cumulative to
summary proceedings for contempt, it results that it
is exclusive of such proceedings. It was said: ‘‘How-
ever justifiable this inference might be if a proper view

2 Myers v. State, 46 Ohio, 478, 22 N. H. 43.
228 HABEAS, CORPUS.

comprehended the provisions of the statute alone, it
will, according to a familiar rule, be a sufficient reason
for rejecting it, if it leads to such an interpretation of
the statute as would impute to the general assembly
an intention to exercise power which it does not possess.
The difference between the jurisdiction of courts and
their inherent powers is too important to be overlooked.
In constitutional governments their jurisdiction is con-
ferred by the provisions of the constitution, and of
statutes enacted in the exercise of legislative authority.
That, however, is not true with respect to such powers
as are necessary to the orderly and efficient exercise
of jurisdiction. Such powers, from both their nature
and their ancient exercise, must be regarded as in-
herent. They do not depend upon express constitu-
tional grant, nor in any sense upon the legislative will.
The power to maintain order, to secure the attendance
of witnesses to the end that the rights of parties may
be ascertained, and to enforce process to the end that
effect may be given to judgments, must inhere in every
court or the purpose of its creation fails. Without
such power no other could be exercised.

‘“When constitutional governments were established
upon this continent there was general familiarity with
the course of judicial proceedings in the administration
of the common law. This power had long been exer-
cised as inherent. It was within every conception of a
judicial court. The view of the question then gen-
erally taken was stated by Chief Justice McKean in
1788: ‘Not only my brethren and myself, but likewise
all the judges of England, think that without this
power no court could possibly exist; nay, that no con-
tempt could, indeed, be committed against us, we should
be so truly contemptible. The law upon this subject is
of immemorial antiquity, and there is not any period
when it can be said to have ceased or discontinued.’ *!

21 Respublica v. Oswald, 1 Dallas (Pa.), 343.
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 229

‘‘The power, therefore, arose upon the creation of a
court because it was implied in every conception of a
court. * * * The suggestion that this power may
be abused raises no doubt as to its existence. In the
Virginia convention, assembled to adopt or reject the
federal constitution, John Marshall answered this sug-
gestion and anticipated every occasion upon which it
may be urged: ‘All delegated power is liable to be
abused. Arguments drawn from that source go in
direct opposition to all government and in recommenda-
tion of anarchy.’ * * * That it is not competent for
the legislature to abridge the power of courts to punish
summarily such wrongful acts as obstruct the adminis-
tration of justice has been held in well considered cases.
The conclusion is a necessary inference from the very
numerous cases in which it has been held that the
power inheres in courts independent of legislative
authority. A power which the legislature does not
give, it cannot take away. If power distinguished
from jurisdiction exists independently of legislation,
it will continue to exist notwithstanding legislation.
* * * We are not concerned with cases which hold
that the power may be exercised by courts or legisla-
tive bodies only when they are proceeding within the
sphere of duty when the alleged contempt is com-
mitted.’’

The conclusion of the court is that the sections of
the statute referred to do not, in terms, seek to limit
the judicial power considered, and it would be inde-
corous to place such construction upon them as would
impute to the general assembly either ignorance of the
limitations upon its authority or a purpose to trans-
cend them. That the insertion of the provisions in
section 6906, making its provisions cumulative to sum-
‘mary proceedings for contempt, was not necessary to
that end, and that its omission from section 6907 is not
significant. The court overrules Baldwin v. State, 11
230 HABEAS CORPUS.

Ohio St. 681, stating that the conclusion there was
reached without statement of reason or citation of
authority. In that case it was held that the act of
clandestinely abstracting from the files of the court a
subpoena for a witness and substituting another in its
place, and procuring a false return to be made upon
the latter, all with intent to defraud a party litigant in
said court, and in whose case such subpoena was issued,
did not come within either of the clauses of the first
section of the act of February 24, 1824, declaratory of
the law concerning contempts of courts, but was within
the provisions of the second section of that act, provid-
ing proceedings by indictment. The distinction ob-
served in the foregoing discussion by the learned court
between jurisdiction and inherent power in not with-
out high authority and precedent. Thus it was stated
by the United States supreme court that ‘‘certain im-
plied powers must necessarily result to our courts of
justice from the nature of their institution. But juris-
diction of crimes against the state is not those powers.
To fine for contempt, imprison for contumacy, enforce
the observance of order, etc., are powers which cannot
be dispensed with in a court, because they are necessary
to the exercise of all others; and so far our courts,
no doubt, possess powers not immediately derived from
statute.’’ 2?

The supreme court of the United States stated that it
was a matter of doubt whether the federal statute
(1 Stat. at Large, 83) could be held to apply to the su-
preme court, which derived its existence and powers
from the constitution, though the language of the act
was, ‘‘the several courts of the United States.’’ The
statute was held applicable to the circuit and district

22 United States v. Hudson & Goodwin, 7 Cranch, 32, 3 L. Ed.
259.
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 231

courts upon the distinct ground that they were crea-
tures of congress, and their powers and authority
could be regulated by congress.?*

From this extended review of the authorities we
find the doctrine almost universally asserted that the
power to punish contempt is inherent in the courts;
that this power exists by force of the constitution itself
as an inherent power. If this proposition be true and
respected, then no other. power can control its exercise.
The only question that can possibly arise is, whether
the matter or conduct alleged is contempt, and to de-
termine this, the court cannot be governed by statutory
definitions or classifications, but its duty and power
alike is, to determine whether the matter or conduct
was contempt at common law. If so, it remains such.
If what are now termed indirect or constructive
contempts were contempts at common law, they re-
main such; and a legislature has no more power
to control the exercise of the power to punish them as
such, than it has to control the exercise of such power
with respect to direct contempts. As stated by an able
court: ‘‘To say that it (the statute) is absolutely bind-
ing upon the courts would be to concede that the courts
have no constitutional and inherent power to punish
any class of contempts, but that the whole subject is
under the control of the legislative department, be-
cause if the general assembly may deprive courts of
the power to punish one class of contempts, it may go
the whole length and divest them of power to punish
any contempt.’’ 24

And another: ‘‘It would seem to follow that if the
legislature may curtail this jurisdiction and determine
that in no other matter than those for which it may

23 Ex parte Robinson, 19 Wall. 24State v. Morrill, 16 Ark.
505, 22 L. Bd. 205. 388.
232 HABEAS CORPUS.

provide shall the courts have jurisdiction, it may take
away the power to punish entirely.’’ 2°

“Tf this inherent power exists for the preservation
of mere order, for how much greater reason should it
exist to protect the fountains of justice from being
poisoned and the courts themselves from being brought
into contempt and disrepute.’’ 2°
i The supreme court of Virginia, in Carter v. Grubbs,
rendered an able opinion distinctly asserting the in-
herent power of courts to punish summarily contempts,
whether committed within or out of the presence of
the court. The court holds that the Saunders law,
passed at the last session of the legislature is unconsti-
tutional so far as it confines the power of punishing
for contempt, to direct contempts. In delivering the
opinion, Keith, J., said that after a careful considera-
tion of the authorities the court had arrived at the
following conclusions: ‘‘That in the courts created by’
the constitution there is an inherent power of self-de-
fense and self-preservation; that this power may be
regulated, but cannot be destroyed, or so far dimin-
ished as to be rendered ineffectual by legislative en-
actment; that it is a power necessarily resident in and
to be exercised by the court itself; and that the vice of
an act which seeks to deprive the court of this inherent
power is not cured by providing for its exercise by a
jury; that while the legislature has the power to regu-
late the jurisdiction of circuit, county and corporation
courts, it cannot destroy, while it may confine within
reasonable bounds, the authority necessary to the ex-
ercise of the jurisdiction conferred.’’

This enunciation of principle is extremely gratify-
ing at this time. The court had the advantage of all
the recent declarations of courts with respect to this

25In re Chadwick, 109 Mich. 26 State v. Judge, 45 La. Ann.
588, 67 N. W. 1071. 1250, 40 Am. St. Rep. 282.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 233

question. It observed the weakness of some and the
strength of others. It must have realized that there
existed an undercurrent pervading the populace
against the exercise of power and authority even by
the courts; that restraint upon human action and
human utterances was irksome; that the popular vein
lay in indirectly giving it countenance. The court,
however, was both able and strong. It gave no heed
to such influences, but fearlessly, firmly and correctly
declared the law.

The eloquent words of Chancellor Kent are appro-
priate here: ‘‘Whenever we subject the established
courts of the land to the degradation of private pros-
ecution, we subdue their independence and destroy
their authority. Instead of being venerable before the
public, they become contemptible; and we thereby em-
bolden the licentious to trample upon everything
sacred in society, and to overturn those institutions
which have hitherto been deemed the best guardians
of liberty.’ 27

§ 66. Contempts within the statute.

The provisions of the statutes of the different states
are not exactly the same. As a rule they merely re-
enact the common law with respect to direct contempts.
There are, however, exceptions. The limitations at-
tempted relate more particularly to constructive con-
tempts, so called. In many states the provision with
respect to publication, is, in substance that the publica-
tion of a false or grossly inaccurate report or copy of
the proceedings is contempt; but that no court can
punish as a contempt the publication of true, fair and
full reports of any trial, argument, proceedings or
decisions had in such court. Such is the statute in
Michigan and Wisconsin. The supreme court of Michi-

27 Yates v. Lansing, 5 Johns. (N. Y.) 282.
234 HABEAS CORPUS.

gan, in construing this statute, held that ‘‘it did not
limit the power to causes still pending in the court,
but extends to the criticism of past decrees,’’ and ac-
cordingly, where an article published reflected upon the
conduct and motives of a judge in his official action,
held that it constituted contempt within the statute.28
_ The supreme court of Wisconsin held that the power
to punish for constructive contempt was limited to
pending cases, but declined to determine whether the
subject was within legislative control.?°

The statutes of Ohio contain the following provision
(sec. 5639): “A court or judge at chambers may pun-
ish summarily a person guilty of misbehavior in the
presence of or so near the court or judge as to obstruct
the administration of justice.’”?’ In Myers v. State,
46 Ohio St. 473, 22 N. E. 43, it appears that an article
was published in a paper located in a city distant from
where a judge was holding court, reflecting upon the
conduct and the motives of the judge in the drawing
of a grand jury. It was said by the court that ‘‘the
intention of the publication was to insult and intimi-
date the judge, degrade the court, destroy its power
and influence, and thus bring it into contempt, to in-
flame the prejudice of the people against it, to lead
them to believe that the trial then being conducted was
a farce and an outrage, which had its foundation in
fraud and wrong on the part of the judge, and if com-
municated to the jury to prejudice their minds, and
thus prevent a fair and impartial trial. Besides, the
tendency was, when read by the judge, to produce irri-
tation, and to a greater or less extent render him less
capable of exercising a clear and impartial judgment.
It therefore tended directly to obstruct the administra-
tion of justice in reference to the case on trial, and its

28In re Chadwick, 109 Mich. 29 State v. Circuit Judge, 97
588, 67 N. W. 1071. Wis. 1, 72 N. W. 193.
Uy
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 230

publication was a contempt of court. The publication
came within the statute (sec. 5639). It is true the ar--
ticle was not written nor was it circulated by the re-
spondent in the presence of the court. Indeed it was
written in Cincinnati, though dated at Columbus, but
the publication was in the court room as well as else-
where. It was intended to have effect and did have
effect in the court house at Columbus, and the writer
was just as much responsible for that effect as though
he had in the court room itself, and while the trial was
in progress, circulated and read aloud the article and
uttered the libelous words verbally.’’

§ 67. Distinction between civil and criminal contempts.

Contempts are further divided into two classes called
civil and criminal contempts, the distinguishing feature
being, as will be noted, that one is prosecuted by the
state outside of the action, to vindicate the authority
and dignity of the court, and results in fine or im-
prisonment or both, while the other is a proceeding in
the cause in which the offense was committed or
ancillary to it, which adjudges indemnity for the
loss sustained by such misconduct. In the one case
the fine goes to the school fund; in the other to the
party. In the former no appeal lies. In the latter
the order may be reviewed upon appeal.?°

The distinction between criminal and civil contempts
is stated by the Wisconsin court (In re Pierce, 44 Wis.
411) as regulated or prescribed by statute, in words as
follows: ‘‘Sec. 2565 of the revised statutes classifies
among criminal contempts, wilful disobedience of any
process or order lawfully issued or made by the court.’’
Section 3477, under the title of ‘‘ Proceedings to punish
contempts to protect the rights of parties to civil

80In re Pierce, 44 Wis. 411.
236 HABEAS CORPUS.

actions,’’ includes also ‘‘disobedience of any process of
such court or any lawful order thereof, or of any lawful
order of a judge of such court, or of any officer author-
ized to perform the duties of such judge.’’ In the case
mentioned, the defendant, who was the mother of a
child, was convicted of contempt for refusing to re-
store the custody of the child to the care and custody
of her former husband, to whom it had been awarded
by a decree of divorce, and the order was that she
restore the child to the custody of the husband forth-
with, to pay a fine of one dollar, and to stand committed
until she should have complied with the order. It was
stated that the difference between the two chapters
with reference to criminal punishment for contempt
was that, if,the offense comes within the provisions of
the latter, imprisonment may be imposed for a longer
term than can be lawfully imposed under the former.
That the act could be punished as a criminal contempt
was also held; that the latter chapter does not pro-
vide for the punishment of all contempts, but only of
those specifically enumerated in section 1, by which the
rights or remedies of a party in a cause pending in the
court inflicting the punishment, or triable therein, may
be defeated, impaired, impeded or prejudiced. Under
section 3489 the court may fine or imprison, and, if it
does, such punishment is essentially for a criminal
contempt, and the fine goes to the school fund. Sec-
tion 3490 provides for awarding to the injured party
compensation or indemnity for the loss or injury he
has sustained by the misconduct, ete. The distinction
is that when the proceeding results in criminal pun-
ishment under the provisions of either chapter, it is
criminal; when it results in awarding indemnity to the
injured party, the proceeding is civil in character. The
one is prosecuted by the state outside the particular
cause; the other is a proceeding in the cause or an-
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 237

cillary to it. One results in punishment by fine or im-
prisonment, or both, inflicted to vindicate the authority
and dignity of the court; the other to indemnify the
party. In the one the fine goes to the school fund; in
the other the indemnity goes to the injured party.
An appeal lies from the order or judgment in the latter,
but not from the order imposing a fine or imprison-
ment. Hence the final order in contempt proceedings
must be one thing or the other—must impose criminal
punishment for misconduct or enforce the civil remedy
by awarding indemnity. It cannot do both.’’ It was
further held in that case that the loss or injury re-
ferred to was pecuniary loss, one which would be the
subject of an action; that the husband in the case
could not bring an action and recover damages
against the wife for the abduction and detention of the
child. Hence the order that the defendant be impris-
oned until she should comply with the order of the
court was wholly unauthorized and beyond the juris-
diction of the court; that she could be punished for
criminal contempt only.

As declared by the federal supreme court.

A distinction between civil and criminal contempts
was also recently declared by the supreme court of the
United States in a somewhat celebrated case, upon
grounds heretofore not pronounced by any court so
far as our investigation informs us. It is no less than
that it may, not that it always does, depend upon the
character of the proceeding, and this although the pun-
ishment is strictly for a criminal contempt, and one
which the court could properly impose for such a con-
tempt, under the circumstances in a direct proceeding
for that offense.

In an action brought by the Buck Stove & Range
Company, against The American Federation of Labor
238 HABEAS CORPUS.

and Samuel Gompers, and other officers of that cor-
poration, alleging a conspiracy to boycott the products
of the complainants. An injunction was issued restrain-
ing the defendants from conspiring, agreeing or com-
bining in any manner to restrain, obstruct or destroy
the business of the complainant or threatening any
boycott against the complainant or its business or prod-
ucts, and from printing, issuing, publishing or dis-
tributing through the mails or in any other manner,
any copy or copies of the American Federationist or
any other paper, magazine, circular, letter or docu-
ment, or any matter which may tend to boycott the
business or product of the complainants, etc. Proceed-
ings were instituted in a court of the district of Colum-
bia against the defendant Samuel Gompers and others,
as for contempt in violating said injunction, in which it .
was adjudged that Samuel Gompers, John Mitchell
and Frank Morrison were guilty of contempt in their
disobedience of the mandate of the said injunction,
and further adjudged and ordered that the said defend-
ants be confined in the United States jail in the district
of Columbia, the said Frank Morrison for six months,
the said John Mitchell for nine months, and the said
Samuel Gompers for one year. This judgment was re-
viewed by the supreme court of the United States.

The proceedings for the contempt were based upon
a petition entitled Buck Stove & Range Company,
plaintiff, v. American Federation of Labor, et al., de-
fendants, No. 27,305, Equity. The petition, however,
alleged that three parties only to the original cause
were guilty of the contempt, or were proceeded against.
The same title was used in all the proceedings, mo-
tions and orders. The complainants subsequently
moved. the court to amend the decree so as to award to
it its costs. The proceedings were prosecuted by the
plaintiffs and its attorneys.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 239

The court does not determine that the mere fact of
entitling the petition, in the name of the complainants
in the original action, instead of United States v.
Gompers, et al., or In re Gompers, et al., is of itself
sufficient to characterize the proceedings as for a civil
contempt, but declares that the latter is the more
proper, and that it is considered in this case, not as
controlling but only as a fact considered along with
others.

Stress is laid on another feature of the proceedings
which the court asserts clearly indicates that the par-
ties regarded the proceeding as civil in character in
that the complainants made each of the defendants a
witness for the complainants, thus requiring them
to testify against themselves, which otherwise they
could not be compelled to do.

And also upon the prayer for relief which concludes
““That the defendants show cause why they should
not be adjudged in contempt of court and be punished,
and that petitioner may have such other and further
‘relief as the nature of its case may require.’’ This
in the view of the court, was a clear indication that the
complainants intended the proceeding to be civil as
distinguished from criminal, and that the punishment
should be such only as was proper to be imposed in
cases of civil contempt.

The act of disobedience, however, was not in refus-
ing to do some act within the power of the defendants,
but in doing that which had been prohibited by the
court, and herein was probably the greatest difficulty
to be met by the court. The court taking original ju-
risdiction of the proceeding, was not absolutely bound
by the attitude of the parties of their respective claims.
Tf its authority and mandate had been disobeyed with-
out reference to the character of the proceeding, it
would have undoubted authority to punish the party
240 HABEAS CORPUS.

so in disobedience. Could it not ignore both the de-
mand and the purpose of the complaining party?
There could be no coercive imprisonment, as the
court fairly state, but concludes by stating, ‘‘therefore
the only relief, if any, which the nature of the peti-
tioner’s case admitted, was the imposition of a fine,
payable to the Buck Stove & Range Company. There
was, therefore, a departure, a variance, between the
procedure adopted and the punishment imposed, when
in answer to a prayer for remedial relief, in the equity
cause, the court imposed a punitive sentence, appro-
priate only to a proceeding at law for criminal con-
tempt. The result was as fundamentally erroneous as
if in an action of A v. B for assault and battery, the
judgment entered had been that the defendant be con-
fined in prison for twelve months.”’ ;
In the course of the review by the supreme court, it
referred to the distinguishing features between civil
and criminal contempts, and in so doing did not give
conclusive effect to the character of the punishment im-
posed. Thus it is stated: ‘‘Contempts are neither
wholly civil nor altogether criminal and it may not
always be easy to classify a particular act as belonging
to either of these two classes. It may partake of
the characteristics of both. But in either event and
whether the proceedings be civil or criminal, there
must be an allegation that in contempt of court, the de-
fendant has disobeyed the order, and a prayer that he be
attached therefor. It is not the fact of punishment,
but rather its character and purpose that often serve
to distinguish between the two classes of cases. If it
is for civil contempt, the punishment is remedial and
for the benefit of the complainant. But if it is for
criminal contempt, the sentence is punitive to vindicate
the authority of the court. It is true the punishment
by imprisonment may be remedial as well as punitive,
CONTEMPTS ; GENERAL REVIEW; SCOPE OF writ. 241

and many civil contempt proceedings have resulted not
/only in the imposition of a fine, payable to the com-
plainant, but also in committing the defendant to
-prison. But imprisonment for civil contempt is or-
dered where the defendant has refused to do an affirm-
ative act required by the provisions of an order which
either in form or substance was mandatory in its char-
acter. Imprisonment in such cases-is not inflicted as a
punishment, but is intended to be remedial by coercing
the defendant to do what he had refused to do. The
decree in such cases is that the defendant stand com-
mitted, unless and until he performs the affirmative act.
required by the court’s order. * * * On the other
hand, if the defendant does that which he is commanded!
not to do, the disobedience is a thing accomplished.
Imprisonment cannot undo or remedy what has been
done, nor afford any compensation for the pecuniary
injury caused by the disobedience. Such imprison-
ment operates not as a remedy coercive in its nature,
but solely as punishment for the completed act of dis-
obedience. * * * In this case, the alleged con-
tempt did not consist in the defendant’s refusing to do
any affirmative act required, but rather in doing that
which was prohibited. The only possible remediable re-
lief for such disobedience would have been to impose @
fine for the use of complainant, measured in some de-
gree by the pecuniary injury caused by the act of dis-
obedience. But when the court found that the defend-
ants had done what the injunction prohibited, and
thereupon sentenced them to jail for fixed terms of six,
nine and twelve morths, no relief whatever was.
granted to the complainant. * * * There is an-.
other important difference. Proceedings for civil. con-
tempt are between the original parties and are insti-
tuted and tried as a part of the main cause. But on the
other hand, proceedings at law for criminal contempt:
16
242 HABEAS CORPUS.

are between the public and the defendant and are not
a part of the original cause.’’ -

The court of appeals held that this proceeding was
not a part of the original equity suit between the par-
ties. That it was a separate action, one personal to
the defendants, with the defendants on the one side and
the court vindicating its authority on the other. The
supreme court, however, stated that ‘‘In this view
we cannot coneur.’’ 31

The specific principle declared and upon which this
ruling was based, while not in express terms so .de-
clared, is, that the judgment of the lower court was in
excess of its jurisdiction. The court was without ju-
risdiction to award the particular judgment.

The supreme court had previously held that when an
order imposing a fine for violation of an injunction is
substantially one to reimburse the party injured by
the disobedience, although called one in the contempt
proceedings, it is to be regarded as merely an inter-
locutory order, and to be reviewed only on appeal from.
the final decree.

It was said in the present case, however, the fine
payable to the United States was clearly punitive, and,
we think, as such it denominates the proceeding and
fixes its character, and held that being in its nature
criminal is reviewable by the circuit court of appeals on
writ of error.®?

31Gompers v. Buck Stove & 24 Sup. Ct. Rep. 665; New Or-
Range Co., 221 U. S. 418, 55 L. leans v. Steamship Co., 20 Wall.
Ed. 797. 387, 22 L. Hd. 354; Hayes v.

32In re Christianson Engineer- Fischer 102 U. S. 121, 26 L. Ed.
ing Co., 194 U. §. 458, 48 L. Hd. 95; Worden v. Searls, 121 U. S.
1072, 24 Sup. Ct. Rep. 729. See 14, 30 L, Ed. 853, 7 Sup. Ct. Rep.
also Bessette v. W. B. Conkey 814,
Co., 194 U. S. 324, 48 L. Ed. 997,
CONTEMPTS; GENERAL REVIEW; SCOPE OF writ. 243

As declared by the New York court of appeals.

The court of appeals in New York was among those
which implicitly without argument or question, yielded
to the assumption of authority by the legislature to de-
clare and define what were contempts. That court
was called upon to determine whether the act of a juror
in personally and without leave of the court viewing
the scene and surroundings of an alleged offense was a
contempt, either civil or criminal, and was forced, by
giving effect to the statute, to determine it was neither.
In reaching this conclusion the court very ably, clearly.
and comprehensively distinguished civil from criminal
contempts, declaring the power of the courts with re-
spect to each. Thus they state: ‘‘In one class are
grouped cases whose occasion is an injury or wrong ©
done to a party who is a suitor before the court, and
has established a claim upon its protection, and which
results in a money indemnity to the litigant, or a com-
pulsory act or omission enforced for his benefit. In
these cases the authority of the court is indeed vindi-
cated, but it is after a manner lent to the suitor for his
safety and vindicated for his sole benefit. The author-
ity is exerted in his behalf as a private individual, and
the fine imposed is measured by his loss and goes to
him as indemnity; and imprisonment, if ordered, is
awarded not as a punishment, but as a means to an end,
and that end the benefit of the suitor in some act or
omission compelled which are essential to his particu-
lar rights of person or property. A fine may be im-
posed to indemnify his actual loss; when such is not
shown, the fine must not exceed his costs and expenses,
and $250 in addition thereto, and in both cases paid
over to the suitor. The imprisonment where the act
or duty can yet be performed must end with the per-
formance of the act and payment of the fine; but if the
244 HABEAS CORPUS.

act or duty cannot be performed, then the imprison-
ment must not exceed six months and until the fine is
paid. In this last provision there is a trace of the
element of punishment, but it is for the violation of the
private right of the party and to check similar viola-
tions in the future, and has no respect to public of-
fenses or the vindication of public wrongs.

“<These cases have been usually described as pro-
ceedings for the enforcement of civil remedies, and
more briefly as civil contempts, because the great
volume of instances occur in the progress of civil ac-
tions; but they may also occur in criminal actions or
proceedings. If we describe this first class of con-
tempts as private contempts, because their occasion
is primarily and in the main the vindication of private
rights, we shall avoid confusion or misapprehension.

‘“‘The second class of contempts consists of those
whose cause and result are a violation of the rights of
the public as represented by their constitutional legal
tribunals, and a punishment for the wrong in the in-
terest of public justice and not in the interest of an
individual litigant. In these cases, if a fine is imposed,
its maximum is limited by a fixed general law and not
at all by the needs of individuals, and its proceeds,
when collected, go into the public treasury and not into
the purse of an individual suitor. The fine is punish:
ment rather than indemnity, and, if imprisonment is
added, it is in the interest of public justice and purely
as a penalty, and not at all as a means of securing in-
demnity to an individual. Necessarily these contempts
in their origin and punishment partake of the nature
of crimes, which are violations of the public law, and
end in the vindication of public justice, and hence are
named criminal contempts. As described in the
statute, an element of wilfulness, or of evil intention,
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 249

enters into and characterizes them. They are a dis-
turbance of the court which interferes: with the per-
formance of duty as a judicial tribunal; wilful dis-
obedience to its lawful mandate; resistance to such
mandate wilfully offered; contumacious and unlawful
refusal to be sworn as a witness or to answer a proper
question; and publication of a false and grossly inac-
curate report of its proceedings. But here again we
find that they occur as well in civil as in criminal ac-
tions, and so, for convenience, we may speak of them,
in view of the present classification, as public con-
tempts, although the established nomenclature must re-
main unchanged.’’ The court proceeds to state that
the two classes of contempts were known to and rec-
ognized by the common law, and the courts were held
to possess an inherent power of punishing by process of
contempt any disregard of their authority, both for the
benefit of their suitors and for the protection of their
own order and dignity. They conclude that the statute
has restricted criminal contempts, and no act can be
punished as such that does not come within the enu-
merated classes. That the misconduct of the juror in
question would have been a criminal contempt at com-
mon law. It was not a private contempt, for it in-
vaded no right of an indivdiual suitor before the court,
and involved no question or duty of indemnity to an
individual litigant. It was not a criminal contempt
under the statute, and hence it was no contempt
at all.’’ 88

All of the foregoing decisions are but constructions
of the particular statutes within their respective juris-
dictions, and not a construction of the common law in
respect to the distinction between the two classes. Such
statutes define, enumerate and classify contempts, in

83 People v. Court of Oyer & Terminer, 101 N. Y. 245, 4 N. E. 259.
246 HABEAS CORPUS.

some respects adopting the common law and in other
respects at variance therewith, limiting the power of
the courts in respect to punishment for acts which were
contempts at common law.

Statutes relating to criminal contempts.

The Wisconsin statute provides, under title, ‘‘ What
acts may be punished as criminal contempts: Sec.
2565. Every court of record shall have power to punish
as for a criminal-contempt, persons guilty of either of
the following acts, and no others: :

“1, Disorderly, contemptuous or insolent behavior
during its sittings, in its immediate view and presence
and directly tending to interrupt its proceedings or to
impair the respect due to its authority.

‘(2. Any breach of the peace, noise or disturbance,
directly tending to interrupt its proceedings.

“*3. Wilful disobedience of any process or order law-
fully issued or made by it.

“4. Resistance wilfully offered by any person to the
lawful order or process of the court.

“5. The contumacious and unlawful refusal of any
person to be sworn as a witness; or when so sworn, the
like refusal to answer any legal and improper inter-
rogatory.

“6. The publication of a false or grossly inaccurate
report or copy of its proceedings; but no court can pun-
ish as a contempt the publication of true, full and fair
reports of any trial, argument, proceedings or deci-
sions had in such court.

“7, The practicing as an attorney in such court with-
out being licensed as such in the manner provided by
law.’’

The statute of many of the states contain similar
provisions, some of them, as for instance Ohio, contain-
ing the provision: ‘‘A court or judge at chambers may
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 247

punish summarily a person guilty of misbehavior in the
presence of or so near the court or judge as to ob-
struct the administration of justice.’’

It will be noted that under this statute, officers of the
court cannot be punished as for a criminal contempt,
unless with the possible exception of misbehavior in
the presence of the court, nor for putting in fictitious
bail or sureties, and many other acts which constituted
criminal contempts at common law. Hence if liter-
ally construed, the distinction we have made, that crim-
inal contempts are in behalf of the public to vindicate
its authority and dignity, and that the fine imposed
goes into the public fund, cannot be maintained, as the
punishment in such cases is for indemnity to the party
aggrieved. If by such act the rights of parties were
not impeded or prejudiced, then there could be no pun-
ishment, and hence no contempt, or, in the case of the
misconduct of a juror, as stated by the New York
court of appeals, People v. Court, 101 N. Y. 245, 4 N.
E. 259, supra: ‘‘The misconduct of a juror would have
been a criminal contempt at common law. It was not
a private contempt, for it invaded no right of an indi-
vidual suitor before the court and involved no question
or duty of an individual litigant. It is not a criminal
contempt under the statute, and hence it is no contempt
at all.”’

The Wisconsin court does not meet this question in
In re Pierce, supra, but in the particular case, involv-
ing a refusal to obey the order of the court which is
within both statutes, and under sec. 3489 of the statute
relating to civil contempts, it is stated there, the court
may fine or imprison and if it does, such punishment is
essentially for a criminal contempt and the fine goes
to the school fund. But the statute in respect to crimi-
nal contempts, is that the power to punish as for a
criminal contempt, is expressly limited to the acts
therein stated, ‘‘and no other.’’
248 HABEAS CORPUS.

The question is, does this statute supplant the com-
mon law? We have seen that the court has inherent
power derived from the common law preserved by the
constitution, and the more important question of all,
is, if as to some acts the legislative power is wanting,
does it not conclusively follow that it is wanting as to
any and all?

It will also be noted that the statute, together with its
construction, in so far as it embraces publications, is
limited to criticism of pending cases, and as to insults
to or assaults upon the judges, is confined to such as
occur in the immediate presence of the court, thus again
conflicting with the common law. We have also seen
that such limitation is beyond the power of the legisla-
ture. It invades the province of the courts.

Immediate presence of the court; expression con-
strued. '

The Wisconsin court gives to the wording of the
statute a strict construction and has held that the pub-
lication in a newspaper of articles charging a circuit
judge, who was a candidate for re-election, with hav-
ing been intentionally partial and corrupt in the trial
of causes theretofore disposed of, and the circulation of
such articles among the jurors and officers of the court
at a term thereof, did not constitute a criminal con-
tempt within the meaning of subd. 1 of the statute, not
being charged that such act was committed in the im-
mediate view and presence of the court, or that the
publication had been circulated in the court room.*4

It is true it was not alleged that the publication was
in the court room, but was alleged it was circulated
among jurors and officers while attending upon the
court. The distinction sought to be made is quite nar-
row. The presumption is that the officers and jurors

84 State v. Circuit Court, 97 Wis. 1, 72 N. W. 198.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WEIT. 249

had it with them in the court room and certainly dis-
cussed it there.

The Ohio court, we think, has given a more reason-
able construction of the words of the statute ‘‘in the
presence of the court.’’ There the publication was in
Cincinnati. It was not written or circulated by the re-
spondent, but in a newspaper that had a large circula-
tion in the county where the trial was in progress, and
with reasonable grounds to believe that the same would
be circulated in the court room and about the court
house during said trial. The court say: ‘‘The article
_ was a libel upon the presiding judge, but that alone did
not form the basis of the information. The intention
of the publication was to insult and intimidate the
judge, degrade the court, destroy its power and in-
fluence and thus to bring it into contempt, to inflame
the prejudice of the people against it; to lead them to
believe the trial then being conducted was a farce and
an outrage, etc. Besides the tendency was when read
by the judge, to produce irritation and to a greater or
less extent, render him less capable of exercising a
clear and impartial judgment. It therefore tended di-
rectly to obstruct the administration of justice, in re-
ference to the case on trial, and its publication was a
contempt of court. * * * It is true the article was
not written nor was it circulated by the respondent in
the presence of the court. Indeed it was written in.
Cincinnati, though dated at Columbus. But the publi-
cation was in the court room as well as elsewhere. It
was intended to have that effect, and did have effect in
the court room, and the writer was just as much re-
sponsible for that effect as though he had in the court
room itself, and while the trial was progressing, circu-
lated and read aloud the article or uttered the libelous
words verbally.’’ *®

88 Myers v. State, 46 Ohio St. 473, 22 N. E. 43.
250 HABEAS CORPUS.

The mere fact that the publication was concerning a.
case on trial, in no manner affected the question, in re-
spect to its being a publication and consequently a con-
tempt in the presence of the court. The effect of the
publication was the same without regard to the parti-
cular case on trial, only perhaps more aggravating by
reason of reference to the particular case.

It was stated by the supreme court of the United
States: ‘‘That the court, at least when in session, is
present in every part of the place set apart for its own
use and for the use of its officers, jurors and witnesses,
and misbehavior anywhere in such place is misbehavior
in the presence of the court.’’ #¢

§ 68. Civil contempts defined.

Statutes have been enacted in most of the states de-
fining, enumerating and classifying this species of con-
tempt, prescribing to some extent the manner of pro-
cedure and the nature and extent of the punishment. It
is within the discretion of the legislature to regulate
the exercise of the power of the courts to punish such
contempts, and such statutes usually embrace officers,
either general or special, connected with the court or its
process, defining misconduct on their part, with re-
spect to their duties, a contempt; also parties to ac-
tions for putting in fictitious bail or sureties, or for any
deceit or abuse of the process or proceedings of the
court, such misconduct constituting contempt. Also
making it a contempt on the part of either such attor-
neys, parties or other persons not to pay any money or-
dered to be paid by the court in cases where by law
executions cannot be awarded, and any other disobe-
dience of any lawful order, judgment or process of the
court. Such statutes also declare it to be contempt for

36 Matter of Savin, 131 U. S. 267, 33 L. Ed. 150, 9 Sup. Ct. Rep.
699.

at
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 201

persons to assume to be and act as officers or attorneys
and counselors without such authority; to rescue any
person or property which shall be in the custody of any
officer by virtue of process issued by such court or
judge thereof; to unlawfully detain any witnesses or
party to an action while going to, remaining at or re-
turning from the court, and for any other unlawful in-
terference with the process or proceedings in any ac-
tion. If summoned as witnesses or garnishees, to re-
fuse or neglect to-obey such summons, or to attend or
to be sworn, or to answer as such witnesses or gar-
nishees. If summoned as jurors in any court, to im-
properly converse with any party to an action tried
at such court, or with any person in relation to the
merits or such action, or to receive communication
from any such party or from any other person in rela-
tion to the merits of such action without immediately
disclosing the same to the court. For inferior magis-
trates, officers and tribunals to disobey any lawful or-
der or process of a superior court, or for proceeding in
any action or proceeding contrary to law after such
action shall have been removed from their jurisdiction ;
and embrace all other cases where attachments and pro-
ceedings as for contempts have been usually adopted
and practiced in courts of record to enforce the civil
remedies of any party or to protect the rights of any
such party.

§ 69. Character of proceedings.

While it has been quite generally determined that
contempt of court of any character is a specific crimi-
nal offense, and the imposition of a fine for a contempt
is a Judgment in a criminal case; *7 that such proceed-
ing is no part of the process in the civil action, if com-

87 New Orleans v. Steamship Co., 20 Wall. 387, 22 L. Ed. 354.
252 HABEAS CORPUS.

mitted pending the proceedings therein, but is a special
proceeding pending therein criminal in character in
which the state is the real plaintiff or prosecutor,?®
yet the proceeding is not in all cases so far criminal
in its character, that it shall be conducted as in case
of crimes.

It was originally held in Wisconsin, that the proceed-
ing in all cases must be entitled in the name of the
state as prosecutor, and not in the name of the parties
to the civil action out of which it arises.®®

And this is proper in all cases of strictly criminal
contempts as distinguished from civil contempts, as
where a fine or imprisonment is adjudged as the pen-
alty. However, in cases of civil contempts it is usual
and proper to entitle the proceedings as in the original
action.*°

Though it is not irregular to entitle them in the name
of the state on the relation of the person prosecuting
the attachment against the defendant or the party pro-
ceeded against.*!

If imprisonment is ordered in default of obeying the
mandate of the court, the remedy by habeas corpus is
not precluded on the ground that the contempt is civil
in character, although the offender may have a rem-
edy by appeal which is permissible in certain jurisdic-
tions. The question of the method of review is stated
hereafter under that head.*

38 Haight v. Lucia, et al. 36
Wis. 355;. Fischer v. Hayes, 6
Fed. 63.

30 Haight v. Lucia,
855.

40 Warren v. Rosenberg, 94
Wis. 528, 69 N. W. 339; People
vy. Craft, 7 Paige, 325; Stafford
v. Brown, 4 Paige, 360; Fischer
v. Hayes, 6 Fed. 62.

41 People v. Craft, 7 Paige, 325;

36 Wis.

Stafford v. Brown, 4 Paige, 360;
Fischer v. Hayes, 6 Fed. 63.

42 Discharge without notice to
interested party. ;

Where a party has been or-
dered into confinement in a civil
action for noncompliance with
the order of the court, directing
the payment of money or the
performance of any other act,
yet within his ability to do or
CONTEMPTS; GENERAL REVIEW; SCOPE OF WRIT. 253

§.70. The judgment or final order.

The judgment or final order generally is regulated by
statute. In criminal contempts proper, with the quali-
fication here after noticed, it is imprisonment or pay-
ment of a fine, sometimes both, limited as to term and
amount. When the misconduct proved consists of an
omission to perform some act or duty which is yet in
the power of the defendant to perform, he shall be im-
prisoned only until he shall have performed such act or
duty and paid such fine as shall be imposed, and the
costs and expenses of the proceeding. In such case the
order and warrant of commitment shall specify the act
or duty to be performed and the amount of the fine or
expense to be paid.*#

It was said by the Wisconsin court that the provision

perform, the court is without ju-
risdiction to release him, in the
absence of notice to the inter-
ested party in whose interest
the order has been made, hence,
where a surrogate committed a
party for contempt in refusal to
comply with his order for the pay-
ment of money, and the county
court upon habeas corpus dis-
charged the party thus in con-
tempt on the ground that the or-
der and the committment was
void, and no notice had been given
to the interested party, it was
held such order of discharge was
void, and beyond the jurisdiction
of the court to make, and there-
fore the sheriff who executed
the order and released the
debtor, was guilty of contempt
and subject to be punished there-
for and was so punished. To the
argument, that the court had ju-
risdiction of the subject matter
and of the person, it was said:
“The judge cannot decide the
question as to the prisoner with-

out also deciding it as to the ad-
verse parties in interest, and
until they have had notice,
neither they nor their part of
the subject matter, has been
brought within his jurisdiction.
* * * As the order of the
county judge was void because
made without taking jurisdic-
tional steps enough to complete
his jurisdiction to make it, it
afforded no protection to the
sheriff, because it was made by
a court of limited statutory ju-
risdiction; it contained no re-
cital of jurisdictional facts, and
it was in the nature of the case
impossible for the sheriff to
prove such facts by extrinsic
evidence. He could neither show
nor prove regular process and
it was necessary for him to do
one or the other.” In re Leggat,
162 N. Y. 487, 56 N. E. 1009.

43 Poertner v. Russell, 33 Wis.
193; Heymann v. Cunningham,
51 Wis. 506, 8 N. W. 401.
254 HABEAS CORPUS.

with respect to imprisonment until compliance with the
terms of the order, was only applicable in cases where
an actual loss or injury had been produced to a party
by the misconduct alleged.**

In civil contempts proper, as has been heretofore
stated, the judgment may be, instead of imposing a
fine, the payment of a sufficient sum by the defendant
to the party suffering loss or injury by his misconduct
to idemnify him and to satisfy his costs and expenses,
and imprisonment of such defendant until the order
be complied with.*®

Yet, in a later case, the Wisconsin court held that
such provision was applicable to a commitment for re-
fusal to produce books and papers or make discovery.*®

Thus a witness refusing to answer questions may be
committed until he shall be willing to answer; *’ and
generally it may be stated that fine and imprisonment,
or both, is the penalty prescribed by law for miscon-
duct, and the amount and term must be definitely fixed.
Where the object is to enforce the performance of a
duty, then the penalty, if it may be so called, is con-
finement until the party having it in his power is will-
ing to perform the duty commanded. It is not really
a punishment or penalty, but rather an exercise of the
coercive powers of the court.*®

A party cannot be committed until he performs an
act of indemnity to the opposite party, unless it appear
that the latter has sustained loss or injury by such mis-

44In re Pierce, 44 Wis. 411.
45 Poertner v. Russell, 33 Wis.

471; Williamson’s Case, 26 Pa.
St. 9, 67 Am. Dec. 374.

193.

46In re Rosenberg, 90 Wis.
581, 68 N. W. 1065. See also
Fischer v. Hayes, 6 Fed. Rep.
63; In re Allen, 13 Blatch. 271;
In re Yates, 4 Johns. 317; War-
ren et al. v. Rosenberg, 94 Wis.
528, 69 N. W. 339.

47 People v. Davidson, 35 Hun,

48 People v. Davidson, 35 Hun,
471; Fischer v. Hayes, 6 Fed. —
Rep. 63; In re Rosenberg, 90
Wis. 581, 63 N. W. 1065; In re
Allen, 13 Blatch. 271; In re
Chiles, 22 Wall. 157, 89 U. S.
157, 28 L. Ed. 819; Heymann v.
Cunningham, 51 Wis. 506, 8 N.
W. 401.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 295

conduct, which must be ascertained, and that the party
has it within his power to comply with the order and
make such indemnity.*?

The loss or injury for which compensation may
be awarded is a pecuniary loss of injury for which the
injured party might recover damages.*°

Hence it was held that indemnity could not be
awarded a father for the contempt of the mother in ab-
ducting their child, the custody of which in a di-
vorce had been awarded the former.*!

The New York court, construing the several pro-
visions of the code of that state, make a clear distinc-
tion between criminal and civil contempts, evidently
ruling that those which arise in civil proceedings,
within the class enumerated in the statute, are civil
contempts, and that the person charged therefor is not
subject to indictment.°?

A party not entitled to an injunction can suffer no
legal damages for its violation, and while a court may,
in vindication of its injunctional order, punish a party
for a wilful violation thereof, notwithstanding such or-
der ought not to have been granted, it may not in such
case order the party disobeying to pay any sum as an
indemnity to the opposite party.®®

Actual service of an injunctional order is not a
prerequisite to conviction for contempt in violating it.
If the party or person has knowledge of its issue he
is bound to observe it, and to prevent his agents and
employes from violating it.*+

49In re Pierce, 44 Wis. 411; Wis. 348, 4 N. W. 390; In re
Warren et al. v. Rosenberg, 94 Pierce, 44 Wis. 411.

Wis. 523, 69 N. W. 339; Hey- 51In re Pierce, 44 Wis. 411.
man v. Cunningham, 51 Wis. 52 Sherwin v. People, 100 N
508, 8 N. W. 401; Ex parte Y. 351, 3 N. H. 465.

Silvia, 123 Cal. 293; In re Blair, 53 Kaehler v. Dobberpuhl, 56

4 Wis. 522. See, however, Wright Wis. 497, 14 N. W. 631; Kaehler
vy. Wright, 74 Wis. 439, 43 N. W.  v. Halpin, 59 Wis. 41, 17 N. W
145. 868.

60 State ex rel. v. Lonsdale, 48 54 Poertner v. Russel, 33 Wis.
256 HABEAS CORPUS.

Striking out pleading.

The doctrine has often been asserted and applied
that a party while in contempt was in no position to ask
indulgence or favor of the court, and that the courts
could deny him any such affirmative relief until he
rendered obedience to its order.®®

It has been assumed by some courts that the rule
went to the extent of striking out or suppressing the
answer of the defendant, and denying to him the
right and opportunity of being heard.®* ;

The question is ably discussed and the authorities
elaborately reviewed in a recent case by the supreme
court of the United States. It appears that an order
was made in that case to the effect that, unless the
party paid into the registry a sum of money, his answer
be stricken out, and that the cause proceed as if no
answer therein had been interposed, and until com-
pliance therewith all proceedings on his part be per-
petually stayed. A final order was made striking out
said answer, adjudging that the bill be taken pro con-
fesso against him. The appellate court held that such
order and decree was beyond the jurisdiction of the
court. That the court had no power to disregard the
answer, which was in all respects sufficient, or to deny
the right of the party thus alleged to be in contempt
from prosecuting his defense.®*

In some of the states statutes have been enacted pro-
viding for the examination of parties before trial at
the instance of the adverse party, which authorize, in
case of refusal, the striking out of the pleading inter-
posed by him. Such statutes have been held in the

193; Mead v. Norris, 21 Wis. sé Walker v. Walker, 82 N. Y.
310; Ramstock v. Roth, 18 Wis. 260; Pickett v. Ferguson, 45
522. Ark. 177.

55 Daniell’s Chancery Pr. & 57 Hovey v. Blliott, 167 U. S.
Pl, vol. 1, p. 504; Hovey v. 409, 42 L. Ed. 215, 17 Sup. Ct.
Elliott, 167 U. S. 409, 42 L. Ed. Rep. 841,

215, 17 Sup. Ct. Rep. 841.
CONTEMPTS; GENERAL REVIEW; SCOPE OF writ. 257

nature of a substitute for the old ‘‘bill of discovery.’’
It would appear that under the decision of the su-
preme court of the United States, such penalty cannot
be imposed nor the party deprived of his right to pro-
ceed with his defense. The same principle was ap-
plied where a court made an order disbarring an at-
torney for an alleged contempt. Attorneys hold their
office during good behavior, and can only be deprived of.
it for misconduct ascertained and declared by the judg-
ment of the court after opportunity to be heard has
been afforded. Before a judgment disbarring an at-
torney is rendered he should have notice of the grounds
of complaint against him and ample opportunity of ex-
planation and defense.*® ‘

The Iowa court, following the dicta of another court,
fell into the same error, but held, however, that the
rule could not be applied in divorce proceedings on the
ground of public policy.*®

It was stated by the New York court of appeals (47 N.
Y. 40) that the supreme court of that state was not
limited to punishment by fine and imprisonment in en-
forcing obedience to its orders, but it has control over
its own proceedings and can refuse the benefit of them
to the party in contempt when asked as a favor, and
ean prevent him from taking any aggressive proceed-:
ings against his adversary; but it has no power to stay
him in his proceedings by motion or appeal where the:
object is to rid himself of the alleged contempt or show
that the order which he did not obey was erroneous.®°

This was said in a divorce action where the defend:
ant was adjudged in contempt for non-payment of ali-
mony and counsel fees. The order was to the effect:

58 Ex parte Robinson, 19 Wall. t9 Baily v. Baily, 69 Iowa, 77,.
505, 22 L. Ed. 205; Ex parte Gar- 28 N. W. 443.
land, 4 Wall. 333, 71 U. S. 333, 60 Brinckley v. Brinckley,, 47.
18 L, Ed. 366. N. Y. 40. —

17
258 ‘ HABEAS CORPUS.

that, unless the defendant complied with the former
order of the court, the answer filed and served by him
be stricken out, and that the action proceed as if no
answer therein had been interposed. The order also
stayed the defendant’s proceedings upon appeal. Later,
in Walker v. Walker, 82 N. Y. 260, the court of appeals,
in referring to this case and the rule stated therein as
above, took occasion to say that such rule has been
held broader than that and enforced with much vigor,
citing cases mainly in the courts of England. The ar-
gument is that the power in excess of the rule is con-
fined to courts of ‘equity, and is based on the familiar
doctrine that the supreme court of that state, on the
equity side, has all the power and authority that for-
merly existed in the courts of chancery in England and
was continuously exercised by it. It was further
stated that in preparing the sections relative to the
production and discovery of books and papers (2 RB. S.
199, sec. 21 et seq.), the revisers provided (sec. 26) that,
‘in case of a party neglecting or refusing to obey an or-
der, the court might strike out his plea and debar him
from a defense; and they sought thus to assimilate the
practice to that of the court of chancery. They conclude
that there has long been exerted by the court of chan-
cery in England the power to refuse to hear the defend-
azit when he was in contempt of the court by disobeying
its order, and that that power was in the courts of chan-
cery in this country. The same conclusion was reached
by the supreme court of Michigan. It was stated that a
complainant in a court of equity can always be com-
pelled by that court to perform any conditions or make
any disclosure which the court has a right to exact, by
refusing him to proceed in a cause until he does what he
ought to do.*

#1.Atchison, T. & S. F. R. Co. v. Jennison, 60 Mich. 232, 27 N. W. 6.
CONTEMPTS ; GENERAL REVIEW ;.SCOPE OF writ. 259

The supreme court of the United States (Hovey
v. Hlliott, 167 U. S. 409, 42 L. Ed. 215, 17 Sup. Ct. Rep.
522), in discussing the very question decided by the
New York court of appeals, speaking of a decree being
ordered pro confesso against a party in contempt for
not paying money to a receiver as directed, state: ‘‘It is
difficult to speak of a decree thus rendered with modera-
tion; it was in fact a mere arbitrary edict, clothed in
the form of a judicial sentence.’’ The court proceeds
to discuss the ground assumed by the New York court
as the basis of their position, and reach the conclusion
that they were untenable. They state: ‘‘But the ar-
gument is, that however plain may be the want of power
in all other branches of the government to condemn a
citizen without a hearing, both upon the elementary
principles of justice and under the express language of
the constitution, these principles do not limit the power
of courts to punish for contempt, or as for contempt, be-
cause it is asserted from the earliest times the chancery
court in England has possessed and exercised the power
to refuse the right to be heard to one in contempt, and
that a power so well established in England before the
adoption of the constitution, and which has been so
often exercised since, is not controlled by the principles
of reason and justice stated. But this contention is
without solid foundation to rest upon, and is based upon
a too strict and literal rendering of general language to
be found in isolated passages contained in the works of
writers on ancient law and practice, and in loose state-
ments as to the practice of the court of chancery to be
found in a few decisions of English courts. Certain it
is that in all the reported decisions of the chancery
courts in England, no single case can be found where a
court of chancery ordered an answer to be stricken from
the files and denied to a party defendant all right of
hearing because of a supposed contempt. And in the
260 HABEAS CORPUS.

American adjudications, whilst there are two
cases, one in New York and the other in Arkansas, as-
serting the existence of such power, an analysis of these
cases and the authorities upon which they rely will con-
clusively show the erroneous character of the conclu-
sions reached.’’ The learned court proceeds to review
the English cases and expressions of writers upon the
the law at great length, which conclusively show, as
the court states, that the New York court argued from
false premises. It was held that the judgment ren-
dered was void for want of jurisdiction and was subject
to collateral attack. That when a decree passes upon
questions not at issue in the cause, the decree is be-
yond the jurisdiction of the court. Citing Reynolds
v. Stockton, 140 U. S. 254, 35 L. Ed. 464, 11 Sup. Ct.
Rep. 773. And there is no distinction in principle be-
tween determining a cause upon issues not raised by the
pleadings in the actual absence of the party, and ren-
dering a decree by refusing to permit a defendant to be
heard in his defense, and indeed by striking the a
ing containing such defense from the files.

Denial of relief.

It has been urged that because a party was in con-
tempt by reason of violating an injunctional order,
or for other disobedience, he could not be heard to
move to dissolve the injunction, or to insist upon his
legal rights. But in the language of a learned court,
‘‘a party in contempt is not deemed by the courts an
outlaw, nor do courts disregard his legal rights pending
proceedings to punish him for such contempt. The
rule is, that while in contempt the courts will not grant
him any favors, but it will see that his legal rights are
protected. A party against whom an injunction is
issued upon an ex parte application, has the legal right
to demand a hearing upon the question of the regu-
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 261

larity and propriety of issuing the same, and the fact
that he may have violated such injunction does not
deprive him of that right.’’ ©

I. Score or tHe Wait or Haseas Corpus 1n REVIEWING
ORDERS AND JUDGMENTS OF CONTEMPT.

§ 71. In general.

In previous chapters, the general scope of the writ
has been considered, and in a general way, its office as
well as the extent of inquiry when used as a means
of review of the judgments and proceedings of or-
ganized courts. We there find it to have been fre-
quently said by courts and declared as a rule, that the
only question reviewable by means of such a writ, is
that of jurisdiction. We also find that such rule does
not solve the problem in all cases. That the important
question after all is, what constitutes jurisdiction in
the particular case. It also appears that the test of
jurisdiction has been stated to be that of the subject
matter and of the person. All else is error merely,
not reviewable upon the writ. We there reached the
conclusion that such a test was not applicable in
many cases, and in so doing introduced into the sub-
ject the doctrine of excess of jurisdiction, and to the
effect that though the court have jurisdiction of the
subject matter and of the person, yet it must also be
clothed with the power to render the judgment. This
does not mean the manner of the exercise of the power
and authority which it has in the premises. We now
consider the important question of the review by ha-
beas corpus of judgments or commitments for con-
tempt. This branch of the subject may be divided into
three classes.

62 Smith v. Austin, 1 Code R. 1 Paige, 646; Kaehler v. Dobber-
(N. S.) 187; Johnson v. Pinney, puhl, 56 Wis. 497, 14 N. W. 631.
262 HABEAS CORPUS.

First. Disobedience or violation of orders or judg-
ments of the court.

Second. Privilege of parties and witnesses including
privileged communications. ;

Third. Misconduct of officers, parties and other per-
sons.

§ 72. General rule.

The general rule is that where a court undertakes
by its express process of contempt to punish a man for
refusing to comply with an order which the court had
no authority to make, the order itself being without
jurisdiction, is void, and hence the order punishing for
contempt is equally void, and if the proceeding in such
a case results in imprisonment, the court will by its
writ of habeas corpus, discharge the prisoner.**

- In Ex parte Rowland, 104 U. 8. 604, 28 L. Ed. 861, it
was held that an order of the circuit court of the United
states, under which a marshal held the petitioner in
custody, having been made in a proceeding for con-
tempt in disobeying a writ of mandamus, which writ
was in excess of the jurisdiction of the court, in that it
commanded to be done that which by law the petition-
ers had no power to do, was for such reason a nullity
and the petitioners were entitled to be discharged upon
_ writ of habeas corpus.

It was stated by the court: ‘‘If the command of the
peremptory writ of mandamus was in all respects such
as the court had jurisdiction to make, the proceedings
for the contempt are not reviewable here. But if the
command was in whole or in part beyond the power of

68In re Ayres, 123 U. S. 448, re Pierce, 44 Wis. 411; Ex

31 L. Ed, 216, 8 Sup. Ct. Rep.
164; Ex parte Fisk, 113 U. S.
713, 28 L. Ed, 1117, 5 Sup. Ct.
Rep. 724; Ex parte Grace, 12
Towa, 208, 79 Am. Dec. 529; In

parte Hollis, 59 Cal. 405; Tins-
ley v. Anderson, 171 U. S. 101,
43 L. Ed. 91, 18 Sup. Ct. Rep.
805; Ex parte Rowland, 104 U.
S. 604, 28 L, Ed. 861.
CONTEMPTS ; GENERAL REVIEW ; SCOPE OF WRIT. 263

the court, the writ or so much as was in excess of ju-
risdiction, was void, and the court had no right in
law to punish for any contempt of its unauthorized re-
quirements. ’’

The court, in In re Ayres, 123 U. S. 443, 31 L. Ed.
216, 8 Sup. Ct. Rep. 164, repeats a statement made in
another case, not involving the question of contempt,
but the question of the alteration of an indictment by
direction of the court. ‘‘It is of no avail, under such
circumstances, to say that the court still has jurisdic-
tion of the person and would have jurisdiction of the
crime, if it was properly presented by indictment, the
jurisdiction of the offense is gone and the court has no
right to proceed any further in the progress of the case
for the want of an indictment.’’

The doctrine is further illustrated by what was
stated and held in Ex parte Fisk, 113 U. S. 713, 28 L.
Ed. 1117, 5 Sup. Ct. Rep. 724. There, in an action
pending in the state court, under a statute which
authorized it, a party to the action was being examined
before trial. The action was removed into the federal
court before the examination was completed, and an
order of the federal court required the party to submit
to a continuance of such examination. The party re-
fused, and was committed for contempt for such dis-
obedience. He sued out a writ of habeas corpus, for
his discharge on the ground that the court was with-
out authority to make the order and hence no authority
to punish for disobedience of it. It was held by the
supreme court that in so far as the practice under
the state statute would affect proceedings in the federal
courts, it was contrary to a federal statute upon the
subject; that the federal court had no authority to
make the order; and for that reason it was void, and
being void there could be no contempt in disobeying
and refusing to comply with it.
264 HABEAS CORPUS.

It will be noted that the order herein, related to a
question of practice, though involving a substantial
right. That the rule so often stated of jurisdiction
of the subject matter of the action, and of the person
had no application as a test. The court had both, but
it had no jurisdiction of the proceeding in which the
order was made.

Notwithstanding some general statement to the con-
trary, to which we refer later, the Wisconsin court ap-
plied the same doctrine. Thus, where a judgment for
divorce awarded the custody of a child to the father,
and thereafter the mother abducted the child and re-
moved it from the jurisdiction of the court, and the
court ordered the mother to restore the child to the
custody of the father and pay forthwith a fine of one
dollar and stand committed to the county jail until she
should fully comply with the order, it was held the or-
der was in excess of the jurisdiction of the court, and
the warrant of commitment issued in a case not war-
ranted by law, and that relief would be granted upon
writ of habeas corpus; that the act of the mother in dis-
obeying the order was a criminal not a civil contempt,
and the punishment could not.be made continuing, but
only as for criminal act.**

The doctrine stated does not in fact conflict with the
doctrine often expressed that the court, upon habeas
corpus (the court of necessity must, in some cases, de-
termine that question), will not determine whether the
matter alleged is or is not a contempt, although gen-
eral language is in some cases used, which might, stand-
ing alone, be construed as determining that the power
of the court in such respect is an unlimited power, if it
has jurisdiction of the subject matter and of the per-
son. In an early case, language was used, followed

¢4In re Pierce, 44 Wis. 411,
CONTEMPTS ; GENERAL REVIEW ; SCOPE OF WRIT. 269

by other courts, implying’ unlimited power, but as we
conclude later, such effect was not intended.

§ 73. Extent of inquiry.—In general.

In speaking of the exercise of the power of courts to
punish for contempts, Chief Justice Kent, in Yates v.
Lansing, 5 Johns. (N. Y.) 282, very forcibly states the
law as follows: ‘‘It is sufficient that the court which
commits has juridiction of the cause of commitment;
‘and as the cause in the present case was an alleged mal-
practice and contempt, the court of chancery most un-
‘doubtedly had jurisdiction over the subject matter. It
is decisive of the point that the court considered the act
of which it complained to be a contempt and malprac-
tice, by being an unauthorized interference with the
practice of the court. Every court judges exclusively
for itself of its own contempts; no other court, much
less a single judge out of court, can undertake to judge
on the question. The plaintiff was recommitted, to
use the language of the order, ‘for contempt and mal-
practice,’ and whether the court of chancery was right
or wrong in considering that the plaintiff’s conduct
amounted to a contempt, and whether it took the proper
steps to ascertain the contempt, is perfectly immaterial
as to the point of jurisdiction. It had authority to
punish contempts. It must judge what are contempts.
* * * Judicial exercise of power is imposed upon
the courts. They must decide and act according to
their judgment, and therefore the law will protect them.
The chancellor, in the case of the plaintiff, was bound
in duty to imprison and reimprison him if he con-
sidered his conduct as amounting to a contempt of his
court. The obligations of his office left him no volition.
He was as much bound to punish a contempt committed
in his court as he was bound in any other case to exer-
cise his power. He may possibly have erred in judg-
ment in calling an act a contempt which did not amount
266 HABEAS CORPUS.

to one, and in regarding a discharge as null when it
was binding. This court may have erred in the same
way; still it was but error of judgment, for which nei-
ther the chancellor nor the judges of this court are or
can be responsible in a civil suit.’’

It should be noted that the able jurist cautiously
states: ‘‘It is sufficient that the court which commits
has jurisdiction of the cause of commitment;’’ not the
subject matter of the action or proceeding in which
the alleged contempt was committed, which accurately
states the rule. No question of violation of an order
was involved, simply that of malpractice.

In another and more recent case the facts were that
a person was committed for contempt for disobedience
of an order made in a proceeding therein, which com-
mitment was reversed by the court of appeals as being
error. Thereafter an action was brought against the
attorneys for the defendant to recover damages for
false imprisonment. The simple question presented
in the first proceeding was whether such disobedience
of the order of the court ‘‘defeated, impaired or pre-
judiced a right or remedy of the defendants.’’ It was
said by the court: ‘‘A simple question of law was thus
presented to the court, as to whether all the elements
constituting the offense of contempt appeared on the
application of commitment. Whether they did or did
not, in no sense constituted a jurisdictional question.
The court concededly had jurisdiction of the parties
and the subject matter of the application, and we think
authority to-determine whether the facts of the case
brought it within the statutory definition of a contempt.
An erroneous decision of that question in no sense af-
fected the jurisdiction of the court over the subject
matter of the application. The disobedience of its
order gave the court jurisdiction of the subject matter,
and called upon it to determine whether a contempt had
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 267

been committed or not. The right to adjudicate upon
this question did not depend upon the fact whether the
plaintiff was guilty of a contempt, but whether a case
had been made calling for an adjudication upon that
question.’

In this case strong language is used and without
qualification, but it must be kept in mind, it had refer-
ence only to the facts in the particular case. The ques-
tion actually determined was whether the disobedience
of the order of the court, ‘‘defeated, impaired or pre-
Judiced a right or remedy of the defendant,’’ and cer-
tainly it was within the power of the court to deter-
mine this question, being simply a question of law.

In a recent case in another state, the relator obtained
an order from the supreme court directed to the
sheriff of a county, to show cause why a writ of habeas
corpus should not issue to inquire into the legality of
the custody wherein he held the petitioner. On the
hearing .of the motion it appeared that such sheriff
held him in custody by virtue of an order of commit-
ment for contempt made by the circuit court. It was
held by the supreme court that, on habeas corpus, only
jurisdictional questions will be inquired into. It was
said there is no question but that the court had juris-
diction of the cause of action and the parties. If then it
had power to make the order of commitment in any sup-
posable circumstances which might arise in the pro-
gress of the cause, then the order is valid until re-
versed, however erroneous it may be in the particular
circumstances.°*®

In this case, heard before the writer, the prisoner
was being examined under the statute in respect to the
disposal of property of a firm of which he was a mem-
ber. He contumaciously refused to make disclosures

5 Fischer v. Langbein, 103 N. 66In re Rosenberg, 90 Wis.
Y. 84, 8 N. E. 251. 581, 63 N. W. 1066.
268 HABEAS CORPUS.

and was committed until he should comply with the
direction of the court. It was a criminal contempt,
committed in the presence of the court. The court had
jurisdiction of the proceeding, the party was before
it, and the commitment was in the progress of that pro-
ceeding. No order of the court was involved other
than the order of commitment. The statement by the
court in effect, that if the court had power to make the
order in any supposable circumstances, we consider
later.

Petitioner may in the federal court show, not dis-
puting the facts found, that the act charged was
not a contempt.

There appears a statement in the opinion of the
supreme court of the United States (In re Cuddy, 131
U. S. 280, 286, 33 L. Ed. 154, 9 Sup. Ct. Rep. 703),
which unless obiter, would seem to indicate that upon
habeas corpus the petitioner may show, so long as it
does not contradict the record, that the misbehavior
with which he was charged and for which he was com-
mitted was not such as, under the statute (the power in
the district court of the United States to punish for
contempt being limited by statute), made him liable
to fine and imprisonment. The contention there was
that it did not appear by the record that the miscon-
duct charged occurred in the presence of the court;
that there was a want of jurisdiction, such court being
a court of limited jurisdiction. It was held, however,
that the rule of presumption, as to the jurisdiction of
such courts, had no application where their judgments
were attacked collaterally, and therefore, unless want
of jurisdiction appears, it would be presumed that. ju-
risdiction was possessed. The record not disclosing
that the alleged contempt was committed in the pres-
ence of the court, or at such place or in such manner as
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 269

to come within the power of the court, that fact would
be presumed, unless the petitioner alleged facts show-
ing otherwise, which he might do, and, upon proving
such facts, would be entitled to be discharged. If the
record had disclosed that the misconduct was within
the power conferred, evidently proof would not be re-
ceived to contradict the record. What the rule might
have been declared to be in case the proceeding was
had in a court of general jurisdiction, the record being
silent, of course, we cannot anticipate. (See discus-
sion of subject under title of ‘‘Prohibition.’’) In the
more recent case of Tinsley v. Anderson, 171 U.S. 101,
43 L. Ed. 91, 18 Sup. Ct. Rep. 805, it is distinctly
stated that ‘‘if the committing court had jurisdiction
of the subject matter and of the person, and power to
make the order for disobedience to which the judg-
ment in contempt was rendered, and to render that
judgment, then the court could not do otherwise than
discharge the writ of habeas corpus and remand the
petitioner. The writ cannot be availed of as a writ of
error or an appeal, and if the commitment was not
void petitioner was not deprived of his liberty, without
due process of law. The general rule, in substance,
that the writ only lies to reach jurisdictional defects,
applies here in contempt proceedings as well as in
criminal proceedings. The only question is, to deter-
mine whether the defect is of that character as to be _
beyond the power or jurisdiction of the court. v We
have seen what some courts classify as error merely,
others hold to be jurisdictional. In fact the only dif-
ference in the courts is the distinction they make be-
tween judgment and jurisdiction in particular cases.”
And it may be stated generally, that the court upon
habeas corpus, will inquire into the proceedings to as-
certain whether the court had jurisdiction. Commit-
ments for contempt cannot be impeached for mere ir-
270 HABEAS CORPUS.

regularity. The attack upon such a judgment can go
_no further than to the power of the court in the given
case. But the question of jurisdiction necessarily in-
volves an inquiry, whether the conduct alleged was
in fact a contempt of the court and committed under
circumstances which authorize the court to proceed to
punishment therefor; and as stated by a learned court:
‘*It also involves the question whether the court is pro-
ceeding in the manner prescribed by law.’’ *

Thus with respect to the proceeding, if a court should
undertake to adjudge a person in contempt and punish
him therefor summarily, when in fact such contempt
was not committed in his presence, the proceeding
would be void without the jurisdiction of the court to
proceed in that manner.*®

And if it should be made to appear that an act of
ifisolence or misbehavior was not committed in thé
presence of the court, it would not constitute a con-
tempt, and the court could inquire so far as to deter-
mine the question whether the act was without the
presence of the court.

So in cases where the contempt has been adjudged
for the violation of an order or refusing to obey one
such, the inquiry will necessarily extend to the deter-
mination of whether the order was one which it was
within the power of the court to. make in the given case,
and thus determine the question of the jurisdiction of
the court, and necessarily this involves the question
whether the matter charged is or is not contempt. The
question whether the facts are sufficient to justify a
conviction on the question of the violation of the order,
would not involve a question of jurisdiction.

So the court must of necessity, where a witness is

67In re Wood, 82 Mich. 75, N. W. 1113; In re Cuddy, 131 U.
45 N. W. 1113. S. 280, 33 L. Ed. 154, 9 Sup. Ct.
68In re Wood, 82 Mich, 75, 45 Rep. 703.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 271

adjudged in contempt for refusal to answer an in-
terrogatory, on the ground of privilege, deter-
mine whether the case is one where such privilege
could fairly and lawfully be claimed, and hence deter-
mine whether the alleged contempt was such in law.
Any other reasoning or rule would clothe a court or
judge with absolute and unlimited power where it had
jurisdiction of the subject matter of an action and of
the person to imprison whosoever it pleased, and be-
yond the remedy of discharge upon habeas corpus.*

Order for examinction before trial made in federal
court.

This doctrine was further illustrated in a somewhat
notable case hereinbefore referred to (Ex parte Fisk,
113 U. S. 718, 28 L. Ed. 1117, 5 Sup. Ct. Rep. 724).
There, in an action pending in the state court, under
a statute which authorized it, a party to the action was
sought to be examined before trial. The action was
removed into the federal court, and there the examina-
tion was sought to be continued, and in fact an order
of the federal court required it. The party refused to
submit and was punished as for contempt in so réfus-
ing. He sought release upon habeas corpus, where
it was held that, so far as the practice affécted proceed-
ings in the federal courts, it was contrary to a federal
statute upon the subject; that the circuit court had no
authority to make the order; that for that reason it
was void, and being void there could be no contempt in
disobeying or in refusing to comply with it.

69 In re Ayres, 123 U. S. 448, Iowa, 208, 79 Am. Dec. 529; In
31 L. Ed. 216, 8 Sup. Ct. Rep. re Pierce, 44 Wis. 411; Ex parte
164; Ex parte Fisk, 113 U. S. Hollis, 59 Cal. 405; Tinsley v.
713, 28 L. Ed. 1117, 5 Sup. Ct. Anderson, 171 U. S. 101, 43 L.
Rep. 724; Ex parte Grace, 12 Hd. 91, 18 Sup. Ct. Rep 805.
272 HABEAS CORPUS.

Illegal punishment.

Where a judgment for divorce awarded the custody
of a child to the father, and thereafter the mother ab-
ducted the child and removed it from the jurisdiction
of the court, and the court ordered the mother to re-
store the child to the custody of the father and pay
forthwith a fine of one dollar, and to stand committed
to the county jail until she should fully comply with the
order, it was held that the order was in excess of the
jurisdiction of the court, and the warrant of commit-
ment issued in a case not allowed by law, and that relief
would be granted upon writ of habeas corpus; that the
act of the mother in disobeying the order was a crimi-
nal, not a civil, contempt, and the punishment could not.
be made continuing, but only as for the criminal act.”

Refusal to testify; court without jurisdiction of:
cause.

The rule extends to a case where the prisoner is,
committed for refusing to give evidence in a case over
which the court has no jurisdiction.”!

Generally, where there is jurisdiction, it is of no
consequence how erroneous the judgment of the court
may be, if not absolutely void; it cannot be attacked on
habeas corpus by a party who has been committed for
failure to comply with it.72

Facts not subject to review.

Whether the facts justified punishment as for con-
tempt for acts in the presence of the court, cannot be
inquired into on such writ; 7? nor the sufficiency of the

70In re Pierce, 44 Wis. 411. sell, 40 Mich. 68; In re Greg-
71In Matter of Morton, 10 ory, 220 U. S. 210, 55 L. Ed.
Mich. 208. 184; Harlan v. McGourin, 218
72x parte Grace, 12 Iowa, U.S. 442, 54 L. Ed. 1101, 31 Sup.
208, 79 Am. Dec, 529; Ex parte Ct. Rep. 47.
Cohn, 55 Cal. 198; Matter of Bis-
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 273

affidavits in supplementary proceedings; ** nar whether
items of costs and expenses which the party is required
to pay, imposed as a fine, are proper items to be in-
cluded.7® :

Statements in the opinion of courts have been often
quoted, as holding the doctrine that the court upon
habeas corpus, will determine whether the contempt
charged was in fact and in law, a contempt, but it will
be found upon examination that in most of them, the
language was used in respect to the authority of the
court to make the order, the disobedience of which was
the basis of the commitment for contempt, or special
provision of statute.7®

In Ex parte Rowe, 7 Cal. 181, the ruling of the court
is placed upon the provisions of a statute which the
court held authorized a review of the proceedings, not
only in respect to jurisdictional questions, but also as
to matters of law which it may be alleged were er-
roneously determined.

The doctrine of the Iowa court as expressed, is to
the effect that upon habeas corpus, the court cannot
review the order of imprisonment for contempt and re-
verse it, unless the act constituting the alleged con-
tempt was such that the court could pronounce as mat-
ter of law that it was not a contempt.””

§ 74. Distinction between jurisdiction and judgment.

The decision of the court in Forest v. Price, 52 N. J.
L. 16, is important not only in its bearing upon the:
particular question under consideration, but also in.

73In re Terry, 128 U. S. 289, Williams v. Dwinnelle, 51 Cak
32 L. Ed. 405, 9 Sup. Ct. Rep. 442; State ex rel. Whitcomb v.
77; People v. Kelly, 24 N. Y. 74. Seaton, 61 Iowa, 563, 16 N. W..

74Ex parte Smithhurst, 4 736; In re Wood, 82 Mich. 75, 45:
How. Pr. 369. N. W. 1113.

75 People v. Jacobs, 66 N. Y. 8. 77 State ex rel. Whitcomb v..

76 Ex parte Rowe, 7 Cal. 181; Seaton, 61 Iowa, 563, 16 N. W..
Brown v. Moore, 61 Cal. 432; 7386.

18
274 HABEAS. CORPUS.

the distinction which is made between jurisdiction and
judgment. It was said: ‘‘It is no excuse in a proceed-
ing for contempt that the orders contemned; are er-
roneous in law. The method of correcting such error
is by appeal, not by disobedience. When a person is
proceeded against for disobedience to an order or
judgment he cannot allege in defense that the court
erred in that order or judgment. To. be suecessful
he must go further and make out there was in legal
effect. no order, by showing that the court had no right
to judge between the parties: upon the subject.’’ In.
Mundy v. Vail, 5 Vroom. 418, Chief Justice Beasley de-
fined jurisdiction to be ‘‘the right to adjudicate the
subject matter in a given case, to constitute which. it
is: essential that the court must have cognizance of the
class of cases: to. which the one adjudged belongs; that.
the proper parties shall be, before the court, and that
the point decided: must,in substance and effect, be within.
the issue made by the pleadings. Testing the present
case by the definition thus given, we first ascertain
that its subject matter is the application of the defend-
ant’s established. and ascertained property in. posses-
sion of the United States to the satisfaction of the:
complainant’s: judgment. That this court has cogni-
zance of this classi of cases is: not. disputed. The de-
fendant is regularly before the court, and the points
to be decided are clearly within the issues presented by
the pleadings. To urge that the particular money in
question is exempt from the application desired is to
present a defense upon the merits of the case, and to
object that the temporary restraint of the indorsement
of drafts will hinder and delay the fiscal operations of"
the United States is to offer a reason why the court
should not continue its temporary restraint; and so the
insistment that under the section of the United States
revised statutes which has been referred to the as-
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 275

signment to a receiver would: be a nullity may be. a
reason why the court should not order it. to be made.
None of these matters, however, go to the court’s ja-
risdiction. They are defenses properly belongiig in
the cause which the court has power to adjudicate
upon. If the court err in that adjudication, the rem-
edy is by appeal.’’

§ 75. Particular orders and judgments.—Enjoining re-
movat of officer..

The question which was decided by the United States
supreme court in In re Sawyer, 124 U.S. 200, 31 L. Ed.
402,.8: Sup. Ct. Rep. 482, was one of considerable im-
portance as hearing upon, the. equity jurisdiction of
the federal courts. The common council of a city: were
restrained from: proeeeding to investigate charges filed
against a police judge, and from remowing him, at the
instance and suit of such officer, upon the ground that
the council were without authority in the premises.
The members of the council disobeyed said order and
proceeded with their investigation. They were ad-
judged in contempt and fined a large sum each, and
were imprisoned: for nonpayment of the fine. They ap-
plied to the federal supreme court for a writ of habeas ©
eorpus, not controverting the disobedience of the order,
but. claiming that such order was void. It was held
that. a court. of equity has no. jurisdiction of a. bill to
stay eriminal proceedings. nor to restrain the removal
of a public officer, and that an injunction issued upon
such a bill, as well as an order committing the defend-
ants for contempt; in disregarding the injunction, is
absolutely veid, and they are entitled to be discharged
on habeas corpus.

Enjoining state officers.

In another case it was stated by the same.court that
’ itis established by the decisions. of this court that while
276 HABEAS CORPUS.

the exercise of the power of punishment for contempt
of their orders by courts of general jurisdiction is not
subject to review by writ of error or appeal to this
court, repeating what was said in former cases, yet
when a court of the United States undertakes by its
process of contempt to punish a man for refusing to
comply with an order which the court had no authority
to make, the order itself, being without jurisdiction, is
void, and the order punishing for the contempt is
equally void, and that when the proceeding in such a
case results in imprisonment this court will by its writ
of habeas corpus discharge the prisoner. The direct
question was whether an order of the circuit court en-
joining the attorney general and various common-
wealth attorneys from bringing and prosecuting suits
in the name and for the use of the state against tax-
payers reported to be delinquent, but who had ten-
dered, in payment of their taxes, tax receivable cou-
pons cut from bonds of the state, was void, the defend-
ants having disobeyed it and were imprisoned for
contempt. It was held under the particular facts that
the action was in fact against the state, and hence
within the prohibition of the eleventh amendment to
the constitution, which declares that ‘‘the judicial
power of the United States shall not be construed to ex-
tend to any suit in law or equity commenced or pro-
secuted against one of the United States by citizens of
another state, or by citizens or subjects of a foreign
state.’’ 78

Judgment; enforcement stayed upon appeal.
Where directors of a railway company refused to
recognize one duly declared elected as one of such
board by the judgment of the court, an appeal having
been taken from such judgment, it was held that such

78In re Ayres, 123 U. S. 448, 31L. Ed. 216, 8 Sup. Ct. Rep. 164.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 277

directors were not in contempt. The superior court
had no jurisdiction, after proceedings had heen stayed
by appeal from its judgment determining the contest
for the election of directors, to punish any of the
other directors for contempt for refusal to recognize
the director adjudged to have been elected or to permit
him to act as such director in disobedience to the judg-
ment, and an order adjudging him guilty of contempt
for such disobedience will be annulled upon writ of
yeview. There is no reason why the same rule should
not apply as is held applicable in contests for public
office, which is that the one declared elected is entitled
to the office pending the appeal.”

Enjoining federal officers.

It was not a contempt of court on the part of the
register and receiver of one of the United States land
offices to disobey an injunction restraining them from
proceeding to advertise and sell certain lands. They
were officers of the land department of the government,
presumably acting under instructions from the de-
partment, and the courts of equity of the state had no
jurisdiction to enjoin them in the performance of their
duties; that the act of congress (5 Stats. at Large,-
p. 107) placed the supervision and control of the survey
and sale of the public lands in the commissioner of the
general land office under the direction of the president
of the United States.®

Mandamus; disobedience of writ.

It is decided in New York that a judge at chambers
has no jurisdiction either in the city of New York or
elsewhere in the state to issue a writ of mandamus,
and hence disobedience of such a writ by an election

79 Foster y. Superior Court, 115 80 Brewer v. Kidd, 23 Mich. 440.
Cal. 279.
278 HABEAS CORPUS.

board was held not pumishable as a contempt. The
writ was without authority and absolutely void:*4

It was ialso held that an order of the cireuit:court ‘of
the United States, under which a marshal held tthe
petitioners in custody, having been made in a pproceed-
ing for contempt in disobeying a writ of mandamus,
which writ was in excess of ‘the jurisdiction of the
court, in that it commanded to be done that which by
law the petitioners had no power to do, and was for
such reason a nullity, and the petitioners were entitled
to be discharged upon writ of habeas corpus.

Order respecting possession of realty.

Where complainant, claiming to be in actual posses-
sion of certain premises, obtained a preliminary injanc-
tion enjoining respondents from trespasses of a nature
likely to injure the buildings, and the writ also enjoined
them from in any way interfering or meddling with the
possession and from entering into the premises, and it
appeared that respondents were actually in possession
at the time the injunction was issued, it was held that
they ‘could not be punished as for contempt in main-
taining this possession by force. That the injunction
was not in fact violated. It was issued to preserve an
actual possession against molestation and not to oust
a possessor who may have been a tortious holder. That
no court can, by a preliminary ex parte order or pro-
cess, turn even a wrongdoer out of possession.®*

In fact any decree or order divesting possession or
rights on a preliminary inquiry is illegal and void and
mo-one need respect .or obey it.84

81 People v. Donovan, 135 N. Y. 83 People v. Simonson, 10 Mich.
76. 385,
82. Ex parte Rowland, 104 U. S. -84Tawas & Bay Co. R. Co. v.

604, 28 L. Ed. 861. Iosco Judge, 44 Mich. 479, 7N. W.
CONTEMPTS; GENERAL REVIEW; SCOPE OF waIT. 279

‘Thus, in Michigan, a court of chancery cannot take
‘from the directors of a corporation or vest im a re-
ceiver the management and control of the corporate
business except in proceedimgs under the statutes to
dissolve the corporation:*

‘Decree ‘of ‘specific performance; refusal to comply.
The wilful refusal of a party to comply with the
decree of a court of competent jurisdiction directing
him to execute a deed of conveyance constitutes a con-
tempt of such court and may be punished as such.
It seems that the code of California expressly con-
fers the power to thus enforce performance, though it
is conceded that the power exists independent of such a
statute.®*
A defendant, however, could not be guilty of. con-
tempt until a deed had been presented to him for ex-
ecution and he ‘had refused to execute it.®”

Injunction; violation of.

‘Again, in the matter of conviction for contempt in
disobeying an order of injunction, we are confronted
with unguarded and unqualified statements of courts,
which, however, were applicable to the facts of the par-
ticular case in which the language was used: a failure
to express ‘the distinction between a void and voidable
order. In so far asthe doctrine is expressed, that one
imprisoned upon attachment for contempt in disobey-
ing an injunctional order, cannot, on an application for
discharge, by habeas corpus, avail himself of mere ir-
regularities in the proceeding upon which the order

‘65; McCombs v. Merryhew, 40 chants, etc., Nat. Bank v. Kent,

Mich. 721; Arnold v. Bright, 41 48 Mich. 292.

‘Mich. 207, .2.N. W. 16. 86 Land & Water Co. v. Superior
8 Port Huron & G. R. W. Co. Court, 93 Cal. 139.

v. Judge, 31 Mich. 456. See Mer- 87 Berry v. Innes, 35 Mich. 189.
280 HABEAS CORPUS.

was based, but must show a lack of jurisdiction to make
the order, it is absolutely correct.®*

The statement by the supreme court of Kansas in ,
Billiard v. Erhart, 35 Kan. 616, in substance, that
where the court has jurisdiction of the parties and the
subject matter the fact that an order of injunction has
been erroneously granted affords no justification or
excuse for its violation, before it has been dissolved, is
in fact to the same effect.®°

The statement by the supreme court of Illinois is
more nearly correct, that where a court has jurisdic-
tion of the subject matter and over the person of the
parties, it may enforce obedience to its orders by pro-
ceedings against them as for contempt. In’ such a
proceeding for contempt in failing to obey an order
of the court, the respondent may question the order
which he is charged with refusing to obey only so far
as he can show it to be absolutely void. Thus, where
the assignee of an insolvent estate was ordered by the
court to pay a certain claim, he could not be heard in a
proceeding for contempt to claim that the order was
erroneous because that order was not authorized by
the allegations in the petition, etc., and because the
order went beyond the scope and prayer of the peti-
tion.®°

It was stated, however, by the supreme court of
Towa, in reference to a judicial order: ‘‘If they”’ (ar-
ticles of discipline) ‘‘were called to the attention of
the court in that proceeding, and, notwithstanding, the
court erroneously ordered the trustees to do what is.
beyond their power, the order may, upon proper pro-
ceedings, be reversed. But the order of the court, even

88 In re Perry, 30 Wis. 268; Bil- 90 Clark v. Burke, et al., 163
liard v. Erhart, 35 Kan. 616. Tll. 334, 45 N. BE. 285. And the
89 See also Howe v. Willard,40 same was held by the New York
Vt. 654, court of appeals. People v. Pen-

dleton, 64 N. Y. 623,
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 281
if erroneous, is not void. The court had jurisdiction
of the parties and of the subject matter, and its adju-
dication cannot be disregarded with impunity. So
long as it remains unreversed it must be obeyed. There
would be an end of all subordination and social order
if parties could disregard judicial orders, and, when
proceeded against for contempt, call in question the
correctness of the order itself. In such a proceeding
the only legitimate inquiry is, did the court have juris-
diction and did it make the order which has been
violated??? 1

The vice of this language is that it states the order
in question was not void, and also that it is in conflict
with that later decision of the same court (State ex rel.
Whitcomb v. Seaton, 61 Iowa, 563, 16 N. W. 736) supra,
in which it was held that upon habeas corpus the court
could determine as matter of law that the charge was
not a contempt. It is also in conflict with an express
adjudication of the supreme court of the United States
(Ex parte Rowland, 104 U. S. 604, 28 L.Ed. 861), in
which it was held that an order which commanded to be
done that which by law the petitioners had no power to
do was an absolute nullity; that it was in excess of the
jurisdiction of the court.

Undoubtedly the rule is, where there is jurisdiction
it is of no consequence how erroneous the judgment or
order of the court may be. If not absolutely void it
cannot be attacked on habeas corpus by a party who |
has been committed for a failure to comply with it.*?

91 State v. Baldwin, 57 Iowa,
266, 10 N. W. 645.

92In re Gregory, 220 U. S. 210,
55 L. Ed. 184; Harlan v. Mce-
Gourin, 218 U. S. 442, 54 L. Ed.
1101, 31 Sup. Ct. Rep. 47; Ex
parte Grace, 12 Iowa, 208, 79 Am.
Dec. 529; Ex parte Cohn, 55 Cal.

198; In re Meggett, 105 Wis. 291,
81 N. W. 419; Ex parte Van
Hagen, 25 Ohio St. 426; In re
Nolan, 21 Wash, 395, 58 Pac. 222;
In re Rogers, 75 Vt. 329, 55 Atl.
661; Ex parte Tice, 32 Oreg. 179,
49 Pac, 1038; State v. Beaverstad,
12 N. Dak. 527, 97 N. W. 548;
282 HABEAS CORPUS.

Orders respecting payment of alimony.

The question whether proceedings in contempt will
lie for the nonpayment of alimony is one as to which
courts are not agreed. The Wisconsin court: (Staples
v. Staples, ‘87 Wis. 592, 58 N. W. 1036), are of the
opinion that when the judgment is for a gross sum,
payable at once, that it might undoubtedly be docketed
a8 a money judgment, and execution might issue to
enforce it. ‘They state in that case the argument might
be strong that contempt proceedings could not be re-
sorted to, and the position would not be without author-
ity, citing Lansing v. Lansing, 4 Lans. 377. When,
however, alimony is payable in instalments, the same
result does not follow. ‘They reason that as execution
can only issue on a judgment which has been .docketed,
and that a judgment is to be docketed at the time of
filing the judgment roll, and that it would require the
docketing of a separate judgment as each instalment
became due, it is apparent that an execution cannot
issue upon such an order or decree; and such is the
reasoning of the New York court of appeals.®?

Another sufficient reason might be stated, and that is
the question of alimony is always subject to revision
by the court. In Michigan it seems that an order for
temporary ‘alimony is to be enforced by contempt pro-
ceedings:

They concede, however, that under their statute the

People -v. ‘Baker, ‘89 N. Y. 460;
Clifford v. Holler, 63 N. J. L.

Welch v. Franklin County, 95
Me. 451, 50 Atl. 88; In re Nolan,

105, 42 -Atl. 155; ‘State v. Shat-
tuck, 45 N. H. 205; ‘In re Walker,
61 Neb. ‘803, 86 ‘N. ‘W. 510; Hx
parte ‘Gfeller, 178 ‘Mo. 248, '77 S.
W.'552; State v. Matter, 78 Minn.
377, 81 1N. W. 9; In re Bishop,
172 Mass. 35,:51 N. EB. 191; In re
State, 52 La. Ann, 4, 26 So. 773;

68 Kan. 796, '75 ‘Pac, 1025; Manor
v. Donahoo, 117:Ga. 304, 43 ‘S, E.
719; Ex parte ‘Brady, 70 Ark.
876, 68 S, W. 34; Brady-v. State,
140 Ala. 172,°87 So. 250.

‘98 Park:v, Park, 80'N. Y. 156.

24 Haines v. Haines, 85 Mich.
138.

by
CONTEMPTS ; GENHRAL REVIEW ;‘SCOPE OF WRIT. 283

payment ‘of money can-only be enforced by attachment
when by law execution cannot be awarded for ‘the col-
lection of such sum, but conclude that execution .can-
not be awarded for temporary alimony; that an ex-
ecution is only ‘proper after ‘final decree in case of per-
manent alimony, er of an allowance in support of
children®*

‘The supreme court of Maine are of the opinion, and
so decide, with respect to the payment of temporary
alimony payable in instalments, that it may be en-
forced by proceedings in contempt or ‘by execution?”

In Massachusetts it is held that scire facias is not
the exclusive remedy in case of nonpayment of in-
stalments. An action, however, will not lie for ar-
rears, upon the ground that the court may from time
to time, on the petition of either party, revise and
alter its decree respecting the amount of alimony and
the payment thereof. It is conceded that an execution
is usually ordered when ‘the decree is for the payment
of money. They state, however, that there may be
cases where an attachment for contempt could be or-
dered, but only where there ‘has ‘been a contemptuous
disobedience of the-order or decree.®*

So in Louisiana the fact that a judgment for ali-
mony is enforcible by ‘fieri facias does not preclude a
commitment for contempt for a wilful refusal to com-
ply with its terms ;®® and it seems such is the doctrine.
of the Minnesota court

In Nebraska, however, it is held ‘that ‘a decree award-
ing permanent alimony bemg enforcible in the same
manner as judgments at law, the noncomphance with

88 Taylor v. Gladwin, 40 Mich. 98 Slade v. Slade, 106 Mass.:499.
232; Palmer v. Palmer, 45 Mich. 99 State v. King, 49 La. Ann.
150, 7 No W. 760. 1503.

96 North v. North, 39 Mich. :67. 1State v. Jamison, 69 Minn.

97 Russell v. Russell, 69 Me. 427, 72 (N. W. 451.
336; Dwelly v. Dwelly, 46 Me. 377.
284 HABEAS CORPUS.

such order in the absence of fraud is not punishable
as for contempt of court.?

Nonpayment; ability to pay.

It is held by the California court that contempt in
neglecting to pay alimony directed is a civil contempt.
They state that there is a well-settled distinction be-
tween a civil and criminal contempt. The former con-
sists generally in failing to do something ordered to
be done by a court in a civil action for the benefit of
the opposing party therein; the latter consists in acts
of disrespect of the court, such as disorderly or violent
conduct in its presence or immediate vicinity, or in
the doing of a forbidden act, resistance to process, etc.;
that there might be instances where the character of
the contempt would be of difficult determination. They
further state that all the authorities agree that in a
case of civil contempt,—that is, when a defendant in a
civil action is ordered by the court to pay money gen-
erally to the plaintiff, and is committed until he shall
have paid it,—the prisoner is in custody under an ex-
ecution; and it was so held in England.*

Such was the doctrine declared in New York,‘ where
it was said: ‘‘It is to all intents and purposes an execu-
tion. The order is a judgment rendered in favor of one

party against the other for the payment of a sum cer-
tain, or which may be reduced to a certainty, if it be for
costs by taxation. The object of the precept is to exe-
cute the order, to give it effect and to enforce its per-
formance; and when the party is imprisoned upon it, he
is, within the letter and meaning of the law, imprisoned
by virtue of an execution.’’ If these premises be cor-
rect, it follows that an attachment for contempt for re-

2Leeder v. State, 55 Neb. 133, 4Van Wezel v. Van Wezel, 3
75 N. W. 541. Paige, 48.

2 Rex v. Stokes, Cowp. 186. See /
In re Wilson, 75 Cal. 580.

.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 285

fusal to pay alimony or imprisonment on such
ground cannot be justified on any other ground than
wilful disobedience of the order; and if it is made to
appear that the defendant is without the ability to meet
its requirements, the refusal cannot be wilful, other-
wise the imprisonment would be for debt. Hence, it is
the duty of the court to hear evidence touching the
property and effects of such a defendant, and to dis-
charge him if it appear therefrom that he is not of
sufficient ability to pay. As stated by one court: ‘‘To
hold that the petitioner, though penniless, must suffer
a life imprisonment for debt because of the particular
form in which the imprisonment was imposed, would
be a gross violation of the plain intent of the code.’

It was stated by the Wisconsin court that the remedy
by imprisonment was severe and harsh; that imprison-
ment should not be ordered where it appears that the
default is the result of an honest inability to pay on
account of business misfortunes or lack of health or
earning ability, or other circumstances which are not
the fault of the defendant. But where the inability
is wilfully brought about by the defendant himself,
with intent to avoid payment, the refusal to pay be-
comes contumacious, and the inability so resulting will
not purge the defendant of contempt.®

The language used by the Wisconsin court is some-
what general in character, and would seem to imply, in
connection with other language used, that the question
of an honest inability to pay was one which the court
had discretion to determine. It was held by the su-
preme court of Maine that the determination of that
question by the trial court was conclusive upon the
parties.”

5In re Wilson, 75 Cal. 580. ever, In re Meggett, 105 Wis.
6 Staples v. Staples, 87 Wis. 291, 81 N. W. 419.
592, 58 N. W. 1036. See, how- 7 Russell v. Russell, 69 Me. 336.

y
286 HABEAS CORPUS.

And it would seem that in Massachusetts, under the
provisions of their statute, the appellate court. will
not review such question of fact.®

However, in most jurisdictions, an appeal lies from
an order committing for contempt. by reason of non-
payment of alimony;°* and the question of the excess
of power may be reviewed by habeas corpus.’°

The inability to pay is a question. proper to be pre-
sented, and if it. be an actual inability, not, created by
the act. of the party, then. if the party has. been im-
prisoned he must be discharged. The statute with
respect. to civil contempts is, as. we have seen, that, it. is
only when the contempt consists in the omission to. per-
form an act which is in the power of the person to per- :
form. that he may be imprisoned until he shall have
performed. it. The term of imprisonment for criminal
contempt is limited, and hence to justify an order under
the former statute, in contempt proceedings, there
must, exist an ability to. pay, and if it otherwise appear
the court is without jurisdiction. The court has: na
jurisdiction to. compel a party to seek employment
to earn money to pay the alimony decreed, nor to pun-
ish him for contempt for failing so ta do. This was
the express decision of the supreme court. of Califor-
nia.1!

The supreme court of Wisconsin, however, seems to
have concluded that upon a showing that the defendant
was a. strong, able-bodied man and ran a large farm,
keeping a large stock of cattle and horses, under a claim
that he was doing it. for his mother, the latter proposi-
tion being disputed only by inference, and where it af-

‘firmatively appeared by the defendant’s affidavit that

8Sparhawk v. Sparhawk, 120 Staples v. Staples, 87 Wis. 592,
Mass, 390. 58 N. W. 1036,
®In re Bissell, 40. Mich. 63; 10x parte Lerd, 119 Cal. 57.
11.Ex parte Lord, 119. Cal. 57,
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 287

he had no property, real or personal, but that he:was in:
debt.and could borrow no money, his ability tu pay suf-
ficiently appeared. It is true there was. in evidence a
statement of the. defendant to the effect. that. he would.
not pay. If such .was controlling, with respect. to his.
contumacy, he should have been punished’ .as for’ a
criminal contempt.1? a5

Far different was. the conclusion reached by that.
court in a later case.!* There it. was stated: ‘‘ Al-
though it. is within the power of the circuit court. to
order a member of an insolvent partnership to pay over
to. the. receiver appointed for such firm a: certain: sum of
money, where the: evidence clearly and satisfactorily
shows that, such money is within his control, and to:
enforee compliance with, the order by imprisoning him,
yet, the. exercise of such power is held to have been
an abuse of discretion, where such partner absolutely:
denied. that he, had. either property or money: belong-
ing’ to the firm in his. power, and the only evidence to
the contrary was: the inference arising from the, fact
that about two. years previous. the firm had been im
possession, of a.large amount. of property, the disposi-
tion. of which had not been satisfactorily accounted
for.’’

In Haines v. Haines, 35 Mich 138,, the defendant
made claim of his inability to pay. The court there
said: ‘‘It is evident. that. when the original order was
made he had considerable property, and when the suit —
was commenced: he had still more. An injunction was
issued, and: he insists that this tied his hands, so that.
if he desired to raise money he could not do so This.
protest amounts. to: nothing. The evidence indicates.
very plainly that it is fraud.and not poverty which has.
prevented the paymert.’? It was held by an Ohio

12 Staples: v. Staples, 87 Wis. 18Warren. v, Rosenberg, 94
592, 58 N. W. 1036. Wis, 523, 69 N. W. 339.
288 HABEAS CORPUS.

court that a defendant could not be imprisoned for con-
tempt for failing to pay an instalment decreed to be
paid to his divorced wife and children, where he is
earning no more than sufficient to pay the necessaries
of life and has no property."*

It is to be expected, of course, that cases will arise
where a defendant will resort to various pretexts to
support a contention of inability to pay. Hence, courts
scrutinize closely, as they should, the evidence and
surrounding circumstances. The question of resources
is very much within the sole knowledge of the defend-
ant. The investigation should take a wide range; yet
inferences not based upon facts should not be sufficient
to determine ability to pay. Inferences drawn from
disposition of property, or from acts of a party incon-
sistent with his sworn declarations, are of an entirely
different character, and rest upon a substantial basis.
Thus, where a husband was punished for contempt in
not paying a mortgage on property set over to his
divorced wife, which by decree he was ordered to do,
and it appeared from the evidence that he had borrowed
a sum of money since the decree was entered greatly
in excess of the amount of the mortgage, it was held
that the finding that he was able to pay the mortgage
was according to the facts.*®

Orders directing delivery of documents or other pa-
pers.

A receiver was appointed by a state court of all the
property of a corporation. The order required each
of its officers, of which the petitioner herein was one,
upon demand of the receiver to deliver to him any
books, papers, money or property or vouchers for
property within their control, or to which the corpora-

14 Pancost v. State, 15 Ohio Ct. 18 State v. Ditmar (Wash.), 53
Rep. 246. Pac. 350.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF wkIT. 289

tion was entitled. The receiver made a motion to the
district court of the state to commit the president of
the corporation, Tinsley, for contempt in refusing to
deliver to the receiver a minute book, promissory notes
of the amount of $1,440.50, and a trust fund amounting
to $492.52, belonging to the corporation. A rule to
show cause was issued, in answer to which Tinsley
averred that the notes and minute book had been de-
livered to him by the corporation as collateral security
for money advanced by him to the corporation, and
that he had made at the expense to himself of $7.70 an
investment of the trust fund in securities, which he had
offered and was still ready to deliver to the receiver
upon payment of this sum. The district court, upon
the hearing, adjudged him in contempt in disobeying its
former order, and ordered him to pay a fine of $100
and to deliver to the receiver the property aforesaid,
and be committed until he should pay the fine and
should (being allowed by the sheriff reasonable op-
portunity to do so if he should so desire) deliver the
property to the receiver, or until he should be dis-
charged by the further order of the court, and upon
the same day he was committed to the county jail. Sub-
sequently he presented to the district court a petition
for a writ of habeas corpus setting forth the above
proceedings, and alleging that the judgment and com-
mitment for contempt were void and his detention un-
der them illegal for these reasons; that his claim to.
the notes, minute book and trust fund was made in
good faith, and that he had a right thereto until de-
prived thereof by due process of law, and that the pro-
ceedings on said motion and said judgment are not.
due process of law, and that he ought not and cannot
be, by such proceedings, imprisoned and compelled to
turn over said property and things for that thereby

he is deprived of a trial by due course of law; that the
19
290 HABEAS CORPUS.

judgment and commitment were uncertain and indefi-
nite, and did not limit the time of his confinement under
them; that the statute of the state provided that the
district court should not have the power to imprison
any person for a longer period than three days for a
contempt; and that the matters set up in said motion
and judgment did not and could not constitute a con-
tempt. This petition was denied by the district court,
but subsequently was granted by the presiding judge
of the court of criminal appeals. Upon hearing, that
court dismissed the writ on the ground that the order
of commitment for contempt was within the power of
the district court, at least so far as concerned the
notes and minute book, because Tinsley was a party to
the suit in which the receiver was appointed and
claimed no title other than by way of lien in the notes
and minute book, and such lien, if genuine, would be
preserved to him against the property in the hands
of the receiver. .

Tinsley obtained from the circuit court of the United
States a writ of habeas corpus alleging in his petition
therefor, that by the order of commitment he was de-
prived of his liberty and will be if he submits to the
order of his property without due process of law, in
violation of the constitution of the United States.
Upon hearing, that court dismissed the writ and he
appealed from that judgment to the supreme court
of the United States. He also sued out a writ of
habeas corpus from the supreme court of the United
States to review the judgment of the court of criminal
appeals of the state of Texas.

The supreme court holding, first, that if the court
of criminal appeals denied to him any right specially
set up and claimed by him under the constitution, laws
or treaties of the United States, it was reviewable by
that court on writ of error, stated with respect to his
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 291

claim that his right to due process of law was denied
him, that ‘‘If the committing court had jurisdiction of
the subject matter and of the person, and the power
to make the order for disobedience, to which the judg-
ment in contempt was rendered, and to render that
judgment, then the court of criminal appeals could not
do otherwise than discharge the writ and remand the
prisoner,’’ and finally held substantially as held by
the Texas court and upon the same grounds.

It was further stated that there was no force in the
objection that no jury trial was awarded, for such trial
was not demanded, and a jury trial is not necessary to
due process of law on an inquiry for contempt.'*

Another case involving the question of contempt for
the nondelivery of books or documents in possession
of a person subpoenaed as a witness and required to
produce them, was later before the supreme court. The
facts in the case are given herein upon another branch
of the subject but are repeated in this connection.

A United States collector of internal revenue
was adjudged by a court of limited jurisdiction in
Kentucky to be in contempt because he refused, while
giving his deposition in a case pending in a state court,
to file copies of certain reports made by distillers, and
which reports were in his custody as a subordinate offi-
cer of the treasury department. He based his refusal
upon a regulation of that department which provided:
‘‘ All records in the office of collectors of internal reve-
nue or of any of their deputies, are in their custody and
control for purposes relating to the collection of the
revenues of the United States only. They have no con-
trol over them and no discretion with regard to per-
mitting the use of them for any other purpose.’’ This
regulation was made by the secretary of the treasury
under the authority conferred upon him by sec. 161 of

16 Tinsley v. Anderson, 171 U. S. 101, 48 L. Ed. 91, 18 Sup. Ct.
Rep. 805.
292 HABEAS CORPUS.

the revised statutes of the United States, which author-
ized that officer as the head of an executive depart-
ment of the government, ‘‘to prescribe regulations, not
inconsistent with law, for the government of his de-
partment, the conduct of its officers and clerks, the
distribution and performance of its business, and the
custody, use and preservation of the records, papers
and property appertaining to it.

The collector having been arrested and placed in
custody as for contempt sued out a writ of habeas cor-
pus before the district court of the United States for
the Kentucky district, and upon the hearing he was
discharged upon the ground that his imprisonment and
detention was in violation of the constitution of the
United States. There was an appeal direct to the
supreme court of the United States, wherein it was
held that the facts brought the case within the rule as
expressed in Ex parte Royall, 117 U.S. 241, 251, 29 L.
Ed. 868, 6 Sup. Ct. Rep. 734, and many other cases; that
habeas corpus would lie, when the petitioner is in cus-
tody by state authority for an act done or omitted to
be done in pursuance of a law of the United States or
of an order, process or decree of a court or judge
thereof, and also held that the imprisonment of the
petitioner was in violation of a law of the United
States.

It was said: ‘‘Manifestly he could not have filed the
copies called for without violating regulations formally
promulgated by the commissioner of internal revenue
with the approval of the secretary of the treasury. If
these regulations were such as the secretary could pre-
scribe, than it must be conceded the state authorities
were without jurisdiction to compel the collector to
violate them.’’ Also that they were not inconsistent
with law.?"

17 Boske v. Comingore, 177 U. S. 459, 44 L. Hd. 846, 20 Sup. Ct.
Rep. 701.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 293

Orders made in other than judicial proceedings.

Statutes sometimes provide for the making of cer-
tain orders by courts or judges thereof, which, strictly
speaking, are not within their ordinary duties, and the
question is presented of the power of such court or
judge to enforce obedience to such orders by proceed-
ings in contempt. Thus courts ordinarily are clothed
with the power to fix and order paid the compensa-
tion of phonographic reporters in criminal cases, and
it is made the duty of the treasurer to pay the same
upon the order of the court. In a case where such
power and duty were present, it was held that the act of
the treasurer in disobeying an order of the court fixing
the compensation of a reporter and directing its pay-
ment was a contempt and as such punishable by im-
prisonment; that the laws relating to such matter ap-
pertained to the judicial system of the state and con-
stituted a part of it; that it did not pertain to the legis-
lative branch; that the board of supervisors of a county
in such matters cannot review or reverse or modify the
action of the court. The same reasoning and rule
apply with respect to orders for the payment of the
fees of witnesses in criminal cases.'®

In another and subsequent case in the same state the
distinction was drawn between powers conferred upon
the court and those to be exercised by the judge, holding
that the orders of the court were enforcible by proceed-
ings in contempt, those of the judge by proceedings in
mandamus. The facts were that, under section 144
of the California code, it was provided that if suitable
rooms and necessary furniture, stationery, etc., suffi-
cient for the transaction of the business of the superior
court be not provided by the supervisors of the county,
the court or judge thereof may direct the sheriff to

18 Ex parte Reis, 64 Cal. 233.
294 HABEAS CORPUS.

provide the same, and that the expenses incurred, cer-
tified by the judge or judges to be correct, shall be a
‘charge against the city and county treasury, and paid
out of the general fund thereof. It was held that it
was the duty of the judge of the court to audit the
demand for expenses incurred in pursuance of said
section of the code, and it was not necessary that the
supervisors should also audit it; and when so audited
the duty of the treasurer to pay it out of the general
fund was a duty imposed upon him by law, a neglect
or refusal to perform which rendered him liable to
proceedings by writ of mandamus or other appropriate
remedy. The power of the judge under that section
is exhausted after his auditing the demand for ex-
penses incurred, and the court has no inherent statu-
tory power to order the treasurer, who is neither an
officer of the court nor a party to the proceedings, to
pay the certified demand out of the general fund, and a
refusal to obey such order did not render the treasurer
amenable to proceedings for contempt of court. The
decision goes further than first stated. It was held
that the language of the section did not clothe either
the court or judge with power to order the payment.
The judge was to certify the account as correct only,
and in this respect it was distinguished from Ex parte
Reis, for there the statute was in express words, ‘‘to
pay on the order of the court.’’ ®

§ 76. Interference with process or action of court by a
third party.—In general.

Any person who interferes with the process, control
or action of the court in a pending litigation, unlawfully
and without authority, is guilty of a civil contempt if
his act defeats, impairs, impedes or prejudices the
right or remedies of a party to such action or proceed-

19 Ex parte Wilber, 91 Cal. 367.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 295

ing. Thus the advising and procuring disobedience:
of an order or judgment directing the transfer of stock
upon the books of a corporation is such a contempt.
The power of the court is not destroyed by the original
party purging himself of contempt by compliance with
the order after proceedings are commenced against.
such third person, but the court could proceed and
punish the offender. His offense is not in the omis-
sion to perform something the court had enjoined
upon him and which it was in his power to do, but is an
affirmative act of resistance to the process of the
court,—an active effort to defeat its orders and make
its judgment nugatory; hence the power of punishment.
The court also takes occasion to refer to the distinc-
tion between criminal and civil contempts and states
the conclusion which elsewhere appears herein; in
fact, that what may be termed civil contempts may
be punished criminally; that the distinction between
civil and criminal contempts is not the test to deter-
mine the extent or character of the punishment. The
_ offender in the above case was sentenced to imprison-

ment for a term of six months, and it was argued that
as the party who directly disobeyed the order of the
court had purged his contempt, the same result ex-
tended to him. The statute provided that where it is
in the power of the party to perform the act required
he shall be imprisoned only until he has performed it
and paid his fine; but it further provided that in every
other case the penalty shall be a fine of not more than
$250 and imprisonment not to exceed six months. Such
was the provision which covered the contempt of the
offender.*°

Receivers; interference with their possession.

Receivers are mere officers of the court and their
possession or right to possession of property is that’

20 King v. Barnes, 113 N. Y. 476, 21 N. E. 182.
296 HABEAS CORPUS.

of the court. Hence any interference with their law-
ful authority is a contempt of the court. Strictly speak-
ing, it is a disobedience of the order appointing the
receiver and clothing him with authority ; and such con-
tempt in interfering with property in the hands of a
receiver may be committed by any person, whether an
officer or employe of the receiver, or by a stranger.”!

Any unlawful interference with the operation of a
road in the hands of a receiver is a contempt of court
because it is a disobedience or resistance by a person
to a lawful order of the court.??

It was declared that any wilful attempt by any
one, with knowledge that the road is in the hands of
the court, to prevent or impede the receiver from
complying with the orders of the court in running
the road, when the attempt is unlawful, and as be-
tween private individuals, would give a right of ac-
tion for damages, is a contempt of the order of the
court. The rights of a receiver with reference to his
business in conducting the railroad under orders of
the court are not different in any respect from those
of a private railway corporation. The only difference
is in the remedy which the courts will apply to pre-
vent or to punish a violation of them, when such viola-
tion prevents or impedes the operation of the road,
and is intended to do so. It was further declared that
maliciously inciting employes of a receiver who is
operating a railroad under orders of the court to leave
his employ, in pursuance of an unlawful combination
to prevent the operation of the road, thereby inflicting
injuries to its business for which damages would be
recoverable if it were operated by a private corpora-
tion, is a contempt of court.??

24In re Acker, 66 Fed. Rep. 22 Secor v. Railroad Co., 7 Biss.
290; In re Debs, 158 U. S. 564, 518; United States v. Kane, 23
39 L. Ed. 1092, 15 Sup. Ct. Rep. Fed. Rep. 748.

900. 23 Thomas v. Cincinnati N. O.
& T, P. Ry. Co., 62 Fed. Rep. 803.
CONTEMPTS ; GENERAL REVIEW; SCOPE OF WRIT. 297

The rule extends not only-to the taking possession
of property in the charge of a receiver, but also in
taking legal proceedings to obtain possession thereof,
without the sanction of the court.?* .

Thus it is a contempt for a sheriff to seize property
in the hands of a receiver, with notice of his. appoint-
ment and without leave of the court appointing him,
even though the title of the person whose writ the
sheriff executes is paramount to that of the receiver.?®

24Richards v. People, 81 Ill. 25 Commonwealth v. Young, 11
551. - Phila. (Pa.) 606.
298 HABEAS COBPUS.

CHAPTER VIII.

CONTEMPTS; WITNESSES.

I. PriviLece or WITNESS.

$ 77. Preliminary Statement.
78. At Common Law; Self-Incrimination.
General Rule.
Criminating Effect of Answer; Who. to Judge.
79. Under Constitution of the United States.
In General.
Rule as Declared in Several States.
Rule as Declared by Supreme Court of the United States.
Construction of the Term Criminal Case.
80. Inspection of Books and Papers.
In General.
Production of Books of Corporation.
Public Documents, Papers, etc.
Books, Papers, etc., of Bankrupt in Bankruptcy Pro-
ceedings.
81. Production of Books and Papers Generally without Claim of
Incrimination.
In General.
Where not Pertinent to the Issue.
82. Immunity and Immunity Statutes.
In General.
83. Application of the General Rule to Acts.
84. Exposure to Infamy and Disgrace.
85. The Right or Privilege that of the Witness Alone.
86. Waiver of Privilege.
Rule with Respect to Parties.
87. Refusal to Answer Incompetent Questions.
88. Refusal to Produce Books and Papers not Relevant.
89. Refusal to Answer Questions where Court Without Jurisdic-
tion.

©

II. CONFIDENTIAL AND PRIVILEGED COMMUNICATIONS,

90. Political.
91. Professional.
Attorney and Client.
Existence of Relation.
Communication whether Privileged.
Production of Documents, Papers, ete.

x
CONTEMPTS; WITNESSES. 299

Correspondence.
Waiver of Secrecy.
Communication not Privileged.
92. Physician and Patient.
93. Clergymen.
94. Husband and Wife.
In General.
Communications in Presence of Third Persons.
Communications made to Third Persons.
Rule under Particular Statutes. ,
Exceptions to the Rule.
95. Telegraph Operators and Postmasters.
96. Officers and Others Excused on Ground of Public Policy or
Otherwise.
Judges and Arbitrators,
Informers.
Grand Jurors.
Petit Jurors.

III. Conrumacy oF WITNESSES,

97. Refusal of Witnesses to Attend.
98. Refusal to be Sworn,
99. Refusal to Testify.

Experts.

I. Priviteces oF WITNESS.

§ 77. Preliminary statement.

One of the principal questions involved in consider-
ing this branch of the general subject is that of the
power of the court to adjudge the contempt of and to
imprison a witness for refusal to answer the questions
propounded to him or to produce his private books,
papers and correspondence, when so required by an
order of court or subpoena duces tecum.

By the common law, a witness is exempt from self-
incrimination. This doctrine has been, in several
states, incorporated in their statutes. Such statutes
are not uniform in their provisions. In some states
the language of the federal constitution has been
adopted, in others a more liberal provision.

The constitution of the United States provides
against self-accusation in a criminal case. This pro-
300 HABEAS CORPUS.

vision has been the subject of much discussion by the
courts, the difficult question having been the construc-
tion of the phrase ‘‘criminal case.’’ :

In this connection the question has been quite fre-
quently determined of the application of the several
constitutional provisions to an inspection and produc-
tion of private books and papers, involving also an-
other constitutional provision,—that of unreasonable
search and seizure.

Other questions considered are, the power of the
court to compel a witness to answer an incompetent or
irrelevant question, the production of books and
papers which are not relevant to the controversy, re-
fusal to be sworn or to testify, and to disclose privi-
leged communications.

It is to be constantly kept in mind that the subject
matter involved in the proceeding in which such alleged
contempt. appears bears no relation to the act con-
stituting the alleged contempt other than in rare in-
stances, in which the relevancy of the question is also
involved. The subject matter, if there be such, is the
act of refusal. It is of no importance what the sub-
ject matter of the proceeding may be in which the
alleged contempt was committed. The power to ad-
judge depends solely upon the question of the privilege
of the witness. If the case be one where the witness
may lawfully insist upon the protection of his privi-
lege, then it follows the court is without power to ad-
judge him in contempt. The question is an entirely
different one from that involved where the alleged con-
tempt consists in violation of an order of the court or
body in a judicial or quasi judicial proceeding.

The further question is involved whether an order
or direction of the court, where made in adjudging the
witness in contempt and directing his imprisonment,
is so far jurisdictional that it may be reviewed by
means of habeas corpus or certiorari, or only upon
CONTEMPTS; WITNESSES. 301

writ of error or by appeal. There would seem to be
no question in this respect if the writ of habeas cor-
pus was applied for and granted by the federal courts,
as the federal statutes provide (Act of February 5,
1887, 14 Stat. 385, ch. 28) that ‘‘the said court or judge
shall proceed in a summary way to determine the facts
of the case by hearing testimony and arguments of
the parties interested, and if it shall appear that the
petitioner is deprived of his or her liberty, in contra-
vention of the constitution or laws of the United States,
he or she shall forthwith be set at liberty.’’?

This act applies only to a deprivation of liberty in
contravention of the constitution of the United
. States, and if there is a difference, not in contraven-
tion of one’s common-law rights. However, in most, if
not all of the states, their constitutions make pro-
visions for such immunity from self-incrimination,
which does not limit it to a criminal case. The dis-
tinction between the federal constitution and the com-
mon law is pointed out later in the discussion.

§ 78. At common law; self-incrimination General
rule.

The proposition is familiar that a witness may not
be compelled to incriminate himself, which means that
he may refuse to answer any question the answer to
which if given may tend to expose him to a criminal
charge or to punishment. Every one is protected by
the law from compulsory incrimination of himself, and
this is distinct from the constitutional provision ex-
empting from self-accusation. ‘‘The maxim nemo
tenetur se ipsum prodere’’ (no one is bound to betray

1In re Neagle, 185 U. S. 1, 34 =v. Commingore, 177 U. 8. 459, 44
L, Ed. 55, 10 Sup. Ct. Rep. 658; L, Hd. 846, 20 Sup. Ct. Rep. 701;
Counselman v. Hitchcock, 142 U. Brown v. Walker, 161 U. S. 591,
S. 547, 35 L. Hd. 1110, 12 Sup. Ct. 40 L. Ed. 819, 16 Sup. Ct. Rep.

Rep. 195; Hunter v. Wood, 209 644,
U. S. 205, 52 L. Ed. 747; Boske
302 HABEAS CORPUS.

or expose himself), says Chief Justice Shippen in
Respublica v. Gibbs, 3 Yeates, 429, ‘‘is founded on the
best policy, and runs throughout our whole system of
jurisprudence. It is the uniform practice as to wit-
nesses and jurors. It is considered cruel and unjust
to propose questions which may tend to criminate the
party.’’ ‘‘The essential and inherent cruelty of ,com-
pelling a man to expose his own guilt is obvious to
every one and needs no illustration.’’?

It is an ancient principle of the law of evidence that
a witness shall not be compelled in any proceeding
to make disclosure or to give testimony which will
tend to criminate him or subject him to fines, penalties
or forfeitures.®

“<The only reason that can be suggested why such
principle was not placed by the framers of the consti-
tution in that instrument, is that it was so imbedded in
the hearts of the people as a maxim of universal jus-
tice and humanity, that it was proof against danger
of encroachment; while as to the proposition against
self-accusation, it was anticipated that in perilous
times, or in cases of crimes of great enormity, the peo-
ple, acting under excitement, might break down the
barrier of common-law protection and disregard the
almost sacred right of the citizen. No such incentive
was considered possible in the deliberate proceedings
of courts proceeding in civil actions; yet as we have
seen, in some states the privilege is a matter of con-
stitutional right. The privilege extends to such mat-
ters as may tend to criminate the witness, and is not
confined to those matters which directly criminate.’’¢

Upon this particular question the courts never grow
weary in repeating the words of Chief Justice Mar-

2Justice Field in Brown v. selman v. Hitchcock, 142 U. S.
Walker, 161 U. S. 591, 40 L. Ed. 547, 35 L. Ed. 1110, 12 Sup. Ct.

819, 16 Sup. Ct. Rep. 644. Rep. 195.
3 Justice Blatchford in Coun- 41 Burr’s Trial, 244,
CONTEMPTS; WITNESSES. 303

shall in Burr’s Trial. In answer to the statement of
counsel for the government that a witness can never
refuse to answer any question unless that answer,
unconnected with other testimony, would be sufficient
to convict him of crime, he said: ‘‘This would be ren-
dering the rule almost perfectly worthless. Many
links frequently compose that chain of testimony which
is necessary to convict any individual of a crime. It
appears to the court to be the true sense of the rule,
that no witness is compellable to furnish any one of
them against himself. It is certainly not only a pos-
sible but a probable case that a witness by disclosing
a single fact may complete the testimony against him-
self, and to every effectual purpose accuse himself as
entirely as he would by stating every circumstance
which would be required for his conviction. That fact
itself would be unavailing, but all other facts without it
would be insufficient. While that remains concealed in
his own bosom he is safe; but draw it from thence and
he is exposed to a prosecution. The rule which de-
clares that no one is compellable to accuse himself
would most obviously be infringed by compelling a
witness to disclose a fact of this description. What
testimony may be possessed or is obtainable against
any individual the court can never know. It would
seem then, that the court ought never to compel a
witness to give an answer which discloses a fact that
would form a necessary and essential part of a crime
which is punishable by the laws.’’ This privilege ex-
tends to the proceedings in all courts, and to all in-
quisitions, such as examinations before the grand jury
and the like.®
Criminating effect of answer; who to judge.

A witness having secured to him his privilege, the

important question is, how and in what manner and

5 Counselman v. Hitchcock, 142 Ct. Rep. 195; People v. Forbes,
N. Y. 547, 35 L. Hd. 1110,12 Sup. 143 N. Y. 219, 38 N. EB. 303.
304 HABEAS CORPUS.

by whom should the question of the incriminating effect
of the question be determined. The witness has the
privilege of refusing to answer the question upon the
ground that an answer may tend to criminate him.
The necessity of some restriction upon the option of
the witness becomes at once apparent, or else a witness
might stubbornly refuse to answer a most material
question where such question could not possibly crimi-
nate him; as where it did not involve the question of
the commission of any offense, as well as where the
witness had no connection with the commission of an
offense, where it relates to such. In other words, the
privilege would be abused where an unwilling witness
desired to shield the offender. From the very nature
of the case no fixed rule applicable to all cases is pos-
sible. Much must depend upon the particular circum-
stances of each case. It was stated by Lord Chief
Justice Cockburn (Queen v. Boyes, 1 B. & 8. 311, 321),
in answer to the contention of counsel that a bare pos-
sibility of legal peril was sufficient to entitle a witness
to protection, as well as that the witness was the sole
judge as to whether the evidence would bring him
into danger of the law: ‘‘To entitle a party called as a
witness to the privilege of silence, the court must see
from the circumstances of the case and the nature of
the evidence which the witness is called to give that
there is reasonable ground to apprehend danger to the
witness from his being compelled to answer;’’ although
‘if the fact of the witness being in danger be once
made to appear, great latitude should be allowed him
in judging for himself the effect of any particular
question. Further than this, we are of the opinion
that the danger to be apprehended must be real and
appreciable, with reference to the ordinary operation
of law in the ordinary course of things—not a danger
of an imaginary and. unsubstantial character having
CONTEMPTS; WITNESSES. 305

reference to some extraordinary and barely possible
contingency, so improbable that no reasonable man
would suffer it to influence his conduct. We think that
a merely remote and naked possibility out of the ordi-
nary course of the law, and such as no reasonable man
would be affected by, should not be suffered to obstruct.
the administration of justice. The object of the law
is to afford to a party, called upon to give evidence in #
proceeding inter alios, protection against being brought
by means of his own evidence within the penalties of
the law. But it would be to convert a salutary pro-
tection into a means of abuse if it were to be held that
a mere imaginary possibility of danger, however re-
mote and improbable, was sufficient to justify the with-
holding of evidence essential to the ends of justice.’”
It was stated by the United States supreme court: ‘‘As
the object of the first eight amendments to the con-
stitution was to incorporate into the fundamental law of
the land certain principles of natural justice which
had become permanently fixed in the jurisprudence of
the mother country, the construction given to those
principles by the English courts is cogent evidence of
what they were designed to secure, and of the limita-
' tions that should be put upon them. This is but
another application of the familiar rule that, wher
one state adopts the laws of another, it is also pre-
sumed to adopt the known and settled construction of
those laws by the courts of the state from which they:
are taken.’’®

It was further stated by the court in the case cited
that ‘‘the danger of extending the principle is that the
privilege may be put forward for a sentimental reason;
or for a purely fanciful protection of the witness

6 Brown v. Walker, 161 U. S. 591, 40 L. Ed. 819, 16 Sup. Ct. Rep.

644,
20
306 HABEAS CORPUS.

against an imaginary danger, and for the real pur-
pose of securing immunity to some third person who is
interested in concealing the facts to which he would
testify.’’ The following rule was declared by Chief
Justice Marshall in the notes to the case of Burr:
‘‘When a question is propounded it belongs to the court
to consider and decide whether any direct answer to
it can implicate the witness. If this be decided in the
negative, then he may answer it without violating the
privilege which is secured to him by law. If a direct
answer to it may criminate himself, then he must be the
sole judge what his answer would be. The court can-
not participate with him in his judgment, because they
cannot decide on the effect of his answer without know-
ing what it would be; and a disclosure of that fact
to the judge would strip him of the privileges which
the law allows and which he claims. It follows neces-
sarily, then, from this state of things, that if the ques-
tion be of such a description that an answer to it may
or may not criminate the witness, according to the pur-
port of that answer, it must rest with himself, who
alone can tell what it would be, to answer the question
or not. If in such a case he say, upon his oath, that his
answer would criminate himself, the court ean demand
no other testimony of the fact. If the declaration be
untrue, it is in conscience and in law as much a per-
jury as if he had declared any other untruth upon his
oath; as it is one of those cases in which the rule of law
must be abandoned or the oath of the witness be re-
ceived.’’ This statement of the rule has been received
as correct by courts in the several jurisdictions. The
modification of it, if at all, has been more in language
than in substance.”

7Kirschner v. State, 9 Wis. 229; Commonwealth v. Ball, 145
140; People v. Mather, 4 Wend. Pa, St. 374.
CONTEMPTS; WITNESSES. 307

‘§ 79. Under constitution of the United States.—In gen-
eral,

The fifth amendment to the constitution of the United
States declares ‘‘that no person * * * shall be
compelled in any criminal case to be a witness against
himself,’’ and the constitutions of: the several states
contain a provision of like import, in some the words
‘‘eriminal case’’ being omitted. The legal effect and
the extent of the application of such provisions has
been in the past the source of much discussion in the
courts of the land, and with conclusions not always
the same. It has been contended that a witness is not
entitled to plead the privilege of silence except in a
criminal case against himself, but it has been met by
the highest court in the land by the answer that such
is neither the language nor the intent of such provision.
It was said: ‘‘It is impossible that the meaning of the
constitutional provision can only be that a person shall
not be compelled to be a witness against himself in a
criminal prosecution against himself. It would doubt-
less cover such cases; but it is not limited to them.
The object was to insure that a person should not be
compelled, when acting as a witness in any investiga-
tion, to give testimony which would tend to show that
he himself had committed a crime. The privilege is
limited to criminal matters, but it is as broad as the
mischief against which it seeks to guard.’’§

Such in effect is the conclusion reached by the su-
preme court of Massachusetts.°

Rule as declared in several states.

It was there said: ‘‘By the narrowest construction
this prohibition extends to all investigations of an

8 Counselman v. Hitchcock, 142 ®Emery’s Case, 107 Mass. 172.
U. S. 547, 562, 35 L. Hd, 1110, 12
Sup. Ct. Rep. 195.
308 HABEAS CORPUS.

inquisitorial nature, instituted for the purpose of dis-
covering crime, or the perpetrators of crime, by put-
ting suspected parties upon their examination in re-
spect thereto, in any manner, although not in the course
of any pending prosecution. But it is not even thus
limited. The principle applies equally to any com-
pulsory disclosure of his guilt by the offender himself,
‘whether sought directly as the object of the inquiry, or
indirectly and incidentally for the purpose of estab-
lishing facts involved in an issue between other parties.
If the disclosure thus made would be capable of being
used against himself as a confession of crime, or an
admission of facts tending to prove the commission of
an offense by himself in any prosecution then pending,
or that might be brought against him therefor, dis-
closure would be an accusation of himself, within the
meaning of the constitutional provision. In the ab-
sence of regulation by statute, the protection against
self-accusation is secured by according to the guilty
person: when called upon to answer as a witness or
otherwise, the privilege of then avowing the liability
and claiming the exemption, instead of compelling him
to answer and then excluding his admissions so ob-
tained when afterwards offered in evidence against
him. * * * It isa reasonable construction to hold
that it protects a person from being compelled to dis-
close the circumstances of his offense, the sources
from which or the means by which evidence of its com-
mission or of his connection with it may be obtained or
made effectual for his conviction, without using his
answers as direct admissions against him. For all
practical purposes such disclosures would have the
effect to furnish evidence against the party making
them. They might furnish the only means of discover-
ing the names of those who could give evidence con-
cerning the transaction, the instrument by which a
crime was perpetrated, or even the corpus delicti it-
CONTEMPTS; WITNESSES. 309

self. Both the reason upon which the rule is founded
and the terms in which it is expressed forbid that it
should be limited to confessions of guilt, or statements
which may be proved in subsequent prosecutions as
admissions of facts sought to be established therein.’’
The supreme court of California are of the same mind.
Thus they say: ‘‘The criminal case in which he is a
witness need not be against himself, but his immunity
from compulsion extends to all evidence which may
be used in any criminal case against himself, under
whatever circumstances such evidence may be
sought.’’ 1

To the same effect are the decisions of the federal
court," and the supreme court of Arkansas,!? and
Indiana."

The court of appeals of New York, speaking with
reference to the constitutional provision of that state,
make the distinction that a witness called in an in-
dependent proceeding: is only privileged from testify-
ing where his answer, if repeated as his admission on
his own trial, would tend to prove him guilty of a
criminal offense. This distinction, in justice to the
court, ought to be stated only in the language of the
court itself: ‘‘The mandate that an accused person
should not be compelled to give evidence against him-
self would fail to secure the whole object intended, if a
prosecutor might call an accomplice or confederate in ©
a criminal offense and afterwards use the evidence he
might give to procure a conviction on the trial of an in-
dictment against him. If obliged to testify, on the
trial of the co-offender, to matters which would show
his own complicity, it might be said, upon a very liberal
construction of the language, that he was compelled

10Bx parte Cohen, 104 Cal. 12 State v. Quarles, 13 Ark. 307.
524, 13 Wilkins v. Malone, 14 Ind.

11 Burr’s Trial, 244. 153.
310 HABEAS CORPUS.

to give evidence against himself; that is, to give evi-
dence which might be used in a criminal case against
himself. It is of course competent for the legislature
to change any doctrine of the common law, but I think
they could not compel a witness to testify on the trial
of another person to facts which would prove himself
guilty of a crime, without indemnifying him against
the consequences; because I think, as has been men-
tioned, that by a legal construction the constitution
would be found to forbid it.’ So far the language is in
accord with the doctrine of the cases hereinbefore re-
ferred to. But the court continuing said: ‘‘If a man
cannot give evidence upon the trial of another person
without disclosing circumstances which will make his
own guilt apparent, or at least capable of proof, though
his account of the transaction should never be used as
evidence, it is the misfortune of his condition and not
any want of humanity in the law. If a witness objects to
a question on the ground that an answer would crimi-
nate himself, he must allege in substance that his ans-
wer, if repeated as his admission on his own trial, would
tend to prove him guilty of a criminal offense. If the
case is so situated that a repetition of it on a prosecu-
tion against him is impossible as where it is forbidden
by a positive statute, I have seen no authority which
holds or intimates that the witness is privileged. It is
not within any reasonable construction of the language
of the constitution.’’ The effect of this declaration is,
first, that the witness has no privilege where the testi-
mony thus elicited cannot be used directly in a criminal
prosecution for an offense against the witness when on
trial for such offense. In other words, it protects the
witness only from being a witness against himself.
Second, that he is not protected from the indirect and
incidental consequences of a disclosure which he might
be called upon to make. It was stated by the supreme
CONTEMPTS; WITNESSES. 311

court of the United States in the case cited (Counsel-
man v. Hitchcock, supra), that this takes away entirely
the true meaning and value of the constitutional provi-
sion, and was criticised by the Massachusetts court (in
Emery’s Case, supra), in language hereinbefore quoted.
The doctrine of People v. Kelly was subsequently ap-
proved by the court of appeals in People v. Sharp, 107
N. Y. 427, 14 N. E. 319.

Rule as declared by supreme court of United States.

The supreme court of the United States (Boyd v.
United States, 116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct.
Rep. 524) had under consideration the fifth amendment
to the constitution of the United States, and considered
also in connection with it the fourth amendment, which
declares that the right of the people to be secure in
their persons, houses, papers and effects against un-
reasonable searches and seizures shall not be violated.
Speaking by Mr. Justice Bradley, it was said: ‘‘ And
any compulsory discovery by extorting the party’s
oath, or compelling the production of his private books
and papers to convict him of crime or to forfeit his
property, is contrary to the principles of free govern-
ment. It is abhorrent to the instincts of an American.
It may suit the purposes of despotic power, but it can-
not abide the pure atmosphere of political liberty and
personal freedom.’’ It was further said: ‘‘We have
already noticed the intimate relation between the two
amendments; they throw great light on each other.
For the unreasonable searches and seizures condemned
in the fourth amendment are almost always made for
the purpose of compelling a man to give evidence
against himself, which in criminal cases is condemned
in the fifth amendment; and compelling a man in a
criminal case to be a witness against himself, which is
condemned in the fifth amendment, throws light on the
312 HABEAS CORPUS.

question as to what is unreasonable search and seizure
within the meaning of the fourth amendment. And we
have been unable to perceive that the seizure of a
man’s private books and papers to be used in evidence
against him is substantially different from compelling
him to be a witness against himself. We think it is
within the clear intent and meaning of those terms.’’
It was further said: ‘‘Though the proceeding in ques-
tion is divested of many of the aggravating incidents of
actual search and seizure, yet, as before said, it con-
tains their substance and essence and effects their sub-
stantial purpose. It may be that it is the obnoxious
thing in its mildest and least repulsive form; but ille-
gitimate and unconstitutional practices get their first
footing in that way, namely, by silent approaches and
slight deviations from legal modes of procedure. This
can only be obviated by adhering to the rule that con-
stitutional provisions for the security of persons and
property should be liberally construed. A close and
literal construction deprives them of half of their effi-
cacy, and leads to gradual depreciation of the right, as
if it consisted more in sound than in substance.’’ In
that case the fifth section of the act of June 22, 1874,
which authorized the court in revenue cases to require
the defendant or claimant to produce his private pa-
pers in court, or else the allegations of the govern-
ment’s attorney would be taken as confessed, was held
to be unconstitutional and void as applied to a suit for
a penalty or to establish a forfeiture of the goods of
the party, because it was repugnant to the fourth and
fifth amendments to the constitution.

Construction of the term ‘‘criminal case.’’

The language of the federal constitution, as well as
that of New York, Georgia and California, is identically
or substantially the same, namely: That no person shall
CONTEMPTS; WITNESSES. 313

be compelled in any criminal case to be a witness
against himself. In many of the other states, as we
shall have occasion to notice, the language is different.
What is intended by the term ‘‘criminal case,’’ as
herein used, is a question of the greatest importance.
Does it mean that a witness is only privileged from tes-
tifying when his testimony is called for in a criminal
case, and there is no protection or privilege when the
same testimony is called for in a civil action or is the
language to be so interpreted that the term ‘‘criminal
case’’ refers to a prosecution directly against the wit-
ness for an offense in which the information or testi-
mony elicited from the witness might, if given, be used
to the prejudice of the witness? It seems to be con-
ceded that the constitutional. provision only contem-
plates that the witness shall be shielded from prosecu-
tion by reason of any expression forced from him:
while he was a witness in a criminal case. It was in-
tended that against such attempted enforcement he
might invoke, if desired, and obtain the shield of ab-
solute silence.!*

In Counselman v. Hitchcock, after stating that the
object was to insure that a person should not be com-
pelled, when acting as a witness in any investigation,
to give testimony which might tend to show that he had
himself committed a crime, the court added: ‘‘The
privilege is limited to criminal matters, but is as broad
as the mischief against which it seeks to guard.’’ To
determine whether, in particular instances, the action
or proceeding in which the testimony was called for
was criminal or civil has presented a question of con-

14Justice Field in Brown v. 150 U. S. 476, 37 L. Ed, 750, 14
Walker, 161 U. S. 630, 40 L. Ed. Sup. Ct. Rep. 163; Thurston v.
819, 16 Sup. Ct. Rep. 644; Coun- Clark, 107 Cal. 285; Boyd v.
selman v. Hitchcock, 142 U. S. United States, 116 U. S. 616, 29
547, 85 L. Ed. 1110, 12 Sup. Ct. L. Ed. 746, 6 Sup. Ct. Rep. 524.
Rep. 195; Lees v. United States, :
314 HABEAS CORPUS.

siderable difficulty, and the determination of many
such was made to depend upon the principle that such
provision of the constitution should receive a liberal
construction. The matter under investigation by the
grand jury in Counselman v. Hitchcock, supra, was
held to be a criminal matter,— to inquire whether there
has been a criminal violation of the interstate com-
merce act. It was said: ‘‘If Counselman had been
guilty of the matters inquired of in the question which
he refused to answer, he himself was liable to criminal
prosecution under the act. The case before the grand
jury was therefore a criminal case.’’ It was further
stated that ‘‘a criminal prosecution under article 6 of
the amendments is much narrower than a criminal case
under article 5 of the amendments, and that it is en-
tirely consistent with the language of article 5, that the
privilege of not being a witness against himself is to be
exercised in a proceeding before a grand jury.’’ So
it was held in Boyd v. United States, supra, that a pro-
ceeding to forfeit goods under a federal statute was a
criminal case within the meaning of the fifth amend-
ment. So in California it was held that removal from
office, under the summary proceeding provided for by
section 772, of their code, is a punishment for wrong
doing, and was within the provisions of the constitu-
tion. It was stated: ‘‘When the constitution declares
that no person shall be compelled in any criminal case
to be a witness against himself, it must be construed to
apply to all cases in which the action prosecuted is not
to establish, recover or redress private and civil rights,
but to try and punish persons charged with the com-
mission of public offenses. A criminal case is an ac-
tion, suit or cause to punish an infraction of the crimi-
nal laws, and with this object in view it matters not in
what form a statute may clothe it, it is still a criminal
case, and the person charged therein is protected from
v

CONTEMPTS; WITNESSES. 315

being an enforced witness against himself by the aegis
of the constitutions, national and state.’ 15

Lees v. United States, 150 U. S. 476, 37 L. Ed. 750, 14
Sup. Ct. Rep. 163, was a civil action in form to re-
cover a penalty for importing an alien under a con-
tract to perform labor, etc., and it was held that, though
this was an action civil in form, it unquestionably was
criminal in its nature, and in such a case a defendant
eannot be compelled to be a witness against himself.
There are courts which hold that the constitutional
provision protects a person from a compulsory dis-
closure, in a civil suit, of facts tending to criminate
him, whenever his answer could be given in evidence
against him in a subsequent criminal prosecution (Wil-
kins v. Malone, 14 Ind. 153). The language of the pro-
vision of the state constitution there, is, that ‘‘no per-
son in any criminal prosecution shall be compelled to
testify against himself.’’ (Art.1,sec.14) The broad
language used by the supreme court of Massachusetts
justifies the opinion that such is the rule in that state.
It becomes necessary to repeat in this connection what
has before been stated from the opinion in Emery’s
Case, 107 Mass. 172: ‘‘By the narrowest construction
this prohibition extends to all investigations of an in-
quisitorial nature, instituted for the purpose of dis-
covering crime or the perpetrators of crime, by putting
suspected parties upon their examination in respect
thereto, in any manner, although not in the course of
any pending prosecution. But it is not even thus
limited. The principle applies equally to any com-
pulsory disclosure of his guilt by the offender himself,
whether sought directly as the object of the inquiry or
indirectly and incidentally for the purpose of establish-
ing facts involved in an action between other parties.”’’

15 Thurston v. Clark, 107 Cal. 285.
316 HABEAS CORPUS.

It was held that the constitutional provisions applied
to investigations before a legislative body. The pro-
vision of the constitution there is that ‘‘no subject
shall be compelled to accuse or furnish evidence against
himself.’’

The supreme court of the United States (in Counsel-
man v. Hitchcock, supra), noticed the difference in
the wording of the provision in the constitution of the
states, and stated: ‘‘But as the manifest purpose of
the constitutional provision, both of the states and of
the United States, is to prohibit the compelling of tes-
timony of a self-criminating kind from a party or a
witness, the liberal construction which must be placed
upon constitutional provisions for the protection of
personal rights would seem to require that the consti-
tutional guaranties, however differently worded,
should have as far as possible the same interpretation;
and that where the constitution, as in the case of
Massachusetts and New Hampshire, declares that the
subject shall not be compelled to accuse or furnish
evidence against himself, such a provision should not
have a different interpretation from that which be-
longs to constitutions like those of the United States
and New York, which declare that no person shall be
compelled in any criminal case to be a witness against
himself.’’ I hardly think, however, that this sugges-
tion of the federal court was directed to the question
under discussion here, namely, whether the privilege
was confined to disclosures called for in criminal cases,
_but rather to other branches of the subject, to wit:
that of the effect of statutes relating to immunity from
punishment and the character of the proceedings, not
alone as being cehaigal, but as being a prosecution
against him.

The New York court of appeals (in People v. Kelley,
24 N. Y. 74) stated: ‘‘The term ‘criminal case’ used in.
CONTEMPTS; WITNESSES. 317

the clause must be allowed some meaning, and none can
be conceived other than a prosecution for a criminal
offense. But it must be a prosecution against him;
for what is forbidden is that he should be a witness
against himself.’’ It was with respect to this lan-
guage that the federal supreme court stated it would
take away entirely the true meaning and value of the
clause. Subsequently, and quite recently, the court of
appeals of that state had the question there involved
under consideration. They seem to have acted upon
the suggestion above stated made by the federal
court. Speaking with reference to prior adjudica-
tions of the federal and state courts they say: ‘‘The
principle established by these decisions is that no one
shall be compelled, in any judicial or other proceeding
against himself, or upon the trial of issues between
others, to disclose facts or circumstances that can be
used against him as admissions tending to prove his
guilt or connection with any criminal offense of which
he may then or afterwards be charged, or the sources
from which or the means by which evidence of its com-
mission or of his connection with it may be obtained.’”®
The witness in that case was committed by one of the
supreme judges for contempt in not answering a ques-
tion before the grand jury. The language used by this
court is even broader than that used by the supreme
court of Massachusetts, and will justify the opinion
that the protection of the constitution extends to in-
quisitions in civil as well as in criminal cases.

The bill of rights of the constitution of Virginia
provided that no man can be compelled to give evi-
dence against himself. The court of appeals of that
state, speaking with reference to such provision, stated,
“‘that it was the purpose of its framers to declare as
part of the organic law that no man should anywhere,

16 People ex rel. v. Forbes, 143 N. Y. 219, 38 N. EB. 303.
318 HABEAS CORPUS.

_-before any tribunal, in any proceeding, be compelled
to give evidence tending to criminate himself, either
in that or any other proceeding, and that the provision
could not be confined only to cases in which a man is
called on to give evidence himself in a prosecution
pending against him.’’ 2”

The language of the constitution is: ‘‘No person
shall be compelled,’’ etc., hence it expresses that there
is no power or authority to compel a person to be a wit-
ness against himself.

The power of the federal courts is limited, as has
been stated, to cases of persons alleged to be restrained
of their liberty in violation of the constitution or of
some law or treaty of the United States and cases aris-
ing under the law of nations,!® and hence they have no
jurisdiction, power or authority in cases where a citi-
zen of the state is in custody as for contempt, under and
pursuant to a legislative act which is repugnant to the
constitution of the state.1®

§ 80. Inspection of books and papers.—In general.

The question of the power of a court to compel a
party to produce, for the inspection of the opposite
party, his private books and papers, or to produce them
in court, to be used as evidence against him, has been
a frequent subject of controversy in the courts. It has
become settled, however, that the court is without such
power where the books and papers contain matter tend-
ing to incriminate the party and where such documents
are to be or might be used in a criminal or quasi-crim-
inal prosecution against him.

17 Cullen v. Commonwealth, 24 U.S. 293, 50 L. Ed. 488, 26 Sup.
Gratt. 624, Ct. Rep. 264.

18In re Burrus, 136 U. S. 586, 19 Carfer v. Caldwell, 200 U. 8S.
591, 34 L. Ed. 500, 10 Sup. Ct. 293, 50 L. Ed. 488, 26 Sup. Ct.
Rep. 850; Carfer y. Caldwell, 200 Rep. 264.
CONTEMPTS; WITNESSES. 319

One of the most noted and far-reaching determina-
tions of the question, relating to the compulsory pro-
duction of private books and papers, is that rendered
in Boyd v. United States, 116 U. S. 616, 29 L. Ed. 746,
6 Sup. Ct. Rep. 524. An information was filed in be-
half of the government against imported plate glass to
enforce a forfeiture thereof on the ground of a con-
spiracy to defraud the government in respect to duties
thereon. On trial of the cause it became important
to show the quantity and quality of the glass contained
in cases previously imported. To do this the district
attorney offered in evidence an order made by the dis-
trict judge under sec. 5 of the Act of June 22, 1874, di-
recting notice under the seal of the court to be given to
the claimants, requiring them to produce the invoice of
the twenty-nine cases previously imported. The claim-
ants, in obedience to the notice, but objecting to its va-
lidity and to the constitutionality of the law, produced
the invoice; and when it was offered in evidence by the
district attorney they objected to its reception on the
ground that in a suit for forfeiture no evidence can be
compelled from the claimants themselves, and also that
the statute, so far as it compels production of evidence
to be used against the claimants, is unconstitutional
and void. A judgment of forfeiture was given, and
was brought to the supreme court for review.

The federal statute provided for such notice as was
given and order as made, and also provided that ‘‘if
the defendant or claimant shall fail or refuse to pro-
duce such book, invoice or paper in obedience to such
notice, the allegations stated in the said motion shall
be taken as confessed, unless his failure or refusal to
produce the same shall be explained to the satisfaction
of the court.’’ The act further provided that the dis-
trict attorney might offer the same in evidence. The
court held that the information, though technically a
320 HABEAS CORPUS.

civil proceeding, was in substance and effect, a criminal
one.

It was further held that the law was repugnant to
the fourth and fifth amendments to the constitution, the
former declaring: ‘‘The right of the people'to be secure
in their persons, houses, papers and effects against un-
lawful searches and seizures, shall not be violated
and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched and the person
or things to be seized,’’ and the latter amongst other
things that no person ‘‘shall be compelled in any crimi-
nal case to be a witness against himself.’

It was further held it does not require an actual
entry upon premises and search for and seizure of
papers to constitute an unreasonable search and seizure
within the meaning of the fourth amendment. A com-
pulsory production of a party’s private books and
papers to be used against himself or his property, in
a criminal or penal proceeding, or for a forfeiture, is
within the spirit and meaning of the amendment. That
it is equivalent to a compulsory production of papers,
to make the nonproduction of them a confession of the
allegations which it is pretended they will prove, and
that the seizure or compulsory production of a man’s
private papers to be used in evidence against him is
equivalent to compelling him to be a witness against
himself, and in a prosecution for a crime, penalty or
forfeiture, is equally within the prohibition of the fifth
amendment.

In Ballman v. Fagin, 200 U. 8. 186, 50 L. Ed. 433, 26
Sup. Ct. Rep. 212, the person convicted of contempt in
refusing to produce books before a grand jury, was not
charged with any offense, but the disclosure was sought
for the purpose of inquiry as to the commission of
an offense by other parties. The witness claimed his
CONTEMPTS; WITNESSES. 321

privilege, which was denied, and, being imprisoned,
sued out a writ of habeas corpus and was discharged
by the supreme court. <A federal grand jury was en-
gaged in investigating the criminal liability of a
national bank employe for a disappearance of cash
from the bank vaults. It was stated by the court:
‘<The book very possibly may have disclosed dealings.
with the person or persons naturally suspected, and
especially in view of the charges that Ballman (the wit-
ness) kept a ‘bucket shop,’ dealings of a nature likely
to lead to a charge that Ballman was an abettor of
the guilty man.’’ If he was, he was guilty of a mis-
demeanor under sec. 5200 Stat. Ballman set forth as
a reason for not producing the book in question, that
there were many proceedings on foot against him as
party to a ‘‘bucket shop’’ and so subject to the crimi-
nal law of the state in which the grand jury was set-
ting.

Production of books and papers of corporation.

The question has recently been determined by the
supreme court of the United States as to the privilege
of an officer of a corporation to withhold books, papers
and correspondence of the corporation, when required
to produce them before a grand jury on the ground
that there are entries therein of a private nature, and
that their production will tend to incriminate him.

In the first place, the court draws a distinction be-
tween a corporation and an individual in respect to
the assertion of this privilege.

It is said: ‘‘The individual may stand upon his
constitutional rights as a citizen. He is entitled to
carry on his private business in his own way. His
power to contract is unlimited. He owes no duty to
the state or his neighbors to divulge his business or to

open his doors to an investigation, so far as it may
21
322 HABEAS CORPUS.

tend to criminate him. He owes no such duty to the
state since he receives nothing therefrom beyond the
protection of his life and property. His rights are
such as existed by the law of the land long antecedent
to the organization of the state and can only be taken
from him by due process of law, and in accordance with
the constitution. Among his rights are a refusal to
incriminate himself, and the immunity of himself and
his property from arrest or seizure except under a
warrant of law. He owes nothing to the public so
Jong as he does not trespass upon their rights.

“Upon the other hand, the’ corporation is a creature
of the state. It is presumed to be incorporated for the
benefit of the public. It receives certain special privi-
leges and franchises and holds them subject to the laws
of the state and the limitations of its charter. Its
powers are limited by law. It can make no contract
not authorized by its charter. Its rights to act as a
corporation are only preserved to it so long as it obeys
the laws of its creation. There is a reserved right in
the legislature to investigate its. contracts and find out
whether it has exceeded its powers. It would be a
strange anomaly to hold that a state having chartered
a corporation to make use of certain franchises, could
not, in the exercise of its sovereignty, inquire how
these franchises had been employed and whether they
had been abused, and demand the production of the
corporate books and papers for that purpose. “The de-
fense amounts to this: that an officer of a corporation
which is charged with a violation of the statute, may
plead the criminality of such corporation as a re-
fusal to produce the books. To state the proposition
is to answer it. While an individual may lawfully
refuse to answer incriminating questions, unless pro-
tected by an-immunity statute, it does not follow that
a corporation, vested with special privileges and fran-
CONTEMPTS; WITNESSES. 323

chises may refuse to show its hand when charged
with an abuse of such privileges.

‘‘The appellant held the corporate books subject to
the corporate duty. If the corporation were guilty of
misconduct, he could not withhold its books to save it,
and if he was implicated in the violations of law, he
could not withhold the books to protect himself from
the effect of their disclosures. The reserved power of
visitation would seriously be embarrassed, if not wholly
defeated, in its effective exercise, if guilty officers could
refuse inspection of the record and papers of the cor-
poration. No personal privilege to which they are en-
titled requires such a conclusion. It would be a recog-
nition by an unjustifiable extension of the personal
rights they enjoy. They may decline upon the witness
stand to utter a single self-incriminating word. They
may demand that any accusation against them indivi-
dually be established without the aid of their oral testi-
mony or the compulsory production by them of their
private papers. But the visitatorial power which ex-
ists with respect to the corporation, of necessity,
reaches the corporate books without regard to the
custodian.”’

With respect to the character of the books as being
private or corporate, it was further stated, in refer-
ence to the claim of the appellant that the books con-
tained copies of his personal and other correspondence,
as well as copies of the correspondence relating to the
business and affairs of the corporation: ‘‘But his per-
sonal letters were not demanded; these the subpoena
did not seek to reach; and as to these no question of
violation of privilege is presented. Plainly he could
not make these books his private or personal books by
keeping copies of personal letters in them. Had the
appellant merely sought to protect his personal cor-
respondence from examination, it would not have been ,
324 “HABEAS CORPUS.

difficult to have provided under the supervision of the
court, for the withdrawal of such letters from scru-
tiny.’’ 2°

Public or official documents, papers, etc.

A person who has custody of public or official docu-
ments or records which he is required by law to. keep
is not excused from their production on the ground of
self-incrimination, although they may contain entries
which would supply the ‘evidence of his criminal dere-
liction.”4

This doctrine has been applied to the books and
records of a state dispensary.”?

Also to a druggist who was required by statute to
keep a record of sales of intoxicating liquors made by
him and which should be subject to inspection at rea-
sonable times.??

Also where a statute required druggists to preserve
the prescriptions they compound and to produce them
in court when required.*

And also where a statute required druggists to re-
port to the prosecuting attorney of the county under
oath all sales of intoxicating liquors.”®

False and fictitious inquest papers made up by a
coroner’s clerk and retained in the coroner’s public
office for the purpose of being filed with the county

20 Wilson v. United States, 221
U. S. 861, 55 L. Ed. 771. See
also to the same effect, Hale v.
Henkel, 201 U. S. 48, 50 L. Ed.
652, 26 Sup. Ct. Rep. 370; Dreier
vy. United States, 221 U. S. 394, 55
L. Ed. 784; American Lithogra-
phic Co. v. Werckmeister, 221 U.
S. 608, 55 L. Ed. 873; Baltimore
& Ohio Ry. Co. v. Interstate Com-
merce Commission, 221 U. S. 612,
55 L. Ed: 878.

21 Wilson v, United States, 221
U. S. 361, 55 L. Bd. 771. ;

22 State ex rel. Hay v. Farnum,
73 S. C. 165, 53 S. B. 83.

23 State ex rel. McClory v. Don-
ovan, 10 N. Dak. 208, 86 N. W.
709,

24 State v. Davis, 108 Mo. 666,
32 Am. St. Rep. 640,

25 People v. Henwood, 123
Mich. 317, 82 N. W. 70.
CONTEMPTS; WITNESSES. 325

clerk at some future time, purporting to be public
papers and constituting vouchers for a false bill for
inquests, it has been held, were not private papers of
the coroner, and their production on a trial of the cor-
oner for presenting such false bill for audit, under a
subpoena to their custodian in the coroner’s office, call-
ing for public documents, was not a violation of the
defendant’s constitutional rights of exemption from
unreasonable search or seizure of papers, and from
being compelled to be a witness against himself.?¢

The question was not involved whether the accused
would have been compelled to have produced them if
the subpoena was addressed to him and the papers
were in his possession. The subpoena called for public
documents, and these were presented.

Books, papers, etc., of bankrupt in bankruptcy pro-
ceedings.

The question has also been raised as to the power of
the court to compel the bankrupt in bankruptcy pro-
ceedings to turn over to the receiver his books, and
finally determined by the supreme court of the United
States, where the following statement appears: ‘‘If the
order to the bankrupt, standing alone, infringed his
constitutional rights, it might be true that the pro-
visions intended to save them would be inadequate and
that nothing but a statutory immunity would suffice.
But no constitutional rights are touched. The ques-
tion is not of testimony but of surrender. Not of com-
pelling the bankrupt to be a witness against himself in
a criminal case, present or future, but of compelling
him to yield: possession of property which he no longer
is entitled to keep. If a trustee had been appointed,
the title to the books would have vested in him by the

26 People v. Coombs, 158 N. Y. 532, 53 N. BH. 527.
326 ‘HABEAS CORPUS.

express terms of section 70, and the bankrupt could
not have held possession of what he no longer owned,
on the ground that otherwise he might be punished.
That is one of the misfortunes of bankruptcy, if it fol-
lows crime. The right not to be compelled to be a
witness against oneself is not a right to appropriate
property that may tell one’s story. As the bankruptcy
court could have enforced title in favor of the trustee
it could enforce possession ad interim in favor of the
receiver.’? 27

§ 81. Production of books and papers generally without
claim of incrimination.—In general.

Under revised statutes of Illinois, chapter 51, section
9, which empowers courts ‘‘to compel parties to pro-
duce books or writings * * * which contain evi-
dence pertinent to the issue,’’ it was held that a court
has no right to order a defendant to place his account
books in the hands of the clerk of the court that they
muy be inspected by the plaintiff and his attorney so
that they may prepare for trial, when no showing is
made that such books are required for any purpose of
evidence in the case, such an order being an infringe-
ment of the defendant’s constitutional right to be
secure against unreasonable searches and seizures, and
the disobedience of such an order is not a contempt.”®

It was said that the evident design and purpose of
this statute was to furnish to a party litigant a speedy
and summary mode by which, under the order of the
court, to obtain written evidence pertinent to the
issue which might be in the possession and control of
his adversary, and thus obviate the necessity of a bill
of discovery seeking the same end. It ig manifest that
it contemplates the production of evidence on the trial

27In re Harris, 221 U. S. 273, 22 L, Ed. 782.
CONTEMPTS; WITNESSES. 327)

of the cause which the party applying therefor is en-
titled to introduce in support of his case and which
the other party withholds. It is only such books or
writings as contain evidence pertinent to the issue that
are required to be produced, and it is for the purpose
of enabling the party demanding their production to
introduce such pertinent matter in evidence on the trial.
A defendant is not required to disclose matters of
evidence relied upon in ‘the defense and thus inform
the plaintiff of his case further than the pleadings show.
Matters purely of defense are the property rights of
the defendunt, which he may disclose or not upon the
trial. It is further stated that under the statute
quoted, the court has power to compel the production
of the books of a party to be used in evidence upon
the trial by his adversary upon proper showing that
they contain entries tending to prove the issues; but
the statute cannot be construed as giving the court
power and authority to take the books and papers
of the party and impound them with an officer of the .
court for inspection or examination out of the presence
of the court. The statute does not give the right to
compel the submission of the books of a party to.a
general inspection or examination for fishing purposes,
or with a view to find evidence to be used in other
suits or prosecutions.”®

Where not pertinent to issue.

In several of the states statutes have been enacted
authorizing a party in an action to examine his ad-
versary before trial, with respect to matters pertinent
to the issue, and providing that for the production of
his books, papers, etc., upon such examination. It is to

28 Lester v. People, 150 Ill. 408, 64; Whitman v. Weller, 39 Ind.
23 N. E. 387, 37 N. B. 1004. 515.
2”Opdyke v. Marble, 44 Barb.
328 HABEAS CORPUS.

be noted that the disclosure is confined to matters per-
tinent to the issue. The material question is how is
this question to be determined, in advance of the dis-
closure in so far as respects an inspection of such books
and papers? If they contain matters not pertinent to
the issue, the statute expressly excludes inspection as
to those matters. In fact the party is, as we have seen,
protected by the constitution. As said by Mr. Justice
Field, quotation from the supreme court: ‘‘Of all the
rights of the citizen few are of greater importance or
more essential to his peace and happiness, than the
right of personal security, and that involves not merely
protection of his person from assault, but exemption of
his private affairs, books and papers from the inspec-
tion and scrutiny of others. Without the enjoyment
of this right, all others would lose half their value.’’ *°

It is stated in Interstate Commerce Commission v.
Brimsom, 154 U. 8. 447, 479, 38 L. Ed. 1047, 14 Sup. Ct.
Rep. 1125, 15 Sup. Ct. Rep. 19, where the commission
‘sought an order from the court to compel a party to
answer certain ‘questions and to produce certain books,
papers, etc.: ‘‘It was open to them to contend before
the court that he was protected by the constitution from
making answer to the questions propounded to him, or
that he was not legally bound to produce the books,
papers, etc., or that neither of the questions pro-
pounded nor the books, papers, etc., called for relate
to the particular matter under investigation, nor to
any matter which the commission is entitled under the
constitution or laws to investigate.’’

Subsequent to the case of Boyd v. United States,
116 U. S. 616, 29 L. Ed. 746, 6 Sup. Ct. Rep. 524, it was
said by the same court: ‘‘We think it quite clear that
the search and seizure clause of the fourth amendment,

80 Interstate Commerce Com- also Kilbourn v. Thompson, 103

mission v. Brimson, 154 U. 8S. U.S. 168, 190, 26 L. Ed. 377.
447, 479, 38 L. Ed. 1047. See
CONTEMPTS; WITNESSES. . 329

was not intended to interfere with the power of courts
to compel through a subpoena duces tecum the pro-
duction upon a trial in court of documentary evi-
dence. It would be utterly impossible to carry on the
administration of justice without this writ.’’ It was
also said that an order for the production of books and
papers may constitute an unreasonable search and
seizure under the fourth amendment. The substance of
the offense is the compulsory production of private
papers, whether under a search warrant or a sub-
poena duces tecum, against which the person, be he an
individual or corporation, is entitled to protection.
‘And it was held that a subpoena which without par-
ticularizing particular documents, books or papers, but
included all understandings, contracts or correspond-
ence made between a firm and six different companies,
as well as reports made and letters received since its
organization: from more than a dozen different com-
panies, situated in seven different states, was too sweep-
ing and constituted an unreasonable search within the
meaning of the fourth amendment.?!

_An employe of a telegraph company having charge
of messages transmitted by it was by subpoena duces
tecum commanded to search for and produce all mes-
sages from and to a large number of persons therein
named between specified dates. He refused obedience
to the command and was adjudged in contempt. It was
held upon habeas corpus that the service of the sub-
poena was an evident search after testimony. That
the petitioner was not bound to respond, and com-
mitted no contempt in failing to examine the papers
under his control to ascertain if any such messages had
been sent or received. The subpoena should have
identified the particular message required.*”

81 Hale vy. Henkel, 201 U. S. 32 Exx parte Jaynes, 70 Cal. 638.

43, 76, 50 L, Ed. 652, 26 Sup. Ct.
Rep. 370.
330 HABEAS CORPUS.

§ 82, Immunity and immunity statutes.—In general.

The privilege of a party or witness to refuse to
testify or produce books and papers which may tend to
incriminate him is not available where the criminality
has been taken away. As where the offense is out-
lawed or pardoned, or its criminality has been re-
moved by statute. Such a statute must afford abso-
lute immunity, however, against future prosecution for
the offense to which the question relates.*?

It follows from what has been stated that a witness,
in the absence of a statute granting to him immunity,
cannot be compelled, in a criminal case, to testify
against himself. It remains to consider the effect of
statutes which it has been claimed have such effect,
and to ascertain what has been determined to have
been their effect. Such statutes may be divided into
two classes; the one providing that the testimony or
admissions elicited from a witness shall not be used in °
evidence against him upon a prosecution directed
against him for an offense, and the other where im-
munity from prosecution is declared. ‘'The contention
among the courts has been with reference to the former
class, and, in reaching a conclusion with respect to such
question, has occasioned much of the discussion with
reference to the questions we have considered, it being
necessary to determine such questions in order to de-
termine the effect of such statutes. Thus, it was stated —
by the New York court of appeals, in People v. Kelley,
supra: ‘‘If a witness objects to a question on the
ground that an answer would criminate himself, he
must allege, in substance, that his answer, if repeated

33 Hale v. Henkel, 201 U. S. Hitchcock, 142 U. S. 547, 35 L.
48, 67, 50 L. Hd. 652, 26 Sup. Ct. Ed. 1110, 12 Sup. Ct. Rep, 195.
‘Rep. 370; Brown v. Walker, 161 See also People v. Forbes, 143 N.
U. S. 591, 40 L. Ed. 819, 16 Sup. Y. 219, 38 N. E. 303.

Ct. Rep. 644; Counselman v.
CONTEMPTS; WITNESSES. 331

as his admission on his own trial, would tend to prove
him guilty of a criminal offense. If the case is so
situated that a repetition of it on a prosecution against
him is impossible, as when it is forbidden by a posi-
tive statute, I have seen no authority which holds or
intimates that the witness is privileged. It is not
within any reasonable construction of the language of
the constitutional provision. * * * Now, if he be
prosecuted criminally touching the matter about which
he has testified upon the trial of another person, the
statute makes it impossible that his testimony given on
that occasion should be used by the prosecution on the
trial. It cannot be said that in such criminal case
he has been made a witness against himself by force
of any compulsion used towards him to procure, in the
other case, testimony which cannot possibly be used in
a criminal case against himself.’’

This construction placed upon the constitutional pro-
vision, and such effect given to the statute, was fol-
lowed by courts in several of the states. The Arkan-
sas statute provided that the testimony given by a per-
son, where two or more are jointly or otherwise con-
cerned in a crime, who may be sworn as a witness to
rebut the testimony given by such witness, shall in
no instance be used against him in any criminal pros-
ecution for the same offense. The supreme court of
that state, while holding that the privilege of the wit-
ness was that he should not be compelled to produce
the evidence to prove himself guilty of the crime about
which he might be called to testify, declared that by
the statute the legislature had so changed the rule,
by directing that the testimony required to be given
should never be used against a witness for the purpose
of procuring his conviction for the crime of misde-
meanor to which it related, that it was no longer neces-
sary for him to claim his privilege in regard to such
332 HABEAS CORPUS.

testimony in order to prevent it afterwards being used
against him; and that the only question was whether
the statutory regulation afforded sufficient protection
to the witness, responsive to the new rule and the con-
stitutional guarantee against compulsory accusation.
It was held that the statute sufficiently guarded wit-
nesses from self-accusation, within the meaning of the
constitution, to make it lawful for the courts to compel
them to testify as to all matters embraced by the pro- .
visions of the statute on that subject.®+

The constitutional provision there was that in pros-
ecutions by indictment or presentment the accused
‘shall not be compelled to give evidence against him-
self.’’ Substantially the same, in effect, was held by
the supreme court of Georgia,?4* California,?4” (though
subsequently in the latter state, in deference to the
decision of the federal supreme court, a contrary rule
was held), *4¢ Indiana,?#4 and North Carolina.®® _

There were, previous to the decision in Counselman
v. Hitchcock, supra, courts of several of the states
which declined to follow the lead of the New York
court, and for sufficient reason stated. Among the
leading cases where the New York doctrine was re-
pudiated was Emery’s Case, supra (107 Mass. 172).
The effect of the statute of that state was under con-
sideration as follows. ‘‘No person who is called as a
witness before the joint special committee on the state
police shall be excused from answering any question
or from the production of any paper relating to any
corrupt practice or improper conduct of the state po-
lice, * * * on the ground that the answer to such ques-

84 State v. Quarles, 13 Ark. 307. 84d Wilkins v. Malone, 14 Ind.

34a, Higdon v. Heard, 14 Ga. 255. 153; Bedgood v. State, 115 Ind.

34b Ex parte Rowe, 7 Cal. 181. 275, 17 N. EB. 621.

34¢c Ex parte Cohen, 104 Cal. 85La Fountaine v. Southern
524; Ex parte Clark, 103 Cal. 352. Underwriters, 83 N. C. 182.
CONTEMPTS; WITNESSES. 333

tion or the production of such paper may criminate or
tend to criminate himself or otherwise render him in-
famous, or on the ground of privilege.’’ The concluding
part of the law was that the testimony elicited or papers
produced should not be used as evidence against such
witness in any civil or criminal proceeding in any
court of justice. It was said, with reference to this
statute, ‘‘if it attempts to take from the witness the
constitutional privilege in respect thereto, it must be
entirely ineffectual for that purpose, unless it also
relieves him from all liabilities for prosecution, against
which the privilege is secured to him by the constitu-
tion. The statute does not undertake to secure him
against certain of those liabilities, to wit: the use of
any disclosures he may make, as admissions or direct
evidence against him, in any civil or criminal proceed-
ing. * * * No one can be required to forego an
appeal to its (the constitution) protection, unless first
secured from future liability and exposure to be pre-
judiced in any criminal proceeding against him as fully
and extensively as would be secured by availing him-
self of the privilege accorded by the constitution. Un-
der the interpretation already given, this cannot be
accomplished so long as he remains liable to prosecu-
tion criminally for any matters or causes in respect
to which he shall be examined or to which his testi-
mony shall relate. It is not done in direct terms by the
statute in question; it is not contended that the statute
is capable of an interpretation which will give it that
effect, and it is clear that it cannot and was not in-
tended to so operate. Failing, then, to furnish to the
persons to be examined an exemption equivalent to
that contained in the constitution or to remove the
whole liability against which its provisions were in-
tended, it fails to deprive them of the right to appeal
to the privilege therein.’’
334 HABEAS CORPUS.

The supreme court of New Hampshire were of the
same opinion. They held that ‘‘such a statute must
relieve the witness from all liabilities on account of
the matters which he is compelled to disclose; that he
was to be secured against all liability to future pros-
ecution as effectually as if he were wholly innocent;
that this would not be accomplished if he were left
liable to prosecution criminally for any matter in re-
spect to which he might be required to testify.’’? It was
held, however, that the particular statute went fur-
ther than the statute considered in Emery’s Case, be-
cause it provided that the witness should not be there-
after prosecuted for any offense so disclosed by him.
This was equivalent to his common-law right, and could
be pleaded in bar or abatement of the prosecution
against himself.**

Substantially the same was held by the Virginia court
of appeals, but upon different facts. The immunity.
from prosecution there was the statement of the at-
torney for the commonwealth that there was no in-
tention to prosecute the witness. It was held that the
witness had a right to stand upon his constitutional
privilege and not to trust to the chances of a further
prosecution.37

The same court had virtually disposed of the ques-
tion in a prior case (Cullen v. Commonwealth, 24 Gratt.
624). There the statute was to the effect that ‘‘any
statement made by such person as such witness shall
not be used against him in any prosecution against him-
self.’ It was held that such act was in violation of
the constitution; that, before the constitutional privi-
lege could be taken away by the legislature, there must
be absolute indemnity provided; that nothing short
of complete amnesty to the witness—an absolute wip-

86 State v. Nowell, 58 N. H. 37 Temple v. Commonwealth, 75
314, Va. 892.
CONTEMPTS; WITNESSES. 335

ing out of the offense as to him, so that he could be no
longer prosecuted for it—would furnish that indemnity,
which was not afforded by the statute.

This division of opinion among the courts, partici-
pated in by some others not referred to, existed at the
time the supreme court of the United States rendered
the decision referred to (Counselman v. Hitchcock,
supra). The act of congress there considered pro-
vided as follows: ‘‘That no pleadings of a party, nor
any discovery or evidence obtained from a party or
witness by means of a judicial proceeding in this or any
foreign country, should be given in evidence, or in
any manner used against him or his property or es-
tate, in any court of the United States in any criminal
proceeding, or for the enforcement of any penalty or
forfeiture,’’ etc. Sec. 860 Rev. Stat. It was said:
‘‘That section must be construed as declaring that
no evidence obtained from a witness by means of a
judicial proceeding shall be given in evidence or in
any manner used against him or his property or estate
in any court of the United States in any criminal pro-
ceeding, or for the enforcement of any penalty or for-
feiture. It follows that any evidence which might have
been obtained from Counselman by means of his exami-
nation before the. grand jury could not be given in
evidence or used against him or his property in any
court of the United States in any criminal proceeding,
or for the enforcement of any penalty or forfeiture.
This of course protected him against the use of his tes-
timony against him or his property in any criminal
proceeding in a court of the United States. But it
only had that effect. It could not, and would not, pre-
vent the use of his testimony to search out other testi-
mony to be used in evidence against him or his property
in a criminal proceeding in such court. It could not.
prevent the obtaining and the use of witnesses and
336 HABEAS CORPUS.

evidence which should be attributable directly to the
testimony he might give under compulsion and on
which he might be convicted, when otherwise, and if he
had refused to answer, he could not possibly have been
convicted. The constitutional provision distinctly de-
clares that a person shall ‘not be compelled in any
criminal case to be a witness against himself,’ and the
protection of section 860 is not co-extensive with the |
constitutional provision.’’ After a most complete and
elaborate review of the authorities, the court concludes:
“We are clearly of the opinion that no statute which
leaves the party or witness subject to prosecution,
after he answers the criminating questions put to him,
can have the effect of supplanting the privilege con-
ferred by the constitution of the United States. Sec-
tion 860 of the revised statutes does not supply a com-
plete protection from all the perils against which the
constitutional prohibition was designed to guard, and
is not a full substitute for that prohibition. In view
of the constitutional provision, a statutory enactment,
to be valid, must afford absolute immunity against
future prosecution for the offense to which the ques-
tion relates.’’

An answer to the suggestion that the reason why the
courts of Virginia, Massachusetts and New Hamp-
shire have held that the exonerating statute must be so
broad as to give the witness complete amnesty, is
that the constitution of those states give to the witness
a broader privilege and exemption than is granted
by the constitution of the United States by reason of
the difference in the wording of the provision. It was
said: ‘‘But we are of the opinion that however this
difference may have been commented upon in some of
the decisions, there is really in spirit and principle no
distinction arising out of such difference in language.”’
Subsequent to this decision the court of appeals of
CONTEMPTS; WITNESSES. 337

New York, in the case of People, etc. v. Forbes, supra,
not only met the views of the federal court in respect
to the question of the character of the proceeding which
might be included, in the language and spirit of the ,
constitutional clause as hereinbefore stated, but also
with respect to the effect of exonerating statutes; for
they say: ‘‘It seems that in such cases nothing short
of absolute immunity from prosecution can take the
place of the privilege by which the law affords protec-
tion to the witness.’’ The supreme court of California,
at the first opportunity, also recognized the doctrine
declared by the federal court. They concisely state the
rule to be that, ‘‘to bring a person within the im-
munity of this provision, it is not necessary that the re-
examination should be attempted in a criminal prosecu-
tion against the witness, or that such a proceeding
should-have been commenced and actually pending. It
is sufficient if there is a law creating an offense under
which the witness may be prosecuted. If there is such
a law under which the witness may be indicted, or
otherwise prosecuted for a public offense, arising out
of the acts to which the examination relates, he can-
not be compelled to answer in any collateral proceeding
unless the law absolutely secures him against any use
in a criminal prosecution of the evidence he may give;
‘ and this can only be done by a provision that, if he
submits to the examination and answers the questions,
he shall be exempt from any criminal prosecution for
the offense to which the inquiry relates.’’ °°

The supreme court of the United States, in a more |
recent case were confronted with the proposition
whether any statute, even though granting absolute im-
munity and amnesty, could deprive the witness of his.
constitutional privilege. The discussion of this ques-

88 Ex parte Clark, 103 Cal. 352.
338 HABEAS CORPUS.

tion by different members of the court, the court divid-
ing upon the proposition, is able and interesting. The
majority of the court answer the proposition in the
affirmative. This conclusion was based upon what the
judges declared was the object of the constitutional
clause as declared by Justice Cockburn, namely, to
afford to a party called upon to give evidence in a pro-
ceeding inter alios, protection against being brought,
by means of his own evidence, within the penalties of
the law. Justice Cockburn, however, was not speaking
with reference to the constitutional provision, but
with reference to that law of evidence which has been
adopted in this country by force of its own inherent
justice, which declares that a witness, not alone in a
criminal case, but in any action or proceeding, civil
or criminal, shall not be compelled to incriminate him-
self, and with special reference to the exercise of the
privilege conferred by the law. Three of the dissent-
ing judges contend that it was the intention of the
people when they declared that no person should be
compelled to be a witness against himself, not merely
that every person should have such immunity, but that
his right thereto should not be divested or impaired by
any act of congress. In other words, it was thus placed
beyond legislative control or interferénce, and that the
supreme court had thus expressly declared in Counsel-
man v. Hitchcock, 142 U.S. 547, 35 L. Ed. 1110, 12 Sup.
Ct. Rep. 195, where it was said: ‘‘Legislatures cannot
detract from the privilege afforded by the constitu-
tion.’’ And again: ‘‘But a mere act of congress can-
not amend the constitution, even if it should engraft
thereon such a proviso,’’ referring to one stated. The
dissenting judges also take the additional ground that
the immunity offered by the act there considered was
not complete.®®

39 Brown y. Walker, 161 U. S. 591, 40 L. Hd. 819, 16 Sup. Ct. Rep.
644.
CONTEMPTS; WITNESSES. 339

If this construction placed upon the federal constitu-
tion by the highest court of the land could be invoked in
the state courts, it would be unnecessary to state or
discuss the reasons given by the several judges which
justified their conclusions. But such is not the fact.
All the judges concurred in the opinion with respect to
the proposition, that the first eight amendments to the
constitution are limitations only upon the powers of
congress and the federal courts,.and are not applica-
ble to the several states except, so far as the fourteenth
amendment may have made them applicable. It was
held, however, by the majority that there is no such —
restriction upon the application of the federal statutes
by force of the sixth amendment. There is much of
force in the argument advanced by Justice Field, who
also dissented. He broadly asserts that the fifth amend-
ment also protects the witness from all compulsory
testimony which would expose him to infamy and dis-
grace, though the facts disclosed might not lead to a
criminal prosecution. This will be considered when we
reach that particular subject. The conclusion of the
majority finds support in adjudications made by some
of the state courts. Thus, it was stated by the su-
preme court of California: ‘‘If at the time of the tran-
saction respecting which his testimony is sought, the |
acts themselves did not constitute an offense, or if at
the time of giving the testimony the acts are no longer
punishable; if the statute creating the offense has been
repealed; if the witness has been tried for the offense
and been acquitted, or if convicted has satisfied the sen-
tence of the law; if the offense is barred by the statute
of limitations, and there is no pending prosecution
against the witness,—he cannot claim any privilege
under this provision of the constitution, since his testi-
mony could not be used against him in any criminal
case against himself, and consequently he is not com-
340 HABEAS CORPUS.

pelled to be a witness against himself. Equally is he
deprived of claiming this exemption from giving evi-
dence if the legislature has declared that he shall not
be prosecuted for any offense of which he gives evi-
dence.’’ #°

The same conclusion was reached by the New Hamp-
shire court. They state: ‘‘The conditional exemption
becomes absolute when the witness testifies, and being
no longer liable to prosecution he is not compelled,
by testifying, to accuse or furnish evidence against
himself.’? 41

Such also was the conclusion of the Virginia court of
appeals,** the supreme court of Texas,** the supreme
court of Alabama,** and the supreme court of Tenneés-
see.*® In a subsequent case in the latter state, the
same statute was construed as merely offering a re-
ward to a witness for waiving his constitutional privi-
lege. This latter suggestion is not without merit.
The mere fact of offering complete immunity operates
not only as a shield to protect a criminal from prosecu-
tion, but as an inducement by reason of its advantage
to implicate others who possibly may not be criminally
guilty. It is an old saying that the meanest kind of
criminals are those who turn state’s evidence. The
danger of thus allowing the more guilty to escape pun-
ishment for their crimes upon the compensation that
the less guilty may be punished, or possibly that the
innocent may suffer, is far from sufficient to justify a
strained construction of a constitutional safeguard,’
much less its abrogation.

40 Ex parte Cohen, 104 Cal. 524. 48 Floyd v. State, 7 Tex. 215.
41 State v. Nowell,-58 N. H. 44 Newsum vy. State, 78 Ala. 407.
314, 45 Hirsch v. State, 67 Tenn. 89.
42 Kendrick v. Commonwealth, 46 Warner y. State, 81 Tenn. 52.

78 Va. 490.
CONTEMPTS; WITNESSES. 341

§ 83. Application of the general rule to acts.

It has been held that the exemption of the constitu-
tion extends to acts as well as words.*7 Thus, where
the prosecution brought a pan of mud into court, and,
after proof that it was of about the same consistency
as that in which the tracks of the offender had been
seen, called on the defendant to put his feet in the mud
thus prepared, the court refused to compel him to do
so on the ground that refrainidg from such act was
within his constitutional privilege. The prisoner was
convicted. The judgment, however, was reversed upon
the ground that the request so made in the presence
of the jury may have operated to his prejudice.*®

Where a defendant on trial for burglary refused to
make tracks, on a carpet in the house where the crime
had been committed, for the purpose of comparison,
and the state was permitted, against objection, to
prove the fact of such refusal, this was held reversible
error.*®

Where a woman was under indictment for murder of
an illegitimate child at birth, and it appeared that the
coroner had directed two physicians to go to the jail
and examine her private parts to determine whether
she had been recently delivered of a child, that she
, objected to such examination, but, being threatened
with force, yielded, their evidence, being offered by
the state, was excluded on the ground that the proceed-
ing was in violation of the spirit and meaning of the
constitution. It was said they might as well have
sworn the prisoner and compelled her by threats to
testify that she had been pregnant and had been de-
livered of a child as to have compelled her by threats

47 Blackwell v. State, 67 Ga. 48 Stokes v. State, 5 Baxt.
76; Stokes v. State, 5 Baxt. (Tenn.) 619.
(Tenn.) 619. 49 Cooper v. State, 86 Ala. 610.
342 HABEAS CORPUS.

to allow them to look into her person with the aid of a
speculum to ascertain whether she had been pregnant
and had been recently delivered of a child.*°

The supreme court of Nevada does not approve of
the doctrine of the foregoing cases, and held that in a
criminal case on a question of personal identity, where
a witness had testified that the defendant had certain
tatoo marks on his person, the ruling of the court com-
pelling the defendant, against his objection, to exhibit
his person to the jury was sustained, and held not to
have abridged the defendant in his constitutional
right.>}

Whatever merit there may be in the conclusion
reached by the court, there is none in the premises as-
sumed by which that conclusion was reached. The
statement made by the learned court with respect to
the object, purposes and scope of the constitutional
provision is misconceived. Some of the purposes
stated may have been in mind, but that it was confined
to those has too often been disproved by learned courts
to require citation. The purpose of its adoption was
not to ascertain the truth, or to prevent the defendant
from lying as stated by the court. At such times a
defendant could not testify in his own behalf. Its
broader purpose was just what its language expressly
states—to prohibit being compelled to furnish evidence
against himself. This is made plain by the discussion
found in previous pages. The position seems invul-
nerable that whatever the witness or party is privi-
leged from stating as evidence is equally his privilege
from disclosing by forcible exhibition of his person or
kindred acts. He certainly could not be compelled to
state the contents of letters he may have written, and
for like reason he cannot be compelled to exhibit those

50 People v. McCoy, 45 How. 51 State v. Ah Chuey, 14 Nev.
Pr. 216, 79, 33 Am, Rep. 530.
CONTEMPTS; WITNESSES. 343

he has received. The language of the clause of the con-
stitution in certain states is that he shall not be ‘‘com-
pelled to accuse or furnish evidence against himself.’’
And, as before stated, the judgment of the federal su-
preme court is that the mere difference in language of
constitutional clauses does not have the effect to dis-
tinguish them in spirit and principle.

This conclusion was reached by a mere majority of
one. The reasoning of the court is exceptional and
based solely upon the absurd proposition that the ob-
ject of the constitutional provision was to prevent a
witness from thus incriminating himself on the ground
that he might falsify himself; in other words, might
state his guilt when in fact he was not guilty. It does
not seem to have entered the mind of the learned judge,
that it was a mere privilege of the witness and that
he was at perfect liberty to thus falsify himself. The
dissenting opinion is quite elaborate and as might be
expected refutes both the reasoning and the conclusion
of the majority.

§ 84. Exposure to infamy and disgrace. '

The rule as recently stated by the supreme court of
the United States with respect to the privilege of the
witness, when the answer may have a tendency to ex-
pose him to infamy and disgrace, is: ‘‘If the answer
of the witness may have a tendency to disgrace him or
bring him into disrepute, and the proposed evidence be
material to the issue on trial, that he may be compelled
to answer, although if the answer can have no effect
upon the case except so far as to impair the credibility
of the witness, he may fall back upon his privilege.
But, even in the latter case, if the answer of the wit-
ness will not directly show his infamy, but only tend
to disgrace him, he is bound to answer. That the ex-
tent to which the witness is compelled to answer such
344 HABEAS CORPUS.

questions as do not fix upon him a criminal culpability .
is within the control of the legislature.’’ *

Justice Field, in his able dissenting opinion, main-
tains that the anmeudmerts also protects him from all
compulsory testimony which would expose him to in-
famy and disgrace, though the facts disclosed might
not lead to a criminal prosecution. He states: ‘‘It is
contended, indeed, that it was not the object of the con-
stitutional safeguard to protect the witness against in-
famy and disgrace. It is urged that its sole purpose
was to protect him against incriminating testimony
with reference to the offense under prosecution. But I
do not agree that such limited protection was all that
was secured. As stated by counsel for the appellant:
‘It is possible, and certainly not impossible, that the
framers of the constitution reasoned that in bestowing
upon such witness in criminal cases the privilege of
silence, when in danger of self-incrimination, they
would at the same time save him in all such cases from
the shame and infamy of confessing disgraceful crimes’
and thus preserve to him some measure of self-respect.’
It is true, as counsel observes, that both the safeguard
of the constitution and the common-law rule spring
alike from that sentiment of personal self-respect,
liberty, independence and dignity which had inhabi-
tated the breasts of the English speaking people for
centuries, and to save which they have always been
ready to sacrifice many governmental facilities and
conveniences. In scarcely anything has that senti-
ment been more manifest than in the abhorrence felt
at the legal compulsion upon witnesses to make con-
cessions which must cover the witness with lasting
shame and leave him degraded, both in his own eyes

62 Brown v. Walker, 161 U. 8. 591, 40 L. Ed. '819, 16 Sup. Ct. Rep.
644,
CONTEMPTS; WITNESSES. 345

and those of others. What can be more abhorrent than
to compel a man who has fought his way from obscurity
to dignity and honor to reveal crimes of which he had
repented, and of which the world was ignorant?’’ ' The
able jurist proceeds to state what had been held, that
no substitute for the constitutional safeguard is suffi-
cient unless it is a complete substitute, and draws
the conclusion that the constitutional provision, by its
own force, protected a witness from infamy, and
that any legislative act which does not preserve it to
him is not an equivalent. I have thus quoted at
length from the opinion of Justice Field, not solely for
the reason of the weight to which it is entitled by rea-
son of his pre-eminent ability and learning, but also
because herein are found the reasons upon which the
decisions of some courts are based. It is declared by
statute in many of the states that the privilege of a wit-
ness shall not extend to exposure to infamy and dis-
grace. Such statutes, however, can only affect the com-
mon-law rule with respect to self-incrimination, and
do not operate upon, whatever may be determined to
be the intent of, the constitutional provision. In per-
haps the majority of cases the question has been pre-
sented with reference to the common-law privileges
of the witness. It was early determined in New York,
in a leading case, that where a witness claims to be ex-
cused from answering a question because the answer
may disgrace him or render him infamous, the court
must see that the answer may, without the intervention
of other facts, fix on him moral turpitude. When the
direct answer to a question will disgrace a witness and
fix a stain of infamy upon his character, he is not
bound to answer; and that whether the question be
material or not to the merits of the cause in which he
is examined. It is not enough, however, for the witness
346 HABEAS CORPUS.

to allege that his answer will have a tendency to ex-
pose him to infamy or disgrace.®*

Later in that state it was stated that answers which
will disgrace the witness are privileged unless material
to the issue.®4

The statute or practice act, as it is called in Cali-
fornia, provides that a witness need not give an answer
which will have a direct tendency to degrade his char-
acter, unless it be to the very fact in issue, or to a fact
from which the fact in issue would be presumed.*®

§ 85. The right or privilege that of the witness alone.
The privilege of exemption from answering ques-
tions on the ground of the tendency of the answer to
criminate the witness is the privilege of the witness
alone. It has been said to be the privilege of crime.
Counsel cannot be heard to object that a question calls
for an answer tending to expose the witness to criminal
punishment.®¢ .
§ 86. Waiver of privilege.

The object of the rule is to protect the witness him-
self and no one else. He may take advantage of it or
not, at his pleasure. He may waive it and testify in
spite of any objection coming from a party or his
counsel.®?

This rule is so well settled that citation of authorities
may have been unnecessary. The material question
in this connection, is what may constitute such waiver,

53 People v. Mather, 4 Wend.
229,

84 Lohman v. People, 1 N. Y.
379.

56 See Clark v. Reese, 35 Cal.
86; Ex parte Rowe, 7 Cal. 181.

56 State v. Wentworth, 65 Me.
234; Cloyes v. Thayer, 3 Hill,
564; State v. Foster, 3 Foster,

348; Brandon v. People, 42 N. Y.
265; Connors v. People, 50 N. Y.
240.

57 State v. Wentworth, 65 Me.
234; Brown v. Walker, 161 U. S.
595, 40 L. Hd. 819, 16 Sup. Ct.
Rep. 644; People v. Freshour, 55
Cal. 375; Norfolk v. Gaylord, 28
Conn. 309.
CONTEMPTS; WITNESSES. 347

and this involves the incidental question as to when
the privilege must be claimed. It being the rule, as
stated, that the privilege is one personal to the wit-
ness, it follows, if he desires to insist upon it, he must
claim it; and if he proceeds to testify with respect to
any criminating matter, such act is an effectual waiver,
the same in effect as an express waiver.®*

The more important question is whether, having re-
lated a part of a transaction or testified voluntarily in
relation to a material matter, he can stop when he will,
and not be compelled to testify fully in respect thereto.
In some jurisdictions, the cross-examination of a wit-
ness is not confined to the matters inquired of in chief.®®

It is quite generally the rule that if a witness state a
fact, he is bound to state all he knows about it, though
in so doing he may expose himself to a criminal
charge; °° or, as otherwise expressed, if he discloses
part he must disclose the whole in relation to the sub-
ject matter about which he has answered in part.*!

For instance, where a witness said he knew the de-
fendant was innocent of the offense charged, but he
could not state how he knew that without implicating
himself, he was compelled to answer how he knew that
fact.?

Also, where a witness testified fully as to his con-
nection with an alleged crime charged against the de-
fendant, when asked to state the general plan which he
and the defendant entered into with reference to the
offense, refused to answer, claiming privilege,—that it
might criminate him as to other crimes. It was held

58 Brandon vy. People, 42 N. Y. 562; Foster v. Pierce, 11 Cush.
265; State v. Wentworth, 65 Me. 437; People v. Freshour, 55 Cal.

234, 375; Brown v. Walker, 161 U. S.
59 Moody v. Powell, 17 Pick. 591, 40 L. Ed. 819, 16 Sup. Ct.
490. Rep. 644; Commonwealth  v.

eo State v. K., 4 N. H. 562; Pratt, 126 Mass. 462.
State v. Wentworth, 65 Me. 234. 62 State v. K., 4 N. H. 562.
61Coburn v. Odell, 30 N. H.
348 HABEAS CORPUS.

that the witness should not have been allowed to sepa-
rate the actual taking of the property from the plan
of the parties to the taking, on the ground that, having
made disclosure in part, he might be compelled to dis-

close in whole.®

To what extent a witness may be compelled to testify
upon cross-examination is a question necessarily in-
volved, and the general rule may be said to be that
a witness on cross-examination must answer as to all
matters inquired about in the direct examination, and
not so inquired about in some jurisdictions, unless a
general privilege is invoked and the matter elicited
would tend to criminate him, in which case the cross-
examination can be extended only to the subject matter
of inquiry of the direct examination.**

If the mother of a child in bastardy proceedings
waives her privilege by voluntarily testifying with re-
spect to the paternity of the child, she cannot refuse to
testify as to the acts of illicit intercourse with others
at or about the time charged in the complaint on the
ground of its criminating character. The issue in the
proceeding is the paternity of the child. It is obvious
that the more unchaste the mother and the more num-
erous her paramours, the greater the uncertainty of
paternity. Having consented to testify in part she will
be compelled to testify fully in respect thereto.*

' Where a defendant indicted for libel, who denied
having seen the libels until they were pointed out to
him, was asked on cross-examination if he was not the
publisher of the paper in which they appeared, he was
held to have waived the privilege of refusal to answer
on the ground that his answer might criminate him.**

63 People v. Freshour, 55 Cal.

375.
64 State v. Wentworth, 65 Me.

234.

65 State v. Wentworth, 65 Me.
234, overruling Tillson v. Bow-
ley, 8 Greenl. 163.

66 Commonwealth v. Morgan,
107 Mass, 199.
CONTEMPTS; WITNESSES: 349

Rule with respect to parties.

The rule with respect to parties is the same, and with
respect to defendants in criminal proceedings may be
somewhat broader. The defendant may go on the
_ stand as a witness or not. The privilege of exemption

from criminative interrogation or cross-interrogation
is guaranteed to him by the constitution, but, as we
have seen, this privilege may be waived, and is waived
when the defendant at his own request becomes a com-
petent witness, which he then is under the law. He
thus voluntarily subjects himself to the peril conse-
quent upon a cross-examination.as to all matters per-
tinent to the issue.**

The rule was applied at least to its full extent by the
New York court of appeals. The quéstion was there
stated to be whether a prisoner who is sworn at his own
request can be compelled to answer questions upon
his cross-examination, as to facts affecting his credi-
bility, in relation to which he was not questioned on his
direct examination. The question was, How many
times have you been arrested? After stating that it
was within the discretion of the court to allow such
questions, and that the objection was not placed on the
ground of privilege, but rather on that of the exemption
provided by the constitution, the court proceeds to
state, in substance, that the principle is, that by con-
senting to be a witness in his own behalf the accused

‘ subjected himself to the same rules, and was called
upon to submit to the same tests, which could by law
be applied to the other witnesses. In other words if
he availed himself of the privilege of the act which per-
mitted him to be a witness, he assumed the burden
necessarily incident to the position. If he gives evi-

67 State v. Ober, 52 N. H. 459; N. Y. 240; State v. Wentworth,
Commonwealth v. Bonner, 97 65 Me. 234; Este v. Wilshire, 44°
Mass. 587: Connors v. People, 50 Ohio St. 636, 10 N. E. 677.
000 HABEAS CORPUS.
dence which bears against himself, it results from his
voluntary act of becoming a witness and not from com-
pulsion.*8

§ 87. Refusal to answer incompetent questions.

It is well settled that the refusal of a witness to
answer an incompetent question, either in court or
when his deposition is being taken, is not guilty of
contempt, and if so adjudged and imprisoned may be
discharged upon habeas corpus.®®

The decision in De Camp v. Archibald, 50 Ohio St.
618,-was placed on the ground that the question was
competent.”°

This doctrine has been applied where a witness was
adjudged in contempt by a notary public for failing or
refusing to produce papers and testimony that are in-
competent and inadmissible.”

However, if a witness refuses to answer upon the
ground that the answer is incompetent, he does so at
his peril. The sincerity of his belief, that the facts are
irrelevant, will not shield him.”

§ 88. Refusal to produce books and papers not rele-
vant.
The same rule applies with respect to the production
of books, papers, correspondence and documents.”®

6s Connors v. People, 50 N. Y.
240. ‘

69 Bx parte Jennings, 60 Ohio
St. 319, 54 N. E. 262; Ex parte
Zuhandelaar, 71 Cal. 238; People
ex rel. v. Kelley, 24 N. Y. 74;
In re Beardsley, 37 Kan. 666; Ex
parte Hardy, 68 Ala. 303; Hx
parte Krieger, 7 Mo. App. 637.
See also In re Davis, 38 Kan.
408; In re Cubberly, 39 Kan. 291;
Ex parte Grace, 12 Iowa, 208, 79
Am, Dec. 529.

70 Ex parte Jennings, 60 Ohio
St. 319, 54 N. E. 262,

711In re Beardsley, 37 Kan.
666; EXx parte Kreiger, 7 Mo.
App. 637,

72 Ex parte Jennings, 60 Ohio
St. 319, 54 N. EB. 262.

73 Kilbourn v. Thompson, 103
U. S. 168, 26 L. Ed. 877; Boyd v.
United States, 116 U. S. 616, 29
L. Ed. 746, 6 Sup. Ct. Rep. 524;
In re Pacific Railway Commis-
sion, 32 Fed. 241; Interstate
CONTEMPTS ; WITNESSES. 351

It is true that in Kilbourn v. Thompson, what was
said in this respect was as to the power of the legisla-
tive branch of the government to make inquiries into
the private affairs of the citizen, but it was stated in In-
terstate Commerce Commission against Brimson, that
in a proceeding by the court to compel disclosure before
the interstate commerce commission, that where upon
petition to the court such commission seeks an order to
compel a witness before such commission to answer par-
ticular questions and to produce certain books, papers,
etc., in their possession, it was open to each of them to
contend before that court, that he was protected by the
constitution from making answer to the question pro-
pounded to him, or that he was not legally bound to
produce the books, papers, etc., ordered to be produced,
or that neither the questions propounded nor the books
and papers, etc., called for relate to the particular mat-
ter under investigation, nor to any matter which the
commission is entitled under the constitution or laws
to investigate. The statement of Mr. Justice Field,
in In re Pacific Railway Commission, 32 Fed. 241, 250,
that ‘‘of all the rights of the citizen, few are of greater
importance or more essential to his peace and happi-
ness than the right of personal security, and that in-
volves not merely his protection from personal assault,
but exemption of his private affairs, books and papers
from the inspection and scrutiny of others. Without
the enjoyment of this right, all others would lose half
their value,’’ was quoted with approval.

§ 89. Refusal to answer questions where court without
jurisdiction.

Where the court or officer is without jurisdiction, as

Commerce Commission v. Brim- Sup. Ct. Rep. 19; State v. Car-
son, 154 U. S. 447, 449, 38 L. Ed. penter, 129 Wis. 180, 108 N. W.
1047, 14 Sup. Ct. Rep. 1125, 15 641,

\
352 HABEAS CORPUS.

7

we have seen, and as will be shown throughout this
work, then the witness may refuse to answer, and such
refusal will not constitute a contempt.”

This is well illustrated in Ex parte Fisk, 113 U. S.
713, 28 L. Ed. 1117, 5 Sup. Ct. Rep. 724. The facts
in that case have been before stated. Briefly they will
be repeated here. A statute of New York authorized
the deposition of a party de bene esse. There is no
such statute applicable to the federal courts. An ex-
amination of the defendant was commenced in the
state court. Before it was concluded the cause was
removed to the federal court. An order was made in
the latter court to continue the examination before
a master. The defendant refused. Another order was
made requiring him to appear before one of the judges
of the supreme court at a stated time at chambers in
New York. The defendant appeared, but refused to
answer. He was held in contempt, and prayed the
supreme court for writ of habeas corpus. It was held
that when a court of the United States undertakes by
its process of contempt to punish a man for refusing to
comply with an order which that court had no author-
ity to make, the order itself being without jurisdiction
is void, and the order punishing for contempt is equally
void. It was assumed by the subordinate court that
the federal statute relating to the practice, pleadings
and forms and modes of proceeding, in effect that in
actions at law in the federal courts they shall con-
form as near as may be to those of the courts of the
states in which the court sits, was applicable to the
proceeding in question. It was held, however, that
they were only applicable where there is no rule on
the subject prescribed by congress, and where the state
rule is not in conflict with such law; that the New York

74 People v. Cassels, 5 Hill, 164.
CONTEMPTS ; WITNESSES. 353

statute was’ in conflict with the provision of the revised
statutes of the United States which enacts: ‘‘The
mode of proof in the trial of actions at common law
shall be by oral testimony and examination of wit-
nesses in open court as hereinafter provided.’’

II. ConripentiaL anp Privitecep ComMMUNICATIONS.
§ 90. Political.

Briefly, the subject of privileges and privileged com-
munications must be referred to. While properly, per-
haps, a branch of the law of evidence, yet they are as
properly within the law of contempts. Law writers
on the subject of evidence have classified evidence which
should be excluded on the ground of public policy,
though otherwise relevant, as either political, judicial,
professional or social.’

Under the first are placed secrets of state, so called,
which includes state papers and communications be-
tween the different departments. Under the second,
those matters which relate to judicial proceedings and
judicial action, including the secrets of the jury room,
the bench, and even arbitrators in certain cases, as
well as the sources of information upon which criminal
prosecutions may be based. The third includes con-
fidential communications between client and attorney,
patient and physician, layman and, priest. The
fourth includes communications between husband and
wife. With respect to the first class, which has been.
classed as political, the rule seems to be in this country,
that every person, whatever his office or dignity, is
bound to appear and testify in courts of justice when
required to do so by. proper process, unless he has.
a lawful excuse. The rule with respect to the produc-

75 Best on Evidence, sec. 578; Greenleaf on Evidence, sec. 236
et seq.

23
354 HABEAS CORPUS.

tion by the chief executive of the government or of a
state is, that he will be allowed to withhold any paper
or document in his possession, or any part of it, if in
his opinion his official duty requires him to do so.
These were the rules adopted by Chief Justice Mar-
shall in the trial of Aaron Burr. He allowed a sub-
poena duces tecum to President Jefferson, and held
that he was bound to appear, but that he should be
allowed to keep back any document or part of a docu-
ment which he thought ought not to be produced. The
same view was taken by Chief Justice Tilghman in
Gray v. Pentland, 2 Serg. & Rawle, 23, quoted in
Thompson v. German’ Valley R. Co., 22 N. J. Hq. 111.
' It was stated in the case cited, the question being
whether an act had become a law: ‘‘The governor can-
not be examined as to his reasons for not signing the
bill, nor as to his action in any respect regarding it.
But there is no reason why he should not be called upon
to testify as to the time it was delivered to him. That
is a bare fact that includes no action on his part. An
order ought not to be made against the governor of
the state to testify. It is an unheard of practice, and
it might bring the executive in conflict with the judi-
ciary. If the executive thinks he ought to testify in
compliance with the opinion of the court, he will do
it without an order; if he thinks it his official duty in
protecting the right and dignity of the office, he will
not comply, even if directed by an order. And in his
case the court would hardly entertain proceedings to
compel him by adjudging him in contempt. It will be
presumed that the chief magistrate intends no con-
tempt, but that his action is in accordance with his
views of his official duty.’’ Chief Justice Marshall,.
on the trial of Burr, remarks: ‘‘In no case of this kind
would a court be required to proceed against the presi-
dent as an ordinary individual. The objections to such

\
CONTEMPTS; WITNESSES. 309

course are so strong and so obvious that all must ac-
knowledge them. It is possible that there may be
cases where courts, from the conduct of an executive,
might deem it proper to proceed against him for con-
tempt. But this is not one of them, and the party must
be left to his civil remedy.’’ 76

The supreme court of Pennsylvania set aside an
order of attachment against the governor, secretary of
state and other officers, issued to compel them to
testify before a grand jury in an investigation rela-
ting to a riot, on the ground that the witnesses were
_ privileged.77

In the English court the rule was applied to the
secretary of war to the extent that he was not compelled
to produce in evidence the minutes of a court of in-
quiry, in an action between private parties on the
ground that their production would be prejudicial to
the public service.78

§ 91. Professional.—Attorney and client; existence of
relation.

It is unnecessary to cite authorities in support of the
position that communications made to an attorney by a
client in connection with professional transactions be-
tween them are privileged, and the attorney, on the
ground of public policy, is not permitted to disclose
them. The inquiry in all cases is confined to the deter-
mination whether such relation exists with respect to
the particular transaction, and, if so, whether the mat-
ter is within the privilege. Whether or not such rela-
tion existed involves the determination of a question of

76In subsequent pages, under uted among the three co-ordinate
the head of “Mandamus,” we dis- branches of the government,

euss the power of the court to 77In Hancroft’s Appeal, 85 Pa.
direct mandamus against the St. 433.
governor, which involves a dis- 78 Beatson v. Skene, 5 H. & N.

cussion of the powers distrib- 838.
356 HABEAS CORPUS.

fact, and depends upon the particular circumstances
of each case. Hence no general rule can be stated that
will be applicable to all cases. A simple inquiry of an
attorney concerning a matter of fact in which the per-
son making the inquiry is interested, and not made for
the purpose of obtaining legal advice, is not privi-
leged.”®

~The party making the inquiry or disclosure must
in making it do so with the understanding on his part
that the other party is his attorney in the particular
matter ;*° at least it must appear, if the attorney be
not employed at the time, that they were made in con-
templation of employment. All the cases go to this
extent.§1 :

As stated by the supreme court of Maine: ‘‘Tf it (the
communication) be made with a view to professional
employment, and in reference to such employment in
legal proceedings pending or contemplated or in any
other legitimate professional services, wherein pro-
fessional advice or aid is sought, respecting the rights,
duties or liabilities of the client, it will fall within the
privilege and cannot be disclosed by counsel.’’ ®?

The difference is whether the communications were
made by the client to the attorney in confidence as in-
structions for conducting his cause or a mere gratis
dictum.*%

In Sharon v. Sharon, 79 Cal. 633, the facts were that
Mrs. Hill (Sharon), in company with another lady,

78 Plano Mfg. Co. v. Frawley, 394; McLellan v. Longfellow, 32
68 Wis. 577, 32 N. W. 768; Hat- Me. 494; Young vy. State, 65 Ga.
ton v. Robinson, 14 Pick. 416; 525.

Bramwell vy. Lucas, 2 Barn. & 82 McLellan v. Longfellow, 32
Cres. 745, Me. 494, ‘

80 Coon v. Swan, 30 Vt. 6; Sha- 83 Cobden v. Kendrick, 4 T. R.
ron v. Sharon, 79 Cal. 633. 432; Hatton v. Robinson, 14 Pick.

81 Bacon vy. Frisbe, 80 N. Y. 416.
CONTEMPTS; WITNESSES. 307

met an attorney on the street, and the former was in-
troduced to the attorney, and the other lady remarked
that this is the lady I have spoken to you about that de-
sires to bring an action against Mr. Sharon for breach
of promise of marriage,—she has fifty letters; and
the attorney replied that three or four letters—good
square promises from old Sharon—was all he would
want. Mrs. Hill replied she hadn’t time to look them
over, but she would in a few days; and the attorney
told her when she got ready to come into his office and
bring the papers with her. She never came. It was
held that such a casual conversation did not create the
relation of client and attorney. It is not required that
the attorney should be retained generally in the mat-
ter upon which advice is sought, nor that an immediate
fee be paid; ** but he must be counsel with reference
thereto, and the communication be made to him as
such.®

’ Where there is no retainer, and nothing to show
that the advice given is, sought with reference to any
finding or expected litigation, there is no privilege.®*

It was held by the supreme court of Iowa (Sample v.
Frost, 10 Iowa, 266) that communications made to one
not in fact an attorney, but the client supposed he was,
and employed him as such, were not privileged; but the
weight of authority founded upon the better reason is
the other way.*?

Some of the cases hold that communications made
‘to a lawyer’s student under the mistaken belief that he
was an attorney are not privileged.®*

84 Bacon v. Frisbe, 80 N. Y. Hampden, 38 Me. 581; People v.
394; Earle v. Grout, 46 Vt. 113. Barker, 60 Mich. 277, 27 N. W.

85 Earle v. Grout, 46 Vt. 113. 539. :
86 Thompson v. Kilborne, 28 ss Schubkagel v. Dierstein,
Vt. 750. 131 Pa. St. 46; Holman v. Kim-

87 Benedict v. State, 44 Ohio ball, 22 Vt. 555; Sibley v. Waffle,
St. 679, 11 N. B. 125; Sargent v. 16 N. Y. 180.
|
358 HABEAS CORPUS.

It has been stated that the relation does not exist
between a person who communicates with a prosecuting
attorney for the purpose of instituting criminal pro-
ceedings.°8

The supreme court of the United States, however,
hold that public policy will protect all communications
made to a prosecuting officer without reference to the
motive or intent of the informer. Though there be
evidence of the speaking of the words to others than
the prosecuting officer, the latter will not be permitted
to testify.® .

Communications whether privileged.

The relation of client and attorney being conceded
or established, the remaining question is whether the
communication attempted to be proven is confidential
and so within the privilege; for it is only communica-
tions made to an attorney in the course of his employ-
ment, supposed to be drawn out in confidence of that
relation, that are privileged.®°

However, all communications made by a client to
his counsel for the purpose of professional advice or
assistance are privileged, whether they relate to a
suit pending or contemplated, or to any other matter
proper for such advice or aid, being the subject of
professional employment.*!

The communication must be confidential, and so

88a People v. Davis, 52 Mich.
569, 18 N. W. 362.

89 Vogel v. Gruaz, 110 U. S. 311.
28 L. Ed. 158, 4 Sup. Ct. Rep, 12.

90 Sharon v. Sharon, 79 Cal.
633; Bacon v. Frisbe, 80 N. Y.
394; McLellan v, Longfellow, 32

Me, 494; Williams v. Fitch, 18 N.
Y. 546.

91 Britton v. Lorenz, 45 N. Y.
51; Bacon v. Frisbe, 80 N. Y. 394;
McLellan y. Longfellow, 32 Me.
494; Root v. Wright, 84 N. Y. 72.
CONTEMPTS; WITNESSES. _ 309

regarded, at least, by the client at the time. If it
clearly appears that it was not intended by the client
to have been confidential, it is not privileged.®

Hence it is that a communication made in the pres-
ence of both parties is not privileged. Under such
conditions it cannot be said to be confidential.%*

Nor are communications thus made in the presence
of third parties ; *** nor those made in the presence of
counsel and not made to him.®**

Where, however, communciations are made to an
attorney by either two or more of the parties on the
same side, and in the presence of the others, while he is
the attorney for all in matters in which they are mu-
tually interested, such communications are privileged
in suits by any of them against third persons. What
the rule would be in subsequent suits between them-
selves may not be clear.®®

It is held that in some cases that each party to a
contract thereby waives, as against the other, the right
to treat such communications as confidential, and each
is entitled to disclosure by the attorney.®*

‘ Where parties having diverse or hostile interests or
claims which are the subject of controversy unite in
submitting the matter to a common attorney for his
advice, public policy and the interests of justice are
subserved by placing such communications under the
seal of professional confidence, to the extent at least

92 Hagar v. Schindler, 29 Cal. 94 Shaffer v. Mink, 60 Iowa,
63; Gowen v. Emery, 18 Me. 82; 754, 14 N. W. 746; Sharon v.
Sharon v. Sharon, 79 Cal. 633; Sharon, 79 Cal. 633; Moffatt v.
Hickman v. Troll, 29 Minn, 124, Hardin, 22 S. C. 9.

12 N. W. 347. 95 Root v. Wright, 84 N. Y. 72.
93 Hanlon v. Doherty, 109 Ind. 96 Parish v. Gates, 20 Ala, 254;
37, 9 N. EL 782. Whiting v. Barney, 30 N. Y. 330.

ssa State v. Sterett, 68 Iowa,
76, 25 N. W. 936.
360 HABEAS CORPUS.

of protecting them against disclosure by the attorney
at the instance of third parties.*”

It must appear that the witness learned the matter
in question only as counsel and not in any other way.**

And if it appear that it was communicated by a
third party with a view to employ the witness as an
attorney for the party, communications thus made are
not privileged as confidential unless it be shown that
such communications were authorized to be made by
the party for whom such person assumed to act.®®

So it has been held that communications received
from a merely nominal party to the suit, one who had
no interest in it or control over it, cannot be said to
have been communicated by client to his attorney,
and therefore were not privileged.

The rule applies in criminal as well as civil cases,”
and also applies to all those who represent the at-
torney, either as clerk, interpreter, agent or assistant ;?
and to communications between a party, his legal ad-
viser and his witnesses.!

Communications that do not come within the scope
of a lawyer’s duty and profession cannot be said to be
privileged.®

It is not practicable, even if we had information at
hand, to incorporate herein a statement of the numer-
ous instances where communications were held not

97 Root v. Wright, 84 N. Y. 72.

98 Hagar v, Schindler, 29 Cal.
63; De Wolf v. Strader, 26 Ill.
224; Sharon v. Sharon, 79 Cal.
633.

99 Lynde v. McGregor, 13 Al-
len, 172; Sharon v. Sharon, 79
Cal. 633.

1 Allen et al. v. Harrison, 30
Vt. 219.

2Lellan y. Richardson, 13 Me.
88; Clark v. Field, 12 Vt. 485.

3 Foster v. Hall, 12 Pick. 93;
Jackson v. French, 3 Wend. 337.

4Scranton v. Stewart, 52 Ind.
68; Story vy. Lennox, 1 Myl. & C.
525,

5 Brown v. Jewett, 120 Mass.
215; Johnson v. Daverne, 19
Johns. 134; Burnside v. Terry,
51 Ga, 186; Caldwell v. Davis,
10 Colo. 481; Todd v. Munson,
53 Conn. 579.
CONTEMPTS; WITNESSES. 361

confidential. We content ourselves with giving the
test and some instances which relate to ordinary busi-
ness transactions, which involve acts that can be, and
ordinarily are, as well done by others as by attorneys,

as well as some that relate to a matter not in any sense

confidential. Thus, directions given to an attorney
to make a certain contract, to draw a deed, or in
reference to indorsement of drafts, and casual con-
versations had in respect to such matters where legal:

advice is not asked.®

So on the issue whether a signature on a note in
suit is that of the defendant, counsel for a party may
be called as a witness, if he is not required to disclose
any matter of confidential communication, or to base
his opinion upon any statement of the defendant to
him as counsel. So he may testify as to his authority
to sign a pleading as attorney.’

Where interrogatories were addressed to an attorney
to ascertain who was his client, when that relationship
commenced and ended, and what money had been re-
ceived and what paid over and to whom paid, it was
held such matters were not privileged.®

Production of documents, papers. etc.

The rule extends to documents, writing and other
papers. It was stated that ‘‘the privilege only extends
to information derived from the client as such, either
by oral communications, or from books or papers
shown to him by his client or placed in his hands in his
character of attorney or counsel, although informa-

@ Burnside v. Terry, 51 Ga. 7Brown v. Jewett, 120 Mass.
186; Todd v. Munson, 53 Conn. 215.
579; Moffatt v. Hardin, 22 S. C. 8 Shaughnessy v. Fogg, 15 La.

9; House v. House, 61 Mich. 69, Ann, 330,
27 N. W. 858; Smith v. Long, 106
Ill. 485.
362 HABEAS CORPUS.

tion derived from other sources, even though such in-
formation is derived or obtained while acting as at-
torney or counsel, is not privileged.’’®

Hence he cannot be compelled to produce them or
to state their contents.?°

The attorney may be called against his client to
prove the existence of a paper deposited with him by
his client, and that it is in his possession, with a view
to enabling the party calling him to resort to secondary
evidence."

But he cannot be required to testify concerning the
state of a written instrument at the time it was re-
ceived from his client, for the purpose of commencing
an action upon it.!”

The rule is not changed where the attorney is re-
quired to produce it before a grand jury or a magistrate
‘as evidence upon which to base a criminal charge, such
as a forged note.8

And whatever comes to the knowledge of the at-
torney through an examination of a document so.
placed is equally privileged as the document itself.1*

It is not essential to the exercise of this privilege
that the documents relate to the particular suit.

It seems, however, that whatever documents the
client himself would be compelled to produce, the
attorney may be so compelled or to testify in relation

®Crosby v. Berger, 11 Paige,
377; Jackson v. Burtis, 14 Johns.
391. :

10 Crosby v. Berger, 11 Paige,
377; Jackson v. Burtis, 14 Johns,
391; Flight v. Robinson, 8 Beav.
22; Fisher v. Hemming, 1 Phil.
Ev. 132; Coveney v. Tannahill,
1-Hill, 337

11 Coveney v.
Hill, 33.

12 Brown v. Payson, 6 N. H.

Tannahill, 1

443; Coveney v. Tannahill, 1 Hill,
38; Driggs v. Rockwell, 11 Wend.
504,

13 Anonymous, 8 Mass. 370;
State v. Squires, 1 Tyler (Vt.)
147.

14 Beard v, Ackerman, 5 Esp.
119; Jones v. Pugh, 12 Sim. 470.

1sLynde v. Judd; 3 Day
(Conn.) 491; Jackson v. Denni-
son, 4 Wend. 558,
CONTEMPTS; WITNESSES. 363
to their contents, but this can only apply to such as
are not confidential or privileged."®

Correspondence.

The correspondence between attorney and client re-
specting the professional engagement is equally
sacred,!* though an exception is made by some courts
in cases of fraud,!® and in cases where the action is
by the attorney for his fees, his written and oral in-
structions from his client are not privileged.®

If the papers pass out of the attorney’s hands into
those of a third party, the papers themselves may not
be excluded,?° but agents and representatives of the
attorney, as we have seen, are not considered third
parties. English authorities are to the effect that
where the client and attorney are both made defend-
ant the rule does not apply.”4

Waiver of secrecy.

The privilege which thus exists under the policy of
the law is not personal to the attorney, but is the privi-
lege solely of the client. The attorney under-no cir-
cumstances is permitted voluntarily to waive it. He
is beyond the power of a court to compel disclosure.
While he may not be in contempt if he makes dis-
closure either voluntarily or under compulsion, yet,
if the matter be material, it is always ground for re-
versal of the judgment or decree adverse to the in-

16 Andrews v. Ohio, etc., R. Co.,
14 Ind. 169; Ex parte Maulsby,
13 Md. 625.

17 Selden v. State, 74 Wis. 271,
42 N. W. 218; Root v. Wright, 84
N. Y. 72; Philadelphia F, Assoc.
y. Fleming, 78 Ga. 733.

18 Hawkins v. Gathercole, 1
Sim, (N. S.) 150; Snow v. Gould,
74 Me. 540.

19 Snow v. Gould, 74 Me. 540.

20 Weeks on Attorneys, sec. 163
and cases cited.

21 Lockett v. Cory, 3 N. R. 405;
Gaskell v. Chambers, 26 Beav.
303.
364 HABEAS CORPUS.

terests of the client. That the client may waive the
privilege is beyond controversy ; and when such waiver
has been made either directly or indirectly, then the
attorney, without any consent from and even against.
the express will of the client, may be compelled to
testify.”

What acts or conduct on the part of the client may
constitute a waiver may not be exactly clear. The
mere fact that the client himself goes upon the stand
and testifies with respect to the subject matter involved
does not operate as a waiver.?®

This follows from what is held in some of the cases
last above cited, which is, in effect, that a party having
given evidence in chief in his own behalf cannot on
cross-examination be compelled to divulge state-
ments made by him when consulting as a client an
attorney at law, and that such communications are
privileged and protected from inquiry when the client
is a witness as well as when the attorney is a witness;
because if disclosure could thus be compelled from the
client, the very object and purpose of the law requiring
secrecy .on the part of the attorney would be avoided.
This consideration is controlling when the client calls
upon the attorney to testify as to such communication
or the client himself testifies in respect thereto. In
such cases the seal of secrecy is voluntarily removed
by the client.?4

22 Benjamin v. Coventry, 19
Wend. 583; Fossler v. Schriber,
88 Ill, 172; Bacon v. Frisbe, 80
N. Y. 394; Alberti v. New York,
etc., R. Co., 118 N. Y. 77, 23 N.
BE. 35, 23 N. B. 1146; Hunt v.
Blackburn, 128 U. S. 464, 32 L.
Ed. 488, 9 Sup. Ct. Rep. 125.

23 Duttenhofer v. State, 34
Ohio St. 91; Barker v. Kuhn, 38

Iowa, 395; Bigler v. Reyker, 43
Ind. 112; Hemenway v. Smith,
28 Vt. 701; Jones v. State, 65
Miss, 179.

24 Benjamin v. Coventry, 19
Wend. 353; Vaillant v. Dode-
mead, 2 Ark. 524; Smith v.
Crego, 54 Hun, 22; Fossler v.
Schriber, 38 Ill, 172,
CONTEMPTS; WITNESSES. 365

The contrary, however, was held in Massachusetts.
It was said: ‘‘The objection that the defendant was
wrongfully compelled to undergo a cross-examination
as to what he said to his counsel, cannot be sustained.
The policy of the law will not allow the counsel him-
self to make disclosures of confidential communica-
tions from his client; but if the client sees fit to be a
witness, he makes himself liable to full cross-exami-
nation like any other witness.’’2> This court evi-
dently classes such privilege with those which are se-
cured to a witness by the common law with respect to
self-crimination. That it is of a different character is
plainly evident; and as stated by the Ohio court:
‘““We do not see the propriety of not allowing the
attorney to make the disclosures without the consent of
his client, and yet compelling the client himself to make
them.’’ It was further stated by the Ohio court:
“But we apprehend that other witnesses than the
party could not on cross-examination be compelled to
disclose confidential communications made to their
legal adviser, either for the purpose of impeachment or
otherwise.’’ 26

There are cases which hold that the client waives the
right of secrecy by not claiming it when the oppor-
tunity is present. There may be cases which might be
sufficient to stop the party from claiming error or
prejudice in the admission of confidential communi-
cations, and certainly would be where he voluntarily
testifies as to such communications, but it is doubtful
if he is forced to object to such disclosure by his at-
torney on pain of estoppel.?”

It is a competent question to an attorney as to the

28 Woburn v. Henshaw, 101 27 Hunter v: Caprol, 5 Beav.
Mass. 200. 93; Walsh v. Trevannion, 15
26‘Duttenhofer yv. State, 34 Sim, 577.
Ohio St. 91.
366 HABEAS CORPUS.

fact of retainer, as to possession of an instrument,
condition of a note or bond when placed in his hands
as to indorsements the execution of a power exercised
by himself,® or address of his clients.

Communications not privileged.

Communications for an unlawful purpose partake
of the nature of a conspiracy, and are not privileged.?®

An attorney who has appeared for a party without
authority is competent to testify to that fact.2°

So in actions between client and attorney, the gen-
eral rule is that communications which are essential
to show their agreement, what was to be performed by
the attorney and the manner of it performance, are not
privileged.**

The privilege, it has been stated, does not apply to
testamentary matters.®* .

Where, however, attorneys are employed in their
professional capacity to draw a will, and conversations
necessarily arise in respect thereto, and for that pur-
pose communications thus made by a client and under
such circumstances are within the protection of the
law.38

If the attorney sign the will at the request of the
testator, this will constitute a waiver under the
statute.34

28 White v. State, 86 Ala, 69;
Zabel v. Schroeder, 35 Tex. 308;

81 Nave v. Baird, 12 Ind. 318;
Mitchell v. Brumberger, 2 Nev.

Rhodes v. Selin, 4 Wash. (U. S.)
718; Baker vy. Arnold, 1 Cal. 258;
Caniff v. Myers, 15 John. 246;
Commonwealth v. Bacon, 135
Mass. 521.

20 Hughes v. Boone, 102 N. C.
137; People v. Van Alstine, 57
Mich. 69, 23 N. W. 594.

80 Cox v. Hill, 3 Ohio, 411; Fer-
guson vy. Crawford, 70 N. Y. 253.

345.

82] Whart Ev. sec. 591; Scott

v. Harris, 113 Ill, 447; Blackburn
v. Crawford, 3 Wall. 186, 70 U. S.
175, 18 L. Hd. 186.
‘ 88 Westover v. Aetna Ins. Co.,
99 N. Y. 56, 1 N. EB. 104; Matter
of Coleman, 111 N. Y. 220, 19 N.
E. 71.

384Matter of Coleman, 111 N.
CONTEMPTS; WITNESSES. 367

§ 92. Physician and patient.

The rule and the reasons for it are substantially the
same with respect to confidential communications made
to physicians. It is made so in most jurisdictions by
statute. It was stated that the object of the statute
was to place the communications made to physicians in
the course of their professional employment upon the
same footing with communications made by clients to
their attorneys in the course of their employment.

The language of the statute is not the same in all
the states. That of New York is to the effect that the
physician ‘‘shall not be allowed to disclose any infor-
mation which he acquired in attending a patient in a
professional capacity and which was necessary to en-
' able him to act in that capacity.’’ The courts of that
state give to the statute a very strict construction, and
even hold that the physician cannot testify as to mental
capacity, etc.2¢

In Wisconsin and some of the other states the word-
ing of the statute is that a physician shall not be com-
pelled to disclose, etc. The supreme court of that state
quite recently had this statute under consideration and
concluded that its object was to protect the patient;
and construing that section according to.its spirit and
intention, a physician can neither be compelled nor
allowed to disclose such information in court without
the consent of the patient. The privilege is that of
the patient.3*

The burden is upon the party who seeks to ex-

Y. 220, 19 N. E. 71; McMaster v. 119; Grattan v. Metropolitan L.
Scriven, 85 Wis. 162, 55 N. W. Ins. Co., 92 N. Y. 274; Matter of

149, Coleman, 111 N. Y. 220, 19 N.
85 Masonic Mut. Ben. ‘Assoc. v. &E. 71.
Beck, 77 Ind, 203. 37 Boyle v. Northwestern M. R.

“seConn. Mut. L. Ins. Co. v. Assoc., 95 Wis. 312, 70 N. W. 351;
Union Trust Co., 112 U. S. 250, Kenyon v. Mondovi, 98 Wis. 50,
28 L. Ed. 708, 5 Sup. Ct. Rep. 73 N. E. 314.
368 HABEAS CORPUS.

clude the evidence. It must appear that the informa-
tion was acquired while attending the patient profes-
sionally, and that it was such as was necessary to en-
able him to act in that capacity.®®

The objection must be taken before the witness tes-
tifies.29

§ 93. Clergymen.

It has been generally accepted that communications
made to spiritual advisers are privileged, and the
question has been set at rest in most of the states
by statutes. The language of the statute is not as
broad as the rule in many cases. The New York and
Wisconsin statutes are to the effect that a clergyman
or minister of religion shall not be allowed to dis-
close a confession made to him in his professional char-
acter, in the course of discipline, etc.*®

§ 94. Husband and wife—In general.

Communications between husband and wife are
called privileged. In fact they are matters which the
law will not permit to be divulged. The privilege, as it
is called, exists at common law. Likewise it is pro-
vided by statute. It does not embrace solely com-
munications that are confidential, but extends to all com-
munications except under peculiar conditions, and also
where the law expressly permits, the testimony as to
relations of a representative character. It is only
limited, except as stated, to such matters as occur dur-
ing the existence of the marriage. What was stated
before is not prohibited. What is stated during the

38 People v. Schuyler, 106 N. Lodge, 81 Mich. 616, 45 N. W.
Y. 298, 12 N. B. 783. 977,

39 Breisenmesiter vy. Supreme 40 See Best on Evidence, sec.
583.
CONTEMPTS; WITNESSES. 369

a

him to pay money into court and rendered judgment
existence of the relation or status cannot be disclosed
after that relation or status has ceased.*!

In some states it is held that after death of one of
the parties the prohibition is limited to private conver-
sations.*?

The Ohio statute is to the effect that they cannot
testify concerning any communications made one to the
other, or an act done by either in the presence of the
other, during coverture, unless the communication was
made or act done in the known presence or hearing of
a third person competent to be a witness; and it is.
said that the common-law rule has not been limited, but
enlarged by statute.*? ,

It was held in that state, where a wife was living
with her parents, separate from her husband, and the
question whether she was there by the wrong of the
husband or the parents being on trial, in an action by
the husband against the parents, letters written by her
during such separation, in which she addresses him
as her dear husband, are competent to show the con-
dition of her feelings towards him; and the husband is
a competent witness to show that such letters are in
the handwriting of the wife.**

It was said the letters when used for such a purpose
could not be regarded as a communication within the
object and purpose of the statute, and the husband,
therefore, did not testify to a communication but sim-
ply to a fact—that of the handwriting of his wife. This
ruling is supported by Perry v. Lovejoy, 49 Mich. 529,
and cases cited in the opinion. In Michigan, Massa-

41 Taylor’s Evidence, sec. 909; 59 Iowa, 179, 13 N. W. 103;
Otis v. Spencer, 102 Ill. 622; Hough v. Blythe, 20 Ind. 24.
Stein v. Bowman, 13 Pet. 209, 10 43 Holtz v. Dick, 42 Ohio St. 23.
L. Ed. 129; Coffin v. Jones, 13 44 Holtz v. Dick, 42 Ohio St.
Pick. 441. 238. See also Horner v. Yance,

42Robinson v. Talmadge, 97 93 Wis. 352, 67 N. W. 720.
Mass. 171; Hanks v. Van Carder,

24
370 HABEAS CORPUS.

chusetts, Missouri, Kansas and perhaps some other
states, statutes provide that neither the husband nor
the wife, during the marriage or afterwards, without
the consent of both can be examined as to any com-
munication made by the one to the other during their
marriage. Under such statutes by common consent
they become competent witnesses, but without such
consent the statute leaves the rule as at common law.*®

Communications in presence of third persons.

In general, the same rule applies to communications
between such persons as we have seen is applied to
communications between client and attorney with re-
spect to the secrecy of the communication, with the
exception hereinafter stated. Thus, if the communi-
cation be had in the known hearing and presence of a
‘third person, it is not privileged.*®

Such third party is a competent witness to testify
to it, and hence it cannot be regarded as secret.*?

Communications made to third persons.

A third party cannot, however, testify as to state-
ments made to him by a husband or wife in regard to a
transaction between them when no one else was
present.*®

Thus, where the wife derived title to certain per-
sonal property from her husband through an inter-
mediate grantee, and claimed the consideration was
money loaned to her husband, witnesses to whom the
husband and wife had stated that such was the tran-
saction were held incompetent, as it was but a repeti-

45 Perry v. Lovejoy, 49 Mich. 47Gannon v. People, 127 Ill.
529, 14 N. W. 485. 507, 21 N. BH. 525.
46 Floyd v. Miller, 61 Ind. 224; 48 Brown v. Wood, 121 Mass.

Mercer v. Patterson, 41 Ind, 444; 137,
Fay v. Guynon, 131 Mass. 31.
CONTEMPTS; WITNESSES. 371

tion of the transaction as stated by husband and wife.
Neither of such persons was competent; hence their
statement to third persons would not make that com-
petent which was not otherwise so.*®

Yet in some courts it is held that the privilege given
is personal, so that if the husband or wife, to whom a
confidential communication is addressed, makes it pub-
lic by giving it to another, the confidential character of
the communication as against such party has departed,
and it may be treated like any other communication
and put in evidence if otherwise admissible.®°

Where the conversation is not between the husband
and wife, but between one of them and a third person
in the presence of the other, then such other is a com-
petent witness.>!

It was stated by the Massachusetts court, where the.
conversation between husband and wife was in the
presence of their young children only, who took no part
in or paid any attention to it, that this did not have the
effect of rendering the testimony of the husband and
wife competent.*?

Rule under particular statutes.

The statutes of New York and Wisconsin are that a
husband and wife shall not be allowed to disclose a
confidential communication made by one to the other,
etc. It was stated by the New York court of appeals,
that this section of the code forbids not all communica-
tions between husband and wife, but only confidential
communications. What are confidential communica-

49 Brown v. Wood, 121 Mass. 51 Mercer v. Patterson, 41 Ind.
137. 444,
50 People v. Hayes, 140 N. Y. 52 Jacobs v. Hesler, 118 Mass.

484, 35 N. EB. 951; State v. Hoyt, 157,
47 Conn, 518; State v. Buffing-
ton, 20 Kan. 599.
\

372 HABEAS CORPUS.

tions within the meaning of the section? Clearly not
all communications made between husband and wife
when alone. If such had been the meaning, it would
have been so provided in general and simple terms.
They are such communications as are expressly made
confidential, or such as are of a confidential nature, or
induced by the marital relation. That ordinary con-
versations relating to matters of-business, which there
is no reason to suppose the parties would have been un-
willing to hold in the presence of any one, are not con-
fidential.5*

‘Under a statute containing no such limitations, it
was held all private conversations were included,
though not confidential. The court refers to the diffi-
culty that would be present under any other construc-
tion, which must be apparent to any one. Who is to
determine whether a conversation or communication
is confidential? Must the court try that collateral issue?
Must the witness disclose it first and have its compe-
tency determined afterwards? If so, the protection
of the law is but the merest sham.*4

Exception to the rule.

There are many cases to which the statute has no
application. Thus, in cases of personal violence to the
wife committed by the husband,®* in actions for di-
voree,°® and in actions for necessaries furnished the
wife.5?

§ 95. Telegraph operators and postmasters.

Telegraph messages are competent evidence when
identified. There is no rule or statute which forbids

53 Parkhurst v. Berdell, 110 N. 55 Mills v. United States, 1
Y. 386, 18 N. B. 123. Pin, 73.

54 See Lappla v. Minn. Tribune 5¢ Hays v. Hays, 19 Wis. 31.
Co., 35 Minn. 310. 57 Bach y. Parmely, 35 Wis.

238.
CONTEMPTS ; WITNESSES. 373

telegraph companies or their servants from producing
telegrams in their possession.®®

Where an employe of a telegraph company, having
charge of messages transmitted by it, was, by sub-
poena duces tecum, commanded to search for and pro-
duce all messages from and to a large number of per-
sons, therein named between specified dates, and re-
fusing, was adjudged in contempt, it was held that his
refusal under the particular circumstances was not
contempt. The particular demand included a search
for testimony, and the court was without power to.
command a search. The subpoena should have identi-’
fied the particular messages required.®®

Postmasters, by force of federal statute, are for-
bidden to disclose the contents of letters passing |
through the mails.

§ 96. Officers and others excused on ground of public
policy or otherwise—Judges and arbitrators.

The rule of privilege applies to all matters which
may come before a judge for judicial action.®°

The judge ordinarily is not compelled to testify as
to what was said in a trial over which he presided,
though he may do so voluntarily. If he insists upon
his excuse it must be granted.*!

Arbitrators have been placed upon the same footing
as judges with respect to the exercise of judicial
powers. °?

But with respect to matters of fact coming within

58 Commonwealth v. Jeffries, 7 61 Welcome v. Batchelder, 23
Allen, 548; State v. Litchfield, Me, 85; People v. Dohring, 59
58 Me, 267, N. Y. 374; Sigourney v. Sibley,

59 Ex parte Jaynes, 70 Cal. 638. 21 Pick. 101. :

60 Greenleaf on Evidence, sec. 62 Claycomb v. Butler, 36 Ill.
249, 100; Ellison v. Weathers, 78 Mo.

115.
374 HABEAS CORPUS.

their knowledge, the reason for exemption given does
not apply.

Informers.

With respect to revealing sources of information in
criminal prosecutions, they are withheld solely on
grounds of public policy. The particular reasons as
well as the rule are stated in a leading American case.
In an action of tort charging the defendant with ma-
liciously and falsely representing to the treasury de-
partment that plaintiff has violated the revenue laws,
plaintiff filed interrogatories to elicit information as to
whether defendants had given such information. The
court concluded that these interrogatories ought not to
be answered, stating: ‘‘It is the duty of every citizen to
communicate to his government any information which
he has of the commission of an offense against the
laws. To encourage him in performing this duty with-
out fear of consequences the law holds such informa-
tion to be among the secrets of the state, and leaves
the question how far and under what circumstances
the names of the informers and the channel of com-
munication shall be suffered to be known to the abso-
lute discretion of the government, to be exercised ac-
cording to its views of what the interests of the public
require. Courts of justice therefore will not compel
or allow the discovery of such information either by the
subordinate officer to whom it is given by the informer
himself or by any other person without permission of
the government. The evidence is excluded, not for the
protection of the witness or of the party in the par-
ticular case, but upon general grounds of public policy,
because of the confidential nature of such communica-
tions.’? &4

68 Woodbury v. Northy, 3 Me. 64 Worthington v. Scribner, 109
85, Mass. 487.
CONTEMPTS; WITNESSES. 375

Grand jurors.

Attention is called to the fact that in most of the
states the oath administered to grand jurors binds
them to secrecy. The question arises as to the extent
of the application of their oath and their obligation as
to secrecy where such oath is not taken. That their
proceedings must be kept a secret during their delibera-
tions, and until report is made of a bill, necessarily
follows from the nature and objects of such an inquisi-
tion. What may be disclosed when their proceedings
may come collaterally in question is a different ques-
tion, and as to which there is not complete unanimity
among the courts. It was stated by the supreme court
of Massachusetts that ‘‘the extent of the limitation
upon the testimony of grand jurors is best defined by
the terms of their oath of office, by which the com-
monwealth’s counsel, their fellows’ and their own, they
are to keep secret. They cannot, therefore, be per-
mitted to state how any member of the jury voted, or
the opinion expressed by their fellows or themselves
upon any question before them, nor to disclose the fact
that an indictment for felony has been found against
any person not in custody or under recognizance; nor
to state in detail the evidence on which the indictment
is found. To this extent the free, impartial, unbiased
administration of justice requires that the proceed-
ings before grand juries be kept secret. By no other
means can freedom of deliberation and opinion among
jurors be effectually secured, and the ends of an ener-
getic administration of criminal justice surely attained.
But we are not aware that the sanction of secrecy has
ever been extended beyond this. We know of no
authority which carries the rule of exclusion further,
and we can see no ground of policy or sound reason for
its extension. It seems to us, therefore, that a mem-
ber of a grand jury may testify to any fact otherwise
 

376 HABEAS CORPUS.

competent which does not violate the restrictions above
stated.’’ It was held that a member of the grand jury
which found an indictment is a competent witness on
the trial to prove that a certain person did not testify
before the grand jury.®

Statutes in many of the states provide for disclosure
within the limits stated. It has been held that grand
jurors might be examined as witnesses in court to the
question whether twelve of the panel actually con-
curred in the finding of a bill of indictment upon mo-
tion in the nature of a plea in abatement when the de-
fendant is arraigned.*¢

Whatever may be the rule when the question is
raised by such a plea, the more general and better
authority is to the effect that the finding of an indict-
ment cannot be thus impeached upon the trial or col-
laterally; and the weight of authority is that it can-
not be thus impeached by plea in abatement.*"

The same reasons apply with equal or greater force
with respect to grand jurors that are grounds for re-
fusing to permit petit jurors from thus impeaching’
their verdict. It might be the means in the hands of a
dissatisfied juror of destroying an indictment at any
time after it has been presented. An additional rea-
son is found in the statute of many states prohibiting
such disclosure. It is not competent, after an indict-
ment has been presented to the court by the grand jury,
for those who found the indictment to testify that they
did not vote for the bill, or to explain how they did
vote or what they intended to find.**

6s Commonwealth vy. Hill, 65 67 State v. Gibbs, 39 Iowa, 318;

Mass, 137. State v. Hamlin, 47 Conn, 114;
66 Low’s Case, 4 Me, 4389; Com- State v. Wammack, 70 Mo. 410.
monwealth v. Smith, 9 Mass. 107. 68 State v. Davis, 41 Iowa, 311.

See State v. Horton, 68 N. C. Ex parte Sontag, 64 Cal. 525.
595.
CONTEMPTS; WITNESSES. 377

Thus it was held incompetent for a grand juror to
testify that the jury voted to find an indictment for
manslaughter only, and voted against finding an in-
dictment for murder.®®

We find many exceptions to the doctrine of secrecy
declared by courts. Thus the supreme court of Mis-
souri decided that members of the jury were not com-
petent to testify that an indictment was found without
evidence, but such incompetency did not extend to the
prosecuting attorney.”

If such conclusion is based upon the fact that the
attorney does not take the oath, then it is a sufficient
answer to say that it is embraced in his oath of office.
Public policy is the same in one case as the other. In
Tennessee it is held that the obligation to secrecy is
limited to the time the object thereof is accomplished.”

A material question is whether a grand juror may
be compelled to testify as to the testimony of witnesses
before them. That a juror may so testify is settled by
abundant authority, and is no cause for objection on
the part of the witness or the offender. The obliga-
tion of the jury is due and owing to the public and not
to the witness, and therefore its violation cannot be
an occasion of offense to him.”

A sufficient reason for such exception is stated by
Ruffin, J., in State v. Broughton, 7 Ired. 101: ‘‘It is
obvious that if grand jurors are, through all time and
to all purposes, prohibited from disclosing and proving
the testimony of witnesses before them, there is a per-
fect exemption from temporal penalties of perjury be-
fore a grand jury. The consequences of such a doc-
trine would be alarming; for besides the danger of

69 State v. Davis, 41 Iowa, 311; 72 State v. Broughton, 7 Ired.
Ex parte Sontag, 64 Cal. 525. 101; People v. Young, 31 Cal.
70 State Grady, 64 Mo. 320. 564; State v. Fassett, 16 Conn.

71 Jones v. Turpin, 6 Heisk. 468; Perkins v. State, 4 Ind. 222;
181. People v. Hulbut, 4 Denio, 133.
378 HABEAS CORPUS.

tempting the witness to commit so great a crime with-
out the fear of punishment, grand jurors would have no
credible evidence on which to act, on one hand, and the
citizen, on the other, would be deprived of one of the
most boasted and valuable protections against arbitrary
accusations and arrests. It would be extraordinary
were witnesses thus enabled to perjure themselves
without responsibility.’? The exact question whether
a grand juror may be compelled to testify as a wit-
ness, and thus make such disclosure, I do not find to
have been determined. It may never arise. It was
said in the case last cited that there is no legal or moral
impediment to his solemn examination under the direc-
tion of the court as to the evidence before him when.
ever it becomes material for the administration of
justice. And it is stated by the Massachusetts court
(Commonwealth v. Mead, 12 Gray, 167) and also by the
supreme court of Tennessee (6 Heisk. 181), that when
the purposes of secrecy are accomplished, the neces-
sity and expediency of retaining the seal of secrecy are
at an end, and that such purposes are accomplished af-
ter the indictment is found and presented and the ac-
cused is held to answer and the trial before the traverse
jury is begun. It would seem thus to follow upon rea-
son as well as authority that such a juror, when called
as a witness, cannot claim exemption. The privilege
when it exists is not personal, but is placed upon the
ground of public policy, and that same public policy
which prohibits disclosure under certain conditions
demands it when those conditions have been fulfilled.

Petit jurors.
It is now the settled doctrine practically throughout
the United States that the testimony of petit jurors
is incompetent to impeach their verdict.7*

73 State v, Freeman, 5 Conn. J. L. 32; Hutchinson v. Consum-
348; Brewster v. Thompson, 1N. ers’ Coal Co, 36 N. J. L. 24;
CONTEMPTS; WITNESSES. 379

Therefore, the testimony of such a juror not being
competent, it follows that he could not be compelled
to testify to any such matter. The deliberations of a
jury being secret, and necessarily so, the same reason
applies with respect to the giving of testimony as to
the secrets of the jury room as is stated with respect to
grand juries. How he votes, or what was said, is
within the seal of secrecy for all time.

III. Contumacy or WITNESSES.

§ 97. Refusal of witnesses to attend.

It is a contempt of the court for a witness who has
been duly served with a subpoena to refuse, or without
sufficient excuse to fail, to attend in obedience to its
command. Such conduct was a contempt at common
law and is made so by statute.”4

It is also a contempt on the part of any person to
corruptly induce or entice a witness duly subpoenaed to
go beyond the jurisdiction of the court for the pur-
pose of preventing him from attending as a witness,
or concealing him with like intent."

§ 98. Refusal to be sworn.

It is also a contempt on the part of a witness to
refuse to be sworn. There are exceptions to this
rule, made so by statute, in cases of certain persons
who are supposed to have conscientious scruples, and
hence are permitted to affirm. This exception does not

Bull’s Case, 14 Gratt. (Va.) 613. 76 Hale v. State, 55 Ohio St.
74Yates v. Lansing, 9 John. 210, 45 N. B. 199, 36 L. R. A, 254,
395; Commonwealth v. Carter, 78 Bx parte Judson, 3 Blatch.
11 Pick. 277; Ex parte Hum- 89; Ex parte Stice, 70 Cal. 51;
phrey, 2 Blatch,. (U. S.) 226. Ex parte Langdon, 25 Vt. 680.
380 HABEAS CORPUS.

give general liberty of choice, but is confined to those
who are within the meaning of the statute. It was
so determined in United States v. Coolidge, 2 Dall. 364,
the statute of Massachusetts confining the liberty or
being affirmed to Quakers; hence the witness, not
being a Quaker, could not claim the privilege.”*

While, as we have stated, a witness may ordinarily
refuse to testify where his testimony would have a
tendency to subject him to punishment for felony, such
privilege cannot be claimed until a question is put to
him after being sworn, the answer to which would have
that tendency.”

It was held in the case last cited that upon expira-
tion of the term of imprisonment imposed for such a
contempt the witness could be again produced, and if he
still persisted in his refusal he could be again ad-
judged in contempt, and punished as for a second of-
fence. It has been held that a Jew offered as a witness
on Saturday, that being his Sabbath, could not be heard
to claim that he was privileged on ‘that account.7®

It seems that in New Jersey, under the statute of
that state, the privilege of affirming is extended only to
such as shall allege themselves conscientiously scrupu-
lous to taking an oath,’ and that in Nebraska the privi-
lege is open to all who may claim it.®°

§ 99. Refusal to testify.

In general the refusal of a witness to testify or to
answer proper questions is a direct contempt for
which he may be summarily punished.*!

77x parte Stice, 70 Cal. 51. 81 Matter of Gannon, 69 Cal.
78 Stanbury v. Marks, 2 Dall. 541; State v. Lonsdale, 48 Wis.
(Pa.) 213. ; 348, 4 N. W. 890; Wright v.
79 Williamson v. Carroll, 16 N. People, 120 Ill. 541, 12 N. BE. 240;
J. L, 217. People v. Kelly, 24 N. Y. 74;

80 Wilcox v. State, 46 Neb. 402, Whitcomb’s Case, 120 Mass. 118,
64 N. W. 1072. 21 Am. Rep. 502.
CONTEMPTS; WITNESSES. 381

It seems that at common law, as well as under
statutes existing in many states, the circuit court may
punish as for a criminal contempt persons subpoenaed
to testify in actions pending in such court before a
court commissioner in another county, where such
persons disobey the summons or refuse to be.sworn
and answer. The mere fact that a court commissioner
taking testimony in such a case had the power to
punish for contempt in respect to such examination
will not deprive the court of jurisdiction to punish for
such contempt in the commissioner’s report thereof.®*

In Michigan it is held that a principal defendant who
refuses to answer under oath interrogatories respecting
the possession, transfer or other disposition of negotia-
ble bill of exchange or promissory notes in his hand at
the time of the service of the writ of garnishment,
where made payable in that state, or the parties resided
therein when the note was made or bill accepted, may
be punished as for a contempt under Howell’s Statutes
(sec. 8083, Michigan), and held in custody until he
makes such disclosure. It is not necessary to allege
that the refusal of the principal defendant to answer
or his secretion of the facts, is fraudulent.®*

A grand jury is part of the court by which it is
convened, and the court has jurisdiction to adjudge a
witness, who defies the authority of the grand jury by
refusing to testify before it, guilty of contempt and to
punish therefor.**

The validity of a grand j jury cannot be called in ques-
tion in a proceeding of contempt to punish a person for
refusing to testify before it.%5

82 State v. Lonsdale, 48 Wis. 84Matter of Gannon, 69 Cal.
348, 4 N. W. 390. 541; Heard v. Pierce, 8 Cush.
83 Barnes v. Reilly, 81 Mich. 338.
374, 45 N. W. 1016, 85 Matter of Gannon, 69 Cal.

541
382 HABEAS CORPUS.

This power to punish is not limited to proceedings
in court. Thus, under a statute which authorized a
justice of the peace, upon the application of a person
desiring to obtain the affidavit of another, to require
the presence of the latter before him by a subpoena
issued for that purpose, it was held that a refusal either
to obey the subpoena or to make affidavit when brought
before him was a contempt of court for which the con-
-temnor might be punished.*®

Experts.

It is within the experience of most trial judges that
persons learned in or following a special calling, and
presumedly possessed of special knowledge and skill
therein, called experts, have claimed they were not un-
der obligations to testify with respect thereto as ex-
perts; and have usually claimed expert fees, so called—
that is, pay for their opinion,—or the right to be ex-
cused. In some states I understand that it is either pro-
vided by statute or by judicial legislation that where a
witness is called as an expert he is not compelled to
testify until he has received compensation as such.*"

In one case an interpreter was said to be analogous
in the respect stated to an expert, and as to the latter it
was said: ‘‘Where a person has knowledge of any fact
pertinent to an issue to be tried he may be compelled to
attend as a witness. In this all stand upon equal
ground. But to compel a person to attend merely be-
cause he is accomplished in a particular science, art or
profession, would subject the same individual to be
called upon in every cause in which any question in his
department of knowledge is to be solved. Thus, the
most eminent physician might be compelled, merely for

86 Robb v. McDonald, 29 Iowa 87 Dills v. State, 59 Ind. 15;
830. See also State v. Seaton, 61 Buchman vy. State, 59 Ind. 1.
Iowa, 563, 16 N. W. 736.
CONTEMPTS; WITNESSES. 383

the ordinary witness fees, to attend from the remotest
part of the district and give his opinion in every trial
in which:a medical question should arise. This is so
unreasonable that nothing but necessity can justify
it. 9) 88

It is quite generally held, however, that an expert
may be required to testify without other compensa-
tion than regular witness fees, and in case of refusal
he is subject to the penalties prescribed for contempt
the same as any other witness.®®

88In Matter of Roelker, 1 App. 374; Dixon v. People, 168
Sprague (U. S.) 276. Til. 179, 48 N. BE. 108. See Wright

89 Ex parte Dement, 53 Ala. v. People, 120 Ill. 541, 12 N. E.
189; Summers v. State, 5 Tex. 240.
384 HABEAS CORPUS.

CHAPTER IX.

MISCONDUCT OF OFFICERS OF THE COURT AND OTHERS.

§ 100. In General.
Officers in General.
Attorneys.
Clerks of Court.
Sheriffs.
Jurors.
Persons Other than Officers.

§ 100. In general.

At common law, as we have seen, conduct and acts on
the part of parties and others tending to interrupt the
proceedings of the court, though not committed in the
actual presence of the court, were criminal contempts
and punishable as such. Under statutes such con-
duct and acts, except in a few instances, are either
classed as civil contempts or are not contempts at all.
The New York court of appeals, in yielding recognition
to the statute, was forced to declare that conduct on
the part of a juror in separating from his fellows and
viewing the scene of a crime was not contempt, the
statute not covering such an offense. We have also
seen where a party to the action has not sustained
pecuniary loss by the misconduct charged, then no pun-
ishment can be awarded; and if the act is not also a
criminal contempt or punishable as such, it follows
there can be no punishment. It is interesting to learn
what the courts which recognize the force of the statute
will do with contempts of the character last mentioned.
We know what the New York court has done. We
know also that the Ohio court, when confronted with
the same proposition, declared for the inherent power
of the court. To illustrate: It was declared that it was
contempt for a party, when books are submitted to his

'
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 385:

inspection by order of court, to break open parts sealed
up not relating to the subject of litigation

Such conduct certainly is not embraced in the statu-
tory enumeration of criminal contempts, nor is it a
statutory civil contempt, for the reason that the power
of the courts to punish is limited to such misconduct
as may defeat, impair, impede or prejudice the rights or
remedies of a party in an action or proceeding depend-
ing or triable, etc., and it is very clear that the mere act
of inspection of private entries in a book not relating to
the cause or trial does not have such effect. It is true
the court held in that case that it came within pro-
visions of the statute relating to civil contempts, but
evidently it overlooked the limitation stated in the
first paragraph of the statute. Again, it was a con-
tempt at common law for one party to send a threaten-
ing letter to the other;? and yet it is clear that such
misconduct is not by the statute enumerated as a
criminal contempt, and for reason stated it is not, and
if it were it could not be punished as a civil contempt.
Again, one who deceives the court by pretending to
be sick, and thereby procures the postponement of a
civil case, is guilty of a criminal contempt at common
law.8

Such an offense was said not to be within the statute.
It probably, under statutes similar to that which we
have quoted, would be denominated a civil contempt.
The Connecticut court classed such misconduct a crimi-
nal contempt upon the ground that it was such at
common law. The disobedience of a subpoena is not a
criminal contempt under the statute, but is a civil con-.
tempt. It is not embraced in the subdivision which
declares that ‘‘wilful disobedience of any process or

1Dias v. Merle, 2 Paige, 494. 3 Welsh v. Barber, 52 Conn.
2Smith v. Lakeman, 36 L. J. 147,
Ch, 305.

25
386 HABEAS CORPUS.

order lawfully issued or made by the court is a con-
tempt.’’ Such provision relates exclusively to orders
lawfully issued by the court as such, and does not in-
clude subpoenas issued by the clerk or district at-
torney.*

An attempt by a mere colorable dispute to obtain
the opinion of the court upon a question of law which
a party desires to know for his own interest or his own
‘purposes, when there is no real or substantial contro-
versy between those who appear as adverse parties to
the suit, is an abuse which courts of justice have always
reprehended and treated as a punishable contempt of
court.®

Such conduct is not a criminal contempt under the
federal or state statutes. It is not a civil contempt be-
cause the rights or remedies of parties thereto are not
impeded or impaired. In fact the sole object of the suit
is to determine the rights of such parties, and they
are equally interested and guilty of the contempt. It
also has been held a contempt to dispose of property,
or to put it out of the power to comply with an order
if made, pending proceedings to determine the ques-
tion thus involved. Thus, where, during the pendency
of proceedings supplementary to execution, the party
has appeared and answered, it was held a contempt
for such debtor to dispose of the property disclosed
pending the decision of the officer.®

It was held that a master in attempting to remove
his slave beyond the jurisdiction of the court, pending
the hearing upon a petition for freedom, was in con-
tempt;7 and it was also contempt to carry off a ward

4 Sherwin v. People, 100 N. Y. (U. S.) 419, 17 L. Ed. 93, 4
851, 3 N. E. 465. Miller (U. 8S.) 528.

5 Lord. v. Veazie, 8 How. (U. 6 Ex parte Kellogg, 64 Cal. 343.
S.) 251, 12 L. Ed. 1067; Cleve- 7Richard v. Van Meter, 3
Jand v. Chamberlain, 1 Black Cranch C. C. 214; Thornton v.

3 Davis, 4 Cranch C, C. 500.
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 387

in chancery,® and for a father to remove his child be-
yond the jurisdiction of the court, pending proceedings
for its custody upon habeas corpus. In this case the
father was directed, as it appeared it was under his
control, to appear and bring the child with him, and
not complying he was adjudged in contempt.®

Officers in general.

The general rule has been stated that all corrupt con-
duct, oppression or injustice in execution of office by
color thereof, gross or wilful neglect of duty, and all
misbehavior in office, constitutes a contempt of court.'°

It extends to inferior judges and magistrates, since
the superior courts have a general superintendence
over all inferior jurisdictions."

Hence it is that the mandates of superior courts are
enforced, such as mandamus, prohibition, injunction
and the like.!?

Attorneys.

Attorneys and counselors at law by virtue of their
office bear a close relation to the court. From the
court ordinarily they obtain their right and privilege |
to practice the law, and before it they solemnly obligate
to demean themselves properly in the exercise of their
privilege. It may be truly said that in so far as their
professional relations extend, either in or out of court,
the court exercises the power of supervision. They
are placed upon a different footing in many respects
from those not officers and those that are with respect
to their personal relations and personal demands. If
such an officer bring suit for his compensation, his

8 Whitten v. State, 36 Ind. 196, 112 Hawk 27, Swift v. State,
9 Bx parte Young,50 Fed.Rep. 63 Ind. 81.
526, 12 Patchin v. Mayor, 18 Wend.

102 Hawk P. C. 207, 4 Black, 664; State v. Smith, 9 Towa, 334.
28.
388 HABEAS CORPUS.

case is not judged by the ordinary rules of evidence.
It is true he may by competent evidence show the value
of his services, yet the court and jury are not concluded
thereby, but may exercise their own judgment within
reasonable limits. Again, the attorney is subject to
account to the courts with respect to his dealings with
his client, and the court has the power to correct any
unfair advantage that may have been taken. The power
of the court thus to discipline has never been doubted.
While others may libelously criticise the action of the
court or the purpose of the judges, and no other than
civil responsibility attaches, as held in some of the
states, an attorney enjoys no such liberty. It is his
duty and his oath to demean himself properly at all
times as an attorney and counselor at law, and it is a
flagrant abuse of his privilege when he seeks to bring
the court into disrepute by making false accusations
either in or out of court. Such is the common law, and
such is the statute law, with respect to civil contempts.
The first paragraph or subdivision of the statute which
has been enacted in most of the states provides that
‘all attorneys, counselors, clerks, registers, sheriffs,
coroners, and all other persons in any manner duly
elected or appointed to perform any judicial or minis-
terial services, for any misbehavior in such office or
trust, or for any wilful neglect or violation of duty
therein, for disobedience of any process of such court
or of any lawful order thereof, or of any lawful order
of a judge of such court, or of any officer authorized to
perform the duties of such judge,’’ shall be subject to
punishment as for contempt, etc. In North Carolina
the distinction we have made between an attorney and
a stranger was recognized, and it was there held that
publications derogatory to the court by attorneys con-
stituted criminal contempt.!* Notwithstanding the

18 Ex parte Biggs, 64 N. C. 202; Ex parte Moore, 64 N. C. 398.
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 389

court of that state recognized the statutory distinc-
tion between direct and constructive contempts, a de-
cision of the North Dakota court (State v. Root, 5 N.
Dak. 487, 67 N. W. 590) is contrary. There, where the
defendant used language of an abusive and defama-
tory nature reference to a judge, and such language re-
flected upon the official action of the judge with respect
to cases then pending in said court, and also reflected
upon the private character of the judge, but the lan-
guage was not uttered in the court house, nor in the
immediate view and presence of the court, nor within
sight and hearing of the judge, but was spoken in the
stores, streets and public places of the city in which
the court was being held, it was held that such lan-
guage and conduct did not constitute the offense of
contempt of court. Statutes in general, however, are
explicit to cover all cases of civil contempts, and by this
I mean where the misconduct may impede, impair or
defeat the rights or remedy of a suitor in the particular
action which is pending; but it may well be doubted
whether it is broad enough to cover misconduct which
oceurs after the action has been disposed of,—for in-
stance, where an attorney withholds his client’s papers
or his money after the determination of the legal pro-
ceedings. If the court has any supervision over the
conduct of an attorney, where such are the conditions,
it is by force of its general supervisory power, and not
by force of the statute, for the most conclusive of rea-
sons; that the statute confines and limits the exercise
of the power to actions or proceedings depending or
triable in such court.

A frequent occasion for the enforcement of the civil
rights of a party by the exercise of the statutory power
is to compel the payment of money unlawfully withheld
by an attorney from his client. The act itself is a
contempt, and requires no order from the court direct-
3890 HABEAS CORPUS.

ing its payment to make it so. It was said by the su-
preme court of Georgia: 1* ‘‘Imprisonment under an
attachment for contempt to compel obedience by an of-
ficer of court to a lawful order to pay over money which
he has collected in the course of his official or pro-
fessional duty, is not imprisonment for debt. It is
sound disciplinary dealing with an unruly member of
the forensic household. One who lives and moves
within the precincts of the court misbehaves, to the in-
jury of a person who has trusted him and whose con-
fidence he has abused, and the court orders him to
make redress. He refuses, and the court, as the minis-
ter of law, chastens him by imprisonment, and endeavy-
ors to coerce obedience. It is true he is a debtor; but
he is more than a debtor—he is an assistant in the
affairs of justice, and as such bears a peculiar and
special relation to the law. Through that relation the
court acts upon him, treating him, not as a mere debtor,
but as a domestic of the law who refuses to obey his
master.’’ The doctrine of inability to pay was ap-
plied to the case of an attorney who had collected
money for his client and was unable to pay it over.
It was said the court would not order an impossibility
or imprison a man perpetually for a money obliga-
tion.15

An attorney may be punished for contempt for re-
fusing to deliver papers in his custody, the possession
of which the client is entitled to.1¢

In the Matter of H...:, an attorney (87 N. Y. 521),
it was conceded that the court had the power sum-
marily to punish as for a contempt the refusal of an
attorney to deliver to his client a policy of insurance
which the former had in his possession. The ground

14 Smith v. McLendon, 59 Ga. 16 Pitman’s Case, 1 Curt. C. C.
523. 186; The Laurens, 1 Abb, (U.
15 Kane v, Haywood, 66 N.C.1. SS.) 302.
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 391

upon which this power of the court was stated to rest
is important here as authority for the position we
assumed at the outset, that the statutes respecting
contempts in no manner affect or limit the power of
the court to summarily punish as criminal or civil con-
tempts misbehavior on the part of attorneys. Atten-
tion is called to the fact that the New York court is
one of those which recognizes the statute with literal
scrupulousness. It was said: ‘‘The proceeding was
not one to disbar the attorney for unprofessional con-
duct, and the rules governing such a case are not neces-
sarily applicable here. Neither was it a proceeding
under the code (secs. 14, 2281, 2283), for here was no
action or special proceeding pending in the court, in
which the rights of a party were prejudiced or defeated
by the misconduct alleged. It does not follow, how-
ever, as the appellant contends, that the remedy pur-
sued in this case was without legal authority. It rests
upon the relation of the attorney to the court, and its
officer, and the general control always exercised,
founded upon that relation. The code has not taken
it away, and purports in the sections cited only to re-
gulate it, and dictate the manner of its exercise in the
class of cases specifically mentioned. The general
authority remains, but it is a power which has reason- .
able limitations, and has usually been, and should’
always be, exercised with great prudence and caution,
and a sedulous regard for the rights of the client on
the one hand, and of the attorney on the other.’’ 1”

It was stated in an early case in that state, and
such has been recognized as the law ever since, that
‘‘the summary jurisdiction exercised by the courts for
the purpose of compelling attorneys to perform their
duty to clients is not only just in itself, but it exerts

17 See also Bowling Green Savings Bank v. Todd, 52 N. Y. 489.
392 HABEAS CORPUS.

a wholesome influence upon the whole body of the legal
profession. If the client were driven to the dilatory
and sometimes inefficient remedy by action when the
attorney improperly neglects to pay over money, a
few unworthy members of the bar would bring odium
upon all the rest. It is not essential to the exercise of
this summary remedy that the attorney should have
received the money in any suit or legal proceeding or
that he should have been employed or instructed to
commence legal proceedings. It is enough that the
money was received in his character of attorney, as
when a demand is left with him, with instruction to
call for payment or obtain better security, but without
any direction to sue.’’ 18

In Bogart v. Electrical Supply Co., 27 Fed. Rep.
722, Justice Wallace had occasion to say: ‘‘The statute
(sec. 725, Rev. Stat.) has not restricted the power of
the court to punish for contempt to any officer of the
court in his official transactions or his disobedience
of any lawful order. It was entirely proper to order
the attorney to pay the costs which he had unneces-
sarily imposed upon his client, and decent regard for
the dignity of the court requires that obedience to the
order be compelled. If the respondent had alleged his
inability to comply with the terms of the order, such
an excuse would be considered; but in the absence of
such an excuse, the case is one where the remedy by
attachment should be allowed. The statutes prohibit-
ing imprisonment for debt have no application to such
acase. The courts have always allowed the summary
remedy of an attachment to compel an attorney to ob-
serve the duties incident to his professional relations
towards his clients and towards the other officers of
the court.’’? The United States supreme court, in con-

18 Matter of Dakin, 4 Hill, 42.
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 393

struing the federal statute (sec. 725), state that the
exercise of the power has a two-fold aspect, namely:
first, the proper punishment of the guilty party for his
disrespect to the court or its order, and the second, to
compel his performance of some act or duty required
of him by the court which he refuses to perform. In
the former case the court must judge for itself the
nature and extent of the punishment with reference to
the gravity of the offense. In the latter case the party
refusing to obey should be fined and imprisoned until
he performs the act required of him or shows that it
is not in his power to do it.!®

In that case a decree of court enjoined the de-
fendant from asserting any claim to certain bonds,
and his having stated that notwithstanding the decree
he still owned them, etc. This was held contempt, and
upon the question of punishment the court stated:
“‘The bonds not being in his possession or under his
control, he could not be ordered to deliver them up.
The only order shown to be violated was the one en-
‘joining him from setting up a claim to them. The
petition for the present rule on Chiles asks that he may
be ordered by a proper instrument in writing to convey
and transfer to the state of Texas all rights, titles
and interest which he appears or pretends to have in
such bonds, and the argument says he should be im-
prisoned until he complies with this order. But the
obvious answer to this is that no such order or decree
has been made, and defendant can be guilty of no con-
tempt in not doing this until he has been ordered to do
it, and he is aware of it. To make an order now, and
then punish for contempt or disregard of it before it
was made, is ex post facto legislation and judicial en-
forcement at the same moment.’’

i9 In re Chiles, 22 Wall. 157, 89 U. S. 157, 28 L. Hd. 819.
394 HABEAS CORPUS.

It thus appears that in the federal courts indemnity
to the party is not one of the punishments authorized
by the federal statute; that an order cannot be made
for the purpose of providing for its punishment in
case it is not obeyed. Hence it follows that the power
that such courts exercise in inflicting punishment upon
attorneys does not grow out of the order requiring’
them to pay money, made in contempt proceedings, but
arises from their contempt in not doing so prior to con-
tempt proceedings, and the punishment is for that
contempt; and as no such contempt is enumerated in
the statute, the power exists outside of and beyond the
statute, in those cases in which the duty to pay money
or deliver papers or misbehavior is independent of
and not connected with any litigation, pending or
otherwise.?°

This view is strengthened by the ruling of courts,
‘in effect, that the unlawful claim made by the attorney,
if made in good faith, is never an answer in the pro-
ceeding by attachment. Cases occur where the court
exercises this jurisdiction over attorneys as officers of
the court, in whose correct conduct as officers the dig-
nity of the court itself is involved.”!

The rule with respect to the lien of an attorney, as
held by that court, is that the attorney’s lien extends
to a general balance of account for professional serv-
iees, and that such services are not confined to a liti-
gation which terminates in a technical judgment.”

But the question of the lien and the amount and
value of the services, it seems, are to be determined in
such proceedings.?®

20See also United States v. 22 Tn Matter of Knapp,:85 N. Y.
Atchison, T. & S. F. R. Co., 16 284; Ward v. Craig, 87 N. Y¥.
Fed. Rep. 853. 550; In Matter of H——, 87 N.

21 Bowling Green Savings § Y. 521.

Bank v. Todd, 52 N. Y. 489; Inre 23 Bowling Green Savings

Bleakley, 5 Paige, 311; In Mat- Bank v. Todd, 52 N. Y. 489; In
ter of H——, 87 N. Y. 521. Matter of H——, 87 N. Y. 521.

oY
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 395

The distinction we have maintained and discussed
between attorneys, and those not officers of the court,
with respect to the application of statutes defining and
punishing contempts, was recognized and asserted by
the supreme court of the United States. They say:
‘*We do not doubt the power of the court to punish at-
torneys, as officers of the same, for misbehavior in the
practice of the profession. This power has been recog-
nized and enforced ever since the organization of courts
and the admission of attorneys to practice therein.
If guilty of fraud against their clients, or of stirring up -
litigation by corrupt devices, or using the forms of law
to further the ends of injustice—in fine, for the commis-
sion of any other act of official or personal dishonesty
and oppression—they become subject to the summary
jurisdiction of the court. Indeed, in every instance
where an attorney is charged by affidavit with fraud
or malpractice in his profession, contrary to the prin-
ciples of justice and common honesty, the court, on
motion, will order him to appear and answer, and deal
with him according as the facts may appear in the case.
But this is distinct from that of contempt of court or
the members thereof, committed in open court or in
immediate view and presence, tending to interrupt its
proceedings, or to impair the respect due to its author-
ity.?? 4

The word ‘‘misbehavior’’ as used in the statute, is
very comprehensive. It evidently includes all conduct
on the part of an attorney that is strictly unprofes-
sional; not, however, those matters in relation with his
tellows, or in the manner of soliciting business, which
are of the ethics of the profession. Unseemly con-
duct in court and the use of disrespectful language to
the court in its presence, is a direct contempt.”®

24Ex parte Bradley, 7 Wall. 205; Withers v. State, 36 Ala.

364, 19 L, Ed. 214. , ‘252.
25 Redman v. State, 28 Ind.
396 ‘HABEAS CORPUS.

Filing indecent papers in a case, instituting a ficti-
tious suit, assuming to act as one’s attorney without
authority, are contempts and may be either criminal
or civil.?°

We have alluded to the question of punishment gen-
erally for contempt. The power to punish attorneys
does not extend to disbarment. The statute quite gen-
erally prescribed the character and extent of punish-
ment, and it is quite generally conceded that this is
within legislative control.?7

There are some courts, however, which assume the
power to summarily suspend or disbar an attorney for
contempt.?®

But such an order should not be made where the of-
fense is not so gross as to render him unworthy of the
office.?®

Clerks of court.

The clerk of the court is an officer of the court;
as such he must obey the orders and directions of the
court lawfully issued, and if he refuses his disobedi-
ence may be punished as a contempt.®°

So any fraudulent acts on the part of such an officer
in the line of his official duties, such as withholding
moneys and the like, may be punished as a contempt.*!

26 Brown vy. Brown, 4 Ind. 627;
Smith v. Railroad Co., 29 Ind.
546; Lord v. Veazie, 8 How. (U.
S.) 251, 12 L. Ed. 1067; Denton
v. Noyes, 6 Johns. 296.

27 Hx parte Robinson, 19 Wall.
505, 22 L. Ed. 205; Ex parte
Smith, 28 Ind. 47; State v. Root,
5 N. Dak. 587, 67 N. W. 590; Ex
parte Schenck, 65 N. C. 363.

28 Watson v. Citizens’ Sav.
Bank, 2 S. C, 159; In re Gates,

17 W. N. C. (Pa.) 142; Derby’s
Case, 3 Wheel. Cr. Cas. (Tenn.
Sup. Ct.) 1

29 Watson v. Citizens’
Bank, 5 S. C, 159.

80 State v. Reesa, 57 Wis. 422,
15 N. W. 383; People v. Nevins,
1 Hill, 154; Swift v. State, 63
Md. 91,

81 State v. Tipton, 1 Black.
(Ind.) 166; Connor v. Archer, 1
Speers (S. C.) 89.

Sav.
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 397

‘ An exceptional case is that of Swift v. State, 63 Ind.
31. There the clerk was ordered to pay to the relator
certain moneys deposited with the clerk; the clerk re-
fused obedience and was proceeded against for and ad-
judged to be in contempt. The judgment was reversed
on the ground that the complaint failed to state facts
which would constitute the defendant a fraudulent
' debtor. The court seems to have failed to recognize
the distinction between the conduct of an officer of the
court and that of a third person. The same ground
was taken by the supreme court of Kansas; but there
it was in an action by the attorney for fees, in which
he admitted by his pleadings a certain amount due his
client, which he was ordered to pay over, and for re-
fusal was adjudged in contempt.®?

Sheriffs.

Sheriffs, likewise, being officers of the court, are
guilty of contempt when they disobey the orders of the
court or wilfully or intentionally neglect their duties.
Thus, failure to pay over money, or neglect to collect
it on execution ;** refusing to execute process, or mak-
ing a false return; ** not returning a writ or serving
a venire.®>

Jurors.

Jurors, at common law, while acting as such, are sub-
ject to the supervisory power of the court, and for mis-
behavior are subject to be punished as for contempt.
See Inherent Power of Courts, supra. Instances of
contempts are where, after having retired to consult

32 Cunningham ov. Colonial (Ind.) 166; People v. Marsh, 2

Mortgage Co., 57 Kan. 678. Cow. 493.
s3Hx parte Thurmond 1 35-Broadway v. Wilber, 5 N.
Bailey (S. C.) 605. Johns. 356; Keppele v. Williams,

34 State v. Tipton, 1 Blackf. 1 Dall. (U. S.) 29,1 L. Ed. 23.
398 HABEAS CORPUS.

upon their verdict, they separate and leave the place
of their deliberations ; ?* or where they or some of them
mingle with the bystanders, or hold communication
with persons outside.3*

The mere fact of a juror leaving his seat without
the knowledge of the court and absenting himself from
the court, even though he communicated with no per-
son, has been held a contempt.*®

To corruptly confer with a party to a cause on trial
is manifestly a contempt.?? ;

And so it is a contempt for a juror to express an
Opinion as to the guilt or innocence of a prisoner for
the purpose of disqualifying himself.*°

It is stated that for a juror, during the progress of
the trial of an indictment for an assault, without per-
mission, to view the locality where the offense was com-
mitted, was not a contempt. It is true the New York
court of appeals so decided, but only that such conduct,
while a contempt at common law, was not embraced in
the statutory enumeration of contempts, either civil or
eriminal.*!

Persons other than officers.

We have in a previous chapter referred to the ruling
of courts with respect to the interference of third per-
sons with obedience to the orders of the court. The New
York court classes such an interference with respect
to an order of injunction as a civil contempt, and con-
cludes that any person who interferes with the process
or control or action of the court in a pending litigation
unlawfully and without authority is guilty of a civil

86 Murphy v. Wilson, 46 Ind. 89In re May, 1 Fed. Rep. 737.
537. 40Clark v. Binninger, 75 N.
87 State v. Helcensten, R. M. Y,. 344.
Charlt. (Ga.) 48. 41 People v. Oyer & Ter. Court,

38 Ex parte Hill, 3 Cow. 355. 101 N. Y¥. 245, 4 N. B, 259,
MISCONDUCT OF OFFICERS OF COURT AND OTHERS. 399

contempt if his act defeats, impairs, impedes or preju-
dices the right or remedy of a party to such action or
proceeding.*”

Approaching a juror for the purpose of influencing
him is a contempt.*? So is an attempt to bribe a
juror ;** writing and sending insulting and threatening
letters to the grand jury in relation to matters the sub-
ject of investigation by them;** arranging a signal
with a juryman to give information as to how the jury
stand with respect to their verdict; ** a reporter con-
cealing himself in the jury room and afterwards pub-
lishing their proceedings; ‘7 influencing a witness duly
subpoenaed to go beyond the jurisdiction of the court; *®
attempting to induce one not subpoenaed not to at-
tend; *® striking an attorney in the court room; *° to call
another a liar in the presence of the court and hearing
of its officers; violent language and assault committed
in a hall adjoining the court room and within the hear-
ing of the court when in session.*4

42 King et al. v. Barnes, 113 47 Matter of Choate, 24 Abb.

Y. 476, 21 N. EB. 182.

43 Cuddy, Petitioner, 131 U. S.
280, 33 L. Ed. 154, 9 Sup. Ct.
Rep. 703.

44Langdon v. Wayne Circuit
Judges, 76 Mich. 358, 43 N. W.
310.

45 Matter of Tyler, 64 Cal. 434,

46 State v. Doty, 32 N. J. L.
403.

N. C, 430.

48 Hale v. State, 55 Ohio St.
210, 45 N. EL 199, 36 L. R, A.
254,

49 Montgomery v. Palmer, 100
Mich. 436, 59 N. W. 148.

50 United States v. Patterson,
26 Fed. Rep. 509,

51 United States v. Emerson, 4
Cranch, 183.
400 HABEAS CORPUS.

CHAPTER X.
POWER TO PUNISH FOR CONTEMPT.

§ 101. In General.
Federal and State Legislatures.
Practice where Body without Authority to Punish.

§ 101. In general.

- The doctrine is asserted that except in certain cases
hereinafter stated, the power to impose a fine or of
imprisonment in order to compel the performance of'a
legal duty, can only be exercised under the law of the
land by a competent judicial tribunal having jurisdic-
tion in the premises.1

It was early held in this country, that the power to
punish for contempt was confined to legislative and
judicial bodies.2 Thus: a witness who refuses to be
sworn or to testify before a grand jury. Such power
has been adjudged inherent in the federal senate and
house of representatives, although not expressed. in
the constitution. A like power exists in each branch
of state legislatures.*

A city council has no such power. It is not a legis-
lature. ‘It has no power to make laws but merely to
pass ordinances upon such local matters as the legis-
lature may commit to its charge, and subject to the
paramount control of the legislature.

It is not a court, nor is it vested with any judicial
powers whatever. The legislature may provide for

1Interstate Commerce Com- Commerce Commission v. Brim-
mission v. Brimson, 154 U. S._ son, 154 U.S. 447, 38 L. Hd. 1047.

447, 38 L. Hd. 1047, 14 Sup. Ct. 3 Anderson v. Dunn, 6 Wheat
Rep. 1125, 15 Sup. Ct. Rep. 19; = 204.

Whitcomb’s Case, 120 Mass. 118, 4Burnham vy. Morrissey, 14
21 Am. Rep. 502. Gray, 226, 74 Am. Dec. 676;

2 Anderson v. Dunn, 6 Wheat. State v, Mathews, 37 N. H. 450;
204, 5 L. Ed. 242; Interstate Falvey’s Case, 7 Wis. 630.
POWER TO PUNISH FOR CONTEMPT. 401

the punishment upon trial in the courts of any. person
who being duly summoned refuses to appear and testify
before any board or tribunal upon a matter which it is
authorized by law to investigate or decide. But the
legislature cannot delegate to or confer upon munici-
pal boards or officers, that are not courts of justice,
and whose proceedings are not in the exercise of judi- ,
cial. power, the authority to imprison and punish, with-
out right of appeal or trial by jury. One so imprisoned
may be discharged upon habeas corpus. A statute con-
ferring such power is unconstitutional and void.®

The interstate commerce commission has no such
power, hence the inquiry whether a witness before
the interstate commerce commission is bound to answer
a particular question propounded to him, or to pro-
duce books and papers in his. possession called for by
that body, is one that cannot be committed to such
body or any other subordinate or executive tribunal for
final determination. Such body, under our system of
government and consistently with due process of law,
cannot be invested with authority to compel obedience
to its orders by a judgment of fine or imprisonment.®

In Ohio it is held that the statute is valid conferring
upon notaries public the power, when engaged in tak-
ing depositions, to punish a contumacious witness for
contempt in refusing to answer questions.”

The point was raised there, as might have been ex-
that, such power being judicial, it could be exercised
only by judicial officers. It was held at the outset
that the power thus conferred is not judicial in the
sense of the constitution conferring all judicial power

. 8 Whitcomh’s: Case, 120 ‘Mass. 14 Sup. Ct. Rep, 1125, 15 Sup. Ct.
118; 21.Am.' Rep. 502. ; Rep. 19.

¢Interstate Commerce Com- 7De Camp v. Archibald, 50
mission .v. Brimson, 154 U..S. Ohio, 618.
447, 155 U.S. 3, 38 L. Ed, 1047,

26
402 HABEAS CORPUS.

upon the courts of the state, yet it was also held that
the phrase ‘‘judicial power,’’ as used in the constitu-
tion, is not capable of precise definition; that it is in-
cluded in the power to hear and determine, but does
not exhaust the power; that it does not necessarily in-
clude the power to hear and determine a matter that
is not in the nature of a suit or action between the
parties. Power to hear and determine matters more
or less directly affecting public and private rights is
conferred upon and exercised by administrative offi-
cers. This is somewhat after the reasoning of the
New York court of appeals in People v. Keeler, 99 N.
“Y. 463, 2 N. E. 615. The ground upon which the deci-
sion is made to rest seems to be that such power was
exercised at the time of the adoption of the constitu-
tion, and the phrase ‘‘judicial power’’ must be inter-
preted with reference to the usages and customs of the
country at the time of its adoption. The power is up-
theld by the decisions of other states under similar stat-
utes.®

Federal and state legislatures.

The authority of the house of representatives to
punish for contempt, was determined by the United
States supreme court. It was held that neither house
of congress was constituted a part of any court of
general jurisdiction, nor has it any history to which
the exercise of any such power can be traced. Its
power must be sought alone in some express grant in
the constitution or be found necessary to carry into
effect such powers as are there granted.

It was said ‘‘whether the power of congress to punish
for contempt goes beyond such questions as are in-
volved in the matter of determining as to the election

8 Dogge v. State, 21 Neb. 272, Kan, 541; Ex parte McKee, 18
31 N. W. 929; In re Ables, 12 Mo. 599.
POWER TO PUNISH FOR CONTEMPT. 403

and qualification of its members, authority over its
own members, to compel their attendance and punish
for disorderly conduct; no person can be punished for
contumacy as a witness before either house, unless his
testimony is required in a matter into which that house
has jurisdiction to inquire, and we feel equally sure
that neither of these bodies possess the general power
of making inquiry into the private affairs of the citi-
zen.’? ®

The resolution of the house under which the plaintiff
Kilbourn was summoned and examined as a witness
‘directed its committee to examine into the history and
character of what was called ‘‘the real estate pool’’
of the district of Columbia; and the preamble recited
as the grounds of investigation that Jay Cooke & Co.,
who were creditors of the United States, and whose
affairs were then in litigation before a bankruptcy
court, had an interest in the pool or were creditors of
it. It was said: ‘‘The subject matter of the investiga-
tion was judicial and not legislative. * * * In all
the argument of the case no suggestion has been made
of what the house of representatives or the congress
could have done in the way of remedying the wrong
or securing the creditors of Jay Cooke & Co., or even
the United States. Was it to be simply a fruitless in-
vestigation into the personal affairs of individuals?
If so, the house of representatives had no power or
authority in the matter more than any other equal
number of gentlemen interested for the government of
their country. By fruitless, we mean that it could re-
sult in no valid legislation on the subject to which the
inquiry referred.’’

Such doctrine, however, does not go to the extent of
preventing an inquiry whether members have been or
are speculating in stocks, during consideration of a

® Kilbourn vy. Thompson, 103 U. S. 168, 26 L. Ed. 377.
404 HABEAS CORPUS.

tariff: bill then ‘pending before the particular body:?°

Notwithstanding this express declaration of the law
and the limitations upon congress, in respect to’ in-
vestigations into the affairs of individuals or private
concerns, we find that today, the congress of the United

‘States, by committee or commissions, is delving into
the affairs of private concerns, where their delinquen-
cies are the subject of investigation by the courts in
suits actually pending. What the purpose it, no one
can explain. ‘Whatever result may be reached will be
as stated by the court ‘‘fruitless.’’

' The constitution of Massachusetts expressly confers
the power to punish for contempt upon either branch

‘of its legislature, and, while they may exercise that
power in cases where a witness contumaciously refuses
to answer questions or produce books and papers that
are pertinent to the inquiry, I do not understand that
even the power to make inquiry is unlimited, or that
they can proceed to investigate matters of private con-
cerns, that in no way relates to their public duties and
punish a witness for refusal to testify.1!

It is said by the court: ‘‘The house of representa-
tives is not the final judge of its own powers and privi-
leges in cases in which the rights and liberties of the
subject are concerned, but the legality of its action may
be examined and determined by this court.’ 22

‘A’ person held in custody by order of either branch

of the ‘legislature, is entitled to have the cause of his
‘imprisonment éxaminéd on habeas corpus.1?

The suprethe court of Wisconsin early in its history,
seems to have‘determined 'that the power of the legisla-
ture was almost unlimited, as it held that the legisla-

10In re Chapman, tes U.S. 12 Burnham v. Morrissey, 14
"661, 44 L, Bd! 1154, 17° Sup. Ct. Gray, 226,' 74° Am,’ Dec. 676.
Rep. 677. ‘18 Emery’s ' Gdse, “107 ‘Muss.

11 Burnham v. , Morrissey, 14 = 180.
Gray; 226; 74 Am. Dec: 676.
POWER TO PUNISH FOR CONTEMPT. 405

ture has power to institute-an inquiry into the truth
of an alleged bribery of any of its members, or of the
members of a previous legislature, connected with the
disposal of a trust committed to the legislature of the
state, and continuing under its present and future
guardianship and supervision, and in the exercise of
such power, it must necessarily have power to and may
compel the attendance of witnesses before it or before a
committee of either house or a joint committee of both
houses and compel such witnesses to testify ; and also to
inflict punishment for contempt upon such witnesses for
their refusal to testify. It was stated by the court:
‘*Tt should seem that the rules which in a court of law
would excuse a witness from answering questions tend-
ing to criminate him, have no application in investiga-
tions before the legislature of a state.’’ 14

This last proposition will hardly find support else-
where. The inquiry is at once suggested in respect
to the determination of the court as to the first proposi-
tion, in so far as it relates to the conduct of members of
a former legislature, what is the significance of the
result of such an investigation? What thereafter is
within the power of the legislature to do in case the
conclusion is that members of a former legislature
were guilty of bribery? It had no power to pun-
ish them for the offense. That power was vested in
the courts. The investigation in the first instance, as
to whether a crime had been committed was with the
grand jury. It had no power to expel such members
as they were not members.

The same question was reviewed in Emery’s Case,
107 Mass. 172. Speaking of the constitutional guar-
anty, it was said that by the narrowest construction
this prohibition extends to all investigations of an

14In re Falvey, and Kilbourn, 7 Wis, 528.
406 HABEAS CORPUS.

inquisitorial nature, instituted for the purpose of dis-
covering crime, or the perpetrators of crime, by put-
ting suspected parties upon their examination in re-
spect thereto, in any manner; although not in the course
of any pending prosecution. But it is not even thus
limited. The principle applies equally to any com-
pulsory disclosure of his guilt by the offender himself,
whether sought directly as the object of the inquiry,
or indirectly, and incidentally for the purpose of estab-
lishing facts involved in an issue between other parties.
If the disclosure thus made would be capable of being
used against himself as a confession of crime, or an
admission of facts tending to prove the commission of
an offense by himself, in any prosecution then pending,
or that might be brought against him therefor, such dis-
closure would be an accusation of himself, within the
meaning of the constitution.

In a recent case the same court had before it the
question of the power of the legislature to investigate
the manner in which the primary election of party
candidates for the office of United States senator was
conducted, and any alleged improper conduct of candi-
dates voted for at such election. It was determined
by the court, that the legislature has very broad dis-
cretionary power to investigate any subject respecting
which it may desire information in aid of the proper
discharge of its function to make or unmake written
laws, or perform any other act, delegated to it by the
fundamental law, state or national, and to proceed
with that end in view by a duly authorized committee
of one or both branches of the legislature, and to incur
expense reasonably necessary payable out of the public
funds.

The workings of the primary election law for the
selection of party candidates for the office of United
States senator, including the conduct, legitimate or
POWER TO PUNISH FOR CONTEMPT. 407

illegitmate of persons voting for, or voting at such
election, as bearing on the policy of retaining or amend-
ing such law or the advisory force of its result in the
given case, is a proper subject for legislative inquiry
independently of whether the law is valid or not.

The court declined to determine the validity of such
law, contenting itself with the statement that the resolu-
tion cannot be regarded as a mere attempt to adminis-
ter a void law, because it is broad enough to cover the
field of legislative inquiry, respecting the policy of such
laws regardless of whether the particular one is valid
or not.1>

If the law referred to was invalid, where the neces-
sity or purpose of investigating its workings? It was
not a case of some part of a law being invalid, and
which was subject to amendment, but a case whether
the subject matter of the law was within the power of
the legislature, and if not within its power, then the
power to investigate its workings, must also have been
beyond its power. Suppose a witness had refused to
testify and he was imprisoned for contempt. What
would have been the attitude of the court if he sought
his release upon habeas corpus?

However, it was plain that such investigation had no

~such purpose as stated by the court. It. was instigated
in behalf of a dominant political faction, to be used as
a means for unseating a successful candidate for the
office of United States senator as subsequent events
have clearly demonstrated. It was conceived and
actuated by malice and for the purpose of political
revenge or gain. Such was the use made of it. It will
be noted that the court in thus making its declaration
of the law, made no reference to any precedent nor
principle of law, nor was any argument made by way

15 State ex rel. Rosenhein v. Frear, 188 Wis. 173, 119 N. W. 894.
408 HABEAS CORPUS.

of demonstrating it. If such were law, the legislature
is clothed with power to investigate the conduct of any.
individual, without reference to any law, as an uncon-
stitutional law is no law, in any of the affairs of life,
upon the principle that the legislature has such a dis-
cretion, to enable it to get information which it may
deem necessary in respect to framing future laws. A
different question would have been presented if the
court had declared the law valid.

In New York, where power is conferred by statutes
authorizing legislative committees to take testimony
and summon witnesses, and also to enforce its process
by imprisonment, it was held: ‘‘This power may only
be exercised where the investigation which the commit-
tee may make is a legislative proceeding which the
house is authorized to institute. That an investigation
for the mere purpose of investigation, or for political
purposes, not connected with intended legislation or
with any other matters upon which the house can act,
is not a legislative proceeding which gives jurisdiction
to compel the attendance of witnesses or to punish’
them for refusing to attend. Where, however, public
institutions belonging to the state or public officers are
ordered to be investigated, it is presumed it is with a
view of some legislative action in regard to them.’’ !°

In many of the illustrations stated, the result as to
the invalidity of the orders in question was reached.
upon a method of review other than that of habeas
corpus. However it may be safely stated quite gen-
erally, as a rule and especially in the federal courts,
that where a person is held in imprisonment as for
contempt in disobeying any order of a court, which
order is void for any reason, one beyond the authority
of the court or particular officer to make, that habeas

16 People v. Keeler, 99 N.Y. 468, 2 N. E. 615.
POWER TO PUNISH FOR CONTEMPT. 409:
corpus is the proper remedy by which to obtain his
release.!7

Practice where body without authority to punish.

The usual practice in chancery for an attachment
against a witness for contempt before a master re-
quires an application to the court.'8

A like practice is prescribed by act of congress
in cases of commissioners to take depositions to. be used
abroad and of registers in bankruptcy,’® and likewise
in proceedings before the interstate commerce com-
mission; ?° and where a witness refuses to testify be-
fore a grand jury he must be brought before the court
to be dealt with.” - :

Prior to revision of 1878 court commissioners in
Wisconsin did not have the power to punish for con-
tempt, but were compelled to report the facts to the
court.??

Quite generally it is provided by statute that where
a witness properly summoned to testify before such a
board refuses to testify or produce books and papers,
any judge of a court of record or court commissioner
may issue an attachment to bring such witness before
him, and unless such witness purges himself of the
‘contempt may be committed.”*

a0 Interstate Commerce Com-
mission v. Brimson, 154 U. S.

17 Bx parte Rowland, 104 U. S.
604, 28 L. Ed. 861; Ex parte

Fisk, 1138 U. S. 713, 28 L. Ed.
1117, 5 Sup. Ct. Rep. 724; In re
Ayres, 123 U S. 443, 31 L. Ed.
216, 8 Sup. Ct. Rep. 164; In re
Sawyer, 124 U. S. 200, 31 L. Ed.
402, 8 Sup. Ct. Rep. 482.

182 Dan. Ch. Prac. (4th Am.
ed.) 1178, 1198.

19 Rev. Stat. secs. 4071, 4073,
4999, 5002, 5005, 5006.

447, 38 L. Hd. 1047, 14 Sup. Ct.
Rep. 1125.

21 Heard v. Pierce, 8 Cush. 338,

22 Haight v. Lucia, 36 Wis.
355; Stuart v. Allen, 45 Wis.
158.

‘23 State v. Lonsdale, 48 Wis.
348, 4 N. W. 390.
410 HABEAS COBPUS.

CHAPTER XI.
PROCEEDINGS AND JUDGMENT,

§ 102. Summary Proceedings.
103. Constructive Contempts.
Notice and Opportunity to be Heard.
104. Review of Proceedings.
Of Federal Courts.
Of State Courts.
In General.
Method of Review.
In General.
By Certiorari.
By Appeal.
By Habeas Corpus.

§ 102. Summary proceedings.

Where the contempt is committed in the immediate
view and presence of the court, it may proceed sum-
marily to punish the offender. It may upon its own
knowledge of the facts; without further proof, without
issue or trial (and without hearing an explanation of
the motives of the offender), immediately proceed to
determine whether the facts justify punishment, and to
inflict such punishment therefor as the law allows.t

It was stated in the first case cited that ‘‘the jurisdic-
tion of a circuit court to inflict punishment for a con-
tempt committed in its presence is not defeated by the
voluntary retirement of the offender from the court
room to a neighboring room in the same building after
committing the offense; but is within the discretion of
the court either to at once make an order of commit-

1x parte Terry, 128 U. S. Rep. 77; Whitten v. State, 36
289, 32 L. Ed. 405, 9 Sup. Ct. Ind. 311.
PROCEEDINGS AND JUDGMENT. 411

ment founded on its own knowledge of the facts, or to
postpone action until the offender can be arrested on
process, brought back into its presence and given an
opportunity to make formal defense against the charge
of contempt.’’ In the second, ‘‘when the contempt is
committed in the presence of the court, and the court
- acts upon view and without trial and inflicts the pun-
ishment, there will be no charge, no plea, no issue and
no trial; and the record that shows the punishment will
also show the offense, and the fact that the court had
found the party guilty of the contempt. On appeal to
this court any fact found by the court below would be
taken as true, and every intendment would be made in
favor of the action of the court.’’?

It was further said in Ex parte Terry that whether
the facts justified such punishment was for the court
to determine under its solemn responsibility to do
justice and to maintain its own dignity and authority.
Its conclusions upon such facts is not, under the statute
regulating the jurisdiction of this court, open to in-
quiry or review in this collateral proceeding. It was
also stated: ‘‘It is true, as counsel suggest, that the
power which the court has of instantly punishing, with-
out further proof or examination, contempts committed
in its presence is one that may be abused, and may
sometimes be exercised hastily or arbitrarily; but that
is not an argument to disprove either its existence or
the necessity of its being lodged in the courts. That
power cannot be denied them without inviting or caus-
ing such obstruction to the orderly and impartial ad-
ministration of justice as would endanger the rights
and safety of the entire community.’’

What constitutes ‘‘in the presence of the court,’’
within the meaning of the statute, has heretofore been
considered. Sec. 63, et seq.

2See also to the same effect, Ex parte Wright, 63 Ind. 504.
412 HABEAS CORPUS.

§ 103. Constructive contempts.—Notice and oppor-
. tuunity to be heard.

Where, however, such is not the fact, but the con-
tempt is committed out of the view and hearing of the
court, the offender must have notice and be given an.
cpportunity to be heard. This is sometimes by at-
tachment, rule to show cause, or similar proceeding.
Thus it was said: ‘‘The charge of contempt should not
in any case be followed by sentence and imprisonment,
unless after a rule to show cause has been granted and.
the party defendant therein heard and permitted to

. offer evidence and argument.’’ It was held that any-
thing less than that would constitute a want of ‘‘due
process of law,’’ or a proceeding not in accord with the
‘law of the land,’’ rendering the judgment void?

The court approvingly quoted Mr. Webster’s famous
definition of the phrase “‘law of the land’’ framed in
the famous Dartmouth college case: ‘‘By ‘the law of
the land’ is most clearly intended the general law
which hears before it condemns, which proceeds from
inquiry, and renders judgment only after trial. The
meaning is that every citizen shall hold life, liberty,
property and immunities under the protection of gen-
eral rules which govern society.’? It was stated by
another court that ‘‘contempt of court is a specific
criminal offense, and a party charged therewith, al-
though the proceeding is more or less summary in char-
acter, has the same inalienable right to be heard in his
defense, especially in instances of constructive con-
tempt, as he would against a charge of murder or any
other crime.’’ +

3 State v. Orleans Civil Judges, published a version of the testi-
32 La, Ann. 1256, mony of a witness given on trial
4 McClatchy v. Superior Court, then pending. Upon the atten-
119 Cal. 413. It appeared in this tion of the court being called
case that a prominent paper had to such statement, the judge
PROCEEDINGS AND ‘JUDGMENT.

413

In the recent case of Hovey v. Elliot, 167'U. S. 409,
42 -L. Ed. 215,:17 Sup. Ct. Rep. 841, where in a civil
action the court had stricken out the answer of a
‘party because of his contempt of an order requiring
him to pay money into court and rendered judgment
against him pro confesso, and where it was held that
the act was beyond the power of the court, and the
judgment could be assailed collaterally, it was said:
_‘*Can it be doubted‘that due process of law signifies a

stated from the bench that he
had no hesitation in saying that
the statement referred to was
agrossly false statement, a
gross fabrication, and there was
not the slightest ground in the
testimony of the witness upon
which such statement could be
based. The paper in the after-
noon of that day’ published a
bitter and venomous article, re-
iterating its former statements,
insisting that they were true,
and reflecting upon the judge,
using expressions:
cial and vindictive czar upon
the bench aids and abets them
in such purpose.” “The attor-
‘ney and the judge on the
bench knew that the statement
published * * * was a_ correct
epitome of the testimony * * *
“at the very moment when they
unhesitatingly, shamelessly and
brazenly declared it to be a gross
fabrication.” The editor was
duly cited to appear and did ap-
pear and- answered, justifying
‘the. publication on the ground
that they were true and pub-
lishéd to” défend himself from
‘the ‘charge ‘made by ‘the judge.
The reporter was examined, and

“A prejudi- .

the court found the facts that
such publication was not a true
version of the testimony, but a
grossly incorrect version, and
that the publications were an
unlawful interference with the
proceedings of the court in the
trial of the cause, and adjudged
the offender guilty and imposed
a fine. The defendant offered
and requested to be allowed to
introduce evidence to show that
the published version was true.
This was denied, but he was told
that he could show that the
publication was without malice.
It was held by a bare majority
that the court erred in not al-
lowing the defendant to intro-
duce proof as to the correctness
of such publication, and such
error went to the jurisdiction of
the court. One of the judges
was of the opinion that the ar-
ticle-was not contemptuous; that
it was justified; that a judge
upon the bench, no more than

‘any other, ‘can cast -aspersions

upon the character of a’ person
not a party or participant in a

case on trial without a right in
- the latter to defend himself.
414 HABEAS CORPUS.

right to be heard in one’s defense? If the legislative
department of the government were to enact a statute:
conferring the right to condemn a citizen without any
opportunity whatever of being heard, could it be pre-
tended that such an enactment would not be violative
of the constitution? If this be true, as it undoubtedly
is, how can it be said that the judicial department, the
source and fountain of justice itself, has yet the author-
ity to render lawful that which, if done under the ex-
press legislative sanction, would be violative of the
constitution? If such power obtains, then the judicial
department of the government, sitting to uphold and
enforce the constitution, is the only one possessing a
power to disregard it. If such authority exists, then,
in consequence of their establishment to compel obe-
dience to law and enforce justice, courts possess the
right to inflict the very wrongs which they were created
to prevent.’? And, as showing that it is not sufficient
that the court shall go through the mere form of citing
a party to appear upon the pretense of giving him a
hearing, while in fact denying him the right in its
substance, it was further said: ‘‘Until notice is given,
the court has no jurisdiction in any case to proceed to
judgment, whatever its authority may be by the law
of its organization over the subject matter. But no-
tice is only for the purpose of affording the party
an opportunity of being heard upon the claim or the
charges made. It is a summons to him to appear and
speak, if he has anything to say, why a judgment should
not be rendered. The denial to a party of the benefit
of a notice would be in effect to deny that he is en-
titled to notice at all, and the sham and deceptive pro-
ceeding had better be omitted altogether. It would
be like saying to the party, appear and you shall be
heard; and when he has appeared, saying, your ap-
pearance shall not be recognized and you shall not be
PROCEEDINGS AND JUDGMENT. 415

heard,’’ and quoting from Galpin v. Page, 18 Wall. 350,
86 U.S. 350, 21 L. Hd. 959: ‘‘It is a rule as old as the
law, and never more to be respected than now, that no
one shall be personally bound until he has had his day
in court; by which is meant, until he had been duly cited
to appear, and has been afforded an opportunity to
be heard. Judgment without such citation and op-
portunity wants all the attributes of a judicial deter-
mination; it is judicial usurpation and oppression, and
can never be upheld where justice is justly adminis-
tered.’’

§ 104. Review of proceedings.—Of federal courts.

The general rule that when a judgment of a circuit
court or district court of the United States, is attacked
collaterally every intendment will be made in support
of jurisdiction, unless the want of it either as to subject
matter or as to person appears in some proper form,
applies to contempts.

While the circuit and district courts are courts: of
limited jurisdiction, they are not on that account in-
ferior courts in the technical sense of those words,
whose judgments alone are to be disregarded. If the
jurisdiction be not alleged in the proceedings, their
judgments and decrees are erroneous and may, upon
a writ of error or appeal, be reversed for that cause.
But they are not absolute nullities.®

A petitioner for a writ of habeas corpus to obtain
his discharge from imprisonment under the judgment
and sentence of a district or circuit court of the United
States for contempt, is at liberty to allege and to prove
facts not contradicting the record which go to show
that the court was without jurisdiction. (Secs. 754,
757, 760, 761, Rev. Stat.)® Yet if such facts merely

5In re Cuddy, 131 U. S. 280, 33 6In re Cuddy, 131 U. S. 280, 33
L Hd. 154, 9 Sup. Ct. Rep. 703. L Ed. 154, 9 Sup. Ct. Rep. 703.
416 HABEAS ‘ CORPUS.

show that: the court proceeded irregularly, or that it
committed mere error in its proceedings, the prisoner
will be remanded, as such questions cannot be reviewed
upon habeas corpus.

The facts were that a judgment debtor, subject to
arrest: on an execution against his body, desired ‘to
take the oath for relief of poor. debtors as authorized
by the Massachusetts statutes, and an examination be-
‘fore a United States commissioner was begun. Pend-
ing this, a charge of fraud was filed against him, in
having fraudulently disposed of his property with in-
tent to defraud his creditors. -His examination as a
poor debtor was suspended and.a hearing had on, the
charge of fraud. The charges of fraud were sus-
tained and the debtor was sentenced to be imprisoned
‘for six months. The commissioner. refused to resume
the poor debtor examination: The debtor, before the
commissioner, offered evidence from the court of in-
solvency for the county of Suffolk, in the district, that
proceedings in insolvency had. begun and were then
pending. To the charge of fraud the debtor put in
a plea of want of jurisdiction as to such charges, on
the ground that all of the transfers of property alleged
against him were made in New Hampshire and while
he was an inhabitant thereof and that at the time of
filing such charges he had been adjudged an insolvent
debtor under the laws of Massachusetts, and all of
his right, title and interest in the property mentioned
-had become vested in the said court of insolvency. He
obtained from the circuit court of the United States a
writ of habeas corpus. At the hearing evidence was
introduced by both parties as to what. took place be-
‘fore the commissioner. That. court. discharged «the
writ and the debtor appealed to the supreme court
where it was held, that if the proceedings and order. of
the: commissioner.-were not lawful,- what:he didswas
PROCEEDINGS AND JUDGMENT. 417

within his jurisdiction to do, and affirmed the order of
the circuit court.

It is further stated in the case cited that the courts
of the United States take judicial notice of the laws
of all the states.

Of state courts—In general.

The power of appellate courts to review the proceed-
ings of subordinate courts in cases of judgments for
contempt as well as the method of review has been the
’ subject of much discussion, and one upon which courts
have not uniformly reached the same conclusion. In
discussing this question it is necessary that we classify
the proceedings under two heads or subdivisions,
that of criminal and civil contempts; and in order to
avoid confusion, to declare that, in so far as this ques-
tion is concerned, under such classification, that crimi-
nal contempts include all such proceedings and orders
where the punishment imposed is not for the benefit
of the party, but to vindicate the dignity and authority
of the court. The question of the jurisdiction of the
court to make the order or judgment is always open
to inquiry. In some jurisdictions the old rule seems to
prevail, in effect that the final judgment and order for
criminal contempt is not the subject of review upon
any other ground than that of want of jurisdiction;
while in others, upon review, the court may look into
the record to ascertain whether the alleged misconduct
was in law a contempt;” and in still others the court
may inquire into the regularity of the proceedings.®

But the inquiry will not be extended as to whether,
‘in other respects, the order should or should not have
been made.®

7 State ex rel. Leftwich v. Dis- 8 Commonwealth vy. Newton, t
trict Court, 41 Minn. 42; People Grant (Pa.) 453.

ex rel. Kelley, 24 N. Y. 74; In re ® Ex parte Terry, 128 U. S. 289,
Wood, 82 Mich. 75, 45 N. W. 1113.

27
418 HABEAS CORPUS.

The validity of the order alleged to have been dis-
obeyed, and for the disobedience of which the person
is adjudged to be in contempt, is a proper subject of re-
view. If the order is void, then there can be no con-
tempt. No one can be punished for violation of a
void order,—one not voidable merely.”

What will be considered has been fully stated in
previous pages, it thus appearing that the courts are
not fully agreed.

Method of review.—In general.

The method of review is a question also upon which
the courts are widely at. variance. Thus, it is quite
generally held that, with respect to civil contempts,
the appellate courts possess the power of review by
appeal, and the reason ordinarily given is that such
proceedings are in the nature, at least, of special pro-
ceedings, and in such cases the remedy by appeal is
secured.1!

In such case it is a remedy of a party to enforce his
rights in the original action, and under state constitu-
tions the appellate jurisdiction of the court extends
to all cases in law and in equity.!”

In cases of criminal contempt, however, the purpose
is public, collateral to the issues involved therein, and
there can be no appeal.'*

32 L. Ed. 405, 9 Sup. Ct. Rep. 77;
Talman y. Jones, 114 Ill. 147;
State ex rel. v. District Court, 41
Minn, 42.

10x parte Terry, 128 U. S.
289, 32 L. Ed. 405, 9 Sup. Ct.
Rep. 77; Brown v. Moore, 61 Cal.
432; Huerstal v. Muir, 62 Cal.
480; State v. Rightor, 32 La.
Ann, 1182.

11 State ex rel, Leftwich v. Dis-
trict Court, 41 Minn. 42; In re

Ida Louisa Pierce, 44 Wis. 411;
People ex rel. v. Kelley, 24 N. Y.
74; In re Day, 34 Wis. 638; Wit-
ter v. Lyon, 34 Wis. 564; Worden
v. Searles, 121 U. 8. 14, 30 L. Ed.
853, 7 Sup. Ct. Rep. 814.

12 State v. Webber, 38 Minn.
397, 37 N. W. Rep. 949.

is State ex rel. Leftwich v. Dis-
trict Court, 41 Minn. 42; In re
Ida Louisa Pierce, 44 Wis. 411.
PROCEEDINGS AND JUDGMENT. 419

Where the commitment is to enforce a duty or ob-
ligation on the part of a party to the action, until that
duty be performed, arising in a civil action, it would
seem that such an order may be reviewed upon appeal,
though the purpose of the commitment was not under a
statute to indemnify a party for loss or injury oc-
casioned by the misconduct of a party.!*

By certiorari.

If one not a party be thus committed until a duty
within his power be performed, or until he is willing
to so perform, it would seem that the proceeding may be
reviewed on certiorari, and the determination upon such
writ reviewed upon appeal to the appellate court to
the extent of determining whether the matter alleged

was in fact a contempt or not.1®

14 Warren et al. v. Rosenberg,
94 Wis. 523, 69 N. W. 339. The
New York court of appeals
(Brinkley v. Brinkley, 47 N. Y.
40), state generally that an order
adjudging defendant in contempt
and prescribing a punishment is
an order made in a special pro-
ceeding and affects a substantial
right, and, if final, is appealable
to that court. If, however, the
order is conditional and the pun-
ishment is not inflicted absolute-
ly, but it is in the power of the
defendant to avert it, it is not a
final order and is not appealable.
This statement was made where,
in an action for divorce, the de-
fendant had been convicted of
contempt in not obeying the or-
der of the court requiring the
payment of alimony, and his
answer was ordered to be
stricken out unless he complied
with such former order. In an-

other case where, in supplemen-
tary proceedings, the defendant
refused to leave his books of ac-
count with the referee, he was
adjudged guilty of contempt and
a fine was imposed, and he was
ordered committed until he pro-
duced and left the books with
the referee. Such being a final
order, it was held that an ap-
peal would lie. Sudlow v. Knox,
7 Abb. Pr. R. (N. S.) 411. Cases
of the latter class are considered,
as we have seen, civil contempts,
and quite generally are subject
to appeal; not ordinarily, how-
ever, on the ground that they are
orders made in a special pro-
ceeding, but that they are pro-
ceedings in the action affecting
a substantial right, and there-
fore appealable,

15 People ex rel. v. Kelley, 24
N. Y. 74.
420 HABEAS CORPUS.

The provisions of the New York code of criminal
procedure (sec. 515) abolishing writs of error and
certiorari, and enacting that judgments and orders in
criminal cases, and orders in special proceedings of a
criminal nature, may be reviewed only by appeal, do
not include proceedings to punish for a criminal con-
tempt. An order, therefore, made in proceedings to
punish for a criminal contempt (for instance, against
a witness for refusal to answer) may be reviewed upon
certiorari.1¢

It would seem that certiorari is the proper remedy.
in all cases where review is allowed, and the miscon-
duct for which the person is committed arises in a civil
action, and the judgment or order is for a criminal con-

tempt, and from which an appeal is not allowed.17

1¢People ex rel. Taylor v.
Forbes, 143 N. Y. 219, 38 N. EB.
303.

17 State ex rel. Leftwich v.
District Court, 41 Minn. 42; In re
Murphy, 39 Wis. 280. It is the
doctrine of the supreme court of
California that where the action
of the court is merely erroneous,
it cannot be reviewed on cer-
tiorari; that the court having
jurisdiction of the person and
subject matter, the mere method
in which it exercised such juris-
diction cannot be inquired into
in this proceeding, which looks
only to the question of jurisdic-
tion. McClatchy v. Superior
Court, 119 Cal. 413. Where,
however, it was held that a
person wag denied the oppor-
tunity of being heard in his de-
fense, it was said: “It was er-
ror certainly, but it was more
than that. It was a transgres-

sion of a fundamental right,
guaranteed to évery citizen
charged with an offense, or
whose property is sought to be
taken, of being heard before he
is condemned to suffer injury.
Any departure from those recog-
nized and established require-
ments of the law, however closé
the apparent adherence to mere
form in method of procedure,
which has the effect to deprive
one of a cotistitutional right, is
as much in excess of jurisdiction
as where there exists ai incep
tive lack of power. The sub-
stance, and not the shadow, de-
termines the validity of the exet-
cise of the power.” It was
further stated that while the
writ of certiorari was not a writ
of error, it is nevertheless 4
means by which the power of
the court in the premises can
be inquired into; and for this
PROCEEDINGS. AND JUDGMENT. 421
By appeal.

Proceedings of such a character are essentially crimi-.
nal in their nature, and appeal does not lie from a
judgment or order in a criminal action or proceeding.'$

In some of the states, it seems, appeals are allowed
in cases of civil contempts. In Pennsylvania, upon
appeal from an order attaching a defendant for con-
tempt in disobeying an order granting a preliminary
injunction and appointing a temporary receiver, the
only inquiry is whether, prima facie, the subordinate
court had jurisdiction of the subject matter; '° and in
Illinois an appeal lies from an order committing a de-
fendant for contempt for refusing to testify truthfully
before a master, and raise the question of the pro-
priety of the order of commitment and the correctness
of the findings of the fact on which it is based, though
the order requiring the party to be examined is not
appealed from.?°

that. such judgments are consid-
ered judgments in criminal cases

purpose the review extends not
only to the whole of the record,

but even to the evidence itself,
when necessary to determine the
jurisdictional fact. The rule in
the federal supreme court is that
judgments in proceedings in con-
tempt may be reached by cer-
tiorari in the absence of any
other adequate remedy; that
such judgments are not review-
able in that court upon appeal
or writ of error. In re Chet-
wood, 165 U. S. 448, 41 L. Ed.
782, 17 Sup. Ct. Rep. 385. It was
subsequently stated that the
latter statement was made in re-
gard to such judgments in inde-
pendent proceedings for con-
tempt in the circuit court of the
United States, and the reason ig

in which the supreme court has
no appellate jurisdiction from
those courts. Tinsley v. Ander-
son, 171 U. S. 101, 43 L. Ed. 91,
18 Sup. Ct. Rep. 805.

18 State ex rel. Leftwich v.
District Court, 41 Minn. 42; In
re Murphy, 39 Wis. 286.

19 Haught v. Irwin, 166 Pa. St.
548,

20 Berkson v. People, 154 IIL.
81, 39 N. E. 1079. See also Holly
Mfg. Co. v. Venner, 143 N. Y.
6389, 37 N. E. 648. This case
seems to be within the rule rec-
ognized in other states, that
where the commitment is until
willing to perform a duty, such
orders are appealable.
422 HABEAS CORPUS.

In Michigan. final orders for contempts, classified
and enumerated in the statute as civil contempts or
contempts to enforce civil remedies, are appealable,
and such is quite generally the rule.*_ In such cases
errors of law may be reviewed as in other cases, and
quite generally the evidence will be examined to de-
termine whether in fact the discretion of the court has
been abused in making the order.2?

In Wisconsin it has been held that an appeal lies
from an order of commitment for contempt to enforce
a civil remedy, though the contempt is criminal. Thus
where the order of commitment was for a refusal of a
witness to answer proper questions, and the court ad-
judged that instead of a fine defendant pay plaintiff a
stipulated amount of costs and expenses, and that he
be committed to jail and there remain charged with
such contempt until he should answer such questions
and pay said sum of money, etc., it was held that such
prosecution was as for a criminal contempt.”*

The same court later, in a case where a party re-
fused contumaciously to produce books and make dis-
covery, and was prosecuted as for a contempt com-
mitted in the immediate view and presence of the
court, it was held that an appeal would lie. It was —
said: ‘‘This contempt is plainly punishable under ch.
150, R. S. (relating to civil contempts). For although
it is a criminal contempt by sec. 2565, R. S., its punish-
ment as a civil contempt is plainly in terms and detail
provided in ch. 150. It is a criminal offense and some-
thing more. It is not only contumacy towards the
court, but it tends necessarily to defeat the remedies of

21Romeyn v. Caplis, 17 Mich. 22 Warren v. Rosenberg, 94
449; In Matter of Bissell, 40 Wis. 523, 69 N. W. 339.
Mich. 63; Haines v. Haines, 35 23 State ex rel. Lanning Vv.
Mich. 138, Lonsdale, 48 Wis. 348, 4 N. W.

390.
PROCEEDINGS AND JUDGMENT. 423

the parties. Under either statute, such contempt when
committed in the immediate presence of the court, is
to be punished summarily.’? There was no fine or
costs imposed. The party was simply committed until
the required act should be performed.*4

However, it has also been held by the same court
that a person convicted of and fined for a criminal con-
tempt by the circuit court, cannot bring the order or
judgment of conviction to the supreme court by appeal,
and the fact that the contempt consisted in disobedience
to an order made in a civil action does not affect the
rule.?5

By habeas corpus.

Where a person is imprisoned or held in custody by
virtue of an order or warrant of contempt, the cause
of his detention is subject to review upon habeas cor-
pus, where such detention is alleged to be in violation
of a constitutional right or not authorized by law. It
is quite generally held that upon such a proceeding
only the question of jurisdiction will be examined and
determined, and that if it does not appear from the
record of a court of general jurisdiction that jurisdic-
tion was wanting, then the court can go no further and
must remand the petitioner, and if, upon the record of
an inferior court or magistrate of limited jurisdiction,
jurisdiction does not affirmatively appear, the peti-
tioner will be discharged.

The material question in all such cases is, what con-
stitutes jurisdiction or the want of it. As we have
stated, supra, where it is sought to review a proceed-
ing in contempt by habeas corpus, the question quite

24Warren v. Rosenberg, 94 Meggett v. O’Neill, 104 Wis, 227,
Wis. 528, 69 N. W. 339; In re 80 N. W. 447.
Rosenberg, 90 Wis. 581, 63 N. W. 28In re Murphy, 39 Wis. 286.
1065. See also State ex rel.
424 HABEAS CORPUS.

generally, in cases not involving the violation of or dis-
obedience of an order of the court, is different from
the ordinary question of jurisdiction, in actions or pro-
ceedings. In fact, the order of commitment is an in-
dependent proceeding although it arises in the conduct
of regular proceedings in court. Thus, as has been
also stated, the prosecution as for contempt of a wit-
ness, who refuses to answer an improper question, is
an independent proceeding and one where the person
is entitled to a writ of habeas corpus if in custody, to
review the question of the power of the court to make
that order, and the court will determine whether the
question was within the power of the court to compel
an answer, and also if the question involves a constitu-
tional right, or the validity of the order disobeyed, that
question will be determined upon such a writ. It seems
to me that the Wisconsin court in In re Rosenberg, su-
pra, and In re Meggett, 105 Wis. 292, 81 N. W. 419, did
not recognize this distinction in the statement of a rule,
which had previously been declared in respect to mat-
ters other than contempt as follows: ‘‘If the court had
power to make the order of commitment, under any
supposable circumstances, which might arise in the
progress of the cause, then the order is valid until re-
versed, however erroneous it may be in the particular
circumstances.’’ A court has power to punish for con-
tempt by fine or imprisonment, in a great variety of
circumstances, for misconduct, in the presence of the
court, refusal to obey its orders or commands interfer-
ing with its process, etc. Almost innumerable cir-
cumstances may be supposed where such authority
might be properly and lawfully exercised. It cannot
be possible that because the court has such power in a
proper case, that such power is unlimited, and hence
that an order of commitment which it makes, which is
beyond its power to make, in the particular circum-
PROCEEDINGS AND JUDGMENT. 425

stances, does not present a question of jurisdiction, but
is only mere error, and does it not follow that the ques-
tion of power in every case depends upon the particu-
lar circumstances? ‘There is no appeal from an order
of commitment for criminal contempt. The general
rule is, as I understand it, that in every case the court
will examine the record and ascertain the nature of
the accusation, the circumstances of the offense having
been committed, and determine whether the act or
omission for which the prisoner is in custody, was one
for the commission or omission of which, within the
power of the court to punish. Were it otherwise, the
constitutional right of liberty would depend upon the
mere will or caprice of an arbitrary judge or magis-
trate. I am not speaking of a case where the power
exists, but is wrongfully or erroneously exercised.

The supreme court of that state, in a recent case,
made use of the language quoted in a qualified form,
but, however, in respect to a judgment, as follows: ‘‘It
is only when the court pronounces a judgment. in a
criminal case, which is not authorized by law under any
circumstances, in the particular case, made by the
pleadings, whether the trial court has proceeded re-
gularly or otherwise, that such judgment can be said
to be void, so as to justify the discharge of the de-
fendant held in custody by such judgment.’’ In the
same connection the learned court quotes with approval
what is stated in Ex parte Suebold, 100 U. S. 371, as
follows: ‘‘The validity of the judgments is assailed on
the ground that the acts of congress under which the
indictments were found are unconstitutional. An un-
constitutional law is void. An offense created by it
isnotacrime. A conviction under it is not only merely
erroneous, but is illegal and void. The question of the
court’s authority to try and imprison the party may
be reviewed on habeas corpus. We think so, because,
426 HABEAS CORPUS.

if the laws are unconstitutional and void, the circuit
court acquired no jurisdiction of the causes.’’ 2°

As we have seen as determined by the federal court,
a judicial act or order or judgment which deprives a
person of his constitutional rights, is equally void.

The Wisconsin court having thus determined the
question as to jurisdiction, how is it to be made to ap-
pear to that court upon habeas corpus? Must it not
examine the order or judgment and the circumstance
of its being rendered, and then determine the question
of jurisdiction in the light of and in reference to the
constitution? Itis the particular circumstance and not
the power of the court in respect to other circum-
stances.

26 Servonitz v. State, 183 Wis. 231, 113 N. W. 277.
427

RESTRAINT BY OTHER THAN JUDICIAL PROCESS.

CHAPTER XII.
PERSONS RESTRAINED BY OTHER THAN JUDICIAL PROCESS.

§ 105. Deportation of Aliens.
106. Persons Restrained by Direction of Board of Health.
107. Lunatics Committed or Restrained.
Right of Trial by Jury.

§ 105. Deportation of aliens.

That congress has the power to exclude aliens from
the United States; to prescribe the terms and condi-
tions on which they may come in; to establish regula-
tions for sending out of the country such aliens as
have entered in violation of law, and to commit the
enforcement of such conditions and regulations to ex-
ecutive officers; that the deportation of an alien who
is found to be here in violation of law, is not a de-
privation of liberty without due process of law, and
that the provisions of the constitution securing the
right of trial by jury have no application, has become
settled law, by numerous decisions of the supreme court
of the United States.

1United States v. Williams,
194 U. S. 279, 48 L. Ed. 979, 24
Sup. Ct. Rep. 719; Chae Chan
Ping v. United States, 130 U. S.
581, 32 L, Ed. 1068, 9 Sup. Ct.
Rep. 623; Nishimura Bkiu v.
United States, 142 U. S. 651, 35
L. Ed. 1146, 12 Sup. Ct. Rep. 336;
Fong Yue Ting v. United States,
149 U. S. 698, 37 L. Ed. 905, 13
Sup. Ct. Rep. 1016; Lem Moon
Sing v. United ‘States, 158 U. S.

538, 39 L. Ed. 1082, 15 Sup. Ct.
Rep. 967; Fok Yung Yo v. United
States, 185 U. S. 296, 46 L. Ed.
917, 22 Sup. Ct. Rep. 686; Jap-
anese Immigrant Case, 189 U. S.
86, 47 L. Ed. 721, 23 Sup. Ct.
Rep. 611; Chin Bak Kan v.
United States, 186 U. S. 193, 46
L. Ed, 1121, 32 Sup. Ct. Rep. 891;
United States v. Sing Tuck, 194
U. S. 161, 48 L. Ed. 917, 24 Sup.
Ct. Rep. 621.
428 HABEAS CORPUS.

Certain provisions of an immigration law, however,
have been held invalid, as where the law provided for
imprisonment at hard labor without judicial trial. ‘‘To
declare unlawful residence within the country to be
an infamous crime, punishable by deprivation of liberty
and property,’’ it was held ‘‘would be to pass out of
the sphere of constitutional legislation, unless provi-
sion were made that the fact of guilt should first be.
established by a judicial trial.’ 2

The power of congress to exclude alien anarchists
was expressly determined in Turner v. Williams, 194
U. 8. 279. Definitions of anarchy and anarchist are
there given. With respect to the claim that a person
may be an anarchist, within definitions of that term,
who only regards the absence of government as a
political ideal, without the element of disorder, force
or crime, it was said, it would follow that congress was
of the opinion, if such should be interpreted as the
meaning of the term in the law, that the tendency of
the general exploitation of such views is so dangerous
to the public weal, that aliens who hold and advocate
them would be undesirable additions to our popula-
tion, whether permanently or temporarily, whether
many or few, and in the light of previous decisions, the
act even in this aspect would not be unconstitutional,
or as applicable to any alien who is opposed to all
organized governments.®

2 Wong Wing v. United States,
163 U. S. 228, 41 L. Ed. 140, 16
Sup. Ct. Rep. 977.

3 Sections 2 and 38 of the act
of March 3, 1903, entitled “An
act to regulate the immigration
of aliens into the United States,”
32 stat. 1213, c. 1012, are as fol-
lows:

“Sec, 2. That the following

classes of aliens shall be excluded
from admission into the United
States: All idiots, insane per-
sons, epileptics, and persons who
have been insane within five
years previous; persons who
have had two or more attacks
of insanity at any time previous-
ly; paupers; persons likely to
become a, public charge; profeg-
RESTRAINT BY OTHHR THAN JUDICIAL PROCESS.

sional beggars; persons afflicted
with a loathsome or with a dan-
gerous contagious disease; per-
sons who have been convicted of
a felony or other crime or mis-
demeanor involving moral turpi-
tude; polygamists, anarchists,
or persons who believe in or ad-
vocate the overthrow by force
or violence of the government of
the United States or of all gov-
ernments or of all forms of law,
or the assassination of public
officials; prostitutes, and persons
who procure or attempt to
bring in prostitutes or women
for the purpose of prostitution;
those who have been, within one
year from the date of the appli-
cation for admission to the
United States, deported as being
under offers, solicitations, prom-
ises or agreements to perform
labor or service of some kind
therein; and also any person
whose ticket or passage is paid
for with money of another, or
who is assisted by others to
come, unless it is affirmatively
and satisfactorily shown that
such person does not belong to
one of the foregoing excluded
classes; but this section shall
not be held to prevent per-
sons living in the United States
from sending for a _ relative
or friend who is not of
the foregoing excluded classes.
Provided, that nothing in this
act shall exclude persons con-
victed of an offense purely politi-
cal, not involving moral turpi-
tude; and provided further, that
skilled labor may be imported,
if labor of like kind unemployed
cannot be found in this country;

«

4

429

and provided further, that the
provisions of this law applicable
to contract labor shall not be
held to exclude professional
actors, artists, lecturers, singers,
ministers of any religious denom-
ination, professors for colleges
or seminaries, persons belonging
to any recognized learned pro-
fession, or persons employed
strictly as personal or domestic
servants.”

“Sec. 38. That no person who
disbelieves in or who is opposed
to all organized government, or
who is a member of or affiliated
with any organization entertain-
ing and teaching such disbelief
in of opposition to all organized
government, or who advocates or
teaches the duty, necessity, or
propriety of the unlawful as-
saulting or killing of any officer
or officers, either of specific indi-
viduals or of officers generally,
of the government of the United
States or of any other organized
government, because of his or
their official character, shall be
permitted to enter the United
States or any territory or place
subject to the jurisdiction there-
of. This section shall be en-
forced by the secretary of the
treasury under such rules and
regulations as he shall prescribe.

“That any person who khow-
ingly aids or assists any such
person to entei the United States
or any territory or place subject
to the jurisdiction thereof, or
who connives of conspifes with
afy persoh or persons to al-
low, procure or permit any such
person to enter therein, except
pursuant to such rules and regu-
430 HABEAS CORPUS.

Citizens of Porto Rico are not alien immigrants and
hence do not come within the provisions of the im-
migration laws.*

In the Japanese Immigration Case, 189 U. S. 86, 47
L. Ed. 721, 23 Sup. Ct. Rep. 611, it seems to have been
held that the decision of the immigrant officer is final
and conclusive in respect to the question whether a
particular alien is within the excluding provisions of
the immigration laws, not subject to review by the
courts, and in the absence of an adverse ruling by the
secretary of the treasury. It also was held that it
was not competent for such officers to arbitrarily de-
port an alien without giving him an opportunity to be
heard. It seems that this means an opportunity to be
heard before such officers. Not an opportunity by
habeas corpus before judicial officers or courts. Such
determinations, however, have been reviewed upon
habeas corpus, and it is hardly supposable that it was
intended that upon the presentation of proper grounds,
the courts would not have authority to review such a
determination by the executive officers. This question
was referred to in the later case of United States v.
Sing Tuck, 194 U. S. 161, 48 L. Ed. 917, 24 Sup. Ct.
Rep. 621, wherein it was urged and so determined by
the circuit court of appeals, that the act of 1894 should
not be construed to submit the right of a native born

lations made by the secretary
of the treasury, shall be fined
not more than five thousand
dollars, or imprisoned for not
less than one nor more than five
years, or both.”

By the act of February 14,
1908, 32 Stat. 835, c. 552, “To
establish the department of com-
merce and labor,” the jurisdic-
tion, supervision and control pos-
sessed and exercised by the de-

partment of the treasury over
the immigration of aliens into
the United States were trans-
ferred to the department of
commerce and labor established
by the act, to take effect and be
in force the first day of July,
1903.

Gonzales v. Williams, 192 U.
S. 1, 48 L. Ed. 317, 24 Sup. Ct.
Rep. 171,
RESTRAINT BY OTHER THAN JUDICIAL PROCESS. 431

citizen of the United States to return hither to the final
determination of executive officers. That the fact of
citizenship went to the jurisdiction of the immigration
officers, and it was said by the supreme court, that the
words of the act of 1894, to wit: ‘‘In every case where
an alien is excluded from admission into the United
States, under any law or treaty now existing or here-
after made, the decision of the appropriate immigra-
tion or custom officers shall be final unless reversed on
appeal to the secretary of the treasury,’’.apply to a
decision on the question of citizenship, and that even if
it be true that the statute could not make that de-
cision final, the consequence drawn by the circuit court
of appeals does not follow, and is not correct. As to
whether or not the act could make the decision of an
executive officer final upon the fact of citizenship, we
_ leave the question where we find it. * * * Butif
the act is valid, even if ineffectual on this single point,
then it points out a mode of procedure which must be
followed before there can be a resort to the courts.
In order to act at all the executive officer must decide
upon the question of citizenship. If his jurisdiction is
subject to being upset, it is necessary that he should
proceed if he decides that it exists. An appeal is pro-
vided by the statute. The first mode of attacking his
decision is by taking that appeal. If the appeal fails,
then it is time enough to consider whether upon a peti-
tion showing reasonable cause, there ought to be a fur-
ther trial upon habeas corpus. Reference is made,
as a justification of this course, to the established rule
in cases where the prisoner is in custody under state
process, that ordinarily the federal courts do not inter-
fere by habeas corpus until after final determination
by the highest court of the state. ;
Justice Brewer, in the dissenting opinion, calls atten-
tion to the dissimilarity in the proceedings, in that in
432 HABEAS CORPUS.

cases arising in prosecution by a state, there is the
right of review by appellate courts, while in the mat-
ter of the alien, there is no appeal from the decision of
the secretary to any court, and the remedy is only that
of habeas corpus, and states, referring to the opinion
of the majority: ‘‘Indeed in the opinion, the court
does not give any encouragement to the petitioners to
believe that there can be any judicial examination even
after the decision by the secretary against their claim
of American citizenship.’’ He calls attention to the
case of United States v. Wong Kim Ark, 169 U.S. 649,
42 L. Ed. 890, 18 Sup. Ct. Rep. 456, where a petitioner,
a Chinese person born in the United States, returning
from China, was refused permission to land and was
restrained of his liberty by the collector, without mak-
ing any appeal from the decision of such local officer,
although the law as to appeal to the secretary was then
the same as now. He sued out a writ of habeas corpus
from the district court of the United States, which
court, after hearing, discharged him on the ground that
he was born in the United States and therefore a citizen
thereof. On appeal to the supreme court that decision
was affirmed. He further states: ‘‘No one connected
with that case doubted that the immigration and ex-
clusion laws had no application to him, if he were a
citizen or questioned his right to appeal in the first
instance to the courts for his discharge from the illegal
restraint.’’ In further justification of his dissent, he
states: ‘‘I am simply challenging a system and pro-
visions which place within the arbitrary power of an
individual the denial of the right of an American citi-
zen to free entrance into this country, and put such
denial outside the scope of a judicial inquiry,’’ and
refers to what was declared in another case: ‘‘The
fourteenth amendment to the constitution is not con-
fined to the protection of citizens. It says: ‘Nor shall
RESTRAINT BY OTHER THAN JUDICIAL PROCESS. 433

any state deprive any person of life, liberty or prop-
erty without due process of law, nor deny to any per-
son within its jurisdiction the equal protection of the
laws.’ These provisions are universal in their applica-
tions to all persons within the territorial jurisdiction,
without regard to any differences of race, of color or
nationality; and the equal protection of the laws is a
pledge of the protection of equal laws.’’®

The act of March 3, 1891, was declared constitutional.
It was held that an alien immigrant, prevented from
landing by a duly appointed officer claiming authority
to do so under an act of congress, and thereby re-
strained of his liberty, is entitled to a writ of habeas.
corpus to ascertain whether the restraint is lawful.
That the final determination of those facts may be en-
trusted by congress to executive officers; and in such a
case, as in all others, in which a statute gives a dis-
cretionary power to an officer, to be exercised by him,
upon his own opinion of certain facts, he is made the
sole and exclusive judge of the existence of such facts,
and no other tribunal, unless expressly authorized by
law to do so, is at liberty to re-examine or controvert
the sufficiency of the evidence on which he acted.®

It will be observed that this language is very broad
and if taken literally in all cases, it certainly would be
in restraint of personal liberty, and would subject the
citizen to the will and domination of another in viola-
tion of every safeguard provided by the constitution.
It had reference, however, to those cases in which con-
gress had the constitutional power to clothe a person
with such absolute discretion. Yet I do not see any
distinction between the law which invests such dis-
cretion in the inspectors under immigration laws,

5 Yick Wo v. Hopkins, 118 U. 6Nishimura Ekiu v. United
S. 356, 369, 30 L. Ed. 220, 6 Sup. States, 142 U. S. 651, 35 L. Ed.
Ct. Rep. 1064, 1146, 12 Sup. Ct. Rep. 336.

28
t

434 HABEAS CORPUS.

and the law which vests a disczetion in boards of
health. Yet it is held, as we have seen in the latter,
that their discretion is subject to review.

It was further stated in the case above cited: ‘‘It is
not within the province of the judiciary to order that
foreigners who have never been naturalized, nor ac-
quired any domicil or residence within the United
States, nor even been admitted into the country pur-
suant to law, shall be permitted to enter, in opposition
to the constitutional and lawful measures of the legis-
lative and executive branches of the national govern-
ment. As to such persons the decision of' executive
or administrative officers, acting within powers ex-
pressly conferred by congress, are due process of
law.’’7

In United States v. Jung Ah Lung, 124 U. S. 621,
31 L. Ed. 591, 8 Sup. Ct. Rep. 663, it was held that the
jurisdiction of the court was not affected by the fact
that the collector had passed on the question of allow-
ing the person to land or by the fact that the treaty
provides for diplomatic action in a case of hardship.

It seems that force was given to the statute relating
to Chinese persons found unlawfully within the United
States, which provides for their removal after being
brought before some justice, judge or commissioner of
a court of the United States, and found to be one not
lawfully entitled to be or remain in the United States.
As it is said, ‘‘this being the question of his title to be
here, can certainly be adjudicated by the proper court
of the United States, upon the question of his being
allowed to land.’’ ®

7 See also Murray v. Hoboken 8See also Chew Heong v.
Land & Imp. Co., 19 How. 272, United States, 112 U. S. 536, 28
15 L. Ed. 372; Hilton v. Mer- L. Hd. 770, 5 Sup. Ct. Rep. 255;
ritt, 110 U. S. 97, 28 L. Ed. 83,3 Wan Shing v. United States, 140

Sup. Ct. Rep. 548. U. S. 424, 35 L. Ed. 608, 11 Sup.
Ct. Rep. 729.
| Z
RESTRAINT BY OTHER THAN JUDICIAL PROCESS. 439

§ 106. Persons restrained by direction of boards of
health.

Where the right is claimed by boards of health to
confine persons or restrain them of their liberty by
reason of supposed danger to the public welfare, as in
cases of infectious diseases, it must appear very clearly
and satisfactorily not only that such right has been
conferred by the law, but also that in its exercise the
facts were present which justified it. The validity of
the law generally is not so much called in question as
the right to enforce its provisions. The courts, there-
fore, will, upon habeas corpus, notwithstanding such
a board has determined that the facts of a particular
case bring the case within the law, review such ques-
tion. Hence, where a person was thus restrained of
his liberty, which restraint was sought to be justified
on the ground that he had been exposed to an in-
fectious disease (the statute authorizing such restraint
under such conditions, and the only evidence being
merely to the effect that, as a driver of an express
wagon in the affected district he might have been ex-
posed, and had refused to be vaccinated, there being no
proof that he was actually exposed), it was held that
the facts did not bring the case within the provisions
of the law.®

The power conferred upon such boards is peculiar,
and made so by reason of the necessity that may exist
for immediate and summary action in many cases. As
stated, the validity of the law under which they pro-
ceed is ordinarily not so much called in question as the
right in particular cases to enforce its provisions.
Where such a right is claimed, it must appear very
clearly and satisfactorily not only that it has been con-
ferred by law, and, where a method has been provided,

® Matter of Smith, 146 N. Y. 68, 40 N. E. 497.
436 HABEAS CORPUS.

that such method was pursued, but also that the facts
were present which justified it. Such officers act upon
their own inspection and knowledge. They are not
required to give any person a hearing, and are not re-
quired and have no power to call and swear witnesses.
Their determinations are not final and conclusive; if
they were, then the exercise of such summary power
could not be upheld. Thus, their determination that cer-
tain conditions existing constitute a nuisance does not
make them a nuisance. It is the actual existence of a
nuisance which gives them jurisdiction to act, and this
ultimately is to be determined by the court, whenever .
the proceedings are brought before it as they may be by
certiorari and upon habeas corpus, where persons are
‘restrained of their liberty. The board acts at its
peril.?°

§ 107. Lunatics committed or restrained.

In most, if not all of the states, there exists statutes
which provide for a summary investigation and deter-
mination of the question of the mental condition of a
person as to his being insane. In many of the states
such statutes provide for a commission, consisting of
two or more physicians, who may examine and report
to the probate judge or other judicial officer, who then
is clothed with the authority upon the report of such
commission that the subject is insane, to commit him
to some institute provided by law for the confinement of
insane persons. The proceedings are not uniform in
the several states, but are quite generally of a similar-
character.

In New York such jurisdiction is vested in the su-
preme court. The fact of lunacy must be ascertained
before the court can deprive the lunatic of the custody

10 People v. Board of Health, 140 N. Y. 1, 35 N. HE. 320.
RESTRAINT BY OTHER THAN JUDICIAL PROCESS. 437

of his estate or submit his person to the control of a
committee.

It is almost uniformly held that the person proceeded
against must have notice of the proceedings to give
validity to an adjudication against him. Of course
there are cases of furious madness where it may. be
either unsafe, or notice alone to the subject would be
ineffectual for any purpose. It was the practice in
chancery for the chancellor ‘to direct notice of the pro-
ceedings to be served on some relative or other person,
in order that opportunity might be afforded to protect
the interests of the alleged lunatic. In New York the
code provides that in all cases the-court must require
notice to be given of the presentation of the petition
in lunacy proceedings to the husband or wife or to one
or more relatives or to an officer specified, unless suffi-
cient reasons are set forth in the petition or accompany-
ing affidavits for dispensing with such notice. It was
stated by the court of appeals of that state, that ‘‘a
very clear case should be made, before the court should
proceed in lunacy proceedings, in the absence of actual
and personal written notice to the party. * * *
The cases must, be very rare in which a notice may not
be served on the alleged lunatic, and it seems to us,
the better practice would be to require service of no-
tice upon the party in all cases in addition to notice to
relatives and others as required by the code.’’ 4

It was held by the Rhode Island court that a state
statute which authorizes the placing of insane persons
in certain hospitals or asylums, within the state, by
their parents, guardians, relatives or friends, or if
paupers by the overseer of the poor, upon certificates
of insanity made by two practicing physicians of good
standing, where such statute does not provide a pro-

11 In re Blewitt, 131 N. Y. 541, 30 N: HE. 537.
438 HABEAS CORPUS.

cedure by which a person confined can, as of right, de-
fend himself, is. void as being in conflict with the due
process clause of the national constitution.!”

In a later case in New York, it appeared that a pro-
ceeding de idiota inquirendo had been instituted by a
parent of the person proceeded against, and a commit-
tee was appointed. Some years later the proceedings
were attacked collaterally in an action to recover mon-
eys paid by mistake, the specific ground being that the
record showed that the court had not acquired jurisdic-
tion of the proceedings, and also that no notice of the
proceedings was given to the idiot. The record did
not disclose that all the proper notices were not given.
The court held that the proceedings were by a court,
in the exercise of its general jurisdiction, and hence the
presumption attached as to its jurisdiction and the
validity of its proceedings.

Upon the question of notice, it was said: ‘‘It was
not necessary that she (the idiot) should have notice
of the application for the commission. Without hear-
ing her and without notice to her, the court could con-
stitute the tribunal which was to make inquiry into
her mental condition. In pursuance of the order (ap-
pointing the commissioners) a time and place for the
execution of the commission were appointed, and a jury
was summoned by the sheriff, and it appears by proof
in the record that the idiot had notice of the proceed-
ings. The record does not disclose that she had notice »
of any of the subsequent proceedings. We do .not
deem it important now to determine whether the pro-
ceedings would be absolutely void and a nullity if no
notice whatever had been given to the idiot of any of
the proceedings, instituted upon the petition of her

12 Doyle, Petitioner, 16 R. I. would not apply if the proceed-
537, 27 Am. St. Rep. 759. ings was before a court or of-
13The same _ presumption ficer of limited jurisdiction.—Ed.
RESTRAINT BY OTHER THAN JUDICIAL PROCESS. 439

mother, who had charge of her, but, if notice was neces-
sary, the notice given of the time and place of the ex-
ecution of the writ was sufficient to give the court juris-
diction of the matter.’ 4 ;

The cases are numerous which hold that the failure
to give the proper notice at some stage of the proceed-
ings and an opportunity to be heard is fatal to the ju-
risdiction.*®

The alleged lunatic, at common law, had the right
of trial by a jury of the issue of his insanity.1*

In many of the states statutes provide for a deter-
mination of such issue by a jury when demanded by
the lunatic." |

It was held in Minnesota that a valid proceeding to
commit one as insane requires notice and an oppor-
tunity to be heard before judgment. There must be a
trial before a determination as to his sanity and an
opportunity to produce witnesses and evidence, Hence
a statute authorizing such a commitment, but not so
framed as to compel a hearing before judgment, and
which does not guarantee to the person charged an
opportunity to be heard in defense, is invalid, because
it conflicts with those provisions of the state and fed-
eral constitution which forbid that any person shall
be deprived of his life, liberty or property without due
process of law.18

Commonwealth v. Kirkbride, 2
Brewst. 419.
17In re Bryant, 3 Mackey,

14Gridley v. College, etc., 137
N. Y. 327, 38 N. E. 3381.
15 Keleher v. Putnam, 60 N. H.

30, 49 Am. Rep. 304; McCurry v.
Hooper, 12 Ala, 823, 46 Am. Dec.
280; Dutcher v. Hill, 29 Mo. 271,
77 Am. Dec. 572; Morton v.
Sims, 64 Ga. 298.

1¢ De Hart v. Condit, 51 N. J.
L. 611, 40 Am. St. Rep. 545;

489; State v. Baird, 47 Mo. 302;
In re Lindsley, 46 N. J. 358; Fis-
cus v. Turner, 125 Ind. 46, 24
N. E. 662; Gridley v. College,
etc., 187 N. Y. 327, 38 N. E. 321.

18 State v. Billings, 55 Minn.
467, 57 N. W. 794, 43 Am. St. Rep.
525.
440 HABEAS CORPUS.

Where for any reason, a commitment of a person as
insane, if in confinement, and the statute under which
the proceedings were had or the proceedings are void,
which is the result in the absence of provision for or
giving of proper notice, the person thus in confine-
ment may be released upon habeas corpus.”®

Right of trial by jury.

The constitution of the several states provide in some
manner that the right of trial by jury shall remain in-
violate. These provisions are not the same in all the
states. Thus in New York its constitution in this re-
spect is that ‘‘the trial by jury in all cases in which
it has been heretofore used, shall remain inviolate for-
ever.’’ (Sec. 2, art. 1.) In Wisconsin, the right of trial
by jury ‘‘shall remain inviolate, and shall extend to all
cases at law, without regard to the amount in contro-
versy.’”’

In New York it is held that prior to the constitution
of 1846, and since then, until the enactment of section
2328a of the code of civil procedure, the courts of that
state have not assumed jurisdiction to appoint a com-
mittee of the person or estate of an incompetent person,
in the absence of a finding by a jury in the nature of a
writ of de lunatico inquirendo. It was held, however,
that the statute provided for such a trial, where such
right was given upon appeal.?°

In Wisconsin it was held that a proceeding for the
appointment of a guardian for an insane person was
not a case at law, and that at the time when the consti-
tution was adopted, the power to appoint guardians for
insane persons was vested in the judges of probate,

129 State v. Billings, 55 Minn. ‘Territory v. Sheriff of Gallatin
467, 57 N. W. 794, 48 Am. St. County, 6 Mont. 298.
Rep. 535; Doyle, Petitioner, 16 20 Sporza v. German Savings
R. I. 587, 27 Am. St. Rep. 759; Bank, 192 N. Y: 8.
RESTRAINT BY OTHER THAN JUDICIAL PRocEss. 441

who might act without calling a jury to determine the
question of insanity.?!

In Iowa it has been held that the constitutional right
of trial by jury applies only to criminal prosecutions
or accusations for offenses against the criminal law and
that an inquest of lunacy was not a criminal proceed-
ing.”?

In Mississippi it was held, an inquisition of lunacy
before a jury of six men was constitutional, because
an inquest before a jury of that number was authorized
by statute at the time the constitution was adopted.?*

The constitution of New Jersey also provides that
the right of trial by jury shall remain inviolate. In
that state prior to 1887, the number of jurors who sat
upon the trial of the issue of incompetency in the case
of an alleged lunatic, varied from twelve to twenty-
three. In 1887, however, an act was passed providing
for the summoning of a jury in such cases consisting
of twelve in number instead of twenty-four. It was
held that the act was not repugnant to the constitution,
for the reason that prior to the adoption of the consti-
tution, the party had no right to trial by more than
twelve jurors.”4

It therefore appears that no general rule can be
stated. That the constitution and the decisions under
it, in each particular jurisdiction, must be consulted.

21Gaston v. Babcock, 6 Wis. 23 Faut v. Buchanan, 17 So.
503. 371.
22In re Bresee, 82 Iowa, 573, 24De. Hart v. Condit, 51 N. J.

48 N. W. 991. Eq. 611, 40 Am. St. Rep. 545.
442 HABEAS COBPUS.

CHAPTER XIII.
COURTS MARTIAL; MILITARY SERVICE.

§ 108. Power of Courts to Review Judgments of Courts Martial.

General Review.
Conclusiveness of Judgment.
Milligan Case; Proposition Determined.
Jurisdiction Properly Assumed; Illustrations,

109. Enlistments Generally.
In the Federal Service.
In the State Militia.

110, Suspension of the Writ.
Power where Vested and when it may be Exercised.
Power of the States. ,

§ 108. Power of courts to review judgment of courts
martial.—General review.

A court martial organized under the laws of the
United States is a court of special and limited jurisdic-
tion. It is called into existence for a special purpose
and to perform a particular duty. When the object of
its creation has been accomplished, it is dissolved. To
give effect to its sentence it must appear affirmatively
and unequivocally that the court was legally consti-
tuted; that it had jurisdiction; that all the statutory
regulations governing its proceedings has been com-
plied with, and that its sentence was conformable to
law. There are no presumptions in its favor, so far as.
these matters are concerned. The averments of juris-
diction must be positive, that the declaration shall ex-
pressly state the fact on which jurisdiction depends.
It is not sufficient that jurisdiction may be inferred,
argumentatively, from its averments. Their author-
ity is statutory and the statute under which they pro-

” :
COURTS MARTIAL; MILITARY SERVICE. 443

ceed must be followed throughout. The facts necessary
to show their jurisdiction and that their sentences were
conformable to law, must be stated positively, and it is
not enough that they were inferred argumentatively.t

The question of the jurisdiction of a court martial
may always be inquired into upon the application of
any party aggrieved by its proceedings, as may that of
every other tribunal, and the scope and range of the
inquiry upon habeas corpus is controlled by the same
rules and limitations in both cases. There must be
jurisdiction to hear and determine and to render the
particular judgment. If this exists, however erron-
eous the proceedings may be, they cannot be reviewed
collaterally upon habeas corpus.?

In order to have the writ lie, it is essential that the
person be in actual confinement or have the present
means of enforcing it. Mere moral restraint is not
sufficient. A mere order of the secretary of the navy
addressed to and notifying a medical officer that he was
placed under arrest, and to confine himself within the
limits of the city of Washington, was held not such an
actual confinement as would justify the issuing of the
writ.?

Courts martial and delinquency courts are tribunals
of special and limited powers having jurisdiction only
of offenses against military discipline committed by
persons belonging to the particular branch of the serv-
ice for which such courts are organized.*

1Runkle v. United States, 122
U. S. 548, 555, 30 L. Ed. 1167, 7
Sup. Ct. Rep. 1141; McClaughry
v. Deming, 186 U. S. 49, 68, 46 L.
Hd. 1049, 22 Sup. Ct. Rep. 786.

2BEx parte Kearney, 7 Wheat.
38, 5 L. Ed. 391; Ex parte Reed,
100 U. S. 18, 25 L. Ed. 538; In re
Davison, 21 Fed. 618; Wales v.

Whitney, 114 U. S. 564, 29 L. Ed.
277, 5 Sup. Ct. Rep. 1050.

3 Wales v. Whitney, 114 U. S.
564, 29 L. Ed. 277, 5 Sup. Ct.
Rep. 1050.

4People ex rel. Fry v. The
Warden, etc., 100 N. Y. 20, 2 N.
E. 87.
444 HABEAS CORPUS.

_ The invalidity of such a court can be raised upon a

hearing on habeas corpus. Can be attacked collater-
ally®

In the first of these cases it was held that art. 65 of
the articles of war in the act of April 10, 1806, 2 Stat.
359, 367, providing that the sentence of a general court
martial in time of peace, among other things, dismiss-
ing a commissioned officer, shall not be carried into
effect until after the whole proceedings shall have been
transmitted to the secretary of war to be laid before
the president of the United States, for his confirma-
tion or disapproval and orders in the case; that the
action of the president was judicial and that his ap-
proval must be authenticated in a way to show, other-
wise than argumentatively, that it is the result of his
own judgment and not a mere departmental order which
may or may not have attracted his attention, and that
the fact that the order was his own must not be left to
inference only; that until the president acted in the
manner required by the article, a sentence of a court
martial of a dismissal of a commissioned officer from
service in time of peace was inoperative; and that no
such approval appeared.®

In the second case, the trial of an officer of the militia
by court martial, was by a court composed entirely of
officers of the regular army. This was held to have
been contrary to express provisions of the statute, and
it was held it was not a court. It had no powers, no
jurisdiction of the subject matter or the person, and
the officer was discharged upon habeas corpus.”

5McClaughry vy. Deming, 186 7 McClaughry v. Deming, 186 U.
U. S. 49, 68, 46 L. Ed. 1049, 22 8, 49, 46 L. Ed. 1049, 22 Sup. Ct.
Sup. Ct. Rep. 786. Rep. 786.

6Runkle y. United States, 122
U. S. 543, 30 L. Hd. 1167, 7 Sup.

Ct. Rep. 1141.
COURTS MARTIAL; MILITARY SERVICE. 445

Conclusiveness of judgment.

If a court martial has jurisdiction to try an officer
or soldier for a crime, its judgment will be accorded the
' fmality and conclusiveness as to the issues involved
which attend judgments of a civil court, of which it may
legally take cognizance.®

In Ex parte Reed, 100 U. S. 13, 25 L. Ed. 538, the
court referring to a court martial said: ‘‘The court had
jurisdiction over the person and the case. It is the or-
ganism provided by law and clothed with the duty of ad-
ministering justice in this class of cases. Having had
such jurisdiction, its proceedings cannot be collaterally
impeached for any mere error or irregularity, if there
were such committed within the sphere of its authority.
Its judgments when approved, as required, rest on the
same basis and are surrounded by the same considera-
tions which give conclusiveness to the judgments of
other legal tribunals, including as well the lowest as the
highest under like circumstances. The exercise of dis-
cretion within authorized limits, cannot be assigned for
error and made the subject of review by an appellate
court.’’

It was said in Carter v. Roberts, 177 U. S. 496, 44
L. Ed. 861, 20 Sup. Ct. Rep. 713, and reiterated in Car-
ter v. McClaughry, 183 U. S. 365, 381, 46 L. Ed. 236, 22
Sup. Ct. Rep. 18: ‘‘Courts martial are lawful tribunals
with authority to finally determine any case over which
they have jurisdiction, and their proceedings when
confirmed as provided, are not open to review, except
for the purpose of ascertaining whether the military
court had jurisdiction of the person and subject matter,
and whether though having such jurisdiction, it has ex-
ceeded its power in the sentence pronounced.’’

8Grafton v. United States, 206 U. S. 333, 51 L. Ed. 1084, 27 Sup.
Ct. Rep. 749.
446 HABEAS CORPUS.

It was held in the latter case that it appeared that
the accused was not by the sentence placed twice in
jeopardy for the offense, nor was the sentence in ex-
cess of that justified by the findings as approved.

It seems after arrest of the officer he had resigned
from the service and his contention was that the court
thereafter had no power to try and punish him for the
alleged offenses, but the court held otherwise.

The court stated in concluding its opinion: ‘‘But we
must not be understood by anything we have said as
intending in the slightest degree to impair the salutary
rule that the sentences of court martial, when affirmed
by the military tribunal of last resort, cannot be re-
vised by the civil courts, save only when void, because
of'an absolute want of power, and not merely voidable
because of the defective exercise of power possessed.”’

The earlier cases in the supreme court are not in any
manner in conflict with the cases above cited, though
in most of them the judgment and sentence of the court
martial were affirmed. The statements of the court in
respect to the constitution of the court and its proceed-
ings, are qualified by such or similar language, that ‘‘if
the court was convened regularly and have proceeded
regularly and by which punishments directed are not
forbidden by law.’’®

But where there is no law authorizing the court mar-
tial, or where the statutory conditions as to the con-
stitution or jurisdiction of the court are not observed,
there is no tribunal authorized by law to render the
judgment.?°

9 Dynes v. Hoover, 20 How. 65, Rep. 788; Ex parte Reed, 100
15 L. Ed. 838; Swaim v. United U.S. 18, 25 L. Ed. 538.
States, 165 U. S. 553, 41 L. Ed. 10 Keyes v. United States, 109
823, 17 Sup. Ct. Rep. 448; Mul- U.S. 336, 27 L. Ed. 954, 3 Sup.
Jan v. United States, 140 U. S. Ct. Rep. 202; Smith v. Whitney,
240, 85 L, Ed. 489, 11 Sup. Ct. 116 U. S. 167, 29 L. Ed. 601, 6
Sup. Ct. Rep. 570.
COURTS MARTIAL; MILITARY SERVICE. 447

While the jurisdiction of courts martial extend ‘to
all crimes not capital, committed against public law
by an officer or soldier of the army, within the limits of
the territory in which he is serving, this jurisdiction is
not exclusive, but only concurrent with that of the
civil courts. However, the same acts constituting a
crime against the United States cannot after the ac-
quittal or conviction of the accused in a court of com-
petent jurisdiction, be made the basis of a second trial
of the accused for that crime in the same or in another
court, civil or military, of the same government.'!

Neither the supreme court of the district of Colum-
bia nor the supreme court of the United States has any
appellate jurisdiction over naval or military court mar-
tials, nor over offenses, which such a court has power
to try. The civil courts can relieve a person from im-
prisonment under order of such a court only by writ
of habeas corpus, and then only when it.is made ap-
parent that it proceeds without jurisdiction.”

Milligan case; proposition determined.

In the celebrated Milligan case, the following prop-
sitions were declared:

1. Military commissions organized during the late
civil war, in a state not invaded and not engaged in re-
bellion, in which the federal courts were open, and in the
proper and unobstructed exercise of their judicial
functions, had no jurisdiction to try, convict or sen-
tence for any criminal offense, a citizen who was
neither a resident of a rebellious state, nor a prisoner
of war, nor a person in the military or naval service,
and congress could not invest them with such power.

11Grafton vy. United States, 12 Wales v. Whitney, 114 U. S.
206 U. S. 333, 51 L. Ed. 1084, 27 564, 29 L. Ed. 277, 5 Sup. Ct.
Sup. Ct. Rep. 749. Rep. 1050.
448 HABEAS CORPUS.

2. The guaranty of trial by jury contained in the
constitution, was intended for a state of war as well
as a state of peace; and is equally binding upon rulers
and people, at all times and under all circumstances.

3. The federal authority having been unopposed in
the state of Indiana, and the federal courts open for
the trial of offenses and the redress of grievances, the
usages of war could not, under the constitution, afford
any sanction for the trial there of a citizen in civil life,
not connected with the military or naval service by a
military tribunal, for any offense whatever.

4, Cases arising in the land or naval forces or in the
militia, in time of war or public danger, are excepted
from the necessity of presentment or indictment by a
grand jury; and the right of trial by jury, in such cases,
is subject to the same exceptions.

5. Neither the president nor congress, nor the judi-
ciary can disturb any one of the safeguards of civil
liberty incorporated into the constitution, except so far
as the right is given to suspend in certain cases the
privilege of the writ of habeas corpus.

6. A citizen not connected with the military service
and resident in a state where the courts are open and
in the proper exercise of their jurisdiction, cannot even
when the privilege of the writ of habeas corpus is sus-
pended, be tried, convicted or sentenced otherwise than
by the ordinary courts of law.

7. Suspension of the writ of habeas corpus does not
suspend the writ itself. The writ issues as a matter of
course; and on its return the court decides whether
the applicant is denied the right of proceeding any fur-
ther.

8. A person who is a pean of a loyal state, where
he was arrested; who was never resident in any state
_ engaged in rebellion, nor eonnected with the military
COURTS MARTIAL; MILITARY SERVICE. 449

or naval service, cannot be regarded as a prisoner of
war.i8

As stated, Milligan was tried, convicted and sen-
tenced to be hung by a military commission appointed
by or with the approval of the president. One of the
important questions involved:and determined by the
court, was that of the power or authority of the com-
mission, and it was determined that there was an ab-
solute want of power. The reasoning of the court is
instructive as it deals with a construction of those
provisions of the constitution which declare the rights.
of the citizen. Among other things it was said:
‘“Eivery trial involves the exercise of judicial power;
and from what source did the military commission that
tried him (the petitioner) derive their authority?
Certainly no part of the judicial power was conferred
on them; because the constitution expressly vests it in
one supreme court and such inferior courts as congress
may from time to time ordain and establish, and it is
not pretended that the commission was a court ordained
and established by congress. They cannot justify on
the mandate of, the president, because he is controlled
by law, and has his appropriate sphere of duty, which
is to execute, not to make the laws, and there is no
unwritten criminal code to which resort can be had as
a source of jurisdiction. But it is said that the juris-
diction is complete under the ‘laws and usages of war.”
It can serve no useful purpose to inquire what those
laws and usages are, whence they originate, where
found and on whom they operate; they can never be
applied to citizens in states which have upheld the
authority of the government, and where the courts are
open and their process unobstructed. This court has
judicial knowledge that in Indiana the federal author-

1s Fx parte Milligan, 4 Wall. 2, 18 L. Ed. 281.
29
450 HABEAS CORPUS.

ity was always unopposed, and its courts were always
open to hear criminal accusations and redress griev-
ances; and no usage of war could sanction a military
trial there for any offense whatever of a citizen in
civil life, in no wise connected with the military serv-
ice. Congress could grant no such power; and to the
honor of our national legislature, be it said, it has never
been provoked by the state of the country even to at-
tempt its exercise. One of the plainest constitutional
provisions was therefore infringed when Milligan was
tried by a court not ordained and established by con-
gress, and not composed of judges appointed during
good behavior.’’

Four of the judges, while concurring in the opinion
that the military commission had no jurisdiction in the
premises, yet dissented from the position that congress
has not the power to authorize trial and punishment
by military commission in states where civil courts are
open and where the privilege of the writ of habeas
corpus has been suspended.

No reference was made to the decision rendered in
Hix parte Vallandigham, 1 Wall. 243, 17 L. Ed. 589.
Vallandigham was tried by a military commission, con-
victed and sentenced to imprisonment. In that case
the condemned applied direct to the supreme court for
a writ of habeas corpus to review the proceedings of
the commission, and such writ was denied on the ground
that there was no original jurisdiction in the supreme
court to review the proceedings of the military com-
mission, either upon certiorari or habeas corpus. The
question of the legality of such a commission is not re-
ferred to.

Jurisdiction properly assumed; illustrations.

A soldier who, while on duty, though in time of peace,
attempts to kill a person not in the military service,
COURTS MARTIAL; MILITARY SERVICE. 451

confined in the jail over which such soldier is guard, is
subject to trial and punishment by court martial for
the offense, on the ground that such an act is a breach
of military discipline and although it would have been
the duty of the military authorities to have surrendered
him to the civil authorities for trial for such offense,
if so demanded. He had offended both against the
civil and military law."

A paymaster’s clerk in the navy, regularly appointed
and assigned to duty on a receiving ship, was held to
be a person in the naval service of the United States,
subject to be convicted and to be sentenced to imprison-
ment by a general court martial for a violation of sec.
1624 Rev. Stat., authorizing fine or imprisonment of
any person in the naval service of the United States,
who steals, embezzles, etc., money, equipment or other
property of the United States, furnished or intended
for the military or naval service thereof.®

§ 109. Enlistments generally.

The existence of a valid enlistment constitutes a
part of the subject matter of the jurisdiction of such
a court, and in its absence the court has no authority
whatever over the offense or the person proceeded
against. Their judgments are of no force when at-
tacked in a collateral proceeding, unless accompanied
by proof of the jurisdictional facts upon which the
authority of the court to render them depends. Un-
like courts of general jurisdiction, the recital of juris-
dictional facts in their records does not furnish prima
facie evidence even of their existence, but they must
be affirmatively proved in order to establish the valid-
ity of their judgments. Such proof is always subject
to be controverted by the person affected by such judg-

14x parte Mason, 105 U. S. _ 15 Johnson v. Sayre, 158 U. S.
696, 26 L. Ed. 1213. 109, 39 L. Ed. 914, 15 Sup. Ct.
Rep. 773.

,
452 HABEAS CORPUS.

ment, and he may establish, even by extrinsic evidence,
a want of jurisdiction. Hence, where a person de-
tained by virtue of the judgment of such a court ap-
plied for his discharge upon habeas corpus on the
ground that he was a minor, and there was no proof
(though recited in the judgment) that the consent of
his father had been obtained to such enlistment, it was
held that the judgment was not even prima facie evi-
dence of the essential jurisdictional fact of a valid en-
listment. It. was stated, however, that when a court
has jurisdiction of the subject matter and of the per-
son, it is competent for it to try and determine all
questions within the issue arising during the course of
the trial, and its decisions therein can be reviewed only
on appeal in a direct proceeding having that object in
view. The evident purpose of this statement was to
recognize the rule, as applicable to such cases, that
where the court, upon proof before it, has determined
the existence of the facts upon which its jurisdiction de-
pends, this is conclusive upon collateral attack, and
with reference to the particular case to state that, if
the court had before it competent proof upon the ques-
tion of the validity of such enlistment, then its judg-
ment as to its legal effect, though in effect it was deter-
mining its own jurisdiction.1®

A person who has enlisted in the military service of
the United States, and subsequently deserted, cannot,
upon trial for that offense by a court martial, success-
fully urge as a defense that his enlistment was illegal
by reason of the fact that he was at the time of his en-
listment above the maximum age for enlistment, that
he never became a soldier and hence was not subject to
the jurisdiction of the court martial.17

1e People ex rel. Fry v. The 17In re Grimley, 137 U. S. 147,
Warden, etc., 100 N. Y. 20,2 N. 34 L. Ed. 636, 11 Sup. Ct. Rep. 54.
E. 87.
COURTS MARTIAL; MILITARY SERVICE. 453

The court reviewed the relation of a person enlisting
in the military service of the government, first stating
that it establishes a contractual relation between the
parties, and then stating that it is one of those contracts
which changes the status of the enlisted party, and
hence no breach of the contract destroys the new status
or relieves from the obligation which its existence im-
poses. By enlistment the citizen becomes a soldier.
His relations to the state and the public are changed,
and it was held that such a person so circumstanced
could not take advantage of his own wrong, in untruth-
fully stating his age, nor on that account voluntarily
throw off the status he had assumed.

The court distinguished the case from that of Tyler
v. Pomeroy, 8 Allen, 480, wherein there was an agree-
ment to enlist which could not be specifically enforced
and an enlistment complete which changes the status
of the party.

Enlistments in federal service.

The federal courts have jurisdiction to inquire upon
habeas corpus into the validity of the enlistment of
soldiers in the military service of the United States,
and to discharge them from such service, when in their
judgment their enlistment had not been made in con-
formity to law.1®

But the state courts, while they may issue the writ
of habeas corpus in such cases, cannot proceed when
it is made to appear that the petitioner is in.custody un-
der authority of the United States. Under such con-
ditions the jurisdiction of the federal court is exclu-
sive.'° The contrary was held by an inferior federal
court.?°

18In re Tarble, 18 Wall. 397, v. Connolly, 111 U. S. 624, 28 L.
20 L. Ed. 597, 3 Am, Rep. 85.. Ed, 542, 4 Sup. Ct. Rep. 544.

19 In re Tarble, 18 Wall. 397, 20 20In re Reynolds, 20 Fed.
L. Ed. 597, 3 Am. Rep. 85; Robb Cases No, 11,721.
454 HABEAS CORPUS.

The use of the writ for the discharge of persons who
have enlisted in the military or naval service of the
United States, presents a different question than tne
use of the writ to review judgments or orders of a
regularly constituted tribunal clothed with judicial
powers. The question to be determined is the validity
of the enlistment; and various circumstances attending
the act may be controlling. Thus if the enlistment was
procured by fraudulent representations on the part of
the recruiting officer, or the enlisted person by reason
of ignorance or inability to understand the English
language was mistaken as to the character of the act,
and he has not ratified such act, he may upon prompt
application be discharged on habeas corpus.”

However, if a person is in fact married, and al-
though the army regulations provide that no married
man shall enlist without special authority from the
adjutant general’s office, yet if he at the time of his en-
listment denies that he is married, he will not be en-
titled to a discharge upon habeas corpus.”?

The rule is quite general that a person under the re-
quired age, who has enlisted, may be discharged on
habeas corpus.??

However, it has been held, where a minor under the
age of eighteen years, enlisted without the consent of
his father, and a writ of habeas corpus was issued, and
before final hearing of the writ formal charges of de-
sertion and fraudulent enlistment were preferred
against him by the military authorities, that he would
not be discharged under said writ until he had satisfied
the charges so preferred.**

21 Bx parte Schneider, 21 Fed. 23 Ex parte Houghton, 129 Fed.
Cases No. 12,461, 1 Dill. 587. 239; Ex parte Reaves, 121 Fed.

22 ix parte Schneider, 21 Fed. 848; In re Carver, 103 Fed. 624;
Cases No. 12,461, 1 Dill. 587. In re Baker, 23 Fed. 30.

24In re Lessard, 134 Fed. 305.
COURTS MARTIAL; MILITARY SERVICE. 455

Enlistment in state militia.

A return to a writ of habeas corpus alleged in sub-
stance that the relator was detained by virtue of a
warrant duly issued to enforce the collection of a fine
imposed by a delinquency court; that though a minor
_ at the time of his enlistment, the same was legal and
proper by reason of the consent of his father thereto.
The relator traversed the return alleging the invalid-
ity of his enlistment on account of his minority and for
want of consent of his father, to the effect he never
consented. It did not appear that the question of ju-
risdiction was raised or determined by the, delinquency
court. Upon the hearing on the return, the court de-.
clined to hear any evidence relating to the relator’s en-
listment on the ground that the determination of the de-
linquency court was conclusive upon that question.

The enlistment was in the state militia and the writ
was issued from the state court. The court of appeals’
in the opinion, determined that the. court, in fact a
court martial, was a court of limited jurisdiction, and
that its jurisdiction must affirmatively appear. That
the want of jurisdiction could be shown upon collateral
attack by extrinsic evidence. Hence, where a person
detained by virtue of the judgment of such a court, ap-
plied for his discharge upon habeas corpus on the
ground that he was a minor, and there was no proof
(though recited in the judgment) that the consent of
his father had been obtained to such enlistment, the
judgment was not even prima facie evidence of the
essential jurisdictional fact of a valid enlistment. It.
was stated, however, that when a court has jurisdiction
of the subject matter and of the person, it is com-
petent for it to try and determine all questions within
the issue arising during the course of the trial, and its
decision thereon can be reviewed only on appeal in a
direct proceeding having that object in view. The evi-
456 HABEAS CORPUS.

dent purpose of this statement was to recognize the
rule as applicable to such cases, that where the court
upon proof before it, has determined the existence of
the facts upon which its jurisdiction depends, this is
conclusive upon collateral attack and with reference to
the particular case to state that, if the court had be-
fore it competent proof upon the question of the valid-
ity of such enlistment, then its judgment as to its
legal effect, though in effect it was determining its own
jurisdiction, could only be reviewed upon appeal.?®

§ 110. Suspension of writ—Power where vested and
where it may be exercised.

The first clause of section 9, art. 1 of the constitu-
tion provides: ‘‘The privilege of the writ of habeas
corpus shall not: be suspended, unless when in cases of
rebellion and invasion the public safety may require
it.’”’ The only occasion in this country calling for the
exercise of this power was the rebellion of the south-
ern states against the authority of the general govern-
ment. ‘‘During Jefferson’s administration he recom-
mended to congress the suspension of the writ of ha-
beas corpus during the Burr conspiracy. Congress
refused to do so, and the president never assumed the
power or pretended to claim it’’ *6

The first case in our history as a nation, where the
question was involved, as to where the power vested to
suspend the writ, was Ex parte Merryman.?"

The facts as stated by Mr. Tucker in his work on the
constitution, page 648, were that ‘‘on the 26th of May,
1861, before congress had met after the outbreak of the
civil war, the president had assumed the power as an ex-
ecutive perogative, to declare that civil war existed, and

25 People ex rel. Fry v. The 26 Tucker on the Constitution,
Warden, etc., 100 N. Y. 20,2 N. 647.
E. 87. 27 Taney’s C. C. Rep. 246, 265.
COURTS MARTIAL; MILITARY SERVICE: 457

on the basis of that declaration assumed in May, 1861,
not only to suspend the writ of habeas corpus, but to
confer that authority upon the military commander in
the district of Maryland. Merryman was imprisoned
in Fort McHenry in the state of Maryland, and filed a
petition before Chief Justice Taney to be released from
arrest made on the 20th day of May, and detention by
General Cadwalader of his person, without warrant
from any judicial officer, but upon the general charge of
treasonable acts against the government. The chief
justice issued the writ of habeas corpus, directing Gen-
eral Cadwalader to appear and produce the body of
John Merryman, and to certify and make known the
day and cause of the capture and detention of the said
John Merryman, and to submit to and receive what-
soever the said chief justice should determine upon
concerning him in his behalf, according to law, and to
have then and there said writ.

‘General Cadwalader made return, declaring that he
was duly authorized by the president of the United
States to suspend the writ of habeas corpus for the
public safety and declined to produce the prisoner.
Thereupon the chief justice issued an attachment
against General Cadwalader for contempt, and deliv-
ered the same to the marshal. The marshal made re-
turn that he was unable to serve the attachment upon
General Cadwalader by reason of military force. The
chief justice, in an impressive opinion, decided that the
civil process had been subordinated to military power
by the action of General Cadwalader, under the as-
sumed orders of the president., He decided that the
assumed power of the president was contrary to the
constitution of the United States; that the suspension
of the writ was a legislative power; that the president
under his duty to take care that the laws be faithfully
executed, was bound to uphold and aid the judicial
458 HABEAS CORPUS.

power and not to oppose and defy it, and, referring to
the nature of the British constitution on this question,
and the opinion of Chief Justice Marshall in Ex parte
Bollman, 4 Cranch, 75, and to Judge Story’s commen-
taries, he closed his opinion in this language: ‘In such
a case my duty is too plain to be mistaken. I have
exercised all the power which the constitution and laws
confer upon me, but that power has been resisted by a
force too strong for me to overcome. It is possible
that the officer who has incurred this grave responsi-
bility may have misunderstood his instructions, and
exceeded the authority intended to be given him; I
shall therefore order all the proceedings in this case
to be filed, and recorded in the circuit court for the
United States for the district of Maryland, and direct -
the clerk to transmit a copy under seal, to the president
of the United States. It will then remain for that high
officer, in fulfillment of his constitutional obligation to
take care that the laws shall be faithfully executed, to
determine what measures he will take to cause the civil
process of the United States to be respected and en-
forced.’ The president never acted in the matter.’’

Thus it was held that the power to suspend the writ
was vested in congress. ;

However the situation was peculiar. Many of the
states were actually in armed rebellion against the gen-
eral government. Maryland, while it had not in fact
seceded, was in a partial state of insurrection. The
authority of the general government had been defied
and armed resistance was prevalent therein. If the
president had not the power to suspend the writ and
declare martial law, under the circumstances and in
view of the wide spread armed resistance, then a power
did not exist at all so to do in the emergency which con-
fronted the president and the nation. Congress could
not be convened in a moment, and until such time as it
COURTS MARTIAL; MILITARY SERVICE: 459

could assemble the danger would be increasing and
without power to restrain it. When it should convene
the grave question would be presented in the absence of
members from the far distant loyal states, who could
not assemble speedily, and the absence of practically
all members of the states who had declared for seces-
sion, what would constitute a quorum of those bodies.
The emergency, however, was great and required im-
mediate action. The conditions involved more than the
restraint of liberty of a particular individual. It in-
volved the safety of the republic and hence the action
of the president was one of absolute necessity, an act
imperatively demanded of him for the preservation of
the union, and the law of self-preservation is and ought .
to be higher and above all written laws.

March 3, 1863, although the president had practically
suspended the privilege of.the writ, and detained sus-
pected persons in custody without trial, his authority
being questioned, an act was passed which authorized |
the president to suspend the privilege of the writ of
habeas corpus, whenever in his judgment the public
safety required, and by proclamation bearing date
September, 1863, he did so. However, such act only
authorized a detention of the suspected persons. A
list of those who were imprisoned was required to be
furnished to the judges of the courts in their respective
jurisdictions, not prisoners of war, and who were citi- ,
zens of states in which the administration of the laws of
the federal tribunals were unimpaired. After such list
was furnished, if a grand jury of the district convened
and adjourned, did not indict or present one of the per-
sons so named, he was entitled to his discharge, and it
was the duty of the judge of the court to order him
brought before him to be discharged if he desired it.

It was held that the suspension of the writ did not
authorize the arrest of any one, but simply denies to one
460 HABEAS CORPUS.

arrested the privilege of the writ in order to obtain his
liberty. The suspension of the privilege of habeas cor-
pus does not suspend the writ itself. The writ issues
as a matter of course; and on the return to it the court
decides whether the party applying is denied the right
of proceeding any further with it. The constitution
goes no further. It does not say after a writ of habeas
corpus is denied a citizen that he shall be tried other-
wise than by the course of the common law. The il-
lustrious men who framed that instrument were guard-
ing the foundations of civil liberty against the abuses
of unlimited power; they were full of wisdom and the
lessons of history informed them that a trial by an
established court, assisted by an impartial jury, was
the only sure way of protecting the citizen against op-
pression and wrong. Knowing this, they limited the
suspension to one great right, and left the rest to re-
main forever, inviolable.?®

It was further said ‘‘that the martial rule can never
exist where the courts are open and in the proper and
unobstructed exercise of their jurisdiction. It is also
confined to the locality of actual war.’’ 2°

Such was the law and ever since has remained in
this country founded upon the plainest principles
of justice and liberty. However, it was subsequently
ignored by a president of the United States, who re-
fused to respect it, notwithstanding the explicit declara-
tions of the courts and that of congress as expressed
in the act of 1863 referred to. After the assassination
of President Lincoln, Mrs. Surratt, a woman residing
in the district of Columbia, was tried by a court mar-
_tial as an accessory to the commission of such cruel
act of murder. The courts of that district, the su-
preme courts and courts of original jurisdiction located

28Ex parte Milligan, 4 Wall. 29 Ex parte Milligan, 4 Wall. 2,
2, 18 L. Ed. 281. 18 L. Ed. 281,
COURTS MARTIAL; MILITARY SERVICE: 461

there, were open and unobstructed. In fact, the rebel-
lion was practically at an end. There was not the slight-
est reason why, if guilty of or suspected of complicity in
the commission of that crime, she should not have been
duly presented to the court having the proper jurisdic-
tion, and tried. Yet that was denied her by the arbi-
trary will of the president, and in defiance of the con-
stitutional order of the court. She was condemned to
death and suffered that penalty under the very shadow
of the capitol, wherein was enthroned alone the consti-
tutional power to judge of her guilt and impose the
penalty provided by law. She sued out a writ of ha-
beas corpus which was issued by Justice Wiley, one
of the judges of that district. The military power
which held the person of that woman in custody re-
fused to comply with that writ. There was no power
in the court to enforce obedience to it, as the very
power which it might call to its aid was the power which
offered defiance and would offer resistance. The as-
sassination of the beloved president was cruel to the ex-
treme, and all concerned either as principals or acces-
sories deserved the severest punishment, and yet under
the circumstances the trial and conviction of Mrs. Sur-
ratt, by a court martial, and her subsequent death by
hanging, was a court murder. It was murder because
without constitutional right or authority, and in defi-
ance thereof.

Several state courts had, prior to the decision of In
re Milligan, 4 Wall. 2, 18 L. Ed. 281, determined the
question not only of the power of the president to sus-
pend the writ, but also the effect of a proclamation of
that character. Their determinations mainly were
made in cases involving the detention of persons in the
military service, who had been drafted or claimed: ex-
emption on the ground of age. Whatever may have
been their determination of the question involved as to
462 HABEAS CORPUS.

the power of the president to suspend the writ, or to de-
- clare martial law in a state not in a state of rebellion or
insurrection, becomes unimportant in view of the deter-
mination of those questions by the supreme court of
the United States.

Among the states whose courts passed upon the
question, were Wisconsin,®° New York,®! and In-
diana.®?

In In re Fagan, 2 Sprague, 91, it was held that the
suspension applied to all persons including minors, who
were enlisted without their parent’s consent, while in
People ex rel. v. Gail, 44 Barb. 98, the contrary was
held.

A citizen of the state of Mississippi, during the re-
construction period, who was not and never had been
connected with the army and navy of the United States
or with the militia in active service in time of war or
invasion, was arrested and held for trial upon a charge
of murder by a military commission under the act of
congress of the 2nd of March, 1867, ‘‘to provide for the
more efficient government of the rebel states.’’ A writ
of habeas corpus was issued by the circuit court of the
United States. Upon hearing, the writ was dismissed
and the prisoner remanded. The ‘prisoner petitioned
the supreme court for a writ of certiorari to review the
proceedings of the circuit court and for a writ of ha-
beas corpus, to be issued under the authority of that
court, to the officers to whose custody he was remanded.
The questions presented upon such application were:

1. Whether the action of the circuit court was to be
regarded as the cause of commitment, to which the act

30In re Kemp, 16 Wis. 360; 32 Griffen vy. Wilcox, 21 Ind.
In re Oliver, 17 Wis. 681. 370.

31 People ex rel. v. Gail, 44
Barb. 68.
COURTS MARTIAL; MILITARY SERVICE: 463

‘of 1789 applies, and whether if found unlawful, relief
might be granted by the writ of habeas corpus al-
though the original imprisonment was by military of-
ficers for the purpose of a trial before a military com-
mission.

2. If the court possessed this jurisdiction, had it been
taken away by the 2nd section of the act of March 2,
1868. The question of jurisdiction was the only one
that was argued, the court affirming the jurisdiction.

It was insisted in argument, that ‘‘to bring a case
within the appellate jurisdiction of the supreme court,
in the sense requisite to enable it to award the writ of
habeas corpus under the Judiciary Act, it is necessary
that the commitment should appear to have been by a
tribunal whose decisions are subject to revision by that
court.’’ It was held, that it was established by princi-
ple and authority, that the appellate jurisdiction by
habeas corpus, extends to all cases of commitment by
the judicial authority of the United States, not within
any exception made by congress.*4

Power of the states.

To what extent and under what circumstances a state
may declare martial law, has not been authoritatively
determined. That it may do so under some circumstan-
ces, however, has been so determined. It has been held
that unquestionably a state may use its military power
4o put down an armed insurrection, too strong to be
controlled by the civil authority. The power is essential
to the existence of every government, essential to the
preservation of order and free institutions, and is as
necessary to the states as to any other government.
That the state itself must determine what degree of
force the crisis demand.**

83 Ex parte Yerger, 8 Wall. 85, 34 Luther -v. Borden, 7 How.
19 L. Ed. 332. 1, 12 L. Ed. 581.
464 HABEAS CORPUS.

No question was involved in the case cited as to the
authority of the state through its legislature to sus-
pend the writ of habeas corpus. There was no oc-
casion for it, as the courts were open at all times, unless
temporarily to enforce its laws and punish offenders
against them. If the conditions were otherwise, and
an actual stage of war existed, then it probably would
follow that the writ could be suspended in such locali-
ties where such condition prevailed.

The supreme court of Idaho, however, has deter-
mined that the power to suspend the writ is within the
powers of the executive of that state; that whenever,
for the purpose of putting down insurrection or rebel-
lion, the exigencies of the case demand it for the suc-
cessful accomplishment of this end in view, it is en-
tirely competent for the executive or the military officer
in command, if there be such, either to suspend the
writ or disregard it, if issued; *4* that he may declare
that a state of insurrection exists in a particular
county, and call upon the president of the United
States for troops to subdue it, and to arrest or assist in
arresting persons engaged in such acts of lawlessness,
that his action in calling to his aid military forces of
the United States, has the effect to put in force to a
limited extent, martial law in said county.

Directly contrary is the determination of the North
Carolina court, and to the effect that the power con-
ferred upon the executive of that state by its consti-
tution, to declare a county to be in a state of insurrec-
tion, to order the arrest of all suspected persons, and
to do all things necessary to suppress the insurrection,
does not authorize him to suspend or disobey the writ
of habeas corpus.*®

34a In re Boyle, 6 Idaho, 609, 35 Hx parte Moors, 64 N. C.
57 Pac. 706, 45 L. R. A. 882, 96 802.
Am. St. Rep. 286.
é

BAIL; ADMITTING OF, 465

CHAPTER XIV.

BAIL; ADMITTING OF,

$ 111. Use of Writ.
112. Discretion of the Court in Capital Cases,
In General.
Before Indictment.
After Trial had and Disagreement of Jury.
After Prisoner has been Tried and Convicted Pending
Appeal.
118. In Cases not Capital.
114. Whether Extrinsic Evidence Admissible.
Circumstances Extraordinary in Character.
‘ Impaired Health.
115. Excessive Bail cannot be Required.
In General.
Reduction of Bail.
Right of Appeal from Order.

§ 111. Use of writ.

Where a person has been committed charged with the
commission of a crime, if the offense be bailable the
order to admit him to bail may be procured by habeas
corpus. By the use of such means he may be brought
before the court or judicial officer having authority in
the premises, where the evidence and the proceedings
upon which his commitment was ordered may be ex-
amined, and the amount and sufficiency of the bond
will be determined by such court or officer, due regard
being had to the character of the crime charged and
the attendant circumstances, so far as they appear
from the evidence.!

1Ex parte Bridewell, 57 Miss. 14 Pac. 144; People v. Tinder,,
39; In re Madison, 36 Kan. 725, 19 Cal. 539,

30
466 HABEAS CORPUS.

§ 112. Discretion of the court in capital cases.—In gen-
eral.

In most of the states it is the constitutional right of
one charged with crime to be admitted to bail prior to
conviction, except in capital cases. With respect to
capital cases the provision generally is, ‘‘except for
capital offenses where the proof is evident or the pre-
sumption great.’? In some states the right to bail
for murder or treason is expressly prohibited by their
constitution. In others it is held that there is a want
of power to admit to bail where the proof is evident and
the presumption great;? while in still others it is
held that a defendant charged with a capital crime may
be admitted to bail, in the discretion of the court, even
where the proof is evident and the presumption great.*

Where, in such cases, the proof is not evident or the
' presumption great, it is held that the right of admission
to bail is a constitutional right.*

The greatest difficulty is in determining the quesiien
of evident proof and great presumption. The very
statement of the proposition recognizes that it involves
a matter of discretion. The judicial power of the court
must be invoked, and it must determine as matter of -
law and fact the weight of the proof or the presump-
tion. It is stated that an indictment of itself fur-
nishes a presumption of the guilt of the defendant too
great to entitle him to bail as a matter of right under
the constitution, or as a matter of discretion under the
legislation of the state. That it creates a presumption
of guilt for all purposes, except on trial before a petit
jury. One court which pronounced this rule reasoned

2Comm. v. Kieper, 2 Ashm. 4In re Secreat (Kan.), 14 Pac.
(Pa.) 227, 144; People v. Tinder, 19 Cal.

3 Ex parte Bridewell, 57 Miss. 539; Ex parte Hay, 23 Tex. App.
39. 585.

6
BAIL; ADMITTING OF. 467

that if it did not create this presumption. the defendant
held under it by virtue of the warrant based upon it,
without other evidence of his guilt, would be entitled
to a discharge absolutely. If it furnishes no such pre-
sumption, it would not justify the exaction of bail or
the detention of the defendant.®

This view is sustained by the decisions of other
states, some declaring that an indictment furnishes the
very strongest possible presumption of guilt, and the
finding of a grand jury of a true bill is conclusive so
far as to put the defendant upon his trial and control
all the intermediate proceedings.*

There are other courts which hold that it is not only
within the power of courts to determine the question
whether the proof is evident or the presumption great,
and that it is their duty to weigh the evidence and
pass upon its conflicts as a trial court, but the
burden in view of the finding of a grand jury is upon
the accused, of showing that the proof is not evident or
the presumption is not strong. That the indictment re-
turned by the grand jury stands with all presumptions ~
in favor of its truth until its force is broken, by showing
that the grand jury acted upon insufficient evidence.
This showing may be made by fully disclosing the
knowledge of the witnesses for the state. Such pre-
sumptions are not conclusive; and that as to the pre-
sumption of malice, does not obtain where under the
facts, the homicide is justifiable, excusable or commit-
ted under such circumstances, which characterizes it
as manslaughter, voluntary or involuntary."

5 People v. Tinder, 19 Cal. 111; State v. Mills, 2 Dev. (N.

539. C.) 420.
6 Hight v. United States, 1 7 Brown v. State, 147 Ind. 28,
Morris (Iowa) 410, 48 Am. Dec. 46 N. HE. 34; Schmidt v. Sim-
mons, 137 Ind. 93, 36 N. E. 516.
468 ' HABEAS CORPUS.

The constitution of Indiana as well as its statute pro-
vides that murder is not bailable ‘‘when the proof is -
evident or the presumption strong.”’

It certainly must be within the power of the court
to determine whether the act charged as murder is sus-
tained by the proof.

‘«The statutes of the United States,”’ it is said, ‘‘have
been framed upon the theory that a person accused
of crime shall not, until he has been finally adjudged
- guilty in a court of last resort, be absolutely compelled
to undergo imprisonment or punishment, but may be
admitted to bail, not only after arrest and before trial,
but after conviction and pending a writ of error.’’

The statutes as to bail upon arrest and before trial
provide that ‘‘bail may be admitted’’ upon all arrests
in capital cases, and ‘‘shall be admitted’’ upon all
arrests in other criminal cases; and may be taken in
capital cases by the supreme court, or by a justice
thereof, or by a circuit court, a circuit judge or a
district judge, and in other criminal cases by any jus-
tice or judge of the United States or other anne steare
named. Rev. Stat. secs. 1014, 1016.

Under the act of March 3, 1879, ch. 176, upon pitts of
error from the circuit court to review judgments of
the district court, upon conviction in criminal cases,
the justice of the supreme court assigned to the cir-
cuit or the circuit judge, that is to say, any member of
the appellate court except the district’ judge (presum-
edly the judge who rendered the judgment below),
might allow the writ, to operate as a supersedeas. and
might take bail for the defendant’s appearance in the
circuit court (20 Stat. 354); and upon a writ of error
from the supreme court to the highest court of a state
to review a decision against a right claimed under the
constitution or laws of the United States, and which
lies in both criminal and civil cases, and operates as a
BAIL; ADMITTING OF. 469

supersedeas under the same circumstances in the one
as in the other, bail may be taken pending the writ of
error; but because of the relation between the two gov-
ernments, in the court of state only, it being enacted by
the Act of July 13, 1866, ch. 184, sec. 69, in accordance
with the practice previously prevailing in some states,
that the plaintiff in error, if charged with an offense
bailable by the laws of the state, shall not be released
from custody until final judgment upon the writ of er-
ror or until a bond with sufficient sureties in a reason-
able sum as ordered and approved by the state court
shall be given, or if the offense is not so bailable, until
such final judgment. By these statutes bail after con-
viction was provided for in every class of writs of error
pending in the courts of the United States in cases of
bailable offenses; for when they were enacted no writ
of error lay from this court to the circuit court or dis-
trict court in any criminal case. By the act of Febru-
ary 6, 1889, ch. 113, sec. 6, it was enacted that final judg-
ments of any court of the United States upon convic-
tion of a crime punishable with death might upon the
application of the defendant be reviewed by the su-
preme court upon a writ of error under such rules and
regulations as such court might prescribe,”’ etc.

It was further said: ‘‘Although the act expressly
recognized the power of this court to make rules reg-
ulating the proceedings upon writs of error in capital
cases, yet as by its terms the writ was to be allowed as
of right, without requiring any security, and was of it-
self to operate as a stay of proceedings, no rule upon
the subject was considered necessary and none was
made by this court. It can hardly be doubted, how-
ever, that congress intended that the allowance of the
writ of error and stay of proceedings, while suspending
the execution of the sentence, should neither have the
effect of discharging the prisoner from custody, nor
470 HABEAS CORPUS.

of preventing his being admitted to bail, upon sufficient
cause shown pending the writ of error; and no special
provision upon the subject of bail in a capital case after
conviction having been made by act of congress or rule
of court, it would seem, might be taken by the justice or
judge who allowed the writ.®

It has been held in Wisconsin, since the abolition
of capital punishment in that state, that persons
charged with murder are in all cases bailable.®

This ruling was based upon the provision-of the con-
stitution which declares ‘‘ All persons shall before con-
viction, be bailable by sufficient sureties, except for cap-
ital offenses when proof is evident or the presumption
great.’’ The court, therefore, must have determined the
offense from the character and extent of the punish-
ment that might be inflicted. It is true capital punish-
ment, as the term was originally defined, has reference
to the decapitation of the head, or the taking of life,
under and by virtue of a judgment and sentence, not
always confined to murder or treason. I apprehend,
however, that any method of extinguishing life, either
by hanging or by means of the electric chair, is capital
punishment. The crime, however, remains the same,
whatever the method may be prescribed of inflicting
punishment, and in construing the use of the words
‘‘capital offenses’’ as used in the constitution, it would
ordinarily be held that it referred to such offenses as
were capital at the time of the adoption of the constitu-
tion. The word ‘‘capital’’ is merely descriptive of of-
fenses, and does not relate to the method of punish-
ment which may have been changed. The reasons why
the offense of murder were charged, should not be

8 Hudson v. Parker, 156 U. S. 9In re Perry, 19 Wis. 676.
277, 39 L. Ed, 424, 15 Sup. Ct.
Rep. 450.
BAIL}; ADMITTING OF. 471

bailable, are just as strong, where the punishment pre-
scribed is imprisonment for life as where it is the ex-
tinguishment of life.

It has been held in other jurisdictions, the fact that
the jury may determine punishment as death or im-
prisonment for life, does not make the offense less
capital.?°

Before indictment.

The rule with respect to the character of the evidence
that may be received and considered, where the applica-
tion is made before indictment found, is different than
where the application is made after indictment. The
application may be based upon the testimony taken be-
fore the committing magistrate. In such case it has
been stated that ‘‘It is a safe rule to refuse bail in
cases where a judge would sustain a capital conviction
if pronounced by a jury on such evidence of guilt as
was exhibited to him on the hearing of the application to
admit to bail, and to admit to bail where the evidence
would not sustain such conviction.’’ 14

The judicial officer should hear such testimony as
may be offered respecting the commission of the homi-
cide, for the purpose of determining what crime has
been committed and the probable guilt of the accused,
and if he is satisfied therefrom that the offense is one
not capital he should admit him to bail. If the evi-
dence is of such character and weight as to create a
strong presumption of guilt, bail should be denied.?2

It was held by the Iowa court, at an early day, that

10 Hx parte McCrary, 22 Ala. 12 Finch v. State, 15 Fla. 663;
65; Ex parte Fortenberry, 53 x parte Smith, 23 Tex. App.
Miss. 428. 100; Ex parte Harfound, 16 Fla.

11In Matter of Trola, 54 Cal. 288; State v. Best, 7 Blackf. 641;
152; Ex parte Acree, 63 Ala. 234. Ex parte Tayloe, 5 Cowen, 39;
Ex parte Bridewell, 57 Miss. 44.
472 HABEAS CORPUS.

the peculiar object of the writ of habeas corpus was
to guard the accused up to the time his case is passed
upon by the grand jury, not for the purpose of control-
ling, reviewing or thwarting the action of that body.
That the provisions of the habeas corpus act of that
state; so far as they require the hearing of original tes-
timony, contemplate cases where no indictment has been
found. That the finding of the grand jury is conclusive
so far as to control all proceedings up to the time of
trial before the petit jury. This was so held upon an
application on the part of a person so charged with the
. erime of murder to be let to bail, and where it was
claimed to be the duty of the court to go into an original
examination of the whole matter.1’

It is quite evident: from a review of the decided cases,
that such is not generally the rule.

It was stated by the Mississippi court: ‘‘On hearing
this application, seven of the witnesses, whose names
are marked on the indictment, and two others said
by the counsel for the state to be important and whose
names are not on the indictment, and five others were
examined as witnesses for the state, and not a single
circumstance of criminating the appellant was dis-
closed. The names of nineteen witnesses are endorsed
upon the indictment and as seven of them and seven
others failed to testify to anything inculpating the ap-
pellant, the chancellor should have admitted him to bail,
or if he was led to believe that there was other testi-
mony procurable and important in the investigation,
he should have postponed the further hearing of the

18 Hight v. United States, 1 417; Ex parte Wolff, 57 Cal. 94;
Morris (Iowa) 407, 48 Am. Dec. Lumm v. State, 3 Ind. 293; Bx
111. See also State v. Mills, 2 parte May, 30 Miss. 673; Lynch v.
Dev. (N. C.) 420; Trial of Burr, People, 38 Ill. 494; Ex parte
opinion of Marshall, C. J. Hock, 68 Ind, 206; Ex parte

14Hix parte Vaughn, 44 Ala. Beacon, 12 Tex. App. 318.
!
BAIL; ADMITTING OF. _ 473

matter until it could be had. There is nothing to sug-:
gest that witnesses not in attendance have any knowl-
edge of the case, not possessed by those examined, and
if not, the sooner the prosecution is abandoned the bet-
ter. 9715

After trial had and disagreement of jury. .

If there has been a trial and evidence has been pro-
duced for and against the accused, and upon its consid-
eration the jury have failed to agree; this is a strong
circumstance against the presumption of guilt created
by the fact of indictment found, and oftentimes is suf-
ficient of itself to take the case without the general rule.
It may not be sufficient to justify the letting to bail as
a matter of course.1¢
It is said: ‘‘The fact that the testimony given on
the trial, did not produce full conviction in the minds
of the twelve jurors, would be a strong circumstance to
urge to the court when invoked to the exercise of so
high a discretion as that of admitting to bail a prisoner
charged with the crime of murder; this fact would come
with redoubled force if, as in the present instance, a
second jury should fail to agree upon a verdict with
the same evidence applied to another indictment for the
same offense. But however numerous such results,
they would never amount to rebuttal of the fact that
the proof was evident or the presumption great. In
other words they would never amount to a constitu-
tional requisition upon the judges to admit the prisoner
to bail. The appeal must still be addressed to the dis-
cretion of the court; a sound legal discretion it is true,
but one that can only be moulded into action by the evi-

15Ex parte Floyd, 60 Miss. 539; State v. Simmons, 19 Ohio,
913. 139; Ex parte Pattison, 56 Miss.
16 People v. Cole, 6 Park. Crim. 161.
‘R. 695; People v. Tinder, 19 Cal.
474 HABEAS CORPUS.

dence brought ‘to bear upon the indictment. After
stating that other influences often tend to produce the
disagreement of the jury, such as an obstinate or cor-
rupt juror, it stated a rule as declared by another, as
follows: ‘‘A safe rule where a malicious homicide is
charged, is to refuse bail in all cases where a judge
would sustain a capital conviction, if pronounced by a
jury, on such evidence of guilt as was exhibited to him
on the hearing of the application to admit to bail; and
in instances where the evidence for the commonwealth
is of less efficacy, to admit to bail.’ 17

Where, however, there have been two disagreements,
and it appears the accused voluntarily surrendered
himself and refused to escape when the opportunity
was present, these were strong circumstances to over-
come the presumption that attaches to an indictment
found.18

Where a jury have disagreed, the affidavits of jurors
are competent evidence to show that fact;1® and it
seems that where application has been refused before
trial, a second application, where there has been a mis-
trial, may be entertained.”°

After prisoner has been tried and convicted pend-
ing appeal.

After one charged with crime has been duly tried
and convicted, whether he may be admitted to bail
pending a review of the proceedings by writ of error
or by appeal in the appellate court, it may be said, is a
matter purely within the discretion of the court, and

17 State v. Summons, 19 Ohio, Cal. 211; In Matter of Alexander,
139. See also ex parte McLaugh- 59 Mo. 599,
lin, 41 Cal. 211; Ex parte Patti- 19 People v. Cole, 6 Park. Crim.
son, 56 Miss, 161. Rep. 605.
18Bx parte McLaughlin, 41 20 Ex parte Pattison, 56 Miss.
161. :
BAIL; ADMITTING OF. 475

is rarely granted unless there exists exceptional condi-
tions which seem to demand it. The general rule gov-
erning courts in cases of application to be let to bail,
has been stated by a New York court as follows:

‘‘On a question of bail before indictment, the magis-
trate may inquire as to the guilt of the prisoner. After
indictment he may, in cases not capital, look at the evi-
dence upon which it was obtained. But at each step
of the proceeding, the ground upon which the prisoner
can be let to bail diminish as the evidences of his guilt
increase, because bail is not based upon the grace or
favor of the court, but solely on the doubt which may
exist as to his guilt. After conviction and sentence his
claims to be let to bail are further diminished, but as
he may still be innocent, as he may have something to
urge against the legality of his sentence, he may apply
to be bailed, and if it appear that his conviction was un-
just, or there is a serious doubt about his guilt, his
application may be granted. But at this stage of the
proceeding, the legal doubts concerning the guilt of the
prisoner ought to be considered as so well settled
against him, that the application for bail if made to a
judge at chambers, should be very cautiously enter-
tained and only granted in cases of great question and
difficulty.’ 21

That part of the foregoing opinion relating to appli-
cations to be let to bail after conviction, is a correct
statement of the prevailing rule. In that part relating
to applications prior to conviction, unless confined to
capital cases, the language used is very inaptly chosen
and if not so, the expression is incorrect. A party has
the constitutional right to be let to bail prior to convic-
tion, except in capital cases. No particular ground is
for the determination of the court or magistrates. The
only question is the amount and sufficiency of the bail.

21 People v. Lohman, 2 Barb. (N. Y.) 454.
476 HABEAS CORPUS.

It has also been stated that the discretion of the -
court shall not be exercised in favor of the discharge
of the prisoner unless it is quite clear that upon a sec-
ond trial he would not be convicted.??

§ 113. In cases not capital.

It is generally held that one charged with the com-
mission of felony is not entitled to be admitted to bail
as a matter of right pending an appeal to the court of
last resort. It then becomes a matter within the dis-
cretion of the court in cases not capital.2%

This question has been in many states regulated by
statute. So has the question of the effect of an appeal.
In some an appeal stays sentence and execution. In
others it has no such effect. There is much in the posi-
tion that one accused of crime should not be required
to suffer the punishment prescribed by law upon con-
viction, where the matter is undetermined and awaits
the action of the appellate court. Yet the courts hold
otherwise, and such punishment must be endured, un-
less the court in its discretion determine otherwise, by
admitting the defendant to bail. This discretion, how-
ever, will not ordinarily, be exercised in favor of such
a course where the conviction is for a capital offense.”+

In felonies other than capital offenses, the discretion
will be cautiously exercised, and application will be
denied unless extraordinary circumstances have inter-
vened, is the rule in some jurisdictions.”®

In others, as we have seen, and as appear in the
notes, the application will be granted quite freely.

22 Bennett v. People, 94 Ill. and cases cited; Davis v. State,
581. See, however, Ex parte 6 How. (Miss.) 399.
Hoge, 48 Cal. 3; People v. Per- 24 Bx parte Marks, 49 Cal. 680.;
due, 48 Cal. 552. Ex parte Smallman, 54 Cal. 15.
28 Bx parte Brown, 68 Cal. 176, 25 Ex parte Marks, 49 Cal. 680.
BAIL; ADMITTING OF. 477

When reference is made to a conviction, it is meant
a. finding that the accused is guilty either by the verdict
of a jury or some other recognized mode. It does not
refer to the final act of judgment and sentence.2*

After sentence and commitment, a prisoner cannot
ordinarily be bailed.?7 ;

The power to admit to bail after conviction and be-

fore sentence was declared by the Ohio court. There
‘is no qualification in the constitution of that state.
It would seem that such was the construction of a
statute of that state providing ‘‘that when a person is
sentenced for a felony, and execution of the sentence is
suspended, the court shall order him into custody of
the sheriff until the case is disposed of,’’ as it is said
“<The power to admit to bail is amply given to the
courts and is incidental and necessary to the due minis-
tration of justice; and this,power is not taken away:
until the prisoner found guilty of a felony is sen-
tenced.’’ Again: ‘And our laws do not prohibit’, sie
power until after sentence.’’

It was further said: ‘‘We do not say that after ver-
dict of guilty of felony, the prisoner on tendering suffi-
cient bail can demand as of right his discharge from the
sheriff’s custody pending his motion for a new trial;
we only say the court in the exercise of a wise judicial
discretion, may so admit to bail. The court might be
satisfied that the testimony did not warrant the verdict
of guilty, or that the prisoner’s life might be endan-
gered by his imprisonment. caren

The rule i in.the federal court has been stated.

With respect to the power of courts to admit to bail

26 Ex parte Brown, - 68 Cal. 28 Hampton v. State, 42 Ohio
176. St. 401. See Clawson y. United

27 Corbett v. State, 24 Ga. 391; States, 113 U. S. 148, 28 L. Ed.
Ex parte Marks, 49 Cal. 680; In 957, 5 Sup. Ct. Rep. 393.
Matter of Percy, 2 Daly, 530.
478 HABEAS CORPUS.

pending appeal or writ of error in cases of conviction,
the particular provisions of the constitution of the par-
ticular state should be consulted. In Maine, Iowa,
Michigan, Minnesota, Mississippi, South Carolina and
Wisconsin, and perhaps some of the other states, their
constitution provides that ‘‘all persons shall, before
conviction, be bailable by sufficient sureties, except for
capital offenses when the proof is evident or the pre-
sumption great.’’ While in some of the other states in-
eluding Nebraska, the language of their constitution
is: ‘‘ All persons shall be bailable by sufficient sureties, ’’
ete.

It seems to have been held in Mississippi, one of the
states where the constitution provides for bail, before
conviction, that the right to give bail after sentence,
pending an appeal to the supreme court, was not reg-
ulated by the constitution, but governed by the rules
and practice of the common law.?®

And a like view was taken by the supreme court of
Minnesota, the constitutional provision in both states
being similar.®°

There is no federal constitutional or legislative pro-
vision upon the subject. The practice in the federal
courts is regulated by rule, which provides in substance
that upon the allowance of a writ of error, in case of
conviction of infamous crimes, the circuit or district
court or any justice or judge thereof, shall have power
to admit the accused to bail in such amount as may be
fixed. The Nebraska court, however, assuming that the
wording of the constitution of that state which is gen-
eral, not containing the limiting words ‘‘before convic-
tion,’’ implies that the power of the court is the same af-
ter conviction as prior thereto, and held that the com-

29 Ex parte Dyson, 25 Miss. 80 State v. Levy, 24 Minn. 362.
356,
BAIL; ADMITTING OF. 479

mon-law rule as contained in the rule on the federal
courts prevail in that state, and that the court should
exercise its power to admit to bail, upon a showing of
probable error which would call for a reversal of the
judgment in all save the exceptional cases mentioned in
the constitution.

It was further held that the provision of the criminal
code in so far as it denies the discretion of that court
to admit to bail in proper cases, after sentence, is in
conflict with the constitution of the state.**

It appears that the legislature of the state of Iowa
have undertaken to prescribe when and under what re-
strictions a person may be admitted to bail, after con-
viction, notwithstanding the provision of the constitu-
tion of that state. There are several provisions re-
lating to the subject. 1. (Code sec. 4107) ‘‘All de-
fendants are bailable both before and after conviction
by sufficient surety except for offenses heretofore pun-
ishable with death under the laws of the state, when
the proof is evident and the presumption great.’’
2. (Code sec. 4511) ‘‘In all cases except murder in the
first degree, the court rendering a judgment must make
an order fixing the amount in which bail must be taken,
and there shall be no execution of the judgment until
such order is made.’’ 3. (Code sec. 4528) ‘‘An ap-
peal taken by defendant does not stay the execution
of the judgment unless bail be put in, except as pro-
vided by the next section. (4529.) When the judg-
ment is imprisonment in the penitentiary, and an ap-
peal is taken during the term at which the judgment
is rendered, and the defendant is unable to give bail,
and that fact is satisfactorily shown to the court, it
may, in its discretion, order the sheriff or officer having
the defendant in custody, to detain him in custody with-

31 Ford v. State, 42 Neb. 418, 60 N. W. 960.
480 HABEAS CORPUS.

out taking him to the penitentiary to abide the judg-
ment on the appeals, if the defendant desire it.’’
4. (Chapter 103, Acts 17th General Assembly.) ‘‘No
defendant convicted of murder shall be admitted to
bail.’’

It was held that prior to the enactment of the last.
statute, persons convicted of murder not punishable
with death, could have been admitted to bail, and ex-
cept in cases of murder in the first degree, the accused
could be admitted to bail after conviction. But that
the statute last mentioned included all cases of murder
without reference to degree, and hence it prohibited ad-
mitting to bail of a person convicted of murder in the
second degree.3?

The provisions of these statutes were before the
court in a later case, where a person charged with mur-
der in the first degree was convicted of murder in the
second degree, and such conviction was reversed. It
was held that the conviction for the lesser degree of the
offense operated as an acquittal of the greater degree,
and that as that conviction was set aside, the prisoner
merely stands charged with the crime of murder in the
second. degree, and he so stands as one unconvicted of
any crime and was entitled to the rights and privi-
leges of a person in that condition, including, that of
being let to bail.**

The New York criminal code (section 555) provides
that after the conviction of a crime not punishable with
death, a defendant who has appealed and when there is
a stay of proceedings and not otherwise may be ad-
mitted to bail:

1. As a matter of right when the appeal is from a
judgment imposing a fine only;

32 Baldwin v. Westenhaver, 75 33 State v. Helm, 92 Iowa, 540,
Iowa, 547, 39 N. W. 882. 61 N. W. 246,
BAIL; ADMITTING OF. 481

' 9. Asa matter of discretion in all other cases.

Section 527 of the criminal code, entitled ‘‘Stay of
Proceedings upon Appeal,’’ provides that ‘‘An appeal
to the appellate division of the supreme court from a
judgment of conviction * * * stays the execution
of the judgment * * * upon filing, with the notice
of appeal, a certificate of the judge who presided at the
trial, or a justice of the supreme court that in his
opinion there is reasonable doubt whether the judg-
ment should stand, but not otherwise.”’

Section 529 prescribes that notice must be given to
the district attorney of the application for the certifi-
cate of reasonable doubt, accompanied by a specifica-
tion in writing of the grounds upon which the applica-
tion is based, but the judge may stay the execution of
the judgment until the determination of such applica-
tion.

It was held that bail can be secured only when a per-
manent stay of proceedings has been granted, after the
allowance of a certificate of reasonable doubt upon due
notice to the district attorney.

As stated by the court: ‘‘ Before the statutory enact-
ment to that end a person convicted of a criminal of-
fense had no right of appeal. Under the revised statutes
there were available the two methods of reviewing a
conviction, either by certiorari before judgment or by
writ of error after judgment. Upon the proceeding by
certiorari the defendant might have stay of judgment
and be admitted to bail. Provision was also made
whereby upon review by writ of error there might be a
stay of proceedings and the defendant admitted to bail,
through the medium of habeas corpus proceedings.
The code of criminal procedure was adopted and con-
cededly it supplants the prior methods of review, and
entirely and exclusively provides for and measures
the defendant’s right upon appeal from a conviction

31
482 HABEAS CORPUS.

so far as those rights are subject to statutory con-
trol.’’ 34

§ 114. Whether extrinsic evidence admissible.

The important question is whether extrinsic evidence
can be received to overcome the force of the presump-
tion of guilt. We find with respect to this proposition
a diversity of opinion among the courts. In some it is
the doctrine that the effect of the presumption is so far
conclusive that it cannot be overcome or resisted by
extrinsic evidence as to the guilt or innocence of the ac-
cused, unless where conditions or circumstances extra-
ordinary in their character exist which seem to render
such a proceeding necessary to the furtherance of jus-
tice.55

All the cases practically agree that no inquiry can
be had as to the evidence taken before the grand jury,
as the deliberations of that body are secret, and the
jaw does not permit the testimony received by them
to be disclosed.*°

It is contended that the effect of allowing extrinsic
evidence would in effect convert the proceeding upon
habeas corpus into a trial upon the merits. In other
states the doctrine is that the court will receive testi-
mony extrinsic to the record in determining the ques-
tion of evident proof and great presumption of guilt.%*

Thus, in Mississippi, the rule was stated to be that the
officer upon the writ should require the production of
all the evidence available for the prosecution, and

34People ex rel. Hummel v. 36 People v. McLeod, 1 Hill,

Reardon, 186 N. Y. 164.

35 People v. Tinder, 19 Cal.
539; People v. McLeod, 1 Hill,
377, 37 Am. Dec, 328; People v.
Huyler, 2 Park. Crim. Rep. 571;
State v. Mills, 2 Dev. (N. C.)
420; Ex parte Tayloe, 5 Cow. 39;
United States v. Jones, 3 Wash.
224,

377; People v. Tinder, 19 Cal.
539.

37 Commonwealth vy. Ruther-
ford, 5 Rand. (Va.) 646; Lumm
v. State, 3 Port. (Ind.) 293; Bx
parte Halpine, 30 Ind. 254;
Street v. State, 43 Miss. 1; State
v. Hill, 3 Brev. (S. C.) 89,
BAIL; ADMITTING OF. 483

should, if necessary, postpone the hearing until it can be
obtained. If upon the whole testimony adduced before
him he entertains a reasonable doubt whether the re-
lator committed the act, or whether in so doing he was
guilty of a capital crime, he should admit him to bail.?*

The Indiana court contends that a proper construc,
tion of the statute of that state authorizes an examina-
tion of witnesses and a full investigation of the case.
It also maintained that the indictment should not have
the force of conclusive presumption, as the accused
might be convicted of murder in the first or second de-
gree or of manslaughter.*®

Such reasoning did not impress itself upon the Cal-
ifornia court and they ignored it.*°

The practice of allowing extrinsic evidence is recog-
nized in Texas by the provisions of their statute.‘

Circumstances extraordinary in character which
will create an exception to the rule.

What circumstances will be deemed of. a sufficient
and extraordinary character to come within the ex-
ception to the rule is a question that does not admit of
a definite answer. Where the defendant was under in-
dictment for a capital offense, it was held that affida-
vits tending to show that the prosecution was insti-
tuted from malice or mistake, and that the inveigling
a slave from his master, which constituted the offense
charged, was not felonious or fraudulent, but in con-
sequence of a fair claim of property, should be received
and considered on the application.*”

This determination did not find favor with the Cali-
fornia court. They state that ‘‘it is difficult to per-

38 Bx parte Bridewell, 57 Miss. 41 Yarbrough v. State, 2 Tex.
39. 523.
39 Lumm v. State, 3 Ind. 293. 42 State v. Hill, 3 Brev. (S

40 People v. Tinder, 19 Cal CC.) 89.
539.
484 HABEAS CORPUS.

ceive how malice in the institution of the prosecution
can affect the case. That the accused is not entitled to
any more leniency or consideration because improper
motives may have led to the exposure of his crime and
to proceedings against him. Where a mistake in the
institution of the prosecution is alleged, the proper
course is to make a representation to the public pros-
ecutor, who will undoubtedly consent to the reception
of bail if satisfied of the truth of the representation.’’#*

Several instances are stated by the California court
which are supposed to be of such a special and extra-
ordinary character as to justify the consideration of
evidence offered against the presumption of guilt
created by the indictment, as follows: The existence at
the time the indictment was found of great popular ex-
citement with reference to the prisoner or the offense
charged against him, likely to bias or warp the judg-
ment of the grand jurors. It seems that such a ground
has been determined to constitute an exception to the
general rule stated, and the court considered the fact
that while the indictment was pending against him the
accused was elected a member of the legislature by the
citizens of the county. The existence of the party
charged to have been murdered will constitute an ex-
traordinary circumstance in any case; and the allega-
tion under oath, of his existence, in the application for
bail would justify, if not require, a careful examination
of the evidence offered. So too would a clear confes-
sion by another of the commission of the offense for
which the defendant is indicted.**

The same court, though stating in the same case that
extraneous evidence cannot be received unless special
and extraordinary circumstances exist, also state that

48People v. Tinder, 19 Cal 44 People v. Tinder, 19 Cal. 539.
539,
BAIL; ADMITTING OF. 485

bail may be taken after indictment found where no such
special and extraordinary circumstances exist as they
have mentioned. That it may be taken upon the ad-
mission of the public prosecutor that the evidence which
he can produce will not warrant a conviction of a capi-
tal offense, or upon his admission of facts from which
it is evident no such conviction can take place. Other
grounds have been stated by other courts, some of
which were also stated by the California court. Thus,
the non-existence of a secure place to confine the pris-
oner until the day of his trial has been held a sufficient
ground for admitting a prisoner to bail.*®

So also where the accused has been once tried and ac-
quitted for the same offense, as well as where the al-
leged homicide was committed in a war between two
nations.*6

If there has been unreasonable delay in bringing the
prisoner to trial, bail should not be refused even where
the trial has been postponed for what appeared to be
sufficient reasons, or where some event has transpired
which operates to indefinitely postpone the further
prosecution of the action.‘7

The rule does not extend to authorizing the letting to
bail for every postponement.*®

Impaired health.

The fact that a prisoner is in poor health, and the
imprisonment may endanger his life, is not important
where the right to bail exists. In some jurisdictions
as has been stated, bail is not allowed after conviction

except in cases which present exceptional conditions

45 Smith y. Smith, 1 Cal. 9. 14 N. W. 112; Street v. State,
48 Finch y. State, 15 Fla. 633; 48 Miss. 1. ° i
People v. McLeod, 1 Hill, 377. 48 Regina v. Andrews, 2 Dowl.

47In re Peoples, 47 Mich. 626, & L. 10; Logan v. State, 3 Brev.
' (S. C.) 415.
486 HABEAS CORPUS.

which seem to demand it; one of those exceptions may
be said to be that, the state of health of the prisoner is
such that continuance of the imprisonment would likely
prove dangerous to life.*®

And this condition may be shown in like manner as
other extraneous facts.°°

§ 115. Excessive bail can not be required.

Among the constitutional provisions of the several
states is one, in substance, that excessive bail shall not
be required. I understand that the constitution of
Illinois is the only exception. A provision of the fed-
eral constitution is to the effect that excessive bail shall
not be required, nor excessive fines imposed, nor cruel
and unusual punishment inflicted.*! .

It has been determined by the supreme court of the
United States that such provision, and others which
contain no expression indicative of an intention to ap-
ply them to the state governments, are restrictions
upon the government of the United States only.®?

The question of the amount of the bail is necessarily
one addressed to the discretion of the court or judge,
and it must be that such discretion, when exercised, will
be interfered with only in cases where it is clear it has
been abused. To require excessive bail is an abuse of
discretion as well as a violation of fundamental law.5?

It has been stated that the discretion of the magis-
trate in taking bail is to be guided by the compound con-

49In re Ward, 127 Cal. 489, 59
Pac, 894, 47 L. R. A. 466; Ex
parte Azhderian, 123 Cal. 512, 56
Pac, 1130; Comm. v. Semmes, 11
Leigh, 665; Street v. State, 43
Miss. 1; Ex parte Pattison, 56
Miss. 161.

50 People v, Cole, 6 Park. Crim.
Rep. 695.

51See Story on Constitution,
sec. 1903 and notes.

52 Barron v. Mayor, etc., of
Baltimore, 7 Pet. 248, 8 L. Ed.
672. See also Comm. v. Hitch-
ings, 5 Gray, 481; Barker v.
People, 3 Cowen, 686; James v.
Comm., 12 S. & R, 221.

53 McConnell v. State, 138 Tex.
App. 390.
BAIL; ADMITTING OF. 487

sideration of the ability of the prisoner to give bail and
the atrocity of the offense.*+

The nature and character of the duty thus imposed
upon the judicial officer suggests a large discretion in
its exercise, and so long as there are different minds
there will remain a difference in judgment. What one
might deem, under particular circumstances and condi-
tions, a reasonable bail, another might deem large and
excessive. It is therefore evident that, in order to
justify a reduction of the amount of the bail, it must
clearly appear to the reviewing officer that the bail is
disproportionate to the enormity of the offense, and to
such a degree that it may be assumed that it was the
result of prejudice.**

It was stated by an able court ‘‘that to require larger
bail than the prisoner could give would be to require
excessive bail, and to deny bail in a case clearly bail-
able by law.’’ This statement is often quoted, but it
will be observed at a glance is not a full statement
of the rule. If it were, then in a majority of cases of
criminal procedure the accused would be relieved from
restraint of imprisonment upon nominal bail only.

Reduction of bail.

Upon an application for reduction of bail the guilt
of the prisoner is assumed, where indictment has been
found, and if the crime charged is one of particular
enormity, or one where the punishment prescribed is
great, the ability of the prisoner to furnish bail, though
an element to be considered, cannot have the effect to
reduce the amount to a sum less than reasonably may
seem proper, under all the circumstances, to require
his appearance for trial when demanded. Where,
therefore, it appears from the evidence that the de-

54 United States v. Brawner, 7 55 Ex parte Ryan, 44 Oal. 555.
Fed. 86.
488 HABEAS CORPUS.
fendant is unable to give such bail as the court believes
sufficient to insure his appearance, the court will not,
merely for the sake of reduction, reduce the amount
‘of bail.®*

ail in the sum of $15,000 was held not to be exces-
sive where the accused was under indictment for as-
sault with intent to commit murder.*"

One who stands charged with the commission of a
crime may, before conviction, apply upon habeas cor-
pus for a reduction of bail, where the amount is be-
lieved to be too large,®® and after commitment for fail-
ure to give bail, he may make such an application if the
bail fixed appears excessive.®®

Right of appeal from order. :

In some of the states an appeal or writ of error may
be prosecuted from an order refusing bail made in ha-
beas corpus proceedings. The order for such purposes
may be considered a final judgment.

In other states the order may be brought up for re-
view by certiorari,*! and in at least one other the pro-
ceedings may be reviewed upon habeas corpus issued
from the supreme court.®

The record in all cases should contain all the evi-
dence,®* as the appellate court is confined exclusively
to such record in its review.®*

56 People v. Town, 3 Scam. 19; 39; Ex parte Walker, 3 Tex.

Ex parte Ryan, 44 Cal. 555.
57 Ex parte Ryan, 44 Cal. 555.
58 Hx parte Ryan, 44 Cal. 555;
Bethelram vy. Block, 11 Bush
(Ky.) 628; Evans v. Foster, 1
N. H. 878; Miller v. State, 43
Tex. 579.
59 Evans v. Foster, 1 N. H, 378.
60 Bx parte Bridewell, 57 Miss.

App. 669; Lumm y. State, 3 Port.
(ind.) 293; Ex parte Halpin, 39
Ind. 254.
61 Hx parte Good, 19 Ark. 410.
62 Ex parte Croom, 19 Ala. 561.
68 People v. Hessing, 28 III.
410.
64 Ex parte Rothschild, 2 Tex.
App. 560.
BAIL; ADMITTING OF. 489

It is only upon the ground that the order is in effect
a final judgment that ‘an appeal or writ of error will
lie. The nature of the order, therefore, is important.
Thus it has been held that no appeal lies from an order
refusing a writ of habeas corpus; ®* nor from an order
dismissing a motion to reduce the amount of bail; ®* nor
from a refusal to hear extraneous evidence upon the
application for bail where the party stands indicted for
murder.®?

It is equally the law that no appeal on the part of
the state lies from an order admitting a party to bail; ®
nor from an order admitting to bail, which has been
complied, with, where the particular ground is that the
prisoner should have been discharged.®

65 Ex parte Foster, 5 Tex. App. 68 State v. Scheuster, 40 Cal.
525. 627,
66 Miller v. State, 43 Tex. 579: 69 Ex parte Walker, 53 Miss.

67 Lynch v. State, 38 Ill. 494. 366.
490

117.
118.
119.

120.
121,
122,
123.

HABEAS CORPUS.

CHAPTER XV.

INTERNATIONAL EXTRADITION.

116. Definition.

Extradition is Allowed and Governed by Force of Treaties.
Executive of State without Power to Surrender Fugitive. F
Jurisdiction as used in Treaties Defining Place of Commis-

sion of the Alleged Crime.

The Alleged Offense must be a Crime in Both Countries.
Political Offenses not Included in Treaties.

Whether Requisition must Precede Arrest and Inquiry.
Proceedings.

Examination before a United States Commissioner.

Competency of Magistrate.

Character of the Proceedings.

Examination how Conducted; where Held.

Requirements Preliminary to Issue of Warrant of Arrest.

Complaint by Whom Made.

Manner of Statement of Facts.

What Required to be Stated.

The Warrant; What to Contain.

Evidence; Character and Sufficiency.

Entitled to Process at Expense of Government.

Bail; Whether Permissible.

Continuance.

Commitment and Certificate.

Determination of Magistrate not Conclusive upon the
President.

124. Review of Proceedings upon Habeas Corpus.

State as well as Federal Courts have Jurisdiction to In-
quire into Cause of Restraint.
Extent of Inquiry.

125. Trial for Other Offense than that for which Extradited.
126. Extradition of Deserter of Army.
INTERNATIONAL EXTRADITION. 491

§ 116. Definition.

International extradition is ‘‘the surrender by one
sovereign state to another, on its demand of persons
charged with the commission of crime, within its juris-
diction, that they may be dealt with according to its
laws.’?}

§ 117. Extradition is allowed and governed by force of
treaties.

By force of treaties entered into between the United
States and other foreign countries quite generally, per-
sons charged with crime may be extradited. Such
treaties usually designate the class of crimes and in
some instances the particular crime, which are within
its provisions. Formerly it was questioned whether
the surrender of fugitives from justice by one govern-
ment to another was a duty or obligation imposed by
the law of nations, or depended upon courtesy or
comity, which might or might not be exercised at the
pleasure of each government, without cause of com-
plaint. In this country and in England it has been
substantially settled that no such duty exists, and in
practice it is believed that in nearly all countries
neither demand nor surrender is now made, except in
obedience to treaty stipulations.?

If, however, an alleged fugitive has been surren-
dered by a foreign government who is charged with a
crime not embraced within those covered by the treaty,
the fact that the crime is not thus included therein is
no ground for the discharge of the prisoner. The
government has power to surrender an alleged fugi-

1Bouvier’s Law Dict., Vol. 1, 59 N. Y. 110, 17 Am. Rep. 317;
567. United States v. Raucher, 119 U.
2Kent’s Com. (11th ed.) 38, SS, 407, 30 L. Ed. 425, 7 Sup. Ct.
note d; Story’s Conflict of Laws, Rep. 234.
sec, 626; Adriance v. La Grave,
492 HABEAS CORPUS.

tive from justice for any offense, and, even though
such government has been deceived and defrauded with
respect to such extradition, the accused cannot inter-
fere in behalf of such government. The question of
good faith is for the two governments.®

§ 118. Executive of state without power to surrender
fugitive.

The executive of a state has no power to surrender
a person charged with crime to the authorities of a
foreign government for trial, the exclusive power to
regulate, provide for and control the surrender of fugi-
tives from justice from foreign countries being vested
by the constitution in the federal government.‘ |

§ 119. Jurisdiction as used in treaties, defining place
of commission of the alleged crime.

Where treaties provide for the surrender of persons
charged with crimes, committed within the jurisdiction
of one of the contracting parties, who may be found
within the territory of the other, such words mean
territorial jurisdiction.’

And such place must have been within the jurisdic-
tion of the demanding country at the time the offense
was committed.®

§ 120. The alleged offense must be a crime in both
countries,

The general principle of international law in cases
of extradition, is that the act on account of which ex-
tradition is demanded, must be a crime in both coun-

3 Adriance v. Lagrave, 59 N. Y. Rep. 483; Ex parte Holmes, 12
110, 17 Am. Rep. 317; Caldwell’s Vt. 631.
Case, 8 Blatchf. C. C, 181. SIn re Shipp, 28 Fed. Cases
4Holmes v. Jennison, 14 Pe- No. 13,562, 11 Blatchf. 124.
ters, 540, 10 L. Ed. 579; People '6In re Taylor, 118 Fed. 196.
v. Curtis, 50 N. Y. 321, 10 Am.
INTERNATIONAL EXTRADITION. 493

tries. If the offense charged is ‘‘criminal by the laws
of the demanding country and by the laws of the state
of the United States in which the alleged fugitive is
found, it comes within the treaty and is extraditable.’’”

There is no common-law crimes of the United States,
and indeed in most of the states the criminal law has
been recast in statutes, the common law being resorted
to in aid of definition.®

§ 121. Political offenses, not included in treaties.

Independent of treaty stipulations, persons charged
with mere political offenses will not be surrendered.
Most of the treaties so expressly declare.®

In In re Ezta, the alleged crimes of murder and rob-
bery were committed by the president of the republic
of Salvador and his officers during actual hostilities
against a revolutionary uprising, and it was held that
such offenses were of a political character.

In In re Ornelas v. Ruiz, a body of armed men crossed
the border into Mexico, attacked and killed Mexican
soldiers, and committed other offenses, remaining in
that territory about six hours. The fugitives claimed
that there was an uprising against the Mexican govern-
ment. It was held that the offense was not of a purely
political character.

§ 122. Whether requisition must precede arrest and
inquiry.

The question whether arrest and judicial inquiry

could precede a demand made upon the president of

the United States, was elaborately discussed by several

7 Wright v. Henkel, 190 U. S. S. 457, 32 L. Ed. 234, 8 Sup. Ct.
40, 47 L. Ed. 948, 23 Sup. Ct. Rep. 1240.
Rep. 781. 9In re Ezeta, 62 Fed. 972; Or-
8 Benson v. McMahon, 127 U. nelas v. Ruiz, 161 U. S. 502, 16
Sup. Ct. 689, 40 L. Ed. 787.

4
494, HABEAS CORPUS. —

judges of the supreme court of the United States and it
was determined that judicial authority under the act of
August 8, 1848, was vested in magistrates to arrest and
commit preparatory to surrender, without a previous
requisition made upon the president of the United
States, and his authority obtained for that purpose.
There was a strong dissent on the part of Taney, C. J.,
and Nelson and Daniels, JJ.”

The statute referred to provided among other things
that the determination of such judicial officer, together
with a copy of all the testimony taken before him, shall
be certified to the secretary of state, so that a warrant
may issue by the executive on the requisition of the
foreign government, through its proper officers for
the surrender of the fugitive.

§ 123. Proceedings.—_Examination before a United
States commissioner.

Federal statutes provide for a preliminary exami-
nation before a commissioner in extradition proceed-
ings, and in some where a person has been charged with
the commission of an offense against the laws of the
United States.

Competency of magistrates.

The federal statutes define what judicial officers are
competent and authorized to conduct and hence have
jurisdiction to act in extradition cases, conferring such
power upon the justices of the supreme court, circuit
court and district courts, judges of courts of record of
general jurisdiction of the states, and commissioners
authorized by any of the courts of the United States.**

United States commissioners though having general
powers to arrest and commit for offenses against the

10In re Kaine, 14 How. 103, 11 Rev. Stat. U. S. 1878, sec.
14 L. Hd, 345. 5270; U. §S. Comp. St. 1901,
p. 3591,
INTERNATIONAL EXTRADITION. 495

United States, who have not been specially authorized,
are not clothed with such power.!2

However, a commissioner, authorized by a district
court to discharge all the duties and exercise all the
powers which may be performed by a justice of the
supreme court or a circuit or district judge, under such
statute, has such authority to act.1%

Character of proceedings.

The proceeding before the commissioner is not to be
regarded as in the nature of a final trial, by which the
prisoner could be convicted or acquitted of the crime
charged against him, but rather of the character
of those preliminary examinations which take place
every day in this country before an examining or com-
mitting magistrate, for the purpose of determining
whether a case is made out which will justify the hold-
ing of the accused either by imprisonment or under
bail, to ultimately answer to an indictment or other
proceeding, in which he shall be finally tried upon the
charge made against him.1*

It was stated by the court: ‘‘The language of the
treaty which we have cited, above quoted, explicitly
provides that ‘the commission of the crime shall be so
established as that the laws of the country in which
the fugitive or the person so accused shall be found,
would justify his or her apprehension and commitment
for trial if the crime had been there committed.’ This
described the proceedings in these preliminary exami-
nations as accurately as language can well do it.’’ ©

12 Grin v. Shine, 187 U. S. 181, S. 457, 32 L. Hd. 234, 8 Sup. Ct.

23 Sup. Ct. 98, 47 L. Hd. 130. Rep. 1240.
18In re Grin, 187 U. S. 181, 23 16 Benson v. McMahon, 127 U.
Sup. Ct. 98, 47 L. Ed. 130. S. 457, 463, 32 L. Ed. 234, 8 Sup.

14 Benson v. McMahon, 127 U. Ct. Rep. 1240.
496 HABEAS CORPUS.

Examination; how conducted; where held.

The statute (U. S. Comp. St. 1901 p. 3593) requires
that hearings in such proceedings, shall be held publicly
in a room or office easily accessible to the public. It
must be had within the state, district or territory where
the accused is found.15#

While any judge of the federal court, and any com-
missioner duly authorized in extradition proceedings,
may, upon proper complaint, issue his warrant of ar-
rest, yet under existing statutes the marshal making
the arrest and having the prisoner in custody must
take him before the nearest court commissioner or the
nearest judicial officer, having jurisdiction for a hear-
ing, commitment or taking bail for trial in cases of ex-
tradition, which necessarily is one acting as such within
the state in which the accused was arrested and found.
A United States commissioner has no power to issue
his warrant, under which a marshal in another state
can arrest the accused and deliver him in another state
than where found and arrested before the commissioner
issuing the warrant.1®

Requirements preliminary to issue of warrant of
arrest.

Although treaties may contemplate the production of
a copy of the warrant of arrest or other equivalent doc-
ument issued by a magistrate of the demanding country,
yet congress has the right to provide for the extradi-
’ tion of criminals in its own way, with or without a
treaty to that effect, and to declare that foreign crimi-

15a In re Walshe, 125 Fed. 572. 16 Pettit v. Walshe, 194 U. S.
205, 48 L. Ed. 938, 24 Sup. Ct
Rep. 657.
INTERNATIONAL EXTRADITION. 497

nals shall be surrendered upon such proofs of crimi-
nality as it may judge sufficient, and such was the ob-
ject of sec. 5270 R. S. The requirements of that sec-
tion are simply a complaint under oath, a warrant of
arrest, evidence of criminality to sustain the charge
under the provisions of the treaty or convention, a cer-
tificate of the magistrate of such evidence and his con-
clusions thereon to the secretary of state. There is no
necessity for the production before the commissioner of
the warrant of arrest or other equivalent document. An
indictment, strictly speaking, such as is known in our
laws, is not essential. The production of a certificate
from the secretary of state, stating that a request has
been made by the foreign government for the provis-
ional arrest of a person convicted or accused of the com-
mission therein of the crime, does not compel the pro-
duction of such certificate before the issue of the war-
rant. No preliminary requisition is necessary prior
to issuing the warrant. Extradition cannot be con-
summated without action by the executive in the last
instance. So the authority of the foreign government
to act need not appear in the complaint; if it were made
to appear in the examination before the commissioner
or elsewhere in the proceedings. A preliminary man-
date from the executive is not now required.1?

Complaint; by whom made.

The federal statute, U. S. Comp. St. 1901, sec.
5270, provides that the proceedings before the ex-
amining magistrate shall be commenced ‘‘upon com-
plaint under oath,’’ charging the person bound, with
having committed within the jurisdiction of the de-
manding government, any one or more of the crimes.
specified in the treaty with such country and reciting

17 Grin v. Shine, 187 U. S. 181, 28 Sup. Ct. Rep. 98, 47 L. Ed. 130.
32
498 HABEAS CORPUS.

what is thus required by such treaty and statute. An
insufficient complaint does not confer jurisdiction.’*

It must appear upon its face that the person making
it was acting under the authority of the executive of
the foreign government. It is sufficient that it appear
that it was made by a consul of that government.!® Or
upon papers sworn to by a foreign officer representing
that government. In fact by any person so authorized
by that government.?°

It may be sworn before a commissioner or other
officer, though the warrant is issued by a district judge,
returnable before such commissioner.”4

It was held in In re Hilbourne, 11 Fed. Cas. No. 6,323,
that it was sufficient if made in the country where the
offense was committed to a magistrate having power
to administer oaths and investigate the charges made,
and the same or a duly certified copy thereof trans-
mitted to the government where the fugitive had fled.

Manner of facts stated.

A complaint made solely on information and belief
is insufficient; it need not be made upon the personal
knowledge of the complainant, if he annex to such com-
plaint a certified copy of the indictment or equivalent
proceedings, which may have been found in the foreign
country, or a copy of the depositions of witnesses hav-
ing actual knowledge of the facts, taken under the
treaty and act of congress.??

18 Matter of Hillboun,
Crim. Rep. (N. Y.) 429.
19 Ornelas v. Ruiz, 161 U. S.
502, 16 Sup. Ct. 689, 40 L. Ed,
787; In re Grin, 187 U. S. 181,

Park, 22 Rice v. Ames, 180 U. S. 371,
45 L. Ed. 477, 21 Sup. Ct. Rep.
406. It was stated by the court:
“We do not wish to be under-

stood as holding that in extradi-

23 Sup. Ct. 98, 47 L. Ed. 130.
20In re Ferrelle, 28. Fed. 878.
21 Grin v. Shine, 187 U. S. 181,

23 Sup. Ct. 98, 47 L. Ed. 787.

tion proceedings, the complaint

‘Must be sworn to by persons

having actual knowledge of the
offense charged. This would de-
*

INTERNATIONAL EXTRADITION.

499

Although the statement of facts as to some of the
counts charged in the complaint are made solely on in-
formation and belief, if as to other counts it appear
that such statements are made upon personal knowl-
edge of the complainant, the insufficiency of the first
mentioned counts will not impair the sufficiency of the
others, nor prevent the vesting of jurisdiction in the
commissioner to issue the warrant.??

feat the whole object of the
treaty, as we are bound to as-
sume that no foreign govern-
ment possesses greater power
than our own to order its citi-
zens to go to another country
to institute legal proceedings.
This is obviously impossible.
The ordinary course is to send
an officer or agent of the govern-
ment for the purpose, and Rev.
Stat. 5271 makes special pro-
visions that ‘in every case of
complaint and of a hearing up-
on the return of the warrant of
arrest, any depositions, warrants
or other papers offered in evi-
dence, shall be admitted and re-
ceived for the purpose of such
hearing, if they shall be legally
authenticated so as to entitle
them to be received, as evidence
of the criminality of the person
apprehended, by the tribunals of
the foreign country from which
‘the accused party shall have es-
eaped, and copies of any such
depositions, warrants or other
papers, shall, if authenticated
according to the law of such for-
eign country, be in like manner
received in evidence,’ of which
authentication the certificate of
the diplomatic or consular officer
of the United States shall be
sufficient. This obviates the ne-

cessity which might otherwise
exist of confronting the accused
with the witnesses against ‘him.
Now it would obviously be in-
consistent to hold that deposi-
tions, which are admissible upon
the hearing, should not also be
admitted for the purpose of vest-
ing jurisdiction in the commis-
sioner to issue the warrant. In-
deed, the words of the statute, ‘in
every case of complaint,’ seem
to contemplate the very use of
them. If the officer of the for-
eign government has no personal
knowledge of the facts, he may
with entire propriety make the
complaint upon information and
belief, stating sources of his in-
formation and grounds of his be-
lief, and annexing to the com-
plaint a properly certified copy
of any indictment or equivalent
proceeding, which may have
been found in the foreign coun-
try or a copy of the depositions
of witnesses having actual
knowledge of the facts, taken
under the treaty and act of con-
gress. This will afford ample
authority to the commissioner
for issuing the warrant.”

23 Rice v. Ames, 180 U. S. 371,
45 L. Ed. 477, 21 Sup. Ct. Rep.
406.
500 HABEAS CORPUS.

The complaint is sufficient to authorize the commis-
sioner to act, if it so clearly and explicitly states a
treaty crime, that the accused knows exactly what the
charge is. The record and depositions from the de-
manding country, need not be actually fastened to the
complaint.?*

In the case cited the depositions were in the posses-
sion of the officer of the demanding country making the
complaint, which showed actual grounds for the prose-
cution and of which the commissioner had knowledge,
_ from their use in a former proceeding, and it was held
they were admissible on the hearing and also for the
purpose of vesting jurisdiction in the commissioner to
issue the warrant.

What required to be stated.

The complaint need not set forth the crime with the
particularity of an indictment. It is sufficient if it
fairly apprises the party of the crime with which he is
charged.”®

The authority of the commissioner, it seems to be
held, should appear in the complaint, as a commissioner
specially authorized to act in extradition proceedings.?¢

The knowledge of the party making the complaint
should sufficiently appear. It has been held however
that the complaint may be made on information and
belief, but when so made, the sources of information or
the grounds for supposing the alleged fugitive guilty
should be particularly stated.?7

If the person making the complaint is a representa-
tive of the foreign government, an averment of per-
sonal knowledge is not essential.

24 Yordi v. Nolte, 215 U. S. 227, 23 Sup. Ct. Rep. 98, 47 L. Ed.
54 L, Hd. 170. 130.
25Grin v. Shine, 187 U. S. 181, 26 Bx parte Lane, 6 Fed. 34.

27 Ex parte Lane, 6 Fed. 34.
INTERNATIONAL EXTRADITION. 501

We have seen that the complaint may be made by any '
person acting under the authority of the foreign gov-
ernment, having knowledge of the facts, or in the ab-
sence of such person, by the official representatives of
that foreign government, based upon depositions in his
possession. Sec. 5270 R. 8. It has been held that the
complaint on its face should show that the person mak-

ing it is an agent or representative of the demanding
government.?9

Warrant; what to contain.

The warrant should show upon its face, if issued by a
commissioner, that he is duly authorized to act in ex-
tradition proceedings.®°

And should recite the substance of the complaint, to
the extent that it appear therefrom that a crime is
alleged and the nature thereof.34

Evidence; character and sufficiency of.

The federal statute, section 5271, as amended by the
act of June 19, 1876, provided that ‘‘in every case of
complaint and of a hearing upon the return of a war-
rant of arrest, any depositions, warrants or other pa-
pers offered in evidence shall be admitted and received
for the purpose of such hearing, if they shall be pro-
perly and legally authenticated so as to entitle them to
be received as evidence of the criminality of the person
so apprehended by the tribunals of the foreign country
from which the accused party shall have escaped, and
copies of any such depositions, warrants or other pa-
pers shall, if authenticated according to the law of such
foreign country, be in like manner received as evidence

28In re Farez, 7 Blatchf. 345. 30In re Kelley, 25 Fed. 268;

20In re Harris, 32 Fed. 583; In re Farez, 8 Fed. Cases No.
In re Kaine, 14 How. (U. S.) 4,644, 7 Blatchf. 345. ,

103, 14 L. Ed. 345. 31Castro v. De Uniarte, 16
Fed. 93.
502 HABEAS CORPUS.

and the certificate of the principal diplomatic or consu-
lar officers of the United States, resident in such foreign
country, shall be proof that any such deposition or other
paper, or copy thereof, is authenticated in the manner
required by this section.’’ It was held that the forego-
ing provisions provide for two classes of documentary
evidence: First. Depositions, warrants and other pa-
pers, which means original depositions, original war-
rants, and original other papers themselves, and not co-
pies of them. Second. Copies of any such depositions,
warrants or other papers. Under the first class, the
originals must be documents which would be entitled to
be received in the tribunals of the foreign country as
evidence of the criminality of the person in respect to
the offenses. charged against him, committed there,
if the inquiry as to his criminality in respect of such
offense were being had in such foreign tribunals, and
such originals must be authenticated in such a proper
and legal manner as would entitle them to be received
as such evidence in such foreign tribunals. The sec-
ond class must be copies of the originals, which origi-
nals would be entitled to be received in the tribunals of
the foreign country as evidence of such criminality, as
if the offense were committed there, if an inquiry as to
his criminality were pending there, and such copies
must be authenticated according to the law of such
foreign country; that is, authenticated as true copies
of such originals, the authentication being made ac-
cording to the law of the foreign country.®2

The copies themselves are not competent evidence.
They can only become such by proper proof that the
originals would be in the foreign country. It must ap-
pear also that such copies are true copies, and their
authentication as such must be made according to the

82 In re Fowler, 4 Fed. 303.
INTERNATIONAL EXTRADITION. 503

law of the foreign country. Such authentication may
be made in writing or by oral proof. With respect to
such proof of authenticity, a witness may be permitted
to swear here as to the verity and identity of the origi-
nal, and also that from his knowledge and experience,
if he have such, they would be received in the tribunals
of the foreign country as evidence of criminality in
respect to the offense charged. This will be sufficient
under the statute when the originals are offered. The
certificate of the principal diplomatic or consular officer
of the United States, resident in that foreign country,
shall be conclusive proof of proper authentication. The
certificate of such diplomatic officer must, however, con-
form substantially to the provisions of the statute. If
defective in this respect the originals or copies cannot
be received. The court is without jurisdiction to pro-
ceed unless by resort to the other mode of proof.
Hence, where the certificate of such diplomatic officer
recited that the documents referred to therein were
authenticated in the manner required by the statutes
of the United States, it was said: ‘‘It ought to certify
in respect to the original depositions offered that they
are properly and legally authenticated so as to entitle
them to be received as evidence of the criminality of
the person apprehended by the tribunals of Great Brit-
ain; and it ought to certify in respect to the copies
offered that the originals, of which they are copies,
would be received as such evidence, and that such copies
are authenticated according to the laws of Great Brit-
ain,??

This act, approved June 19, 1876, amending section
5271 of the revised statutes, was repealed by the act of
congress approved August 3, 1882, and so much of
said section 5271 as is inconsistent with said act. Sec-

83 In re Fowler, 4 Fed. 303.
504 HABEAS CORPUS.

tion 5 of said act of 1882 provides: ‘‘That in all cases
where any deposition, warrant or other papers, or
copies thereof, shall be offéred in evidence upon the
hearing of any extradition case under title 66 of re-
vised statutes of the United States, such deposition,
warrant and other papers, or copies thereof, shall be
received and admitted as evidence on such hearing, if
they shall be properly and legally authenticated so as
to entitle them to be received for similar purposes by
the tribunals of the foreign country from which the ac-
cused party shall have escaped, and the certificate of
the principal diplomatic or consular officer of the
United States, resident in such foreign country, shall
be proof that any deposition, warrant or any other pa-
per, or copies thereof, so offered are authenticated in
the manner required by this act.’’ Article 10 of the
treaty with Great Britain (St. at Large, Public Trea-
ties, etc., 320) provides for the surrender of the person
accused ‘‘upon such evidence of criminality as accord-
ing to the law of the place where such fugitive or per-
son so charged shall be found would justify his ap-
prehension and commitment for trial, if the crime or
offense had been there committed.’’ An authentica-
tion of the documents, made in the language of the
statute (Act of 1882) by the proper officers, the signa-
ture of the police magistrate being verified by oral
proof, was held to be sufficient and proper evidence that
the documents were such as would be received in simi-
lar proceedings in the demanding country.**

The act of congress makes no provision upon this
subject, except as it respects the admissibility of a
species of evidence. The laws of the particular state
where the alleged fugitive is found, therefore, are to
govern and regulate the judge or commissioner in hear-

34In re Wadge, 15 Fed. 864.
INTERNATIONAL EXTRADITION. 505

ing and determining the criminality of the prisoner,
and this would be so even without the specific provi-
sion of the treaty, as the only mode of proceeding, in
summary criminal proceedings before the federal
magistrates, is according to the practice before the
state magistrates in analogous cases.*°

The provisions of these separate statutes should be
kept in mind in applying decisions which have been
made in respect to the admissibility of such evidence.

It will be noted that the act of 1860, 1882, cited, al-
lows any depositions, warrants or other papers, or
copies of the same when duly authenticated, while the
act of 1848 only permitted such as were used upon the
granting of a warrant in the demanding country.*®

It was suggested in the opinion rendered in In re
Henrich, 5 Blatchf. 414, that each piece of the documen-
tary evidence offered by the agents of the foreign gov-
ernment, should be accompanied by a certificate of' the
principal diplomatic or consular officer of the United
States.

It was, however, held subsequently, that it would not
be required that each deposition should be so sepa-
rately certified, if the court could ascertain with reason-
able certainty, what papers are referred to in the certi-
ficate.3”

Depositions taken subsequent to the date of the origi-
nal warrant issued abroad may be admissible in evi-
dence in connection with oral evidence.*®

And such competent oral evidence as may be offered.
This follows not only from the language of treaties,
but also from the character of the examination as stated
in Benson v. McMahon, supra.

‘ 83In re Kaine, 14 How. 103, 87In re Farez, 8 Fed. Cases
14 L. Ed. 345. No. 4,644, 7 Blatchf. 345.
36In re Henrich, 11 Fed. 38In re Stupp, 23 Fed. Cases

Cases, No. 6,369, 5 Blatchf. 414. No. 13,563, 12 Blatchf. 501.
506 HABEAS CORPUS.

Fugitive entitled to process at expense of govern-
ment.

According to the practice here before committing
magistrates, as well as by the provisions of section 3
of the act of 1882, it is the duty of the magistrate before
whom extradition proceedings are pending to’take such
evidence as may be offered on the part of the accused,
to grant him, if he present the proper affidavit of -his
inability to pay for his witnesses, process to obtain
them at the expense of the government, and to give him
reasonable time to have them produced. The right
does not extend to an indefinite postponement of the
proceedings for the purpose of obtaining testimony
upon commission or deposition, as regards the com-
mission of the crime alleged, from foreign countries.
The foreign government cannot be compelled to go
into a full trial here before the magistrate upon the
merits. The practice and all the provisions of the law
contemplate the production of the defendant’s witnesses
in person before the magistrate for examination by
him. The phrase in section 3 of the act of 1882 ‘‘that
he -(the accused) cannot safely go to trial without
them’’ (the witness) cannot be construed as giving a
right to a full trial in violation of treaty stipulations;
but it must be confined to such a preliminary hearing
only as was already allowable under the existing prac-
tice, viz.: such as is appropriate to a hearing, having
reference only to a commitment for future trial.?®

Section 3, act of 1882, provides that ‘‘in the hearing
of any case under a claim of extradition by any
foreign government, upon affidavit being filed by the
person charged, setting forth that there are witnesses
whose evidence is material to the defense, that he can-

f

39In re Wadge, 15 Fed. 864: U. S. 330, 84 L. Ed. 464, 10 Sup.
In re Luis Oteiza y Cortes, 186 Ct. Rep. 1031.
INTERNATIONAL EXTRADITION. 507

not safely go to trial without them, what he expects to
prove by each of them, and that he is not possessed
of sufficient means, and is actually unable to pay the
fees of such witnesses, the judge or commissioner be-
fore whom such claim for extradition is heard may
order that such witnesses be subpoenaed, and in such
cases the expense incurred by the process and the fees
of witnesses sha]l be paid in the same manner that simi-
lar fees are paid in the case of witnesses subpoenaed
in behalf of the United States.’’

The accused may be examined as a witness in his
own behalf.*°

Bail; whether permissible.

It seems inconsistent with the several provisions of
the statute, relating to the delivery of the party after
commitment to the demanding authority, that there
should be power to admit to bail, such provision of
the federal statutes being confined to crimes or of-
fenses against the United States. The supreme court
of the United States, however, has said that they are
unwilling to hold that the circuit courts have no power
in this respect or while bail should ordinarily be
granted in cases of foreign extradition, these courts
may not in any case, and whatever the special circum-
stances, extend that relief.*4

Continuances.

Continuances of the examination may be granted in
the discretion of the commissioner, and, in this par-
ticular, he is not controlled by a state statute, limiting
such continuance to ten days.*?

40In re Kelley, 25 Fed. 268. 42 Rice v. Ames, 180 U. S. 371,-
41 Wright v. Henkel, 190 U. S. 45 L. Ed. 477, 21 Sup, Ct. Rep.
40, 47 L. Ed. 948, 23 Sup. Ct. 406.
Rep. 781.
508 HABEAS CORPUS.

Commitment and certificate.

Under the statute, if the magistrate deems the evi-
dence sufficient to sustain the charge, he shall so de-
termine, certify the same to the secretary of state, and
commit the fugitive to await the delivery to the agent
of the foreign government.‘

Determination of magistrate not conclusive upon
the president.

The determination of the judicial officer is not con-
clusive upon the president, and he may decline to de-
liver the party accused, and this though the courts may
have refused to discharge him upon habeas corpus.**

Nor does the fact of granting the executive warrant
preclude an inquiry thereafter, upon habeas corpus, to
ascertain and determine whether the case was such as
to authorize it, as well as to inquire into the compe-
tency and authority of the committing magistrate.*®

§ 124. Review of proceedings upon habeas corpus.—
State as well as federal courts have jurisdic-
tion to inquire into cause of restraint.

Speaking with reference to a faithful observance of
the treaty it is said: ‘‘Under the doctrine that the
treaty is the supreme law of the land and is to be ob-
served by all courts state and national, ‘anything in
law of the states to the contrary, notwithstanding;’ if
the state court should fail to give due effect to the
rights of the party under the treaty, a remedy is found
in the judicial branch of the federal government, which
has been fully recognized. This remedy is by writ of

48 Benson v. McMahon, 127 U. 45In re Kaine, 3 Blatchf. 1;
S. 457, 32 L. Ed. 234, 8 Sup. Ct. Ex parte Smith, 3 McLean (U.
Rep. 1240. S.), 121.

44In re Shipp, 12 Blatchf.
501.
INTERNATIONAL EXTRADITION. 509

error from the supreme court of the United States to
the state court, which may have committed such an
error. The case being thus removed into that court,
the just effect and operation of the treaty upon the
rights asserted by the prisoner would be there decided.
If the party, however, is under arrest and desires a
more speedy remedy in order to secure his release, a
writ of habeas corpus from one of the federal judges
or federal courts, is sued on the ground that he is re-
strained of his liberty in violation of the constitution
or a law or a treaty of the United States, will bring him
before a federal tribunal where the truth of that allega-
tion can be inquired into, and if it be well founded he
will be discharged. State courts also could issue such
a writ and thus the judicial remedy is complete when
the jurisdiction of the court is admitted.*®

Extent of inquiry.

The general rule applies that upon habeas corpus
only jurisdictional questions will be considered. If
the commissioner had jurisdiction of the proceedings
and of the person, then the commitment if ordered,
would not be disturbed.‘?

Thus it was stated: ‘‘If the commissioner has juris-
diction of the subject matter and of the person of the
accused, and the offense charged is within the terms of
a treaty of extradition, and the commissioner, in arriv-
ing at a decision to hold the accused, has before him
competent legal evidence on which to exercise his judg-
ment, as to whether the facts are sufficient to establish

48 United States v. Rauscher, 47Terlindin v. Ames, 184 U.
119 U. S. 407, 30 L. Ed. 425, 7  S. 270, 22 Sup. Ct. 484, 46 L. Ed.
Sup. Ct. Rep. 234. See also Ex 534; Ex parte Bryant, 167 U. S.
parte Royall, 117 U. S. 241, 29 104, 17 Sup. Ct. 744, 42 L. Ed.
L. Ed. 868, 6 Sup. Ct. Rep. 734; 94; Ornelas v. Ruiz, 161 U. S. ,
Ex parte Coy, 32 Fed. 911, 502, 16 Sup. Ct. 687, 40 L. Hd.

787.
510 HABEAS CORPUS.

the criminality of the accused for the purpose of ex-
tradition, such decision of the commissioner cannot be
reviewed by a circuit court or by this court on habeas
corpus, either originally or by appeal.’’ **

However, the commissioner exercises only a limited:
or special jurisdiction, and hence undoubtedly the same
rule applies as is applied in this country to proceedings
before such officers in the state courts.

His jurisdiction must affirmatively appear. The an-
terior proceedings made essential by law must have
been complied with in every step, and such must affirm-
atively appear. The proceedings before him must have
been conducted as prescribed by law. Then there must
appear in order to sustain the commitment, if made,
that there was competent legal evidence to call for the
exercise of the judgment of the commissioner. The re-
viewing court will examine the evidence to this extent,
to determine whether such appears. If the deposi-
tions received were not properly authenticated or the
facts otherwise proved, they would not be any evidence.
The court simply is precluded from weighing the evi-
dence. If it appears there was not competent legal
evidence to hold the prisoner then he will be discharged
upon the ground that the commissioner had not juris-
diction to make the particular order or judgment, not-
withstanding he may have had jurisdiction of the sub-
ject matter and of the person. of the accused.*®

Section 5270. ‘‘Whenever there is a treaty or con-
vention for extradition between the government of the
United States and any foreign government, any justice
of the supreme court, circuit judge, district judge, com-

48In re Oteiza y Cortes, 136 U. 14 L. Ed. 345; In re Farez, 7
S. 330, 34 L. Ed. 464, 10 Sup. Ct. Bilatchf. 345; In re Shipp, 12
Rep. 1031. Blatchf. 501; In re Vandervel-

49In re Fowler, 4 Fed. 303; pen, 14 Blatchf. 137.

In re Kaine, 14 How. 108, 144,
~

INTERNATIONAL EXTRADITION. 511

missioner, authorized so to do by any of the courts of
the United States, or judge of a court of record of gen-
eral jurisdiction of. any state, may, upon complaint
made under oath, charging any person found within the
limits of any state, district or territory, with having
committed within the jurisdiction of any such foreign
government any of the crimes provided for by such
treaty or convention, issue his warrant for the appre-
hension of the person so charged, that he may be
brought before such justice, judge or commissioner, to
the end that the evidence of criminality may be heard
and considered. If on such hearing, he deems the evi-
dence sufficient to sustain the charge under the provi-
sions of the proper treaty or convention, he shall certify
the same, together with a copy of all the testimony taken
before him, to the secretary of state, that a warrant may
issue upon the requisition of the proper authorities of
such foreign government, for the surrender of such per-
son, according to the stipulations of the treaty or con-
vention; and he shall issue his warrant for the commit-
ment of the person so charged to the proper jail, there
to remain until such surrender shall be made.’’
Section 5271. ‘‘In every case of complaint and of a
hearing upon the return of the warrant of arrest, any
depositions, warrants or other papers, offered in evi-
dence, shall be admitted and received for the purpose
of such hearing if they shall be properly and legally
authenticated so as to entitle them to be received as
evidence of the criminality of the person so appre-
hended, by the tribunals of the foreign country from
which the accused party shall have escaped, and copies
of any such depositions, warrants or other papers, shall,
if authenticated according to the law of such foreign
country, be in like manner received as evidence; and
the certificate of the principal diplomatic or consular
officer of the United States, resident in such foreign
512 HABEAS CORPUS.

country, shall be proof that any such deposition, war-
rant or other paper, or copy thereof, is authenticated
in the manner required by this seetion.’’

The federal supreme court state in respect to the
extent of the inquiry upon habeas corpus: ‘‘ We are not
sitting in this court on the trial of the prisoner with
power to pronounce him guilty and punish him or de-
clare him innocent and acquit him. We are now en-
gaged simply in an inquiry as to whether under the con-
struction of the act of congress and the treaty entered
into between this country and Mexico, there was legal
evidence before the commissioner to justify him in ex-
ercising his power to commit the person accused to cus-
tody to await the requisition of the Mexican govern-
ment.’’ °°

It would seem to follow, therefore, and other courts
have so held, that the reviewing court will look into the
evidence so far as to determine whether or not there is
any legal evidence to justify the detention of the pris-
oner, and if not, to discharge him.

That such question is jurisdictional. That it will ex-
amine the commitment and the proceedings so far as
to determine whether a crime is charged, and go behind
it to determine whether there is competent evidence to
sustain the charge.*!

However, such court has held, where the charge
against the prisoner was sending circulars by mail,
concerning lotteries, that the court on habeas corpus,
would not determine whether the scheme was a lottery.
That such question was properly triable by the court
in which an indictment may be found. No court

50 Benson v. McMahon, 127 U. parte Bollman, 4 Cranch, 75, 28

8. 457, 32 L. Ed. 284, 8 Sup. Ct. L. Ed. 554; Ex parte Burford, 3

Rep. 1240. Cranch, 448, 2 L. Ed. 495; In re
‘1 See Ex parte Watkins, 3 Martin, 5 Blatchf. 303.

Peters, 193, 7 L. Ed. 650; Bx
INTERNATIONAL EXTRADITION, . 513
should determine it in advance. That such question
is merely one of law committed to the determination
of the commissioner.®?

‘‘The settled rule is that the writ of habeas corpus
cannot perform the office of a writ of error, and that,
in extradition proceedings, if the committing magis-
trate has jurisdiction of the subject matter and of the
accused, and the offense charged is within the terms of
the treaty of extradition, and the magistrate, in arriv-
ing at a decision to hold the accused, has before him
competent legal evidence on which to exercise his judg-
ment, such decision cannot be reviewed on habeas cor-
pus.’? 53

The statute in respect to extradition gives no right
of review to be exercised by any court or judicial off-
cer, and what cannot be done directly cannot be done in-
directly through the writ of habeas corpus. The court
issuing the writ may, however, inquire and adjudge
whether the commissioner acquired jurisdiction of the
matter by conforming to the requirements of the treaty
and the statute; whether he exceeded his jurisdiction;
and whether, as before stated, he had any legal or
competent evidence of facts before him on which to ex-
ercise a judgment as to the criminality of the accused.
But such court is not to inquire whether the legal evi-
dence of facts before the commissioner was sufficient or
insufficient to warrant the commitment.*+ _

In a recent case that came before the court upon ap-.
peal, from the supreme court of Arizona, from a judg-

52 Horner v. United States, 143
U. S. 570, 36 L. Ed. 266, 12 Sup.
Ct. Rep. 522; Ex parte Rickelt,
61 Fed. 203.

53 Terlinden v. Ames, 184 U. S.
270, 278, 22 Sup. Ct. Rep. 484, 46
L. Ed. 534; Ornelas v. Ruiz, 161
U. S. 502, 16 Sup. Ct. Rep. 689,

33

40 L. Ed. 787; Bryant v. United
States, 167 U. S. 104, 17 Sup. Ct.
Rep. 744, 42 L. Ed. 94,

54Terlinden v. Ames, 184 U.
S. 270, 278, 22 Sup. Ct. Rep. 484,
46 L. Ed. 534; In re Stupp, 12
Blatchf. 501.
\

514 HABEAS CORPUS.

ment rendered upon habeas corpus discharging the ac-
cused on the ground that there was not sufficient evi-
dence to establish the fact of forgery, and therefore the
commissioner exceeded his jurisdiction in holding the
petitioner for extradition, the supreme court of the
United States reversed such judgment, holding upon a
review of the evidence that it was sufficient to show not
only that a crime was committed, but also its character
and by whom committed with sufficient certainty and
strength to satisfy the statute and to justify the order
of the commissioner committing the accused to await
the action of the executive department.

It appeared that the depositions of two of the import-
ant witnesses were not sworn to; and hence not ad-
missible in evidence. The court stated in answer to
such contention, that the statute providing for extra-
dition, makes the depositions receivable in evidence and
provides that their sufficiency to establish the crime
shall be such as to establish a probability of the com-
mission of the crime by the accused.**

§ 125. Trial for other offense than that for which ex-
tradited.

It was originally held by the circuit courts of the
United States, that a person brought within the juris-
diction by warrant of extradition for a spécific crime
alleged, could not claim exemption from prosecutions
for other crimes by him committed.5*

The supreme court of the United States, however,
definitely determined, that a person so extradited, could
only be prosecuted for the particular offense charged
in the warrant of extradition.*?

55 Elias v..Ramirez, 215 U. S. ana v. Lagrave, 59 N. Y. 110, 17
398, 54 L. Hd. 253. Am. Rep. 317.

56 United States v. Caldwell, 8 57 United States v. Rauscher.

Blatchf. 131; United States v. 119 U. S. 407, 30 L. Hd. 425, 7
Lawrence, 13 Blatchf. 205; Adri- Sup. Ct. Rep. 234.
INTERNATIONAL EXTRADITION. 515

‘‘The treaty, the acts of congress and the proceedings
by which he was extradited,’’ say the court, ‘‘clothe him
(the person extradited) with the right of exemption
from trial for any other offense, until he has had an
opportunity to return to the country from which he
was taken, for the purpose alone of trial for the offense
specified in the demand for surrender. The national
honor also requires that good faith shall be kept with
the country which surrendered him.”’

It was held that as the party was surrendered upon
the charge of murder, that the mere fact that he was
convicted in this country upon the charge of inflicting
cruel and unusual punishment on the same evidence
that was produced before the committing magistrate
in England, did not change the principle.®8

It appears, however, that this exemption can only be
claimed, where the party is brought into this country
_by force and not under an extradition warrant. Such
‘fact does not establish any right under the constitu-
tion or law or treaties of the United States. The trea-
ties of extradition do not guarantee a fugitive from the
justice of one of the countries an asylum in the other.
It is said they do not give such person any greater or
more sacred right of asylum than he had before. They
only make provision that for certain crimes, he shall
be deprived of that asylum and surrendered to justice,
and they prescribe the mode in which this shall be done.

The trespass of a kidnapper unauthorized by either
of the governments, and not professing to act under
the authority of either, is not a case provided for in the

58 United States v. Rauscher,
119 U. S. 407, 30 L. Ed, 425, 7
Sup. Ct. Rep. 234; Ker v. Tinois,
119 U. S. 486, 30 L. Ed. 421, 7
Sup. Ct. Rep. 225. See also Ex
parte Coy, 32 Fed. 911; United
States v. Walls, 8 Sawy. 370, 14

Fed. 130; Ex parte Hibbs, 26
Fed. 421; Comm. v. Hawes, 13
Bush (Ky.), 697, 26 Am. Rep.
242; State v. Vanderpool, 39 Ohio
St. 273, 48 Am. Rep. 431; People
v. Gray, 66 Cal, 271.
516 HABEAS CORPUS.

treaty, and the remedy is by a proceeding against him
by the government whose law he violates or by the party
injured. How far such forcible transfer of the de-
fendant, so as to bring him within the jurisdiction of
the state, where the offense was committed, may be set
up against the right to try him, is the province of the
state court to decide and presents no question in which
this court can review its decision.®®

A treaty stipulated to the effect that the demanding
government cannot, after the alleged fugitive has been
surrendered by the government upon which the demand
was made, be tried and committed for another crime,
was respected and enforced by the federal courts, in a
case where the accused had been convicted and senten-
ced to prison upon one of the charges made in an indict-
ment, and while such proceedings were being reviewed,
he was enlarged upon bail, and when called after judg-
ment had been affirmed, to submit himself to the sen-
tence, but did not appear. A few days subsequently
he was found in the Dominion of Canada. This gov-
ernment then instituted extradition proceedings in that
dominion to procure his rendition upon the judgment
of conviction. He was held for extradition by the com-
missioner, but the court of King’s Bench on a writ of
habeas corpus, held that the offense set forth in the
indictment was not such a fraud as was provided for
in the treaty, and extradition was refused. Thereupon
the United States secured a re-arrest of the alleged
fugitive on another complaint, charging him with the
offenses for which he had been indicted and for which
he had not been'tried. He was held and surrendered to
the proper agent of the United States, who at once took
him to the state where the indictment was found, where
the marshal of the district, proceeding under the war-

59 Ker v. Illinois, 119 U. S. 436, 30 L. Ed. 421, 7 Sup. Ct. Rep.
225.
INTERNATIONAL EXTRADITION. 517

rant for imprisonment issued upon his former convic-
tion and sentence, took possession of him and delivered
him into the custody of the warden of Sing Sing state
prison, there to be imprisoned for two years, according
to the sentence formerly imposed upon him. The pris-
oner sued out a writ of habeas corpus, upon a petition
setting forth the above facts, and was discharged by
the circuit court.

That court, after determining that, though there is no
express limitation of the right of the demanding coun-
try in the treaty with Great Britain, to try a person
only for the crime for which he was extradited, such
limitation is found in the manifest scope and object of
the treaty itself, and also under the statutes, sec. 5272
and 5275, which applies to all treaties, held that the
facts brought the case within the treaty and the laws
in the respect stated, and hence affirmed the judgment
discharging the petitioner from custody.”

A Canadian was extradited from Canada, and upon
being brought before a police court of Detroit, charged
with larceny, he gave bail for his appearance at the
trial, and returned to Canada. Upon returning to
Detroit voluntarily before the time fixed for his trial,
he was arrested on a capias issued from the district
court of the United States for the eastern district
of Michigan, before his extradition, charging him with
an offense for which he was not extraditable, and was
taken in custody by the marshal of the district. He
applied to the district court for writ of habeas corpus,
which was allowed, but denied discharge. On appeal
to the supreme court, it was held that under the circum-
stances, the appellant retained the right to have the of-
fense for which he was extradited disposed of, and
then to depart in peace, and that the arrest complained

60 Johnson v. Browne, 205 U. S. 309, 51 L. Ed. 816, 27 Sup. Ct. Rep.
539.
518 HABEAS CORPUS.

of was in abuse of the high process under which he was
originally brought into the United States and could not
be sustained.*!

§ 126. Extradition of deserters from army and navy.

The question whether a deserter from the service
of a foreign country in its navy, came before the su-
preme court of the United States upon certiorari to the |
circuit court of appeals. A writ of habeas corpus had
been issued by the district court, and the prisoner or-
dered discharged. Upon appeal to the court of appeals
the order of the district court was affirmed, whereupon
a vice-consul of the foreign government applied for and
was granted a writ of certiorari to the supreme court.
The commissioner before whom the examination was
had and who committed the alleged deserter, acted in
pursuance of sec. 5280 Rev. Stat. U. S., which provides:
“On application of a consul or vice-consul of any
foreign government having a treaty with the United
States stipulating for the restoration of seamen de-
serting, made in writing, stating that the person therein
named has deserted from a vessel of any such govern-
ment, while in any port of the United States, and on
proof by the exhibition of the register of the vessel,
ship’s roll, or other official document that the person
named belonged, at the time of desertion, to the crew
of such vessel, it shall be the duty of any court, judge,
commissioner of any circuit court, justice, or other
magistrate, having competent power, to issue warrants
to cause such person to be arrested for examination.”’

The facts were in substance, that the alleged deser-
ter, a conscript in the Russian naval service, was sent
as one of a detail of fifty-three men, to become a part

61 Cosgrove v. Winney, 174 U. S. 64, 43 L. Ed. 897, 19 Sup. Ct. Rep.
598,
INTERNATIONAL EXTRADITION. 519

of the crew of a Russian cruiser, then under construc-
tion at the port of Philadelphia. Upon his arrival at
Philadelphia, the vessel was still upon the docks, but
was shortly after launched, and continued for some
months in the water still under construction. Such
alleged deserter who had remained at Philadelphia
during the winter in the service and under pay of the
Russian government, deserted the following spring,
went to New York, renounced his allegiance to the Em-
peror, declared his intention to become a citizen of the
United States, and obtained employment. Shortly
thereafter he was arrested as a deserter from a Russian
ship of war, and committed to prison, subject to the
orders of the Russian vice-consul or commander of the
cruiser.

It was held, 1. That although the cruiser was not a
ship when such alleged deserter arrived at Philadel-
phia, she became such on being launched.

2. That under the treaty with Russia of 1832, in
virtue of which these proceedings were taken, she was
a ship of war as distinguished from a merchant vessel ;
notwithstanding she had not received her equipment
and armament, and was still unfinished.

3. That under her contract of construction, she was
from the beginning and continued to be the property of
the Russian government, and was therefore a Russian
ship of war, notwithstanding she had not received her
crew on board, nor been commissioned for active serv-
ice, and was still in process of completion.

4. That such alleged deserter, having been detailed
to her service, was, from the time she became a ship, a
part of her crew within the meaning of the treaty.

5. That the exhibition of official documents, showing
that he was a member of her crew, has been waived by
his admissions.

It was further held that desertion was not a crime,
520 HABEAS CORPUS.

but that the treaty required the arrest and return to
their ship of deserters. That a seaman becomes one of
the crew of a merchant vessel from the time he signs
the shipping articles and of a man of war from the time
he is detailed to her service. :

The judgments of both courts were reversed and the
case remanded, four of the judges dissenting.

62 Tucker vy. Alexandroff, 183 U. S. 424, 46 L. Ed. 264, 22 Sup. Ct.
Rep. 195. 2
§ 127.
128.

129,

130.
131.
132.
133.

134.

135.
136.

137.
138.
140.
141,
142.

148.

INTERSTATE EXTRADITION. 521,

CHAPTER XVI.

INTERSTATE EXTRADITION.

Constitutional Provision.
Act of Congress Giving Effect to such Provision.
The Constitution includes as Crimes every Offense Punishable
by the Law of the Demanding State.
Fugitives from Justice.
What Constitutes.
Must be Charged with Crime in the Demanding State.
Must be Charged in Judicial Proceedings.
Persons Forcibly brought into the State where not a Fu-
gitive.
Forcible Abduction or Kidnapping.
Trial for Other and Different Crime.
Arrest before Demand Made.
The Complaint; what must Appear.
The Requisition. \
The Demand.
The Copy of the Indictment; the Affidavit.
The Indictment; Sufficiency of.
The Affidavit.
The Certificate of Authenticity of Affidavits; how Far Con-
clusive.
Duty of Executive not Mandatory.
The Executive must Satisfy Himself that the Accused is a
Fugitive from Justice.
The Warrant.
Agent Appointed by State; Delivery to.
Jurisdiction of Federal and State Courts.
State Courts do not Proceed when it Appears Petitioner is
held under Federal Authority.
State Courts not Prohibited because Federal Rights or Laws
are Involved.
Nature and Extent of Inquiry.
Affidavit or Indictment may be Examined.
522 HABEAS CORPUS.

Determination of the Governor that the Accused is a Fu-
gitive; how Far Conclusive.

The Executive Warrant; Effect.

Determination whether Act Charged Constitutes a Crime
in State where Committed.

Identity of Alleged Fugitive.

Guilt or Innocence; Question of.

144. Immunity of Extradited Person from Civil Process.

§ 127, Constitutional provision,

The constitution of the United States (section 2, art.
IV) declares ‘‘a person charged in any state with trea-
son, felony or other crime, who shall flee from justice
and be found in another state, shall, on demand of the
executive authority of the state from which he fled, be
delivered up to be removed to the state having juris-
diction of the crime.’’

Act of congress giving effect to such provision.

For the purpose of giving effect to the foregoing pro-
vision of the constitution of the United States, con-
gress passed the act of February 12, 1793, 1 Stat. 302,
the first and second sections of which have been re-en-
acted in sections 5278 and 5279 of the revised statutes,
which are as follows:

(Act of Congress February 12, 1793.)

The act of congress referred to, providing a uniform
method of carrying the constitutional provision into
execution, is as follows:

Section 1. That whenever the executive authority
of any state in the union, or of either of the territories,
northwest or south of the river Ohio, shall demand any
person as a fugitive from justice, of the executive au-
thority of any such state or territory to which such per-
son shall have fled, and shall, moreover, produce the

‘
INTERSTATE EXTRADITION. 523

copy of an indictment found, or an affidavit made be-
fore a magistrate of any state or territory as afore-
said, charging the person so demanded with having
committed treason, felony or other crime, certified as
authentic by the governor or chief magistrate of the
state or territory from whence the person so charged
fled, it shall be the duty of the executive authority of
the state or territory to which such person shall have
' fled, to cause him or her to be arrested and secured, and
notice of the arrest to be given to the executive au-
thority making such demand, or to the agent of such
authority appointed to receive the fugitive and to cause
the fugitive to be delivered to such agent when he shall
appear, but if no such agent shall appear within six
months from the time of the arrest, the prisoner may
be discharged. And all. costs and expenses incurred
in the apprehending, securing and transmitting such
fugitive to the state or territory making such demand,
shall be paid by such state or territory.

Section 2. And be it further enacted that any agent,
appointed as aforesaid, who shall receive the fugitive
into his custody, shall be empowered to transport him
or her to the state or territory from which he or she
‘shall have fled; and if any person or persons shall by
force set at liberty or rescue the fugitive from such
agent while transporting as aforesaid, the person or
persons so offending shall on conviction, be fined not
exceeding five hundred dollars and be imprisoned not
exceeding one year.

The governor of Porto Rico has the same power that
the governor of any organized territory has, to issue
requisition for the return of fugitive criminals under
sec. 5278, R. St

1Kopel v. Bingham, 211 U. S. 468.
524 HABEAS CORPUS.

§ 128. The constitution includes as crimes every of-
fense punishable by the law of the demanding
state.

We have seen that under the principles of interna-
tional law and treaties made, that the crime for which
a fugitive may be extradited must be one common to
both countries. Not so in respect to interstate extra-
dition. Felonies and misdemeanors, offenses by stat-
ute and at common law, are alike within the constitu-
tional provision; and the obligation to surrender the
fugitive for an act which is made criminal by the law
of the demanding state, but which is not criminal in
the state upon which the demand is made, is the same
as if the alleged act was a crime by the law of both.”

Thus it is held: ‘‘The constitutional provision that a
person charged with crime against the laws of a state
and who flees from justice must be delivered upon
proper demand, is sufficiently comprehensive to em-
brace any offense, whatever its nature, which the state
consistently with the constitution and laws of the
United States may have made a crime against its laws.
So that the simple inquiry must be whether the person
whose surrender is demanded, is in fact a fugitive from
justice, not whether he consciously fled from justice in
order to avoid prosecution for the crime with which he
is charged by the demanding state. A person charged
by indictment or by affidavit before a magistrate, with
the commission within a state of a crime covered by its
laws, and who after the date of its commission of such
crime leaves the state, no matter for what purpose, or

2People ex rel. Lawrence v. 741; State ex rel. Brown v. Stew-
Brady, 56 N. Y. 182; People v. art, 60 Wis. 587, 19 N. W. 429,
Donohue, 84 N. Y. 438; Morton 50 Am. Rep. 388; Kentucky v.
v. Skinner, 48 Ind. 123; In re Dennison, 24 How. 66, 16 L. Ed.
_ Doorhus, 32 N. J. L. 141; In re 717; Brown’s Case, 112 Mass.
Hooper, 52 Wis. 701, 58 N. W. 409, 17 Am. Rep. 114.
INTERSTATE EXTRADITION. 525

with what motive nor under what belief, becomes from
the time of such leaving, and within the meaning of the
constitution and the laws of the United States, a fugi-
tive from justice, and if found in another state, must
be delivered up by the governor of such state to the
state whose laws are alleged to have been violated, on
the production of such indictment or affidavit, certified
as authentic by the governor of the state from which
the accused departed.’

§ 129. Fugitives from justice; what constitutes.

A fugitive from justice is one who, having within
a state committed that which by its laws constitutes a
crime, leaves its jurisdiction when it is sought to sub-
ject him to it a criminal process to answer for his of-
fense and is found in the jurisdiction of another state ©
or country. It is not necessary that he should have left
after indictment found, or for the purpose of avoid-
‘ing a prosecution anticipated or begun.*

If one goes into a state and commits a crime and
then returns to the state which he left, he is as much
a fugitive from justice as though he had committed a
crime in the state of his residence and then had fled
to another.®

But one who was not actually present in the state
where the crime was committed, though his acts of par-
ticipation in the commission thereof, while in another
state, might subject him to criminal prosecution in such
former state, cannot be said to be a fugitive from jus-

3 Appleyard v. Massachusetts,
203 U. S. 222, 51 L. Ed. 161, 27
Sup. Ct. Rep. 122; Ex parte
Reggel, 114 U. S. 642, 29 L. Ed.
250, 5 Sup. Ct. Rep. 1148; State
v. Richter, 37 Minn. 436, 35 N.
W. 9; Kingsbury’s Case, 106
Mass. 228; Voorhees’ Case, 33 N.
J. L, 141; Mohr’s Case, 73 Ala.

503, 49 Am, Rep. 63; Hibler v.
State, 43 Tex. 197.

4Roberts v. Reilly, 116 U. S
80, 29 L, Ed. 544, 6 Sup. Ct. Rep.
291; Ex parte Browne, 28 Fed
Rep. 653.

5In re Roberts, 24 Fed. Rep.
132.
526 HABEAS CORPUS.

tice. The words in the constitution, ‘‘who shall flee,”’
cannot include a person who never was in the country
from which he is said to have fled. In order to charge
one as a fugitive from justice he must have been in the
state, committed the crime, and fled.®

The alleged fugitive must, in order to constitute him
a fugitive from justice, within the meaning of the law,
have been in the state where the alleged crime was com-
mitted at the time it was committed. If not in the state
at such time, his going into the state subsequently to
transact business and then departing, he is not a fugi-
tive from justice.’

A person is no less a fugitive where he was extra-
dited on a former application, and the court of the de-
manding state, upon the application of the district at-
torney, dismissed the indictment upon the ground as
stated by the accused, that he had not sufficient evi-
dence to hold him, and returned to the state from which
extradited without objection, and may be extradited
upon a second requisition, where charged in the indict-
ment with the commission of the same offense.’

It appears to have been quite generally held that
where the force was set in motion in one state and the
direct effect was produced in another, that the crime is
considered to have been committed in the latter, which
alone has, in the absence of statutes providing other-
wise, the exclusive jurisdiction over the offense.°

éJones v. Leonard, 50 Iowa, ®State of North Carolina v.

106; Ex parte Mohr, 73 Ala. 503,
49 Am. Rep. 63.

7 Hyatt v. Corkran, 188 U.S.
691, 23 Sup. Ct. 456, 47 L. Ed.
637, affirming People v. Hyatt,
172 N. Y. 176, 64 N. E. 825, 92
Am. St. Rep. 706.

8 Bassing v. Cady, 208 U. S.
386, 52 L.. Bd. 540.

Hall, 115 N. C. 811, 28 L. R. A.
289; State of North Carolina v.
Hall, 114 N. C. 909, 28 L. R. A.
59; State v. Carter, 27 N. J. L.
499; State v. Cutshall, 110 N. C.
538, 16 L. R. A, 180; Simpson v.
State, 92 Ga. 41, 22 L. R. A. 248;
State v. Chapin, 17 Ark. 561, 65
Am. Dec, 452; State v. Wyckoff,
31 .N. J. L. 65.
INTERSTATE EXTRADITION. 527

Such having been held the law in respect to juris-
diction of the crime, it was further held that the per-
son firing a shot standing across the line dividing North
Carolina and Tennessee, on the North Carolina side,
which took effect upon and caused the death of his vic-
tim, who was on the Tennessee side, was not actually
present in Tennessee when the crime was committed,
and hence was not a fugitive from the state of Ten-
nessee, and the governor of the state of North Caro-
lina had no jurisdiction to cause his arrest in ex-
tradition proceedings and surrender him to the agent
of the state of Tennessee, there to be tried for such
crime.!°

‘The supreme court of North Carolina had held that
the courts of that state had not jurisdiction to try the
accused for the commission of such crime.1!

And it is held that the state of Tennessee could not
demand his surrender to her, for trial. Hence there is
no power or method known to our jurisprudence
whereby the perpetrator of a wilful murder under such
circumstances, can be punished for his crime, so long
as he remains out of the state where the mortal wound
was inflicted. '

Whether the states in which the force is set in mo-
tion may enact a law making such act a crime and
granting to its court the power and jurisdiction to pun-
ish the offender, perhaps has not been definitely set-
tled. Certainly such a statute could not deprive the
courts of the state where the actual crime was consum-
mated, of their jurisdiction to try and punish for the
crime. It might be said that the offender would thus
be subject to be tried twice for the same offense. It

10 State of North Carolina v. 11 State of North Carolina v.
Hall, 115 N. C; 811, 28 L. R. A. Hall, 114 N. C. 909, 28 L. R. AL

289. 59.
528 HABEAS CORPUS.

has been determined by the federal supreme court, that
an act made criminal by both the federal and state
governments, where of not such a character as that
the federal courts have exclusive jurisdiction, is sub-
ject to trial and punishment by either or both, on the
ground that it may be considered as a crime against
two sovereignties.1?

It has been declared that ‘‘the criminal need not do
within the state, every act necessary to complete the
erime. If he does there an overt act which is and is in-
tended to be a material step toward accomplishing the
crime, and then absents himself from the state and does |
the rest elsewhere, he becomes a fugitive from justice,
when the crime is complete. For all that is necessary
to constitute a criminal under the laws of a state, is
that he should have left the state after having incurred
guilt there, and his overt act becomes restrospectively
guilty when the contemplated result ensues.’’ 13

This doctrine was declared in a case where the facts
were that the petitioner was charged with bribery and
obtaining money under false pretenses. Under a con-
tract with the state of Michigan he was to furnish cer-
tain new machinery for use in the state prison. He of-
fered the bid for furnishing such machinery, and re-
ceived the acceptance thereof while in that state. It
seems that outside of -the state, he offered a bribe to
the warden who was authorized to accept the machin-
ery, to accept second hand machinery instead of new;
that such machinery was furnished and accepted by the
warden, the latter receiving $1,500 from the accused,
which was paid outside of the state. It was stated by
the court: ‘‘Thus in this case offering the bid and re-
ceiving the acceptance were material steps in the

12United States v. Cruik- 18 Strassheim yv. Daily, 221 U.
shank, 92 U. S. 542, 23 L. Ed. S. 280, 55 L. Ed. 735.
588,
INTERSTATE EXTRADITION. 529:

scheme; they were taken in Michigan, and they were
established in their character of guilty acts when the
plot was carried to the end, even if the intent with
_ which these steps were taken did not make him guilty
~ before.’’

Fugitive must be charged with crime in the de-
manding state.

The right of a state to demand and the obligation of
a state upon which the demand is made to surrender a
fugitive from justice, rests exclusively upon the federal
constitution, and the act of congress of 1793. The con-
stitution declares that ‘‘a person charged in any state
with treason, felony or other crime, who shall flee from
justice and be found in any other state, shall on demand
of the executive authority of the state from which he
fled, be delivered up to be removed to the state having
jurisdiction of the crime.’ 14

Under this clause of the constitution, the obligation
of a state to deliver a fugitive from justice, on demand
of the state from which he fled, arises when the fugitive
is charged with crime, within the state demanding the
surrender. The question of his guilt or innocence is
wholly irrelevant in determining the action of the ex-
ecutive of the state upon which the demand is made.
That question is to be investigated and determined by
the courts of the state where the alleged crime was com-
mitted. But there must be a charge of crime existing
against the fugitive in the state demanding his surren-
der, before the demand -can be legally made."®

Party must be charged in judicial proceedings.

It was stated by Taney, Chief Justice: ‘‘The consti-
tution having established the right on one part and the

14 Article 4, sec. 2, Constitu- 15 People ex rel. Lawrence vy.
tion of U. S. Brady, 56 N. Y. 182.

34

,

,
530 HABEAS CORPUS.

obligation on the other, it became necessary to provide
by law the method of carrying it into execution. The
governor of the state could not, upon a charge made
before him, demand the fugitive; for according to all
the principles upon which all of our institutions are
founded, the executive department can only act in sub-
ordination to the judicial department, where rights of
persons or property are concerned, and its duty in
those cases consists only in aiding to support the ju-
dicial process and enforcing its authority, when its in-
terposition for that purpose becomes necessary, and is
called for by the judicial department. The executive
authority of the state, therefore, was not authorized by
this article to make the demand, unless the party was
charged in the regular course of judicial proceedings,
and it was equally necessary that the executive author-
ity of the state upon which the demand was made, when
called on to render its aid, should be satisfied by com-
petent proof that the party was so charged. The pro-
eeedings when duly authenticated, is his authority for
arresting the offender.’’ }”

Person forcibly brought into the state where not a
fugitive.
The doctrine announced that ‘‘except in the case of
a fugitive surrendered by a foreign government, there
is nothing in the constitution, treaties or laws of the
United States which exempts an offender brought be-
fore the courts of a state for an offense against its laws
from trial or punishment, even though brought from
another state by unlawful violence or by abuse of legal
process.1§
17 Commonwealth of Kentucky Rep. 225; Mahon v. Justice, 127
v. Dennison, 24 How. 66, 16 L. U.S. 700, 32 L. Ed. 283, 8 Sup.
Ed. 717. Ct. Rep. 1204; Cook v. Hart, 146

18Ker v. Illinois, 119 U. S. U. S. 183, 36 L. Ed. 934, 13
436, 30 L. Ed. 421, 7 Sup. Ct. Sup. Ct. Rep. 40; Lascelles v.
INTERSTATE EXTRADITION. 531

Such being the rule, it is said: ‘‘No more is the ob-
jection allowed if the abduction has been accomplished
under the forms of law. The conclusion is the same in
each case. The act complained of does not relate to the
restraint from which the prisoner seeks to be relieved,
but to the means by which he was brought within the
jurisdiction of the court under whose process he is held.
It is settled that a party is not excused from answering
to the state whose laws he has violated, because vio-
lence has been done him in bringing him within the
state. Moreover, if any injury was done in this case,
in issuing the requisition upon the state (in which the
party was at the time) without grounds therefor, the
injury was not to the petitioner, but to that state whose
jurisdiction was imposed upon. The United States do
not recognize any right of asylum in the state where
a party charged with a crime committed in another
state, is found; nor have they made any provision for
the return of parties who by violence and without law-
ful authority, have been abducted from a state; and
whatever affect may be given by a state court to the il-
legal mode in which a defendant is brought from an-
other state, no right secured under the constitution and
laws of the United States is violated by his arrest and
imprisonment for crimes committed in the state into
which he is brought.’ !®

In In re Moore, the prisoner was brought back from
the state of Washington as a fugitive from justice by
means of an extradition warrant, procured by false affi-
davits and the prisoner in Pettibone v. Nichols, supra,

Georgia, 148 U. S. 537, 37 L. Hd.
549, 18 Sup. Ct. Rep. 687; Adams

Pettibone v. Nichols, 203 U. S.
192, 51 L. Ed. 148, 27 Sup. Ct.

v. New York, 192 U. S. 585, 48 L.
Ed. 575, 24 Sup. Ct. Rep. 372;
In re Johnson, 167 U. S. 120, 42
L. Ed, 108, 17 Sup. Ct. Rep. 735;
In re Moore, 75 Fed. Rep. 821;

Rep. 111.

19In re Moore, 75 Fed. 821,
approved in Pettibone v. Nichols,
203 U. S. 192, 51 L. Ed. 148, 27
Sup. Ct. Rep. 111.
532 HABEAS CORPUS.

was brought back from Colorado under the same con-
ditions. In some of the other cases, for instance Ker
v. Illinois, supra, the prisoner was forcibly brought
back from Peru, without any extradition warrant.

It appears in the Pettibone case, that the governor
of Idaho, issued his requisition upon the governor of
Colorado for the surrender of Pettibone and others
charged with having feloniously murdered a former
governor of the former state. It was distinctly stated
that the accused was in the state at the time of the com-
mission of such offense. The requisition was honored
by the governor of Colorado, who issued his warrant
commanding the arrest of Pettibone and his delivery
to the authorized agent of Idaho to be conveyed to the
latter state. He was arrested at about 11:30 p.m. ona
Saturday night, and forcibly kept in custody of armed
guards, and immediately by means of special trains,
conveyed -beyond the state of Colorado into the state
of Idaho, not having any opportunity to prove the
fact that he was not a fugitive from justice, never hav-
ing been in the state of Idaho.

The right to prove such fact and the duty of the ex-
ecutive in the premises, when a requisition is made
upon for the surrender of an alleged fugitive from jus-
tice, is considered in subsequent pages.

Forcible abduction or kidnapping.

In the chapter on international extradition, it is made
to appear from a collection of numerous cases decided
by the supreme court of the United States, that there
is nothing in the constitution, treaties or laws (except
in the case of a fugitive surrendered by a foreign gov-
ernment) of the United States, which exempts an of-
fender, brought before the courts of a state for an of-
fense against its laws, from trial or punishment, even
though brought from another state by unlawful vio-
INTERSTATE EXTRADITION. 533

lence or by an abuse of legal process. That the conclu-
sion is the same if the abduction has been accomplished
under the forms of law.2? _

In In re Moore, 75 Fed. 821, and Pettibone v. Nichols,
203 U.S. 192, the requisition was based upon false af-
fidavits that the accused were fugitives. Never having
been in the demanding state, the requisition was hon-
ored by the executive of the state where found, arid the
accused forcibly abducted without thus having an op-
portunity to urge or prove they were not fugitives from
justice, which was the fact.

It follows, therefore, where one held as a fugitive
from justice fails to successfully establish the fact that
he is not such a fugitive, either before the executive or
in the courts, in the state where found before his re-
moval to the demanding state, he cannot take advan-
tage of such fact, subsequent, if the court of the de-
manding state will not discharge him.?1

And it also follows that where several acts or counts
are mentioned in the indictment, and some of them
were committed in the demanding state, and for which
he was subject to extradition, and as to others he was
not so subject, the court may still try him upon all the
counts, and for all the offenses.2?

And it also follows from the fact as has been stated,
that a fugitive has no implied exemption from trial for
other offenses than that for which extradited, even
where no opportunity has been given him to return to
the state from which extradited, in those states where
such doctrine prevails.

20 Ker v. Illinois, 119 U. S. 437, 8. 192, 51 L. Ed. 148, 27 Sup.
30 L. Bd. 421, 7 Sup. Ct. Rep. Ct. Rep. 111.

225; Mahon v. Justice, 127 U. S. 21 Cook v. Hart, 146 U. S. 183,
700, 32 L, Ed. 283, 8 Sup. Ct. 386 L. Ed. 934, 13 Sup. Ct. Rep.
Rep. 1204; Cook v. Hart, 146 U. 40.

S. 183, 36 L. Ed. 934, 13 Sup. Ct. 22State y. Clough, 72 N. H.

Rep. 40; In re Moore, 75 Fed. 178, 55 Atl. 1086, 67 L. R. A. 946.
821; Pettibone v. Nichols, 203 U.
534 HABEAS CORPUS.

§ 130. Trial for other and different crime.

In the chapter on International or Foreign Extradi-
tion, the decision of the federal supreme court have
been cited, which held that a person extradited from a
foreign country, could not be prosecuted for a different
offense than that charged, nor could he be prosecuted
for any other offense, where acquitted of the offense
charged, until after he had time and opportunity to re-
turn to the country from which he was extradited.

The question here is whether a person extradited
from a state upon demand of the executive of another
state, may claim such exemption. The state courts are

not agreed upon the question.”%

23 Among the states in which
it has been held that such per-
son may be prosecuted for
crimes other than that for which
he was extradited, whether com-
mitted before or after extradi-

tion are:

Alabama: Carr v. State, 104
Ala. 4, 16 So. 150.

Georgia: Lascelles v. State,

90 Ga. 347, 16 S. H. 945, 35 Am.
St. Rep. 216.

Iowa: State v. Kealy, 89 Iowa,
94, 56 N. W. 283.

Massachusetts: Common-
wealth v. Wright, 158 Mass. 149,
33 N. E. 82, 35 Am. St. Rep. 475,
19 L. R. A, 206,

Missouri: State v. Walker, 119
Mo. 467, 27 S. W. 1011.

Nebraska: Petry v. Leidigh,
47 Neb. 126, 66 N. W. 308.

New York: People v. Cross,
135. N. Y. 586, 32 N. E. 246, 31
Am. St. Rep. 850.

Texas:
App. 645.

Wisconsin: State v. Stewart,

Hain v. State, 4 Tex.

60 Wis. 587, 19 N. W. 429, 50 Am,
Rep. 388.

Vermont:
609.

Among the states which have
held that he should be protected
from prosecution for any other
offense which he may have com-
mitted, before he has a reason-
able opportunity to leave the
state, are: ‘

Kansas: State v. McNaspy,
58 Kan. 691, 50 Pac. 895, 38 L.
R. A. 756; State v. Hall, 40 Kan.
338, 19 Pac. 918, 10 Am, St. Rep.
200. Defendant, however, not
protected where the offenses
constituted one course of crime.
State v. Dunn, 66 Kan. 483, 71
Pac. 811.

Michigan: Matter of Cannon,
47 Mich. 481, 11 N. W. 280.

Ohio: Ex parte McKnight, 48
Ohio St. 588, 28 N. EB. 1034, 14
L. R. A. 128.

Indiana: Musgrave y. State,
133 Ind. 297, 32 N. EB. 885;

In re Miles, 52 Vt.
INTERSTATE EXTRADITION. 535

The United States supreme court determined by writ
of error to the supreme court of Georgia, that a fugi-
tive from justice who has been surrendered by one state
of the union to another state, upon requisition charg-
ing with the commission of a specific crime, has under
the constitution and laws of the United States, no right,
privilege or immunity to be exempt from indictment
and trial, in the state to which he is returned, for any
other or different offense from that designated in the
requisition, without first having an opportunity to re-
turn to the state from which he was extradited.?*

The court distinguishes this law as applied to inter-
national extradition and that applicable to interstate
extradition, stating: ‘‘To apply the rule of interna-
tional or foreign extradition, as announced in United
States v. Rauscher, 116 U. S. 407, to interstate rendi-
tion, involves the confusion of two essentially different
things, which rest upon entirely different principles.
In the former, the extradition depends upon treaty,
contract or stipulation, which rests upon good faith and
in respect to which the sovereign upon whom the de-
mand is made can exercise discretion, as well as inves-
tigate the charge on which the surrender is demanded,
there being no rule of comity under and by virtue of
which independent nations are required or expected to
withhold from fugitives within their jurisdiction the
right of asylum. In the matter of interstate rendition,
however, there is the binding force and obligation, not
of contract, but of the supreme law of the land, which
imposes no conditions or limitations upon the jurisdic-
tion and authority of the state to which the fugitive is
returned.’’

Waterman v. State, 116 Ind. 51, 24 Lascelles v. Georgia, 148 U.
18 N. E. 63. S, 587, 87 L. Ed. 549, 18 Sup. Ct.
The fugitive is not exempt if Rep. 687.

the different crimes arise out of
the same transaction.
536 HABEAS CORPUS.

The rule that a person extradited under treaty pro-
visions, cannot be tried for an offense, other than that
for which he was extradited until after he has had an
opportunity to leave the country to which he was sur-
rendered, it was held does not apply to an offense com-
mitted after he arrives in the latter country.”

And where he shall be first tried for the earlier or
later crime, is a matter wholly within the jurisdiction
of the country to which he is surrendered, and is of no
interest to the surrendering country.?¢

§ 131. Arrest before demand made.

A fugitive from justice from any of the United
States may be arrested and detained in another state
under art. 4, sec. 2 of the constitution of the United
States preparatory to his surrender, before requisition
is actually made by the executive of the state where
the crime was committed.?7

In most of the states if not all, statutes have been
enacted authorizing and regulating such a proceeding.
They may not be identical but practically the same in
matter of substance. They usually provide that when-
ever any person shall be found, within the particular
state charged with any offense committed in any other
state or territory and liable by the constitution and
laws of the United States to be delivered over upon the
demand of the executive of such other state or territory,
any court or magistrate authorized to issue warrants
in criminal cases may upon complaint under oath set-
ting forth the offense and such other matters as are
necessary to bring the case within the provisions of

25 Collins v. O’Neil, 214 U. 8. 26 Collins v. O’Neil, 214 U. S.
118, 51 L. Ed. 333, 27 Sup. Ct. 113, 51 L. Ed. 333, 27 Sup. Ct.
Rep. 776; United States v. Rep. 776.

Rauscher, 119 U. S. 407, 30 L. 27In re Fetter, 3 Zab. (N. J.)
Ed. 425, 7 Sup. Ct. Rep. 234. 311, 57 Am. Dec. 382.
INTERSTATE EXTRADITION. 537

law, issue a warrant to bring the person so charged be-
fore the same or some other court or magistrate within
the state to answer to such complaint, as in other cases.

If upon examination of the person charged, it shall
appear to the court or magistrate that there is reason-
able cause to believe that the complaint is true, and
that such person may be lawfully demanded of the gov-
ernor, he shall, if not charged with a capital crime, be
required to recognize, with sufficient sureties in a rea-
sonable sum to appear before such court or magistrate
at a future day, allowing a reasonable time to obtain
the warrant of the executive, and to abide the order of
the court or magistrate. If he shall not so recognize
he shall be committed to prison and there detained un-
til such day, in like manner as if the offenses charged
had been committed within the state. If the person so
recognized shall fail to appear according to the condi-
tion of his recognizance, he shall be defaulted, and the
like proceedings shall be had as in the case of other
recognizances entered into before the court or magis-
trate; but if such person be charged with a capital
crime, he shall be committed to prison and there de-
tained until the day so appointed for his appearance be-
fore the court or magistrate.

If the person recognized or committed shall appear
before the court or magistrate upon the day ordered,
he shall be discharged, unless he be demanded by some
person authorized by the warrant of the execution to
receive him, or unless the court or magistrate shall see
cause to commit him or require him to recognize anew
for his appearance at some other day, and if when so
ordered he shall not recognize, he shall again be com-
mitted and detained as before provided.

Whether the person so charged shall be recognized,
committed or discharged, any person authorized by
the warrant of the executive may at all times take him
538 HABEAS CORPUS.

into custody and the same shall be a discharge of the
recognizance, if any and shall not be deemed an escape.

§ 132. The complaint; what must appear.

To enable a magistrate to arrest and examine an al-
leged fugitive from another state, it must be shown to
him by a complaint in writing on oath, that a crime has
been committed in a sister state or in a territory of the
United States, that the accused had been charged in
such state with having committed such crime, and that
he has fled from such state and is found in the state
where such proceeding is instituted. These facts must
be distinctly alleged. It is not sufficient that they may
be inferred from other facts stated.?®

Such statutes have quite generally been held not to
be in violation of the federal constitution and laws of
congress.”°

It was stated by the supreme court of Indiana, that
there is nothing, either in the act of congress or in the
act of that state, upon the subject of fugitives from jus-
tice, which requires that a warrant shall be issued for
the fugitive, upon the charge against him, before his
return can be demanded from the state or territory to
which he may have fled. It is the indictment or the af-
fidavit which constitutes the charge against a fugitive
upon which his return can be required.*°

§ 133. The Requisition.—The demand.

The federal statute prescribes the necessary proceed-
ings to be taken to procure the extradition of one

28In re Heyward, 1 Sandf. 69 Am. Dec. 285. See, however,
(N. ¥. Sup.) 701. Prigg v. Commonwealth, 16 Pet.
29 Ex parte Cubreth, 49 Cal. 539, 617; Ex parte McKean, 3
436; Ex parte Rosenblat, 51 Cal. Hughes, 23; Degant v. Michael,
285; Commonwealth v. Tracy, 5 2 Ind. 306.
Metc. 536; Commonwealth v. 30 Tullis v. Fleming, 69 Ind.
Hall, 75 Mass. 262, 9 Gray, 262, 15.
INTERSTATE EXTRADITION. 539

charged with crime who has fled from the state (sec.
5278, Rev. St. 1874). First. of all there must be pre-
sented to the executive of the demanding state, proof
that the particular person is charged with the commis-
sion of a crime within the state, and that he has fled
from justice and is to be found in another state. It is
immaterial how or in what manner the executive ob-
tains this information, as it in no manner affects the
legality of the proceedings. The usual method is an
application by the district attorney of the county in
which the crime was committed.

The executive, upon such application, if he deems
that a proper case appears, in which the alleged fugi-
tive should be returned for trial upon the offense
charged, makes a demand in writing to the chief execu-
tive of the state, where he is informed that the alleged
fugitive is to be found, demanding him as a fugitive

from justice. Such written demand should on its face,
show that the alleged fugitive stands charged with the
commission of a crime in the demanding state, and that
prosecution had been commenced before some court or
magistrate.*1

And that the accused was in such state at the time
the crime was committed. It is not essential that it ap-
pear therein that a warrant has been issued for the ar-
rest of the alleged fugitive. It is the indictment or affi-
davit, and not the issuing of the warrant which con-
stitutes the charge against him upon which his return
can be required.

The copy of the indictment; the affidavit.
Such demand must be accompanied by a copy of the
indictment found or an affidavit made before a magis-
trate, charging the alleged fugitive with having com-

31 Ex parte White, 43 Cal. 433. 32 Tullis v. Fleming, 69 Ind.
165.
540 HABEAS CORPUS.

mitted a crime, within such demanding state, which in-
dictment or affidavit, must be certified as authentic by
the executive.*8

The act of congress does not specify that the copy
of the indictment or affidavit, as the case may be, shall
be attached to the demand. The language is: ‘‘ And
produces a copy of an indictment found or an affidavit
made,’’ etc., and evidently it is sufficient, if they are

‘in proper form and properly authenticated, that they
are used, in connection with the demand.**

In Nebraska, an information in due form has the
same effect in extradition proceedings as prima facie
proof of crime, as an indictment. Whether in such
a case, the papers accompanying the requisition should
show that the party had been given a preliminary ex-
amination, which is required before an information can
be filed, may be an open question. An indictment as
we have seen, is prima facie sufficient. On the one
hand, it may be urged that the executive upon whom
the demand is made, may assume as a legal presump-
tion, that the necessary proceedings were had authoriz-
ing the filing of the information. On the other hand,
the proceedings being special, it may be urged, that
the jurisdictional fact of a preliminary examination
must be made to appear. It did appear in the case
cited, and the court seem to have intimated at least,
that it must affirmatively appear. It held, however,
that the evidence taken upon such examination will not
be reviewed, to determine whether it sustains a charge
of crime or the finding of probable cause.?5

83 Act of Congress 1793, ch. 7, 84 Ex parte Hart, 63 Fed. 249,

sec. 1, sec. 5728 Rev. Stat.; 11 C. C. A. 165, 28 L. R. A. 801,

Kingsbury’s Case, 106 Mass. 223; is not to the contrary.

Ex parte Sheldon, 34 Ohio St. 35In re Van Sceiver, 42 Neb.

319. 772, 60 N. W. 1037, 47 Am. St.
Rep. 730.
INTERSTATE EXTRADITION. 541

The indictment; sufficiency of.

With respect to the indictment, when this form of
evidence is adopted, if it does not charge a crime, it is
insufficient to confer jurisdiction upon the executive
to whom presented to issue the warrant of arrest, and
the judge or court on habeas corpus can go behind the
warrant and examine the indictment to ascertain
whether the executive had jurisdiction to issue it, and
if it appears no crime is charged, the alleged fugitive
is entitled to his discharge. It is, however, only mat-
ters of substance that the court will consider; mere
matters of form will be disregarded.*®

If, however, the indictment appears to have been re-
turned by a grand jury, and is certified by the gov-
ernor of the demanding state as authentic, and substan-
tially charges a crime, the court cannot on habeas cor-
pus, discharge the prisoner because of merely formal
defects in the indictment. Insufficiency as a matter
of technical pleading, is to be tried and determined
in the state in which it was found.37

‘‘Hach state has the right to prescribe the forms
of pleading and process to be observed in its courts,
in both civil and criminal cases, subject only to those
provisions of the national constitution designed for
the protection of life, liberty and property in all the
states of the union; consequently in a case involving
the surrender, under the act of congress of a fugitive
from justice, it may not be objected that the indictment
is not framed according to the technical rules of crimi-
nal pleading, if it conforms substantially to the ns
of the demanding state.’’ 38

386 Ex parte Sheldon, 34 Ohio In re Greenough, 31 Vt. Ss 5; Ex
St. 319; Davis’ Case, 122 Mass. parte Reggel, 114 U. S. 642; State
324; People v. Brady, 56 N. Y. v. Connor, 38 Minn. 243.

182; Ex parte Reggel, 114 U. S. 388Ex parte Reggel, 114 U. S.

642, 29 L. Ed. 250. 642, 29 L. Hd. 250, 5 Sup. Ct.
87 Davis’ Case, 122 Mass. 324; Rep. 1148.

Y
542 HABEAS CORPUS.

By the laws of Pennsylvania, every indictment is to
be deemed and adjudged sufficient and good in law
which charges the crime substantially in the language
of the act of assembly prohibiting its commission and
prescribing the punishment therefor, or if at common
law so plainly that the nature of the offense charged
may be easily understood by the jury. The indictment
which accompanied the requisition in the case above
cited, charged the crime of obtaining goods by false
pretenses substantially in the language of the statute.

In Wisconsin, upon a writ of habeas corpus,
before the chief justice, it was held that it is a sufficient
compliance with the federal statute (sec. 5278, Rev. St.)
that the requisition is accompanied by a copy of the
information filed in a state, where such procedure is
in force, instead of an indictment found or an affi-
davit made before a magistrate.®®

The contrary, however, was held by the federal cir-
cuit court of appeals. That the provisions of the
federal constitution must be strictly observed in this
respect. That what the framers of the constitution and
those who enacted the statute, had in mind, was a writ-
ten accusation of one or more persons of a crime or
misdemeanor presented upon oath by a grand jury.
The court also held that a copy of an information
merely certified as authentic, and which was verified
by the district attorney, cannot be regarded as an affi-
davit under the federal constitution and statute. One
reason stated was that the affidavit, under repeated de-
cisions which are cited, required in such cases should
set forth its facts and circumstances relied on to prove
the crime, under oath or affirmation of some person
familiar with them, whose knowledge relative thereto
Justify the testimony as to their truthfulness, and

89 In re Hooper, 52 Wis. 699, Stockwell, 185 Mich. 341, 97 N.

58 N. W. 741. And the same was W. 765.
held in Michigan. People v.
INTERSTATE EXTRADITION. 543

should not be the mere verification of a court paper
by a public official who makes no claim to personal in-
formation as to the subject matter of the same.*®

It has been quite generally understood that the pro-
visions of the constitution and the act of congress in
respect to an affidavit, had reference to proceedings
before magistrates, which were instituted prior to the
finding of an indictment or the filing of an information,
and that the affidavit required in such cases as a
prerequisite to the issuing of a warrant, was the affi-
davit referred to. Itis such affidavit that charges the
crime, in the same manner and to the same extent as
an indictment, it having been repeatedly held that the
alleged fugitive must have been charged before the
court or magistrate with a crime, before demand could
be made for his surrender. Itis a copy of the affidavit
that has to be authenticated. This refers to an origi-
nal used in the original proceedings in which a party
stands charged with a crime, a document in and be-
fore the magistrate. Thus it has been held that it
must be made to appear that the affidavit was before
a magistrate.*!

I cannot conceive how an affidavit, extrinsic of a
court or magistrate record, of a stranger, can possibly
be substituted for that made the foundation of a crimi-
nal proceeding before a magistrate.

However, with respect to an information being suffi-
cient and within the constitutional provision and the
act of congress, it is said: ‘‘Who would doubt that an
information, where that is the statutory pleading for
purpose of trial, is sufficient to justify extradition.’’ *

40 Ex parte Hart, 63 Fed. 249, oath to a person styled_a trial
11 C. C. A. 165, 28 L. R. A. 801. justice, duly certified by the gov-

41 Ex parte Powell, 20 Fla. 806. ernor, is sufficient.

See also Kingsbury’s Case, 106 42In re Straus, 197 U. S. 324,

Mass. 223, which holds that a 332, 49 L, Ed. 774, 25 Sup. Ct.
copy of the complaint made on Rep. 535.
-

544 HABEAS CORPUS.

The affidavit.

With respect to the affidavit it was held by a federal
court, that it must be so explicit and certain that if
it were laid before a magistrate, he would be justified
in committing the accused to answer the charge.

It is undoubtedly true that the affidavit should be
explicit to that extent, but what the court had in mind
when it stated ‘‘if laid before a magistrate,’’ is not
readily comprehended. The affidavit must be one that
has been laid before a magistrate.

It has also been held that the affidavit must show that
the person demanded is a fugitive from justice.‘

It is true that the demand must show on its face that
the accused was in the demanding state at the time
the offense was committed, but there is nothing in the
constitution or the act of congress that it shall be
specially stated in the indictment or in the affidavit, ©
that the person demanded is a fugitive from justice.
Such an averment has no place in an indictment. In
fact the accused may not have fled until after indict-
ment found. It has no place in an affidavit or sworn
complaint before a justice. The flight of the accused
may have been after the affidavit or complaint was
presented to the magistrate and he had issued his war-
rant. No reason can be suggested why such an aver-
ment should appear in an affidavit and not in an in-
dictment.

It also has been said that it must contain a statement
of facts, the existence of which must be sworn to. That
a statement on information and belief, or on belief,
is not sufficient to support a requisition, and cases are
cited as supporting such contention.*®

43x parte Morgan, 20 Fed. 237; Ex parte Smith, 3 McLean,
298. 121.
44 Bx parte Manchester, 5 Cal. 45 Ex parte Spears, 88 Cal.
INTERSTATE EXTRADITION. 545

The question actually decided in Ex parte Spears,
was that the affidavit must contain sufficient allegations
essential to charge the accused with the commission of
the crime. That the affidavit there in question, being
made upon information and belief, did not charge any
offense either in that state or Alabama.

I think it may safely be stated, that where the affi-
davit contains all the essentials to charge the commis-
sion of a crime, under the laws of the demanding state,
it is sufficient for all the purposes, and if the laws of
the particular state authorize affidavits charging the
commission of .a crime, upon information and belief,
then it is sufficient for the purpose of extradition. The
affidavit is not required to be more specific than an in-
dictment in such respect, though a court has held other-
wise, and, as we have seen, that ‘‘each state has the
right to prescribe the forms of pleading and process to
be observed in its courts, both civil and criminal.’ 4*

It has been held that an affidavit charging a crime
directly and positively, is not rendered invalid by con-
cluding in the words ‘‘as said deponent verily be-
leves.’? #7

And also that the constitutionality of practice of the
demanding state will not be inquired into if the in-
dictment appears to be in accordance with its laws.*®

However, it has been held that it is not sufficient or-
dinarily to state the conclusion that a designated crime
or offense was committed, but that the essential ele-
ments constituting the offense or crime must be stated.
For instance, where the offense alleged is the obtain-

640, 26 Pac. 608, 22 Am. St. Rep. 46Ex parte Reggel, 114 U. S.
341; Ex parte Morgan, 20 Fed. 642, 29 L. Ed. 250, 5 Sup. Ct.
298; Ex parte Smith, 3 McLean, Rep. 1148.

121; Ex parte Baker, 43 Tex. 47In re Keller, 36 Fed. 681.
Cr. 281, 65 S. W. 91, 96 Am. St. 48 State v. Clough, 72 N. H.
Rep. 871. 178, 55 Atl. 554, 67 L. R. A. 946.

35
546 HABEAS CORPUS.

ing of property by false pretenses, the pretenses must
be alleged.*®

And where conspiracy is charged to cheat and de-
fraud another of his property by false pretenses or
tokens, it is not sufficient to aver the combination and
the object without setting out the means or the pre-
tenses by which the end was to be obtained.®°

And where one is charged as an acessory before the
fact of the crime of assault with intent to kill, it is not
sufficient to aver that the person was shot with intent
to kill, and the person charged was accessory before
the fact.

The real question I conceive to be, as before stated,
is whether the affidavit sufficiently charges the offense
under the laws of the demanding state, and if such laws
permit the charge to be made substantially in the lan-
guage of the statute, it is sufficient extradition pro-
ceedings.®}

It was held in California, that it was not necessary
that the affidavit upon which the requisition issued
should set forth the crime with all the legal exactness
necessary to be observed in an indictment. If it dis-
tinctly charges an offense, it is all that is necessary.*”

And in New York and. Massachusetts that it can-
not be held that any less degree of certainty is ad-
missible in an affidavit than is required in an indictment
for the same offense. If any distinction exists the
affidavit should be more full and explicit.®*

Sufficient must appear in the affidavit or in the ac-
companying papers to affirmatively show that the tri-

49 People v. Brady, 56 N. Y. 642, 29 L. Ed. 250, 5 Sup. Ct

182. Rep. 1148.

50 Lambert v. People, 9 Cowen, 52In re Manchester, 5 Cal.
578. 237.

51x parte Reggel, 114 U. S. 53 People vy. Brady, 56°N. Y

182; Davis’ Case, 122 Mass.’ 324.
‘INTERSTATE EXTRADITION. 547

bunals of the state which produce it, has jurisdiction
to try the person demanded as a fugitive for the par-
ticular offense charged.**

If the jurisdiction of the demanding state or territory
in a particular case, or with reference to a particular
class of crimes, is not general, but depends upon a
condition, then, under well settled principles, the ex-
ception or condition must be made to appear. Thus»
charging one with the commission of the crime of mur-
der or larceny and the like, will be sufficient, when com-
mitted within the boundaries of a state, because it is a
matter of common knowledge that for the commission
of such offenses each state has provided tribunals for
the trial of the offender, and also for his punishment
if his guilt be established, yet there is a class of offenses
and crimes which are exclusively within the jurisdic-
tion of the federal courts, and such latter named courts
have also exclusive jurisdiction of common law and
statutory offenses committed upon territory ceded to
the United States, though such territory may be with-
in the limits of a state. The rule may not go so far
as to require the negative of such jurisdiction of the
federal courts.

The courts of the Cherokee nation, had jurisdiction
and could only try for the crime of murder, when the
person murdered was an Indian, and the one charged
with the murder was also an Indian, hence it was held
that extradition papers which issued from that nation,
where the charge was murder, must have affirmatively
shown that the accused and his victim were Indians
in order to confer jurisdiction upon the governor of
the state to which one charged had fled, to honor the
requisition and issue the warrant.*°

64Kentucky v. Dennison, 24 55 Bx parte Morgan, 20 Fed.
How. 66, 16 L. Ed. 717; Ex parte 298.
Morgan, 20 Fed. 298.
548 HABEAS CORPUS.

The reason was that the affidavit or indictment was
not sufficient to charge the offense in the demanding
territory or nation.

What has been written with reference to the require-
ments of an affidavit was before my attention was
called to the quite recent decisions of the supreme court
of the United States.®*

Thus it is said: ‘‘Under the constitution, each state
was left with full control over its criminal procedure.
No one could have anticipated what changes any state
might make therein and doubtless the word ‘‘charged”’
was used in its broad significance to cover any pro-
ceeding which a state might see fit to adopt by which
a formal accusation was made against an alleged crimi-
nal. In the strictest sense of the term, a party is
charged with crime when an affidavit is filed alleging
the commission of the offense and a warrant is issued
for his arrest, and this is true whether a final trial may
or may not be had upon such charge.’’ 57

The full force and meaning of the foregoing lan-
guage appears in the other and later case referred to.
The question of the sufficiency of an indictment in re-
spect to charging a crime was involved. It was urged
by counsel for the petitioner, that an objection, good
if taken on arrest of judgment, would be sufficient to
show that the indictment is not a charge of crime. The
court in meeting this suggestion, stated: ‘‘Not to speak
of the uncertainty of such a test in view of the varying
practice in the different states, there is nothing in
principle or authority that supports it. Of course such
a test would be utterly inapplicable to cases of a charge

56In re Strauss, 197 U. S. 324, 57In re Strauss, 197 U. S. 324,
49 L. Hd. 774, 25 Sup. Ct. Rep. 49 L. Ed. 774, 25 Sup. Ct. Rep.
535; Pierce v. Creecy, 210 U. S. 535.

387, 52 L, Ed. 1113. ;
INTERSTATE EXTRADITION. 549

of crime by affidavit which was held to be within the
constitution, 197 U. S. 324. The only safe rule is to
abandon entirely the standard to which the indictment
must conform, judged as a criminal pleading, and con-
sider only whether it shows satisfactorily that the fugi-
tive has been in fact, however inartificially, charged
with crime in the state from which he had fled. * * *
But the constitution does not require as an indispensa-
ble prerequisite to interstate extradition, that there
should be a good indictment or even an indictment of
any kind. It requires nothing more than a charge of
crime. Congress in aid of the execution of the consti-
tutional provision has enacted a law, sec. 5378 Rev.
Stat., directing that the charge shall be made either by
‘an indictment found’ or ‘an affidavit made before a
magistrate,’ and as we. have seen, this court has held
that such an affidavit is sufficient.’’ °°

Practically the same was held by the Massachusetts
court. In that case from the meager report of the
facts, I assume that the indictment or complaint which
charged the obtaining money under false pretenses,
was lacking in proper averments that the prosecuting
witness was induced by the false pretenses to part with
his money, or that he was cheated or defrauded in any
manner and that the court held notwithstanding such
defects, it substantially charged the offense; that such
defects were matters of form only, to be passed upon
by the court, wherein the charge was made.®®

Under the statute of Georgia, a notary public is re-
garded as a magistrate, being clothed with the powers
of justices of the peace, hence it was held that the
affidavit required by the federal statute, sec. 5278, in
extradition proceedings, if sworn to before such an
officer, is a compliance with such statute.®°

88 Pierce v. Creecy, 210 U. S. 60 Compton v. Alabama, 214 U.

387, 52 L. Hd. 1113. S. 1, 53 L. Ed. 885.
59 Davis’ Case, 122 Mass. 324. Es
550 HABEAS CORPUS.

§ 134. The certificate of authenticity of affidavit; how
far conclusive.

The statute requires the copy of the indictment found
or affidavit made to be duly certified as authentic by
the demanding governor. The reason for this require-
ment has been stated to be, that otherwise the executive
of the state upon whom the demand is made might be
imposed upon by what purported to be a true copy of
such an indictment, but which in fact might be a spur-
ious copy. The genuineness of the copy is not to be
ascertained by a resort to any technical rule for ascer-
taining the fact, nor need the fact be made to appear
in any set form of words, or even in the words of the
statute requiring the authentication. All that can
be required is that the language employed by the de-
manding governor in the requisition, understood in its
ordinary meaning, shows that the copy of the indict-
ment upon which the requisition is made, is genuine.*!

The governor may rely upon the clerk’s certificate
that the copy of the indictment is genuine, the genuine-
ness of which, it is presumed, he has the means of
knowing and has knowledge.®?

The mere fact that the clerk:has omitted to attach
his seal to such certificate, or has omitted to place his
file mark upon the indictment, will not be noticed in
proceedings by habeas corpus. The certificate of the
governor that the indictment is authentic is conclusive
of such questions.**

The governor of the state, who makes the demand for.
the alleged fugitive, is the only judge of the authen-

61EXx parte Sheldon, 34 Ohio 62x parte Sheldon, 34 Ohio
St. 319; Kingsbury’s Case, 106 St. 319.
Mass. 223. 68 Hibler v. State, 43 Texas,
197,
INTERSTATE EXTRADITION. 551

ticity of the affidavit; and where that appears by his
proper certificate, it is conclusive, and no question can
be raised upon habeas corpus, impeaching the affidavit,
upon the ground that it was a forgery, or for other
cause.®

If, however, it appears upon the face of the affidavit
that it was not made before a proper officer, authorized
in the particular case to administer the oath or sign
the jurat, there is no authority for the governor to
issue his warrant.

It is the governor who is to be satisfied and who is
to certify or authenticate. The law does not presume
that he has actual knowledge in all cases, but
rather that it has been communicated to him in some
proper manner, as for instance, the certificate of some
proper officer who has such paper in his custody or
keeping.

It has been held, however, that an indictment or affi-
davit certified as authentic by the secretary of state
does not satisfy the requirements of the law.*

§ 135. Duty of executive not mandatory.

It is held that while the act of congress makes it
an absolute duty on the part of the executives of both
states to comply with its provisions, yet it is not within
the power of congress to compel its performance.
That the words ‘‘it shall be the duty,’’ etc., are not
used in a mandatory sense, but are expressive merely
of the moral obligation of the executive to obey the
constitution of the United States on that subject. The
duty rests solely on the sense of honor and good faith

64 Matter of Manchester, 5 Cal. 65 Ex parte Powell, 20 Fla.
237; Kurtz v. State, 22 Fla. 36, 806.
1 Am. St. Rep. 173. 66 Solomon’s Case, 1 Abb. Pr.

(N. 8.) 347.
552 HABEAS CORPUS.

of the states as declared by the constitution. Hence
if the governor of any state refuses to discharge his
duty, there is no power delegated to the general govern-
ment, either through the judicial department or any
other department to compel its performance.*

This question was before the court in the above case
on an application for a writ of mandamus to compel the
governor of Ohio to deliver up a person charged as a
fugitive from justice in the state of Kentucky where
he was charged with aiding and assisting a slave to
leave and escape from its owner.

§ 136. The executive must satisfy himself that the ac-
cused is a fugitive from justice.

No precise mode for the determination of the ques-
tion, whether the accused is a fugitive from justice, is
declared by the act of congress nor has any uniform
method been established by the decisions of courts.
That fact, however, in some legal mode should ap-
pear to justify the executive in delivering the alleged
fugitive. Thus it is stated: ‘‘Undoubtedly the act
of congress did not impose upon the executive officer
of the territory the duty of surrendering the appellant
unless it was made to appear in some proper way,
that he was a fugitive from justice. In other words,
the appellant was entitled, under the act of congress,
to insist upon proof, that he was within the demanding
state at the time he was alleged to have committed the
crime charged, and subsequently withdrew from her
jurisdiction, so that he could not be reached by criminal
process. The statute, it is to be observed, does not
prescribe the character of such proof; but the execu-

67 Kentucky v. Dennison, 24 Ed. 287; Ex parte Virginia, 100
How. 66, 16 L. Ed. 717; Taylor U.S. 339, 25 L, Ed. 676.
v. Taintor, 16 Wall. 366, 21 L.
INTERSTATE EXTRADITION. 553

tive authority of the territory was not required, by the
act of congress, to cause the arrest of appellant, and
his delivery to the agent appointed by the governor
of Pennsylvania, without proof of the fact that he
was a fugitive from justice, is, in our judgment, clear
from the language of that act. Any other interpreta-
tion would lead to the conclusion that the mere re-
quisition by the executive of the demanding state ac-
companied by the copy of an indictment or an affidavit,
before a magistrate, certified by him to be authentic,
charging the accused with crime committed within her
limits, imposes upon the executive of the state or ter-
ritory where the accused is found, the duty of surren-
dering him, although he may be satisfied by incontest-
able proof, that the accused had, in fact, never been in
the demanding state, and therefore could not be said
to have fled from its justice. Upon the executive of the
state in which the accused is found, rests the responsi-
bility of determining in some legal mode, whether the
accused is a fugitive from justice of the demanding
state. He does not fail in duty if he makes it a con-
dition precedent to the surrender of the accused, that
it be shown to him by competent proof, that the accused
is in fact a fugitive from the justice of the demanding
state.’’

The question, however, is, when is this to be made
to appear? It is intimated that it should be prior to
the surrender or delivery to the agent of the demanding
state. It is also stated that the accused is entitled to
insist upon proof that he was in the demanding state at
the time he is alleged to have committed the crime
charged. Does this not sufficiently appear prima facie
from the indictment or affidavit or must it otherwise

68 Ex parte Reggel, 114 U. S. 642, 651, 29 L. Ed. 250, 5 Sup. Ct.
Rep. 1148.
554 HABEAS CORPUS.

affirmatively appear? And does it not also appear
from the fact that he is found in the state, where the
demand is made, that he has fled from the demanding
state and is a fugitive, it being the settled law that the
purpose for which he left the state is not important.
That the fact of being found in another state is suffi-
cient.®

It appears, however, in the opinion of the case
cited, that an affidavit presented to the executive, stat-
ing the conclusion, that the accused was a fugitive from
justice, though it was not as full as might properly be
required was sufficient.

Subsequently, however, it was stated: The proceed- -
ings before the governor are summary in their nature.
‘““The statute does not provide for the particular kind
of evidence to be produced before him (the executive)
nor how it shall be authenticated, but it must at least
be evidence that is satisfactory to him. Strict com-
mon-law evidence is not necessary. The person de-
manded has no constitutional right to be heard before
the governor, on either question (whether substantially
charged with a crime and whether he is a fugitive from
justice) and the statute provides for none. To hold
otherwise, would in many cases render the constitu-
tional provision as well as the statute passed to carry
it out, wholly useless. ’? 7°

The executive of a state, upon whom a demand is
made for the surrender of a fugitive, may act on the
papers in the absence of and without notice to the ac-
cused, and it is for that executive to determine whether
he will regard the requisition papers as sufficient proof
that the person has been charged with crime in and

ce Roberts v. Reilly, 116 U. S. 70 Munsey v. Clough, 196 U. S.
80, 29 L. Ed. 544, 6 Sup. Ct. Rep. 364, 372, 49 L. Ed. 515, 25 Sup.
291, Ct. Rep. 282.
INTERSTATE EXTRADITION. 555

is a fugitive from justice from the demanding state, or
whether he will demand, as he may, if he sees fit to do
so, further proof in regard to such facts.™1

§ 137. The warrant.

The executive concluding that it sufficiently appears
that the alleged fugitive has been charged with crime,
and that a proper demand has been made for his sur-
render as a fugitive from justice, and that he is such
a fugitive, will issue his warrant.

The warrant should specify that it has been repre-
sented to the executive that the accused stands charged
with a specified crime, in the particular state or ter-
ritory designating it, and that he has fled from justice.
That a demand has been made upon him for the sur-
render of such fugitive pursuant to the constitution
and law of the United States, and that said representa-
tion and demand was accompanied by an indictment
or affidavit duly certified as authentic by the chief ex-
ecutive of such state. It is not essential that a copy
of the indictment or affidavit accompany the warrant,
yet, ordinarily such has been the practice.*?

It has, however, been recently held by the federal
supreme court, that the issuing of a warrant of arrest
by the governor of the surrendering state, with or with-
out a recital therein that the person demanded is a
fugitive from justice, must be regarded as sufficient to
justify the removal, until the presumption in favor
of the legality and regularity of the warrant is over-
come in a legal proceeding to review the action of the
governor.”*

71 Marbles v. Creecy, 215 U. S. 73 Munsey v. Clough, 196 U. S.
63, 54 L. Ed. 92. 872, 49 L, Ed. 515, 25 Sup. Ct.
72 People v. Donohue, 84 N. Y. Rep. 282; Pettibone v. Nichols,
438. 208 U. S. 192, 204, 51 L. Ed. 148,

27 Sup. Ct. Rep. 111.
556 HABEAS CORPUS.

§ 138. Agent appointed by state; delivery to.

The act of congress (Rev. Stat. U. S. sec. 5278) di-
rects that the executive shall cause the fugitive to be
delivered to an agent of the state when he shall appear.
It is further provided that such agent is empowered.
-with authority to transport the fugitive to the state or
territory from which he had fled, ete.

Such an agent is not an officer of the federal govern-
ment, nor acting under the authority of the United
States, but is an agent of the state.74

A warrant issued to him as such agent, authorizing
the arrest of a fugitive, is valid.” .

§ 140. Jurisdiction of federal and state courts.

The general statement is often made that the federal
and state courts have concurrent jurisdiction in ex-
tradition proceedings,” and this statement is true to
the extent that the jurisdiction is concurrent to inquire
upon habeas corpus as to the cause of detention. But
the jurisdiction of state courts in such cases to pro-
ceed with the inquiry is limited by the same provisions.
and rule of law that limits their jurisdiction generally
upon habeas corpus. This limitation was clearly and
concisely stated by the supreme court of the United
States. It was said: ‘‘Congress has not undertaken
to invest the judicial tribunals of the United States
with exclusive jurisdiction of issuing writs of habeas
corpus in proceedings for the arrest of fugitives from
justice, and their delivery to the authorities of the

74 Robb v. Connolly, 111 U. S. 7 Commonwealth v. Hall, 9
624, 28 L. Ed. 542, 4 Sup. Ct. Gray, 262, 69 Am. Dec. 285.
Rep. 544; Roberts v. Reilly, 116 77In re Roberts, 24 Fed. 132;
U. S. 80, 29 L. Ed. 544, 6 Sup. Ct. Ex parte Coy, 32 Fed. 911; Robb
Rep. 291. v. Connolly, 111 U. S. 624, 28

L. Ed, 542, 4 Sup. Ct. Rep, 544.
INTERSTATE EXTRADITION. 557

state in which they stand charged with crime. When
a demand has been made in accordance with the con-
stitution of the United States, by the state from which
the fugitive had fled, upon the executive authority of
the state in which he is found, that instrument indeed
makes it the duty of the latter to cause his arrest and
surrender to the executive authority of the demanding
state, or to the agent of such authority. Subject, then,
to the exclusive and paramount authority of the na-
tional government by its own judicial tribunals, to de-
termine whether persons held in custody by authority
of the United States, or by the commissioners of such
courts, or by the officers of the general government act-
ing under its laws, are so held in conformity to law, the
states have the right by their own courts, or by the
judges thereof, to inquire into the grounds upon which
any person within their respective territorial limits is
restrained of his liberty, and to discharge him if it be
ascertained that such restraint is illegal; and this, not-
withstanding such illegality may arise from a viola-
tion of the constitution or the laws of the United
States.’? 78

§ 141. State courts do not proceed when it appears pe-
titioner is held under federal authority.

State courts and state judges, authorized by laws of
their states to issue writs of habeas corpus, have un-
doubtedly the right to issue the writ in any case where
a party is alleged to be illegally confined within their
limits, unless it appear upon his application that he is
confined under the authority or claim and color of the
authority of the United States by an officer of that

78 Robb v. Connolly, 111 U. S. 624, 28 L. Hd. 542, 4 Sup. Ct. Rep.
544,
558 HABEAS CORPUS.

government. If such fact appear upon the application,
the writ should be refused. If the court, after the re-
turn is made, is judicially apprised that the party is in
custody under the authority of the United States, they
can proceed no further. They then know that the
prisoner is within the domain and jurisdiction of
another government, and that neither the writ of ha-
beas corpus, nor any other process issued under the
state authority, can pass over the line of division be-
tween the two sovereignties. He is then within the do-
main and exclusive jurisdiction of the United States.
If he has committed an offense against their laws,
their tribunals alone can punish him. If he is wrong-
fully imprisoned, their judicial tribunals can release
him and afford him redress.”®

If it does not appear that he is held under the author-
ity of the United States, the state judge or court issuing
the writ has a right to inquire into the cause of the
imprisonment, and ascertain by what authority the
prisoner is held within the limits of the state, and it
is the duty of the marshal or other federal officer having
the custody of the person to give, by a proper return,
information in respect to the person being in federal
custody.®°

§ 142. State courts not prohibited because federal
rights or laws are involved.

The recognition, therefore, of the authority of a
state court, or of one of its judges, upon a writ of ha-
beas corpus, to pass upon the legality of the imprison-

79 United States v. Booth, 21 80In re Tarble, 13 Wall. 397, .
How. 506, 3 U. S.‘Dec. 130, 16 20 L. Ed. 597, 3 Am. Rep. 85,
L, Ed, 169; In re Tarble, 13 Wall. Robb v. Connolly, 111 U. S. 624,
397, 20 L. Hd. 597, 3:-Am, Rep. 28 L. Ed. 542, 4 Sup. Ct, Rep.
85. 544.
INTERSTATE EXTRADITION. 559

ment within the territory of that state of a person held
in custody otherwise than under the judgment or orders
of the judicial tribunals of the United States, or by the
order of a commissioner of a circuit court, or by offi-
cers acting under their laws, cannot be denied merely
because the proceedings involve the determination of
rights, privileges or immunities derived from the na-
tion, or require a construction of the constitution and
laws of the United States.*!

§ 143. Nature and extent of inquiry.

The court will examine the extradition papers to
determine the lawfulness of the arrest. The act of
congress (Rev. Stat., sec. 5278) prescribes that, when
a demand upon the executive authority of the state
where a fugitive has fled has been made for such fugi-
tive, there shall be produced a copy of an indictment
or affidavit made before a magistrate charging the
person demanded with having committed a crime,
which shall be certified as authentic by the governor or
chief magistrate of the state from whence the person so
charged has fled. It must therefore appear to the gov-
ernor of the state upon whom such demand is presented
that the person demanded is substantially charged with
a crime against the laws of the state from whose justice
he is alleged to have fled, by an indictment or affidavit
certified as authentic by the governor of the state mak-
ing the demand; and second, that the person demanded
is a fugitive from justice of the state from which pro-
ceeds the demand. The first of these prerequisites is a
question of law, and is always open on the face of the
papers to judicial inquiry on an application for a dis-

81 Robb v. Connolly, 111 U. S. 624, 28 L. Ed. 542, 4 Sup. Ct. Rep.
544, ‘
560 HABEAS CORPUS.

charge upon a writ of habeas corpus. The second is
a question of fact, which the governor of the state upon
whom the demand is made must decide upon such evi-
dence as he deems satisfactory. How far his decision
may be reviewed judicially in proceedings on habeas
corpus, or whether it is not conclusive, are questions
which the supreme court of the United States said were
not settled by harmonious judicial decisions, not by any
authoritative judgment of that court.*?

The determination of that fact, however,, by the gov-
ernor is sufficient to justify the removal until the pre-
sumption in its favor is overthrown.®?

Affidavit or indictment may be examined.

The indictment or affidavit produced before the gov-
ernor therefore may be examined in order to deter-
mine whether it charges a crime against the laws of the
state, the authorities of which demand the alleged fugi-
tive, because it is elementary that theses documents
must charge a crime to have been committed in such
latter state by the accused, to entitle its authorities to
make the demand for his arrest, or to authorize the
governor of the state upon whom the demand is made
to issue his warrant.*+

Test of sufficiency.

It would seem on first impression that the proper
_ test in such cases is whether the indictment was suffi-
cient to justify, under the law of the state where found,
a conviction for the offense charged. If it was so de-

82 Roberts v. Reilly, 116 U. 8S. 84Hx parte Smith, 56 N. Y.
80, 29 L. Ed. 544, 6 Sup. Ct. Rep. 182; Davis’ Case, 122 Mags. 324;
291. State v. Richardson, 34 Minn.

83 Roberts v. Reilly, 116 U. 8S. 115, 24 N. W. 354.
80.
INTERSTATE EXTRADITION. 56L

fective in matters of substance, or wanting in essential
averments of time, place or intent, that it would be
quashed on motion, then it is that no crime is charged;
in other words, there must appear a legal indictment.
The United States supreme court seem to hold other-
wise,*4* and to some extent the Massachusetts court
in the Davis case, supra. In the latter case, from
the meager report of the facts, I assume that the indict-
ment, which was for the offense of obtaining money un-
der false pretenses, was lacking in proper averments
that the prosecuting witness was induced by the false
pretenses alleged to part with his money, or that he was
cheated or defrauded in any manner, and that the court
held, notwithstanding such defects, it substantially
charged the offense; that such defects were matters of
form only, to be passed upon by the court wherein the
indictment was found. The particular question to
which I refer is the power of the courts upon habeas
corpus to go behind the warrant and examine the in-
dictment or affidavit with respect to jurisdictional de-
fects. It was stated that if the warrant is duly issued,
the court, upon habeas corpus, can go behind it only
so far as to entertain a question as to the identity of
the alleged fugitive, citing two cases decided by the
Delaware court as sustaining such contention.§+>

Determination of the governor that the accused is
a fugitive, how far conclusive.

The other proposition, heretofore stated, is whether
the determination of the governor, upon the evidence
submitted, that the person demanded as a fugitive from
justice is such in fact, can be reviewed upon habeas cor-
pus. It has heretofore been stated that the federal su-

84a In re Strauss, 192 U. S, 334. 8b In re Greenough, 31 Vt.
279

36
562 HABEAS CORPUS.

preme court has said that this question has not ‘been
authoritatively decided by that court,*® though it was
there said that the determination of that fact by the
governor, upon evidence introduced before him, is sub-
ject to judicial review upon habeas corpus, the accused
should not be discharged merely because in the judg-
ment of the court the evidence as to his being a fugitive
from justice was not so full as might properly have been
required, or because it was so meager as perhaps to ad-
mit of a conclusion different from that reached by him.
It is quite generally held that the governor in such
eases acts ministerially, not. judicially,8* though the
Vermont court asserts that he acts both ministerially
and judicially.®”

It is quite difficult to understand why a distinction
should be made as to the determination of the governor
in respect to the questions necessarily submitted to him
upon the application. Necessarily both of such ques-
tions may present questions of law. Such was the case
in Jones v. Leonard, 50 Iowa, 106. The affidavit there
presented to the governor merely stated the conclusion
that the person demanded was a fugitive from justice.
The facts were that the person demanded had never
been in the state where the alleged offense was com-
mitted. It was sought to extradite him on the ground
of a constructive presence in the state, arising from his
being in some manner a party to the crime. The ques-
tion was therefore directly presented upon the facts,
if the governor had before him the facts, whether under
such circumstances the accused was a fugitive from

85 Roberts v. Reilly, 116 U. 8S. MReggel, 114 U. S. 642, 29 L. Hd.
80, 29 L. Ed. 544, 6 Sup. Ct. Rep. 250, 5 Sup. Ct. Rep. 1148.
291. It was also an open ques- 86 Jones v. Leonard, 50 Iowa,
tion in a prior case. Ex parte 106.
87 In re Greenough, 31 Vt. 279.
INTERSTATE EXTRADITION. 563

justice. This was purely upon the facts, when ascer-
tained, a question of law, and the court so held; it be-
ing determined that it was not consistent to say that
a man had fled from a jurisdiction into which he had
never been; and this latter statement is in accord with
the statement of the supreme court of the United
States.8®

It was stated by the New York court of appeals, that
a rule which would make the determination of the ex-
ecutive final, even though the papers produced clearly
showed that the essential preliminaries of the law were
unfulfilled, did not commend itself to their judgment.®®

It would seem that as he is clothed with discretion
and must act upon and determine from evidence; that
he is exercising judicial powers.

It was stated by the United States supreme court in
an early case, that the duty of the governor of the state
where the fugitive was found, is merely ministerial,
without the right to exercise either executive or judi-
cial discretion.®?

The warrant of the governor is at least prima facie
evidence that all required precedent conditions have
been complied with, and of the right to remand the al-
leged fugitive; and it is incumbent upon the petitioner
to show, in a proceeding by habeas corpus, that under
the law no such right has been established.

When the preliminary papers upon which a warrant
of extradition has been granted are produced and are
before the court, it is not only the right but the duty

88 Hx parte Reggel, 114 U. S. 9s Ex parte Sheldon, 34 Ohio
642, 29 L. Ed. 250, 5 Sup. Ct. St. 319; Ex parte Watson, 2 Cal.
Rep. 1148. 59; Davis’ Case, 122 Mass. 324;

89 People v. Donohue, 84 N. Y. Taylor v. Taintor, 16 Wall. 366,
438, 441. 21 L. Ed. 287.

e2Kentucky v. Dennison, 24
How. 66, 104, 16 L. Ed. 717.
564 HABEAS CORPUS.

of the court to examine them and judge and determine
whether they are sufficient under the law to justify the
warrant of extradition.

The foregoing evidently relates only to an inquiry
as to the jurisdiction of the executive, appearing upon
the face of the record. As it is stated by the same
court: ‘‘Where, however, the papers upon which the
executive warrant is founded, are not produced on the
return, but are withheld by the executive in the exer-
cise of official discretion and authority, then the court
can look only to the warrant itself and its recitals for
the evidence that the essential conditions of its issue
have been fulfilled; and if therein be recited a repre-
sentation of the governor of a state that the prisoner
stood charged with a crime, designating it; that said
governor has demanded his arrest and extradition;
that the demand was accompanied by affidavits or in-
dictment (where both are not required by statute)
whereby the prisoner is charged with crime and with
having fled from the state; and that such papers were
certified by the governor to be duly authenticated, the
warrant fully complies with the statute and sufficiently
establishes the conditions necessary to its issue.*®

It was further stated: ‘‘Whether the warrant is con-
clusive, and whether it is competent for the prisoner
to prove that the papers presented to the governor
were defective, the court did not detrmine, as the ques-
tion was not in issue, no proof being offered, and also,
that a rule which would make the determination of the
executive final, even though the papers produced
clearly showed that the essential preliminaries of the

94 People v. Brady, 56 N. Y. 8 People v. Donohue, 84 N. Y.
182; People v. Donohue, 84 N. Y. 488; People v. Pinkerton, 77 N.
438, Y. 246.
INTERSTATB EXTRADITION. 565

law were unfulfilled, did not commend itself to their
judgment.**

The other question is as to the nature and extent of
the inquiry with respect to the prisoner being a fugi-
tive from justice, in other words, to what extent is the
determination of the executive conclusive.

The supreme court of the United States declared that
“it must appear to the governor of the state to whom
the demand is presented, before he can lawfully com-
ply with it, first, that the person demanded is substan-
tially charged with a crime against the laws of the state
from whose justice he is alleged to have fled, by an in-
dictment or an affidavit certified as authentic by the
governor of the state making the demand, and second,
that the person demanded is a fugitive from the justice
of the state, the executive authority of which makes
the demand. The first of these requisites is a question
of law, and is always open on the face of the papers to
judicial inquiry on application for a discharge under a
writ of habeas corpus. The second, is a question of
fact, which the governor of the state upon whom the de-
mand is made must decide, upon such evidence as he
may deem satisfactory. How far his decision may be
reviewed judicially in proceedings in habeas corpus, or
whether it is not conclusive, are questions not settled by
harmonious decisions nor by any authoritative judg-
ment of this court. It is conceded that the determina-
tion of fact by the executive of the state in issuing his
warrant of arrest, upon demand made upon that
ground, whether the writ contains a recital of an ex-
press finding to that effect or not, must be regarded as
sufficient to justify the removal until the presumption
in its favor, is over thrown by competent proof.®7

96 People v. Donohue, 84 N. Y. 97 Roberts v. Reilly, 116 U. S.
438, 441. 80, 95, 29 L. Ed. 544, 6 Sup. Ct.
566 HABEAS CORPUS.

Subsequently it was held by the same court: ‘‘We
have no doubt that the governor upon whom the de-
mand is made, must determine for himself, in the first
instance at least, whether the party charged is in fact
a fugitive from justice, but whether his decision
thereon be final is a question proper to be determined
by the courts of that state.’’ °°

Still later this question was before the same court
and quite generally it was met in saying: ‘‘We are
of the opinion that the warrant of the governor is but
prima facie sufficient to hold the accused, and that it
is open to him to show by admissions, such as are herein
produced, or by other conclusive evidence that the
charge upon which extradition is demanded, assumes
the absence of the accused person from the state at the
time the crime was, if ever committed. This is in ac-
cordance with the authorities cited in the opinion of
Judge Cullen in the New York court of appeals,®® and
is we think founded upon correct principles.’’

“‘Tf upon a question of fact made before the gover-
nor, which he ought to decide, there were evidence pro
and con, the courts might not be justified in reviewing
the decision of the governor upon such question. Ina
case like that, where there was some evidence sustain-
ing the finding, the courts might regard the decision
of the governor as conclusive. But here as we have the
testimony of the relator (uncontradicted) and the stip-
ulation of counsel as to what the facts were, we have
the right to and it is our duty on such proof and con-
cession to say whether a case was made out within the

Rep. 291; Ex parte Reggel, 114 99 People v. Hyatt, 172 N. Y.
U.S. 642, 29 L. Ed. 250, 5 Sup. 176, 64 N. E. 825, 92 Am, St.
Ct. Rep. 1148. Rep. 706, 60 L. R. A. 774.

98 Cook v. Hart, 146 U. S. 183,
193, 36 L. Ed. 934,
INTERSTATE EXTRADITION. 567

federal statute justifying the action of the governor.
It is upon the statute that the inquiry must rest.’? 1

The decision assumes that there must have been some
evidence as to such fact, other than that presented by
the preliminary proceedings, required by the statute
for the extradition of the accused to render his deter-
mination conclusive as to such fact. ‘‘Any other in-
terpretation,’’ as stated in Ex parte Reggel, supra,
‘would lead to the conclusion that the mere requisition
by the executive of the demanding state, accompanied
by a copy of the indictment imposes upon the executive
the duty of surrendering the alleged fugitive, although
he may be satisfied, from incontestable proof, that the
accused had never been in the demanding state and
therefore could not be said to have fled from its jus-
tice.”’

The same question was inferentially before the same
court in a still later case and it was assumed that the
question of fact, whether the relator was or was not a
fugitive from justice, was determinable upon habeas
' eorpus.?

In the celebrated case of Pettibone v. Nichols, 203
U. 8. 192, 205, 51 L. Ed. 148, 27 Sup. Ct. Rep. 111, in
which the governor of Colorado issued his warrant for
the arrest of the relator and he was hurried out, of the
state, and thus denied an opportunity to test the ques-
tion of the legality of his arrest and to show he was
not a fugitive from justice, it was said: ‘‘It is equally
true that even after the issuing of such a warrant, be-
fore his deportation from Colorado, it was competent
for a court, federal or state to inquire whether he was
in fact a fugitive from justice, and if found not to be

1 Hyatt v. Corkran, 188 U. S. 2Munsey v. Clough, 196 U. S.
691, 711, 23 Sup. Ct. 456, 47 L. 364, 49 L. Bd. 515, 25 Sup. Ct.
Ed. 637. Rep. 282.
568 HABEAS CORPUS.

to discharge him from the custody of the Idaho agent
and prevent his deportation from Colorado.’’

And in MeNichols v. Pease, 207 U. S. 100, 109, 62 L.
Ed. 121, the question is distinctly met and determined
by the court, and in which it is stated: ‘‘One arrested
and held as a fugitive from justice, is entitled of right
upon habeas corpus, to question the lawfulness of his
arrest and imprisonment, showing by competent evi-
dence, as a ground for his release, that he was not,
within the meaning of the constitution and laws of the
United States, a fugitive from justice of the demand-
ing state, and thereby overcoming the presumption to
the contrary arising from the face of the extradition
warrant.’’

Where the papers upon which the requisition for the
return of an alleged fugitive is based, are regarded as
sufficient by the executive officers of both the states
making and honoring the demand, the judiciary should
not interfere and discharge the prisoner on technical
grounds, unless it is clear that the action plainly con-
travenes the law, is the rule as declared by the supreme
court of the United States.?

Determination whether act charged constitutes a
crime in state where committed.

If it be the rule that the governor must determine
from the evidence that the party under arrest is
charged with the commission of a crime, and if it also
be true that the court, on habeas corpus, may review
his determination in this respect, a question is often-
times presented as to whether certain acts charged to
have been done constitute a crime in the particular
demanding states as well as the manner in which that

8 Compton v. Alabama, 214 U. S. 1, 53 L. Ed. 885.
INTERSTATE EXTRADITION.

569

question shall be determined. How is the governor or
the court to be informed whether such acts are made a
crime by law? There is no difficulty in this respect with
the acknowledged common-law offenses. It arises, gen-
erally, when the statute makes that a crime which was
not such at common law. Can the governor or the
court assume that the acts charged constitute a crime?
These questions are oftentimes important, and differ-
ent courts have not reached the same conclusion. It
may be said that there are three different positions:

First. That the fact that it appears an indictment
has been found, or the demand made, is at least prima
facie sufficient.‘

Second. That in the absence of any proof upon the
subject, the law of the demanding state will be consid-
ered the same as the law of the state where the alleged
fugitive is found.5

Third. In some jurisdictions it is enacted that the
printed statutes of another state shall be admitted as
presumptive evidence of such laws, and therefore a

construction can be placed upon statutes defining a
crime.®

Identity of the alleged fugitive.

The question of the identity of the party in custody
by virtue of the warrant, is always open to inquiry.’

The determination of this question necessarily in-
volves the hearing of evidence extrinsic to the record.

4In re Van Sceiver, 42 Neb.
772, 60 N. W. 1037; Brown’s

6Ex parte Sheldon, 34 Ohio
St. 319.

Case, 112 Mass. 409, 17 Am. Rep.
114; Opinion of Judges of Maine,
24 Am. Jur. 233.

5 People v. Brady 56 N. Y. 182.

7In re Greenough, 31 Vt. 279;
People ex rel. v. Pinkerton, 77
N. Y. 245; O’Leary’s Case, 10
Ben. (U. S. Cir. Ct.) 197; People
vy. Brynes, 33 Hun, 97.
570 HABEAS CORPUS.

Guilt or innocence; question of.

The rule is that upon habeas corpus, the question of
the guilt or innocence of the accused is not a subject of
inquiry. That question is for the determination of the
tribunals of the state where the crime is alleged to
have been committed.®

§ 144. Immunity of extradited person from civil proc-
ess.

It has appeared supra, that a person extradited from
one state into another, or forcibly brought into a state,
cannot successfully claim immunity from prosecution
for the commission of any offense, whether such, where
extradited, was the basis of the extradition proceed-
ings, or otherwise. That in this respect the doctrine
was different than that which prevails in foreign ex-
tradition proceedings.

However, the question whether under either of the
conditions above set forth, such a person is immune
from civil process has been determined, both ways, the
weight of authority however, conforming to the view
of immunity.®

The reason for this rule it is said, ‘‘is that sound pub-
lic policy requires that a person shall be privileged
from arrest while going to and from court in all ju-
dicial proceedings. The privilege should exist to sub-

8 Matter of Clark, 9 Wend. 212;
People v. Brady, 56 N. Y. 182;
People v, Donohue, 84 N. Y. 438;
Tullis v. Fleming, 69 Ind. 15;
In re Greenough, 31 Vt. 279;
Kingsbury’s Case, 106 Mass. 223.

9Compton v, Wilder, 40 Ohio
St. 130; Moletor v. Sennan, 76
Wis. 308, 44 N. W. 1099, 20 Am.
St. Rep. 71, 7 L. R. A. 817; Peo-
ple ex rel. v. Judge, 40 Mich. 730;

Cannon’s Case, 47 Mich, 482, 11
N. W. 280; Baldwin v. Branch,
Judge, 48 Mich. 425; Jacobson
v. Homer, 76 Mich. 234, 44 N. W.
628; Palmer v. Rowan, 21 Neb.
452; Small v. Montgomery, 23
Fed. 707; Juneau Bank v. Me-
Spedan, 5 Biss. 64; Atchison v.
Morris, 11 Fed. 582; United
States v. Bridgeman, 9 Biss. 221.
INTERSTATE EXTRADITION. 571

serve great public interests and the due administra-
tion of justice.’’ 1°

As stated by Campbell, J., in Cannon’s case (47
Mich. 482): ‘‘It is very well known that the perversion
of extradition proceedings has on more than one occa-
sion led to difficulties between nations, and to refusal
. by state executives to deliver up persons charged with
crime whose arrest was supposed to be desired by sim-
ilar purposes.’’

As stated by Cole, ©. J.,-in Moletor v. Sennen, su-
pra: ‘‘The temptation is certainly strong to make such
requisitions subservient to private interests; and they
are often resorted to to enforce collection of private
debts, or to remove a person from his home into a for-
eign jurisdiction in order to get service on him in a
civil action. For the most cogent reasons therefore,
we think courts of justice are bound to see that no im-
proper use be made of such proceedings, which would
look like a violation of good faith and a perversion of
measures, which had to be resorted to in order to bring
the party accused within their jurisdiction.”’ * * *
' “Tt is obvious there is no fair analogy between civil
and criminal cases in this respect.’’

The supreme court of Minnesota, however, has held
that one who by interstate rendition proceedings, is
brought to that state from another state or territory
as a fugitive from justice, is not exempt from civil
prosecution while detained there under such proceed-
ings. That court in arriving at its conclusion, brought
to its aid the rule in respect to prosecutions for crim-
inal offenses other than that for which extradited. It
asserted, contrary to the generally accepted doctrine,
that no considerations of public policy are involved.
Distinguishing the ruling pronounced from other cases

10 Moletor v. Sennen, 76 Wis. 308,
572 HABEAS CORPUS.

in that court in which seemingly a contrary doctrine
was held, it is said: ‘‘The considerations upon which
our decisions in Sherman v. Gundlach, 37 Minn. 118,
and Bank v. Ames, 39 Minn. 308, were founded, have
little, if any, application. The declared exemption
from service of summons upon a non-resident witness
in the former case, and in the other upon a non-resi-
dent party to an action on trial here, and who was also
a witness, was based upon the policy of encouraging
the voluntary personal attendance at the trial of
causes, of persons whose presence and testimony may
be necessary for the better administration of justice,
and whose attendance cannot be compelled, as has al-
ready been said, in cases of extradition or interstate
rendition, there is no encouragement or inducement
held out to the accused to come voluntarily into the
state. He comes by compulsion.’’ With respect to the
claim that extradition proceedings may be resorted to
for similar private purposes, it is said: ‘‘We think
that protection against such frauds may reasonably be
left to be applied when cases of fraud appear, and the
courts may be trusted to jealously guard against such
an abuse of legal process. We deem it unnecessary and
unreasonable, as a means of guarding against possible
fraud in some cases, to hold the accused in all cases to
be absolutely exempt from liability to respond to civil
process even though confessedly no fraud has been
practiced.’? 11

The case referred to by the Minnesota court to sus-
tain their conclusion (Adriance v. La Grave, 59 N. Y.
110, 17 Am. Rep. 317), involved the questions whether
a person extradited from a foreign country was ex-
empt from civil process, before an opportunity given
him to return to the country from which extradited,

11 Reid v. Ham, 54 Minn. 305, 56 N. W. 35.
INTERSTATE EXTRADITION. 573

in the absence of a treaty provision to that effect, and
it was held by a divided court, that there was no such
exemption, either as to any act civil or criminal.
While conceding that if a person is extradited in bad
faith for the purpose of obtaining jurisdiction of his
person in civil proceedings, that such wrongful advan-
tage would not be upheld. Yet, in such cases, the rule
would not apply to persons not concerned in the trick
or device by which the party was brought within the
jurisdiction of the court.
574 HABEAS CORPUS.’

CHAPTER XVII.

CUSTODY OF CHILDREN.

§ 145. Purpose of Writ.
146. Not Essential Child be within the Territorial Jurisdiction of
Wrongdoer.
147. Whether Demand should First be Made.
148. Petitioner must Affirmatively show Right to Custody of Child.
149. Right to Custody as between Parents.
150. Voluntary Surrender of Custody of Child by its Parents.
151. Welfare of the Child.
152. Abandonment of Child.
153. Exercise of Choice by Child.
154. Commitment to Public or Charitable Institution.
155. Illegitimate Children.
156. Apprentice.
157. Ward.
158. Jurisdiction of Federal Courts.

§ 145. Purpose of writ.

The writ of habeas corpus is frequently resorted to
to obtain the custody of children, and oftentimes to de-
termine the rights of parties to their custody. Strictly
speaking, the office of the writ is not to recover the pos-
session of the person restrained, but simply to dis-
charge from illegal restraint.

Therefore it ought to follow that, when such re-
straint is disproved, the writ will be discharged.?

The detention of a child of tender years from one
entitled to its custody, is an illegal restraint within the
law.®

1State v. Baird, 18 N. J. Eq. 2 People v. Porter, 1 Duer, 709.
194; Foster v. Alston, 6 How. 8 Williamson’s Case, 26 Pa, St.
(Miss.) 406; Armstrong v. Stone, 9, 67 Am, Dec. 374; People v.
9 Gratt. (Va.) 102. Cooper, 8 How. Pr. 288.
CUSTODY OF CHILDREN. 575

Appended to the case of In re Burrus, 136 U. S. 586,
is the opinion of Judge Betts, delivered in the case of In
re Barry, United States circuit court for the southern
district of New York in 1884. It reviews at considera-
ble length the history of the writ of habeas corpus as
applied to infants, and the power of the federal courts,
in respect to its use in such cases, stating the conclu-
sion, that such courts have no common law powers, and
thus distinguishing between the authority of the Eng-
lish and the American courts. In part he states:
‘“<There is no reason to doubt that originally the com-
mon law writ was granted solely in cases of arrest and
forcible imprisonment under color or claim of warrant
of law. As late as,2 James II, the court expressly de-
nied its allowance in a case of detention or restraint
by a private person; and the habeas corpus act of
Charles II, which is claimed as the magna charta of
British liberty, has relation only to imprisonment on
criminal charges. It is not important to inquire at
what period the writ was first employed to place infant
children under the disposal of courts of law and equity.
This was clearly so anterior to our Revolution, and the
practice has been fully confirmed in the continued as-
sertion of the authority by those courts into the pres-
ent day; and thus indifferently, whether the interposi-
tion of the court is demanded by the father or mother.
* * * The authority to take cognizance of the de-
tention of infants by private persons, not held under
claim or color or warrant of law, rests solely in Eng-
land on the common law. It is one of the eminent ’
perogatives of the crown, which implies in the mon-
arch, the guardianship of infants paramount to that
of their natural parents. The royal perogative, at first
exercised personally, ad libitum by the King and aft-
erwards for his relief by special officers, as the Lord
High Constable, the Lord High Admiral and the Lord
576 HABEAS CORPUS.

Chancellor, in process of time devolved upon the high _
courts of equity and law, and in them this exalted one,
of allowing and enforcing the writ of habeas corpus ad
subjiciendum, became vested as an elementary branch
of this jurisdiction. In the performance, however, of
this high function in respect to the detention of infants
by parents, etc., the court or judge still acts with sub-
mission to the general principle, out of which it sprang,
that infants ought to be left where found, or. be taken
from that custody and transferred to some other, at the
discretion of the perogative guardian, and according
to its opinion of their best interests and safety.’’

Yet, although denominated proceedings in habeas
corpus, and possessing elements that are incident
thereto, they are in some respects unlike the ordinary
proceedings for the release of a party held upon a crim-
inal charge. It is really, in many cases, a controversy
between the father and mother (where that relation
exists, sometimes between parent and strangers), and
the real question is, which of the contestants is the
more suitable person to have the control and custody of
the child.*

§ 146. Not essential child be within the territorial ju-
risdiction of wrongdoer.

While it is true that the writ will not lie when the
child is not in the custody of the alleged respondent,
yet the mere fact that the child is in a foreign jurisdic-
tion, is not itself sufficient to defeat the application for
the writ. The place of confinement is not important to
the relief if the guilty party is within reach of process,
so that, by the power of the court, he can be compelled,
to use the expression of the court, ‘‘to release his

¢ Rivers v. Mitchell, 57 Iowa, 193, 10 N. W. 626.
CUSTODY: OF CHILDREN. 577

grasp.’’ The important’ question is, Where is the.
power of control exercised?

It is incumbent, therefore, upon a respondent to show
good cause for not: producing a child in court in obed-
ience to the writ. Ifa parent, whom the proceedings
show, had the custody or control’ of the child, then the
presumption remains that it is within his control, and!
the mere fact that he maintains him in another state,.
or that he procured him to be sent there, or gave him
in custody of another who removed him out of the ju-
risdiction of the court, will afford him no excuse. He
must. show. that he is without the power to exercise con-
trol over the child.®

A state court. adjudged the father of a child in con-
tempt for removal of his child beyond the jurisdiction.
of the court while proceedings were pending to deter-
mine with respect. to the care and. custody of the child:
as between the father and mother in an action for di-
vorce. More properly it should be stated that he was
adjudged in contempt for failure to obey the order of
the court to produce the child. It appeared that the
child' was beyond the jurisdiction of the court, but sub-
ject to his control and direction, and was so placed. by
him to avoid the effect of an adverse decision with re-
spect to its custody. The petitioner sued out a writ
of habeas corpus in the federal court, alleging as a
ground for the writ that he was imprisoned without due
process of law, the particular ground being that, as the
child was without the state, the state court was with-
out jurisdiction, which is the rule where it is simply
sought to reach the person: of the child upon habeas
corpus. It was held that the state court evidently had

5In Matter of Jackson, 15 193, 10 N. W. 626. See also
Mich. 416; Rivers v. Mitchell, United States v. Davis, 5 Cranch:
57 Iowa, 198, 10 N. W. 626. C. C. 622;. In Matter of Stacy,

6 Rivers v. Mitchell, 57 Iowa, 10 Johns. 327.
37
578 HABEAS CORPUS.

jurisdiction, and hence the federal court could not in-
terfere and review its judgment. It was further held
that, while the child was not in manual possession of
the petitioner, it was in his custody and under his con-
trol, and he was within the jurisdiction of the court.
The facts resembled those in the case of In re Jack-
son, 15 Mich. 416. There the writ was refused upon an
equal division of the judges—Cooley and Christiancy
in favor of the writ, the others contra. The opinion
of justice Cooley was to the effect that habeas corpus
would issue when a citizen of the state was unlawfully
held in custody elsewhere by another person who is
himself within the jurisdiction of the court. If he is
within the jurisdiction, the wrong is there being done,
for the wrong is done wherever the power of control is |
exercised.”

§ 147. Whether demand should first be made.

It has been stated that a demand for the custody of
the child must precede institution of proceedings to
recover it or release it from restraint.®

In most cases it is required that this should be done.
But I apprehend that the demand in such a case is but
evidence of the unlawful restraint, as it is in cases at
law of the unlawful detention of the property where the
taking was lawful, and that where it appears that the
respohdent wilfully and unlawfully obtained custody
of the child, and especially without an apparent right
to such custody, no demand is necessary to precede the
application for the writ.

§ 148. Petitioner must affirmatively show right to cus-
tody of child.

The party applying for the writ must affirmatively
show that he is entitled to the custody of the child,®

7 Ex parte Young, 50 Fed. 526. 8Speer v. Davis, 38 Ind. 271;
Bullen’s Petition, 28 Kan. 781.
CUSTODY OF CHILDREN. 579

whether it be a parent, individual, or a corporation or-
ganized for charitable purposes;!° and the order of
the court will be, unless the child has been legally bound
or legally committed to the care and custody of another
or of some institution, either penal, reformatory or
charitable, if of the age of discretion, that he be freed
from the restraint alleged, if found to exist, and, if not
of the age of discretion, then assigned by the court. to
the lawful or a proper custodian, according as the facts
may warrant.'!

§ 149. Right to custody as between parents.

When parents have separated and are living apart
from each other, the courts are often called upon to ad-
judicate and determine with respect to the custody of
the children. It is often asserted, and sometimes held,
that, other conditions being equal, the paramount right
to their custody rests with the father, and such un-
doubtedly was the law of England. One of the leading
cases where the question was directly involved was that
of People v. Mercein. It first appears in the court of
chancery (8 Paige, 47), again in the supreme court (25
Wend. 64), again in the court of errors (25 Wend. 83),
and finally in the supreme court again (3 Hill, 400).
After different conclusions reached by the different ~
courts, the supreme court sustained the former ruling
of that court, which was in favor of the proposition
stated that the paramount right to the custody of the
child rested in the father. A majority of the supreme
court of Ohio were also of the opinion that the law was
correctly stated by the supreme court of New York,’?
and it has been affirmed by courts of other states.

® People v. Mercein, 3 Hill, 399,
38 Am. Dec. 644.

10 Milligan v. Children’s Home,
97 Ind. 355.

11 State v. Baird, 18 N. J. Ea.
194; In re Waldron, 13 Johns.
418; Mercein v. People, 25 Wend.

64, 35 Am. Dec. 653; Corrie v.
Corris, 42 Mich. 509, 4 N. W.
213; Gishwiler v. Dodez, 4 Ohio
St. 615, 82 Am. Dec. 223.

12 Gishwiler v. Dodez, 4 Ohio
St. 615.
580: HABEAS: CORPUS.

The New Jersey court, however, state a rule which:
they: claim, and cite authorities to: sustain, is the set-
tled: rule in this country, as follows: ‘‘Upon habeas
corpus brought by the father for his children the court
will not as a matter of course order them to be' deliv-
ered: up to him, but only in case they are improperly.
restrained of their liberty. The office of the writ is not
to recover the possession of the persons detained, but
to free them from all illegal restraints upon their lib-
erty, and therefore, in cases where infant children are
not in the custody of improper persons, and are not. re-
strained against their will, they will not, on habeas cor-
pus, be delivered to their father. If the infants are of
sufficient years or discretion. to judge for themselves
they will be examined, and if they are satisfied and wish
to remain the court will hold that they are not unduly
deprived of their liberty, and will permit them to re-
main with which of the parties they may, select. When
the infants are too young to exercise any discretion,
the court will determine for them, and adjudging the
custody to such of the parties as may be considered.
most advantageous to the infants. Such, it must be
presumed, would be the choice of the infants had they
the capacity to elect; but the custody in all such cases
will be given to the father, if not an improper person,
unless it clearly appears that it is.for the advantage
of the infant to remain where found.’’ 3 _

In speaking of contests of this kind between parents,
it was stated by the Michigan court, that ‘‘the opinion
is now nearly universal that neither of the parties has
any rights that can be allowed to seriously militate
against the welfare of the child. The paramount con-
sideration is, What is really demanded by its interests?
It is doing no violence to what is taught by judicial ex-

18 State ex rel. Baird, 18 N. J. Eq. 194.
‘CUSTODY OF :CHILDREN. 581

perience to assume that the parties will be more alive
to the satisfaction of their own feelings, and interests
than to the true end of the inquisition; while the in-
nocent subject of the contention is utterly unable ‘to.
speak or act for itself, and is in danger of being lost
sight of in the strife for its possession.’’ 14

Some of the earlier cases recognized the rule that
the custody of the child should be awarded to the father
unless he was an unfit and improper person to retain
its custody; but the rule of the courts at the present
day is far more extended, and his right to such control
is limited to humane considerations, that of the welfare
of the child. The pathetic words of an able jurist are
here repeated: ‘‘The reputation of the father may ‘be
as stainless as crystal; he may not be afflicted with the
slightest mental, moral or physical disqualifications
from superintending the general welfare of ‘the infant;
the mother may have been separated from him without
the shadow of a pretense of justification; and yet the
interests of the child may imparatively demand the de-
nial of the ¢ather’s right and its continuance with ‘the
mother. The tender age and precarious state of its
health make the vigilance of the mother indispensable
to its proper care; for, not doubting that paternal anx-
iety would seek for and obtain the best substitute
which could be procured, yet every instinct of human-
ity unerringly proclaims that no substitute can supply
the place of her whose watchfulness over the sleeping
cradle, or waking moments of her offspring, is
prompted by deeper and holier feeling than the most
liberal allowance of nurses’ wages could possibly stim-
ulate.’’

Barton, P. J., in Commonwealth v. Hauteville, de-
cided in 1840 in the court of general sessions, city and
county of Philaldelphia. .

14 Corrie v. Corris, 42 Mich. 509, 4 N. W. 213.
582 HABEAS CORPUS.

The general rule has been stated to be ‘‘when the
parents are living apart, the father is prima facie en-
titled to the custody of their children, and where he is
a suitable person and willing to support and care for
them, his right is paramount to that of all other per-
sons, except that of the mother in cases where the in-
fant child is of such tender years as to require her pres-
ent care; but in all cases of controverted right to cus-
tody, the welfare of the minor is first to be consid-
ered.’’ 5

The question is always present and open to inquiry
as to the fitness of the parties to have the custody of |
the child, and the inquiry extends not only to the ability
to properly maintain and care for it, but also to the ha-
bits and character of the parties. Hence, if it appears
that the father is immoral or intemperate, and these
habits are likely to affect the child to its prejudice, the
court will, in exercising its discretion, give to them
proper consideration and declare him unfit to have the
custody of the child; and so with the mother; if her
habits, character or conduct have been such that the
morals of the child are likely to be injured by her bad
example, and the child has arrived at that age where it
no longer needs those attentions which a mother alone
can bestow, then the court will declare her to be an un-
fit person to have the care and custody of the child. In
other words, where these elements exist, then the court
is called upon to exercise its discretion without regard
to the paramount rights at law of either, and dispose
of the custody of the child as its best interests seem
to demand.*®

15 Clark v. Bayer, 32 Ohio St. wealth v. Nutt, 1 P. A. Browne,
299. 148; Commonwealth vy. Addicks,
16 Commonwealth v. Briggs, 16 2 Serg. & R. 174; Dumain v.
Pick. 203; Commonwealth v. Gwynne, 10 Allen, 270; Cincin-
Addicks, 5 Binn. 520; Common- nati House of Refuge v. Ryan,
CUSTODY OF CHILDREN. 583

Hence, where both the father and mother of the in-
fant were persons of immoral character, the court re-
fused to award her custody to either, but placed her
in charge of her sister, who was a suitable person and
who consented to take her.”

The question with respect to the detention of a child
of four and one half years, was determined by the su-
preme court of Michigan, the matter having been
brought to that court, involving peculiar conditions.
The petition for habeas corpus was made by the
mother, alleging in substance, that the child was im-
prisoned, concealed and detained by a person who in
fact, but not so alleged, was the father of the child.
Upon service of the petition he made what the court
declared was evasive, incomplete and insufficient re-
turn, and as an excuse for not producing the child,
admitting he had taken the child from their home,
to have the child cared for and placed the child with
friends who would care for it, but disclaiming any
knowledge of the whereabouts of the child, stating
the last he knew of the whereabouts of the child he
was in the dominion of Canada. The father was or-
dered to make a more complete and explicit return,
which he refused to do, and being attached as for con-
tempt, and still refusing to comply with such order, he
was committed to close custody in the county jail, there
to remain until he should make a complete and sufficient
return.

Upon review of these proceedings by the supreme
court, the court held: That the court below was not
exercising its inherent jurisdiction in the commitment,

37. Ohio St. 197; Milwaukee 17 Commonwealth v. Nutt, 1
Industrial School v. Supervi- P. A. Browne, 148. ‘See note to
sors, 40 Wis. 328; Farnham v. State v. Smith, 20 Am. Dee.
Pierce, 141 Mass. 203, 6 N. E. 335, 6 Greenl. 462.

830, 55 Am. Rep. 452.
584 HABEAS CORPUS.

but a duty expressly provided by a statute, which
authorized the same, under the then existing conditions.
That the father is the natural guardian of his child,
and that the statute contemplates that as against all
other relatives, and all other persons, the father, and
in case of his decease then the mother, they being re-
spectively competent to transact their own business
and otherwise suitable, are entitled to be appointed
guardian of the persons of their minor children.

A statute of that state provided that in case of the
separation of husband and wife, having minor children,
the mother of said children shall be entitled to the
care and custody of all such children under the age
of twelve years. It was said there is nothing in either
provision which interferes with the right of a court
of competent jurisdiction, upon investigation and upon
consideration of the best interests of the minor child,
to commit said child to either the father, the mother or
of some other suitable person. But until the right to
such custody has been judicially determined, and as
between parents of a minor who are living together as
husband and wife, there is no rule or statute which
permits either, as of right, to dispose of a minor child
to the exclusion of the other.'§

§ 150. Voluntary surrender of custody of child by its
parents.

There is some controversy among tlie courts as to
whether parents can voluntarily surrender the cus-
tody of their children beyond the power to reclaim it,
and especially whether such surrender can legally be
made by parol. Statutes provide for adoption, pre-
scribing certain formal proceedings, and where such
proceedings have been properly taken, then of course

18In re Knott, 162 Mich, 10, 126 N. W. 1040.
CUSTODY OF CHILDREN. 58)

no question can arise as to the legality of the sur-
render. Where such proceedings have not been jihad,
and parents have voluntarily surrendered their child-
ren to others, then independent of the legality of such
surrender, the right to reclaim the child, or the right
to detain it, depends upon the question of the welfare
of the child, such welfare, however, depending upon
the conditions and circumstances of each particular
case. This question is independent of that of abandon-
ment of a child, as well as where parents are unfit
from any cause to have its custody. The cases in
which the question has been involved and determined
are quite numerous, and as will be seen, courts have
often gone to extremes in both directions, it being ap-
parent that their determinations have been influenced
to some extent at least, by the personal humane charac-
teristics of the judges, and this has prevailed to such an
extent as to render their determination of little value
as precedents. Upon this question it may well be said
each court is a law unto itself. Misfortunes are apt to
befall us all, and deprive a person of the means to
properly care for his or her offspring. Death of a
parent is a frequent cause, thus disabling the surviving
parent. Yet the result of such misfortune may in time
be overcome, and it would seem to ‘be harsh law, if not
cruel, in such a case, to deprive the parent of the right
to reclaim the child, no matter how strong the attach-
ment of others has become, nor how much greater their
ability to provide advantages for it. A mother’s love
is beyond comparison. The estrangement of a child’s
affection for and his duty to her, should not be toler-
ated only for the most cogent reasons. Honor thy
father and thy mother is God’s command.
With respect to the validity of such a contract, it
was said: ‘‘If a married woman who has been com-
pelled to live separate from her husband, by reason
586 HABEAS CORPUS.

of his intemperance and crime, is unable to provide
for her children, and therefore voluntarily gives them
up to a charitable institution, established for the pur-
pose of furnishing homes to destitute children, under
a written contract by which the children are to be
placed out or adopted in a good family, and she is
not to seek to discover them or deprive such family of
them, the contract is valid. The court, however, on
habeas corpus, will inquire whether the welfare of the
children is properly attended to.’’?®
It is held by some courts that an agreement on
the part of a parent entitled to the custody of his child,
where the person to whom surrendered is a competent
and proper person to have the custody thereof, and
where not prejudicial to the welfare of the child, is
valid and binding upon the parent.?°
And by one court, merely that he may be denied
to reclaiin the custody of his child after a voluntary
surrender, although he may be of character and able
to support her, where he so surrendered her, when only
six months old, to people of ample means and high
moral character as their own, and they have had the
custody of such child for six years.”1
Such an agreement, if in parol, will not be sufficient,
at least upon rather doubtful proof as to its having
been made, to deprive the parent of the custody of his
child, where it does not appear that it is for the child’s
interest to remain with him.??

19 Dumain v. Gwynne, 10 Allen Stringfellow v. Somerville, 95 Va.
(Mass.) 270. 701, 29 S. E. 685, 40 L. R. A.
20 Fletcher v. Hickman, 50 W. 623.
Va. 244, 40 SOE. 271, 55 L. R. A. 22 Weir v. Marley, 99 Mo. 484,
896. 12 S. W. 798, 6 L. R. A. 672;
21 Sheers vy. Stein, 75 Wis. 44, Markwell v. Perles, 95 Wis. 406,
43 N. W. 728, 5 L. R. A. 781. 69 N. W. 798.
CUSTODY OF CHILDREN. 587

The Kentucky court holds, however, that such an
agreement is absolutely void.?*

In Whalen v. Olmstead, 61 Conn. 263, 23 Atl. 964, 15
L. R. A. 593, a child eleven years of age, was com-
mitted by the city court of Bridgeport at the request
of the mother, made on account of poverty, to the
board of management of the temporary home for de-
pendent and neglected children of the county of Fair-
field, she supposing at the time that she could be
brought up a protestant. The child was placed in the
family of a protestant woman, and was well cared for.
In about a year thereafter, application was made by
the Catholic clergyman (the mother, and the father who
had died, being of that religious belief), in behalf of
the mother to the board, to place the child in the home
of the mother, subject to the supervision of the board.
This request was not granted. The clergyman, with
the consent of the mother, requested the surrender of
th child to him for the purpose of being placed in a
Catholic orphan asylum at the expense of the parish.
This request was refused. Thereafter, having a power
of attorney, he demanded the possession of the child
from the board, to know the whereabouts of the child,
that the Catholic pastor be allowed to visit her at
reasonable times on Sunday, and at other times to be
designated by the board, to administer spiritual con-
solation and instruction, and that the child be placed
in the private home of said clergyman. On the part
of the board these requests were met by stating the
whereabouts of the child and by the promise to appoint
reasonable times at which the mother might visit her
daughter. They declined to accede to the other re-
quests.

23 Stapleton v. Poynter, 111 Ky. 264, 62 S. W. 730, 55 L. R. A. 784.
588 HABEAS CORPUS.

It was held that the ability thus shown by the mother
and through the aid of the pastor, was not sufficient to
enable it to hold that the child was unlawfully re-
strained and was entitled to discharge. Nor that the
board, having sole regard for the best interest of the
child, erred in judgment. The court also held that the
facts in respect ‘to religious belief’ on the part of the
mother, and the desire to have the child brought up in
that ‘belief, presented a question which it could not
consider under the statute, and especially under the
constitution, which provides: ‘‘No preference shall be
given by law to any christian sect or mode of wor-
ship.’? 24

In order to properly present this question, it be-
comes a duty to select from a great number of cases
rules formulated and declarations and determinations
made by courts.

Thus it has been said, in respect to. what matters
should be taken into consideration by the court in de-
termining the question of the custody of a child: ‘‘Not
only the fitness of the father for the trust, but the con-
dition of the child, with the person from whose custody
it is sought to be taken, its relation to them, the present
and prospective provision for its support and welfare,
the length of its residence there, and whether with the
consent of its father, and the understanding either tacit
or otherwise, that it should be permanent, the strength
of the ties that have been formed between them, and
if the child has come to the age of discretion, its
wishes upon the subject.”®

Practically the same was stated by another court,
although the question of abandonment was involved
which presents a different feature. It was there said:

’

24See also Cone v. St. Johns 25 State v. Libbey, 44 N. H.
Orphan Asylum, 9 Phila. 579. 821, 82 Am. Dec. 223.
CUSTODY: OF CHILDREN. 589

“Tt sometimes happens that parents have abandoned
their children or by word or act: transferred their
custody to another. In:such.cases, where the.custodian
is in every way a: proper person to: have the care,
training and education of the infant, and the court is
satisfied its social, moral and. educational interests will
be best promoted: by remaining in the custody of the
person: to. whom it: was: transferred, or received when
abandoned, the new custody: will be: treated. as. law-
ful. and exclusive. After the affection of both child
and adopted parent. become engaged and a state of
things has arisen which cannot be altered without
risking the happiness of the child, and the father wants
to reclaim it, the better opinion is, that he is not in a
position to have the interference of the court in his
favor. His parental right must yield: to its feelings;
interests and the rights of other parties acquired with
his. consent.?¢

In a. recent case in Iowa, the determination was made
solely: upon the financial condition respectively of the
contesting claimants. The defendant claimed that the
father of the child! had given her at birth:and upon the
death of the mother to the defendant, Thomas Miller,
being. a brother of the mother of the child. The child
was born in Scotland and Thomas Miller and his wife
brought: the child with them to this country. Subse-
quently, when the child was about two years old, formal
articles of adoption were entered. into between the
father of the child still living in Scotland, and one
James Miller and his wife, the former a cousin of the
mother of the child, by which the child was adopted by
them. Thereupon they demanded the custody of the
child from the defendants, and upon refusal, instituted
proceedings by habeas corpus: to obtain. said custody.

26 Clark v. Bayer, 32 Ohio St. 299.
590 HABEAS CORPUS.

The father claimed that the custody given the defendant
was temporary only, and the court held it would be so
presumed, unless it appeared with sufficient clearness
that the father had absolutely relinquished its custody.
The court further held, that the custody of the child
was properly taken from those having her in their
temporary custody, and given to her adopted parents,
notwithstanding defendant’s natural affection for the
child, where the adopted parents were actuated by
pure motives possessed of financial competency and
had no children, while the defendants were in straight-
ened circumstances.?"

Where the father and mother of children were di-
vorced, and the custody of the children was awarded
to their mother, and the mother and children went to
live with her mother, with whom they were living when
the mother of the children died, committing at her death
the care and custody of the children to their grand-
mother, who accepted the charge, it was held that the
father’s right to reclaim the children was forfeited.?®

Another case involving the question of the validity
of a parol surrender of a child by its parents was de-
cided by the supreme court of Iowa. The court found
that when the child was two months old its mother gave
it to her (the mother’s) parents to raise, and to remain
with the latter until the grandmother’s death; that they
accepted the gift and had the care and custody of the
child at the time of the proceedings on the part of the
mother to reclaim her. The court approved of the
statement of the rule declared in Clark v. Bayer, 32
Ohio St. 299, and added, that ‘‘when a parent has either
by abandonment or contract surrendered his present

_ 27 Miller v. Miller, et ux, 123 ton (Del.), 15 Am. Law Reg. 359.
Iowa, 165, 98 N. W. 631. See also State v. Smith, 6 Greenl.
28 State ex rel..Lynch v. Brat- 462, 20 Am. Dec. 335.
CUSTODY OF CHILDREN. 591

legal right to the custody of a child, in all controver-
sies subsequently arising respecting its custody the
matter of primary importance is the interest and wel-
fare of the child. To this the right of the parent must
yield.’’ The writ was discharged.?®

In this case there was neither abandonment or gift
of the child. The child was born after the death of the
father. The mother resided with her parents until
the child was about twenty months old. Thereafter
she did not change her residence, but at intervals stayed
with other relatives. When the child was about three
years old, she remarried, and then requested the cus-
tody of the child from her parents. She and her hus-
band were persons of excellent moral character, had a
small comfortable home, he was worth from $3,000
to $5,000, was a fair business man, doing well, highly
respected, thirty-five years old, and the relator twenty-
five. The grandparents were also worthy people,
worth from $30,000 to $35,000, having a good home and
highly respected.

However, an agreement made by the father, sur-
rendering the custody of his child, would not operate of
itself to deprive the mother of the custody of the child
after its father’s death.*°

There are cases which, while acknowledging the doc-
trine stated to prevail in extreme cases, yet hold more
strongly to the old rule, that the parent, being the
natural guardian of the child, has the paramount right
to its custody, even though he has voluntarily surren-
dered its control for an indefinite time, or in fact aband-
oned it,?1 and others which hold that the parent may
reclaim the child where it is shown that the former ob-

29 Bonnett v. Bonnett, 61 Iowa, 81 Wishard v. Medaris, 34 Ind.
199, 16 N. W. 91. i 168; Taylor v. Jeter, 33 Ga. 195,
30 State v. Rueff, 29 W. Va. 81 Am. Dec. 202.
751, 6 Am. St. Rep. 676.
§92. HABEAS: CORPUS.

jections to his having the custody of his child no longer
exist.°?

§ 151. Welfare of the child.

It must be a diffieult question for a. court, in many
instances, to determine what the actual welfare of the
child demands. If the question was purely one of
commercialism, so to speak, that of money and social
and other advantages, which it brings, then the: duty.
would be comparatively easy. But that other consider-
ation of natural right and parental affection and duty
is to be considered, and is of the utmost importance.

The question is not, say the Virginia court, whether.
one claimant can rear the child in luxury and afford:
him a greater amount of property than the other, but
under the care and custody of which party the child:
will be reared with better prospects of becoming the
better man and citizen.**

In determining the question of the proper custody
of the child, say the Wyoming court, the court should
make such a deposition. if possible, as will result in
keeping the family together. Religious belief is not
a question to be considered.**

The Kentucky court declares that courts of. equity,
will: overrule the claims of nature or substitute their
discretion as to the child’s welfare for the responsibil-
ities imposed by God upon the parent, only in cases
where the parent asks the court. to change the child’s
possession, basing the claim upon a naked legal right.
The custody of a child will be taken from its grand-.
mother and given to its parent when the latter is of
moral habits, free from contagious or infectious di-

32Farnham vv. Pierce, 141 88 Stringfellow v. Somerville,

Mass. 203, 6 N. HE. 880, 55 Am. 95 Va. 701, 29 S. E. 685, 40 L.
Rep. 452; Ex parte Murphy, 75 R, A. 623.

Ala. 409; In re Goodenough, 19 84 Jones v. Bowman, 13 Wyo. -

Wis. 274. 79, 77 Pac. 439, 67 L. R. A. 860.
CUSTODY OF CHILDREN. 593

sease, and of enough industry to reasonably insure
the child from want and positive distress, although
the grandparent possesses fortune, character and kind-
liness and affection for the child, and the child prefers
to remain with the grandparent.

The remarks of the court are so apt as well as de-
scriptive of that which is within the common knowl-
edge of every one that we give them place here. Thus
it is said: ‘‘The experience in this country is not that
wealth, especially when coupled with indulgence, is
always most conducive to a useful education and the
foundation of the best character. We apprehend that
the best part of the child’s education will not be ob-
tained at some ideal social institute beginning with the
kindergarten and ending with a university, but gen-
erally at the hearth alone of its family if that family
bea proper one. The welfare of the child is not merely
training its head, but includes training of his heart.
Wisdom may be imported by teaching it to think; the
feelings that at last make the man, by teaching it to feel.
Orphanage, even partial, is generally considered to be
a misfortune, and universally moves to pity, but it like-
wise carries a privilege and an opportunity. The boy
who taught by the stern lessons of necessity and the
inscrutible ties of fellow suffering and gratitude to
revere his mother, and to help her bear the burdens of
widowhood and overcome the adversities of untoward
conditions, has accumulated an asset of more value
perhaps than had his disappointed benefactor been al-
lowed to exploit his plans of education at the expense
of filial devotion. ‘Honor thy father and thy mother’
is a command followed by a promise of peculiar value
in determining the welfare of a child.’’

35 Stapleton v. Poynter, 111 Ky. 264, 55 L. R. A. 794, 62 S. W.

730.
38
-594 HABEAS CORPUS.

The Wisconsin court, while recognizing the general
rule so firmly established by the courts of the country,
that the welfare of the child is an object to be con-
sidered, yet decline to accept the advance doctrine of
many courts that superior advantages in the way
of home, culture or prospects is sufficient to turn the
scale against the natural parent. Early in the history
of the court, it was declared that if the father apply
for the custody, the child should, if within the age of
nurture, which is fixed at fourteen years, be delivered
over to him, unless there is something in his situation
or conduct which renders him unfit for the trust. The
exception is where it appears that the father is an im-
proper person to have the care and management of
th child.3¢

Soon thereafter, the court declared, in a contest be-
tween the mother of a child and its uncle for the cus-
tody of an infant female two years old, whose father
had died, while in the army: ‘‘There is no good reason
shown for depriving the mother of the care and custody
of the child. It is an infant female two years old; and
on the death of the father the mother became its lawful
guardian. It may be the mother has no means to sup-
port and maintain the child, but this furnishes no just
cause for depriving her of its custody, and giving it
to the paternal uncle. The guardian by nature, on the
death of the father, is the mother. She has the right
to the person of the child, unless it appears she is an
unfit person to have control of it.’’ 37

It was claimed, and evidence to support it, that the
father left the child with its uncle, saying he wished
him to take and bring it up as his own. . Later, in
language at least, former statements of the court were

36In re Goodenough, 19 Wis. 87 Ramsey vy. Ramsey, 20 Wis.
275, 277. 507,
CUSTODY OF CHILDREN. 595

qualified. Thus it is stated: ‘‘It is now well settled, at
least in this country, that although prima facie the
father is entitled to the care and custody of his infant
child, yet, if he be an unfit person therefor, or if it be
for the welfare of the child, that its nurture be com-
mitted to another, the court before which the matter
is pending, on habeas corpus, may, in the exercise of a
sound judicial discretion, deny such custody to the
father and give it to another.’’

Referring to the statute, it stated: ‘‘This statute

_ leaves open the inquiry as to the suitableness of the
parent for that person; and it seems quite obvious that
if, for any cause, the welfare of the infant demands
that its care and custody be withheld from the parent
and given to another, the parent is not a suitable per-
son to have such care and custody within the meaning
of the statute.’’ *8

Reference is made to In re Goodenough, supra, stat- -
ing that the refusal to award the custody of the child
to the father there, was upon the ground of the bad
character of the father, but manifestly the same rule
is applicable if any other valid cause of unsuitableness
exists.

It is not stated what is meant by the welfare of the
child. The decision refusing to award the custody of
the child to the father, went upon the ground that it
was a mere infant at its mother’s death; that the re-
spondent, a sister, of the father of the child, took the
child to her home and had ever since cared for it, nursed
it, from sickness to health; that the father at that time
was without means and unable to provide for it a home
(though his financial condition has since improved and
he was able to support his child and was of good

character and repute), and at the time the respondents

38 Sheers v. Stein, 75 Wis. 44, 43 N. W. 728, 5 L. R. A. 781.
596 HABEAS: CORPUS.

took the child, the father relinquished by words, all
his legal rights to the child, and agreed that they
might have her and take her into their home as their
own child and that he would not interfere with their
custody and control of her. A want of affection for
the child on the part of the father was shown, and
proof of a statement made by him that he did not be-
lieve he was the father of the child.

It will be observed that the conditions found to ex-
ist were very exceptional, and demonstrate that the
father was not a fit person to have the care and custody
of the child after many years of neglect and failure
to claim it. ;

In Johnston v. Johnston, 89 Wis. 416, 62 N. W. 181,
which was determined shortly after the determination
of the case last mentioned, the court more clearly
reaffirmed the doctrine previously pronounced, that the
mere fact that a better home, and superior advantages
afforded by wealth was not within the meaning of its
statement, welfare of the child.

The petitioner here was the father to obtain the
custody of his children from his wife, their mother.
He admitted his unfitness by reason of progligacy for
the care and custody of the children, but claimed that
the mother was also an unfit person in that respect,
the real contention on his part being that his father,
who was a man of means, and with whom the children
had lived and who had for a time provided for them,
should. be awarded their custody. The court declined
to take their custody from the mother. It was said:
‘Strong natural affection of a devoted mother, living
an industrious and reputable life, though she is
in straightened circumstances, is a very sufficient as-
surance that she will tenderly care for and properly
nurture and educate her children.’’ It was further said

)
CUSTODY OF CHILDREN. 597

with reference to the grandparent: ‘‘His father is a
man of ample means, evidently attached to the children,
and has done much for their care and support in the
past, and would doubtless do so in the future, but the
mother is not to be deprived of their care and custody,
or the children of the companionship and maternal af-
fection of their mother, because some wealthy relative
is willing to take them and give them better advantages
in life, than those to which they were born. It is not
the office of a writ of habeas corpus in a case like this,
to take from an industrious, devoted and affectionate
mother, her infant children, when she is able to prop-
erly care for them according to the station in life to
which they were born, and their father is unfit to have
their care and custody, and give them over to the cus-
tody and control of relatives, however competent and
well intentioned or ample their resources.”’
In Markwell v. Pereles, 95 Wis. 406, 69 N. W. 798,
former decisions of the court were reviewed, and the
reasons so forcibly and conclusively stated, in former
cases, why the custody of a child should not be denied
its natural guardian, its father, were reiterated and
approved. Thus it was held, repeating from the sj Ila-
bus: ‘‘Sec. 3964 R. S., secures to a father, as the
natural guardian of his minor child, the right to its
care and custody, ‘if he is competent to transact his
own business and not otherwise unsuitable’, and the
mere fact that its maternal relatives who have had the
care of the child from its birth, and have become at-
tached to it and desire to continue and care for it, are
able to secure to it better advantages than can its par-
ents, does not render that parent unsuitable to have its
care and custody, within the meaning of that statute.
Nor is the father of the child rendered unsuitable
by the fact that he is somewhat cold, reserved and of an
598 HABEAS CORPUS.

unsympathetic nature, or that, by reason of his occupa-
tion, he is absent from home, the greater part of his
time; or that his second wife, in whose care the child is
to be in his absenee, is young and has had little experi-
ence in the care and management of children, so as to
authorize the court to deny him the care and custody
of the child as against such relatives.’’

Upon the question of voluntary surrender of the cus-
tody of the child, it was stated: ‘‘ Whether or not the
father might by oral contract, cede away his parental
rights and finally conclude himself in respect to them,
yet the mere fact that when the father, at his wife’s
funeral requested to be left alone with her remains, her
brothers did not leave the room, that one of them there,
in the name of his wife, requested the father to consent
that they should have the custody of the child, and, on
his remaining silent, asked him to shake hands if he
would not speak, and he did take their hands; and that
he afterwards left the child in their care for twenty-one
months, during which time he paid its expenses and
constantly claimed the right to its custody, do not es-
tablish a surrender on the father’s part of his right to
the custody of such child.’’

In In re Stittgen, 110 Wis. 625, 86 N. W. 563, it was
said: ‘‘The unfitness must very clearly appear, and in
no doubtful case should the natural right of both the
parent and child to parental care and custody be denied,
but in the case before us, the petitioner’s (the mother)
character, life and surroundings are so shockingly un-
fit for contact with a little girl, that we have no hesi-
tancy in refusing to subject her to them.”’

It was held by the North Carolina court, that the
mere facts that the sister of the father of the children
to whose custody and care the father had committed
them by his will, with the assistance and counsel of their
’

CUSTODY OF CHILDREN. 599

guardian, conducts a boarding house, has a large fam-
ily of her own and is unable to give them the proper
personal attention, and that while with her they were
not properly clothed, and they were unclean in their
persons, were not sufficient to award their custody
to their grandparents, to the exclusion of their guard-
ian and such sister, it not being shown that the
guardian is unfit or that the sister is not a fit and suit-
able person, morally and socially, to have their care and
nurture, such being the conditions while the father lived
in the same house with the sister.*

The general rule was stated by the Indiana court;
where the welfare of society or of the children con-
flict with parental rights, the former preferred.*°

Intemperance and shiftlessness on the part of a par- |
ent may be sufficient to overcome his natural and statu-
tery right to the custody of his children, where also
the best interests of the children will be promoted by
awarding their custody to another. Thus, where a
widower intemperate and without work, and without
property except a homestead, left his child at a neigh-
bor’s, without. clothing, promising to send for it in a
few days, but instead of doing so left the city and re-
mained away for several weeks, not contributing to its
support, and having no means to support it except such
revenue as he might derive from the rental of his home-
stead, though such tenant himself, a poor man, prom-
ised to support the child in consideration of the use of
the premises.*!

§ 152. Abandonment of child.

There is but little if any controversy in cases of wil-
ful abandonment of a child by its parents, it being set-
tled that by such conduct they forfeit their paternal

39 In re Young, 120 N. C. 151, Ind. 567, 32 N. E. 568, 18 L. R, A.
26 S. E. 693. 431.

40Van Walters v. Marion 41In re Lally, 85 Iowa, 49,.51
County Children’s Guardians, 132 N, W. 1155, 16 L. R. A. 681.
600 HABEAS CORPUS.

rights, and the rule quite generally applies where par-
ents neglect to properly provide for their children.
The question of abandonment is more fully treated un-
der the head of Commitment to Public Institutions.
. Where a child five years of age was left unprovided
for, by the death of its mother, while its father was
absent as a sailor on a long voyage, and was placed in
an asylum and thereafter adopted by the respondent
and his wife as their own child, the court refused to
award its custody to the father on his return. The
court certainly took advanced ground. The court
stated in the opinion: ‘‘There remains the question
as to the condition of the child itself. In a decision of
the case it must be considered how the father’s right
is affected by the condition of the child. Suppose by
a pure misfortune, as insanity, or being cast away and
being compelled to live among savages, a father has
left his child destitute and dependent upon charity;
does that give the child the right to form such new
relation as to take from the father the right to the
custody of the child? Upon reflection I am satisfied it
does. When by misfortune the father is compelled to
leave the child utterly helpless, the child ought to be
considered as emancipated by the father. If by mis-
fortune the child made new relations in life, so deep and
strong as to change its whole character and nature, the
father has no right to reclaim it.’’ 42

Other courts declare the same doctrine. The
father’s right is not absolute under all circumstances.
He may relinquish it by contract, forfeit it by abandon-
ment, or lose it by being in a condition of total inability
to afford his minor children necessary care and sup-
port.48

42In Matter of O’Neal (Mass.), 48 Clark v. Bayor, 32 Ohio St.
3 Am. Law. R. 578. See also 299; State ex rel. v. Bratton
Commonwealth v. Hammond, 27 (Del.), 15 Am. Law. Reg. 359;
Mass. 274. Jones v. Darnell, 103 Ind. 569,
CUSTODY OF CHILDREN. 601

It was held by the Connecticut court that where a
parent had lost the right to the custody of his child,
either through his fault or his misfortune, that his sub-
sequent reformation and with it, ability to properly
care for and maintain the child, did not necessarily re-
store his right. That the controlling question was the
welfare of the child.*4

However, it was held by the Mississippi court, that
it is not such an abandonment of a child as to preclude
the parent from obtaining its custody from their ma-
ternal grandmother, in whose custody he had permitted
it to remain for years, under an arrangement made by
the child’s mother on her death bed, where he had con-
tinually made remittances to them amounting in the ag-
gregate to $5,000 in ten years.*®

§ 153. Exercise of choice by child.

It has appeared that with respect to children who
have reached the age of discretion, that they may ex-
ercise a choice.

The cases, generally, only go to the extent that the
wishes of the child may be consulted, and this for the
purpose of enabling the court to exercise its discretion
more properly and wisely, not that the court shall:
adopt its choice. The court exercises its discretion
only where it appears that, either by reason of the
tender years of the child or other conditions, it should
be placed in the custody of a proper person, whether it
be the parent or another. In other cases the court
simply discharges the writ, and permits the minor to go
free and exercise his own choice. If necessary for the

2.N. EB, 229; Sturtevant v. State, 45 Hibbette v. Bains, 78 Miss.

15 Neb, 459, 19 N. W. 617. 695, 29 South. Rep. 80, 51 L. R.
44Kelsey v. Green, 69 Conn. A, 839,

291, 37 Atl. 679, 38 L. R. A, 471.
602. HABEAS’ CORPUS.

welfare of the child, its custody will be taken from the
parents or refused to them.*®

Where the father, under a written agreement, sur-
rendered the custody of his child to third parties until
she should have arrived at the age of twelve years, and
at the expiration of such period sought to reclaim her,
and it appeared that the foster parents had become
greatly attached to the child, and kindly and properly,
eared for her, and that the child in turn had formed a
deep attachment for them and an aversion to her father,
the latter beitig a man of means and of high moral and
social standing, and she expressed a desire to remain
with her foster parents and a great aversion to being
returned to her natural parent, it was held that the
child should be delivered to her father; that while the
wishes and preferences of the child should not be
ignored, yet they were not of controlling influence;
that, in the opinion of the court, the permanent interests
of the child, her intellectual culture and social position,
would be much promoted by placing her under her
father’s control.47

A remark of the supreme court of Wisconsin, to the
effect that a child twelve years old should have been
allowed to choose for herself whether she would re-
main with those who had nurtured and cared for her
under void indentures, or go to her father, who, it ap-
peared, had been dissolute and convicted of crime, and
who had permitted his family to become inmates of the
county poor farm, from which the child was taken by
the respondents, is neither warranted by law nor sanc-
tioned by the dictates of humanity. Though the inden-
ture was void, yet that fact did not give to the father
the absolute right to the control of the child, as we

46 Clark v. Bayer, 32 Ohio St. 47 Shaw v. Nachtwey, 43 Iowa,
299; Dumaine v. Gwynne, 10 653.
Allen, 270.
CUSTODY OF CHILDREN. 603

have seen. The court still had a discretion, not con-
trolled either by the whims or caprice of the child or
her affection for her natural parent, to dispose of the
custody of the’ child in such manner as would be most
conducive to its welfare, and if that result lay in re-
manding her to the respondents, as the court seems to
indicate, it would seem such should have been the judg-
ment of the court. The judgment of the county court
which remanded the child to the respondents was re-
versed, on the ground that, as the indentures were void,
they had no legal claim to the custody and services of
the child, and hence it ought not, against thé will of the
child, have remanded her to them. The court demon-
strates to a certainty that the custody of the child
should not have been awarded to the father, who was an
unfit person. The court indicates that the child should
have been given the privilege of determining for her-
self whether she would go to her father or remain with
the respondent.*® :

48In re Goodenough, 19 Wis.
274,

It was said by the court in
this case: “That the father had
a legal and paramount right to
the custody and services of his
child will not in general be de-
nied; and that such right will
sometimes be enforced upon this
writ seems settled by the later
and better considered decisions.
(Citing several English cases
and State v. Richardson, 40 N.
H. 272.) Formerly the rule was
different, and it was held that
the court was not bound in any
case to deliver the infant over
to any particular person, though
such person was the natural or
legally appointed guardian. (Cit-
ing Rex v. Deleval, 3 Burr. 1434;
In Matter of Waldron, 13 Johns.

418; In Matter of McDowell, 8
Jobns. 328; Commonwealth v.
Hammond, 10 Pick. 273.) All
that the court was bound to do
was to see that the infant was
not wrongfully imprisoned or
detained against his will. If he
was they would set him at lib-
erty, and if of sufficient age
leave him to go where he
pleased. But if he was of such
tender years that he could not
form a proper judgment, the
court would exercise its judg-
ment for his benefit, and do
what it thought most for his
interest and welfare. It was in
the sound discretion of the court
to change the custody of the in-
fant or not. By the later déci-
sions, those first above cited and
others, this doctrine seems to
604 HABEAS CORPUS.

With respect to the period in life when a minor is
capable of exercising the discretion to choose there is
no arbitrary rule. After all, the determination of this
preliminary question is left with the court. It is often
said that the child must be able to make an intelligent
choice; but what is an intelligent choice, to a great ex-
tent, depends upon the choice which he makes. In one
case it was held that a child nine years old was incap-
able of assenting to the transfer of his custody from
his father to his mother, who was living apart from
her husband,‘® and in another it was said that a girl
twelve years old ought to have been consulted as to her
choice, and inferentially, at least, that her choice
should have determined the action of the court.®°

Quite generally, the courts hold that when a minor
arrives at the age of nurture (fourteen) his wishes not
only should be consulted, but that he has the absolute
freedom of choice.*!

And by another court: ‘‘ An infant is not entitled to
his freedom; an adult is. When a habeas corpus is
granted to an adult, the object is to inquire whether he
is legally restrained of his liberty, because if he is not,

have been somewhat modified.
If the father apply, the child

the mother is considered by her
subsequent marriage as having

should, if within the age of nur-
ture, which is fixed at fourteen
years, be delivered over to him,
unless there be something in his
situation or conduct which ren-
ders him unfit for the trust. If
the father be dead and the
mother still a widow, the same
rule applies to her. But if the
mother be married again and
her husband living, the old rule
prevails. The infant, if of suf-
ficient age, must choose for him-
self; if ndt, the court will
choose for him. In such case

lost her right of guardianship
for nurture. But when the in-
fant is above the age of four-
teen years, he must, it seems, in
every case, choose for himself.
The court will not compel him
upon habeas corpus to submit
to parental authority.”

49 Commonwealth v.
son, 87 Mass. 518.

50In re Goodenough, 19 Wis.
291.

51 In re Goodenough, 19 Wis.
291,

Nicker-
CUSTODY OF CHILDREN. 605

he must be set free, for the plain reason that by law he
is entitled to his freedom. But if the court is also to
set the infant free, they give him a right to which he
is not entitled, and deprive the parent or guardian of
a right to which he is entitled, to wit, the custody of
the infant.’ 52

§ 154. Commitment to public or charitable institution.

In a number of the states it is provided by statute
for the placing of abandoned, destitute or indigent
children in charitable institutions under control of the
state. In most cases the parents are not made parties
to the proceedings. Where such is the case, it is quite
generally held that the proceedings as authorized are
valid, and that the legal custody of the children prop-
erly follows; yet these proceedings do not operate to
deprive the parents of the right to reclaim the custody
of their children. In fact they are not bound by the
proceedings. But the inquiry as to the fitness of the
parents to resume control of their children, and the
best interests of the children, is still open. It is prob-
able, however, that the wishes of the children in respect
to their custodian would not prove as weighty a con-
sideration with the court in the exercise of its discre-
tion as they might in other cases.°?

‘“‘Such statutes are not considered penal, and the
commitment by the public officers is not in the nature
of punishment. They are provisions by the state, as
parens patriae, for the custody and care of neglected
children, and are intended only to supply to them the

‘s2 Sharkey, C. J. ib, 6 How. 37 Ohio St. 197; Roth v. House of
(Miss.) 472. Refuge, 31 Md. 329; Farnham

58 Milwaukee Industrial School v. Pierce, 141 Mass. 203, 6 N. E.
v. Supervisors, 40 Wis. 328; Cin- 830, 55 Am. Rep. 452. Ferrier’s
cinnati House of Refuge v. Ryan, Petition, 103 Ill. 367.
606 HABEAS CORPUS.

parental custody which they have lost. They do not
punish the infant by confinement nor deprive him of
his liberty. They only recognize and regulate, as in
providing for guardianship and apprenticeship the
parental custody, which is an incident of infancy.’’ *4

It is considered, as stated by a learned court, that
‘‘the homes thus provided are not penal or reforma-
tory institutions, and are not intended for the deten-
tion of children for the purposes of punishment or
moral reformation. Such homes are provided in the
exercise of a guardianship and protection assumed by
‘the state as parens patriae, taking to its bosom its in-
fants, deserted, neglected, cruelly treated or depend-
ent, and giving to these homeless ones a home.’’ 5

It -was stated by another, in reply to the contention
that such a commitment was imprisonment, and where
without notice to the parent, not due process of law:
‘¢We cannot understand that the detention of the child
at one of these schools, should be considered an impris-
onment, any more than its detention in the poor house,
any more than the detention of any child at any board-
ing school standing for the time in loco parentis to the
child. Parental authority implies restraint, not impris-
cnment, and every school must necessarily exercise
some measure of the parental power of restraint over
children committed to it, and when the state, as parens-
patriae is compelled by the misfortune of a child, to
assume for it parental duty, and to charge itself with
its nurture, it is compelled also to assume parental au-
thority over it. This authority must necessarily be
delegated to those to whom the state delegates the nur-
ture and education of the child. The state does not in-

54 Farnham v. Pierce, 141 Mass. 55 Whalen v, Olmstead, 61
203, 6 N. E. 830, 55 Am. Rep. Conn. 263, 23 Atl. 964, 15 L. R.
452. A. 593.
CUSTODY OF CHILDREN.

607

tend we might say, could not intrude this assumption
of authority between parent and child, standing in no
need of it. It assumes it only upon the destitution and
necessity of the child, arising from want or default of
parents, and in exercising a wholesome restraint over
the child, no more than the tenderest parent exercis-
ing like power of restraint over children.’ **

86 Milwaukee Industrial School
v. Supervisors, 40 Wis.: 328.

In Farnham v. Pierce, 141
Mass. 203, 6 N. E. 830, 55 Am.
Rep. 452, the purpose and scope
and effect of such statute is fully
discussed and determined. At
the outset the court states that
if the statute is to be construed
as authorizing a final adjudica-
tion upon the rights of the
father, taking from him the care

and custody of his child in a.

summary manner and without
notice, it would be a grave ques-
tion whether it could be sus-
tained. But they say: “We do
not so construe the statute. It
provides custody for a child who
is suffering for the need of it,
in consequence of the death of
or unfitness of its parent. The
fact of the death or neglect or
crime or vice of the parent
shows the condition of the child,
that he is in need of parental
custody. The fact that he is suf-
fering morally for want of par-
ental restraint calls for immedi-
ate and appropriate relief, as
would the want of food or shel-
_ter. The inability or failure of
the parent to furnish the relief
is intended to show the need of
the child, not to be the basis of
a decree against the parent. The
proceeding is intended to be

summary. Any magistrate is au-
thorized to act when it shall be
made to appear to him, etc. No
complaint or written application
to the magistrate is required,
and no notice to any one except
to the state board of health, lun-
acy and charity after it shall
have been made to appear. No
trial is required, and it might
be made to appear by inspection
of the child and his surround-
ings, without any further pro-
ceeding. The statute not only
requires no notice to the parent,
but does not make him a party,
and gives him no right to be
heard even if present; and it
does not prescribe a fact as con-
stituting the unfitness of ‘the
parent—as support as a pauper,
or sentence to the state’s prison,
for instance — but leaves the
question of unfitness in the re-
spects specified to the summary
determination of any magistrate,
without revision or appeal. The
finding of the district court
must be taken to be that the
child was in the  cendition
which required the custody of
the overseers of the poor, ac-
cording to the statute, and she
was given into their custody for
that reason, and not because ‘the
father was adjudged to have for-
feited his right. The commit-
608 HABEAS CORPUS.

Statutes are not uniform in their provisions as to
the duration of the commitment, nor are the courts in
accord, as with respect to a cessation of such control
when the reason for it no longer exists. In some states
it is provided that the child may be placed by the insti-
tution to whom committed, in the care and custody of
private persons, and subject to adoption, thus forever
excluding control by a parent, and to the same extent
as a voluntary surrender of a child by its parents for
adoption.>7

The Connecticut statute on the subject, ch. 328, au-
thorizes a commitment until the child shall arrive at
the age of sixteen. In some of the states, it is provided
that they shall be committed until their majority. The
Connecticut court in construing the statute of that
state, held that while the board may authorize the dis-
charge of such child prior to arriving at the age of six-
teen, it is not bound to do so even though the necessity
for the protection of the child has ceased.°*

However, the Supreme Court of Wisconsin, is not
in accord with such ruling. In reply to the argument

ment is valid, and the custody
in which the child is held is

their discretion may be abso-
lute; but the right of the parent

lawful and subject to the rights
of the father. The statute does
not provide any way in which
the father can maintain his
rights. He can apply to the
overseers of the poor to dis-
charge the child for the reason
that the object of the commit-
ment hag been accomplished,
and on showing his ability and
fitness to take charge of the
child she should be discharged
by them. The statute leaves
that in their discretion, it is
true, and, as to matters other
than the right of the parent,

,

can be protected by habeas cor-
pus by this court. The
parent has a right to show that
the cause stated for the commit-
ment does not now exist, that he
igs competent and fit to have the
care of his child, and that the
welfare of the child will permit
of her removal from her present
custody.”

57 Laws 1849 (N. Y.), ch. 244;
Gen. Stat. (Conn.), secs. 3655,
3656.

58 Whalen v. Olmstead, 61

-Conn. 263, 23 Atl. 964, 15 L. R.

A. 593.
4

CUSTODY OF CHILDREN. 609"

that the commitment of a child until majority, would
operate as an imprisonment of the child, as against
both parent and child, in cases where the parent should
afterward be able and willing to resume the nurture
and education of the child, stated: ‘‘This objection
would have great weight, if it would not be fatal to the
validity of the statute, were it well founded. We could
not think it removed by the discretionary authority of
the officers of these schools, to discharge the child in
such a case. We are of course not speaking of com-
mitments for crime, but only of commitments for the
causes which may be classed as misfortune. In the lat-
ter case, we should be very reluctant to hold the power
of the state to survive the disability or default of the
parent, and the right of the parent to resume the care
of his child in proper circumstances, should not be de-
pendent on the discretion of the school officers.
* * * Tn such a case, if the officers of the school
should refuse to surrender a child, no court would hes-
itate to restore the child to the care of the parent or
guardian. The commitment during minority binds the
child only, not the parent or guardian, when competent
to fulfill towards the child the duties assumed by the
state.’’ 5°

The Massachusetts Statute, Act of 1882, ch. 181, pro-
vides for the commitment of a child so circumstanced,
to the overseers of the poor, or to certain publie insti-
tutions during minority or for any less time, to be
cared for in some public institution or respectable fam-
ily, and to be discharged whenever the object of the
commitment has been accomplished. A parent upon
showing his competency and fitness to have the cus-
tody of the child may in a proper proceeding, have it
restored to him.®°

59 Milwaukee Industrial School 60 Farnham vv. Pierce, 141
v. Supervisors, 40 Wis. 328. Mass. 103, 6 N. E. 830, 55 Am.
Rep. 452.

39
610 HABEAS CORPUS.

In Dumain and Wife v. Gwynne,*! the father, say the
court, had disqualified himself from taking proper care
of his children in their early infancy by his intemper-
ate habits. In addition to this, he committed the crime
of burglary for which he was sentenced to the state
prison for the term of three years. His right to the
custody of his children was then forfeited, but it is not
necessary to decide whether such a forfeiture would
under all circumstances be permanent. His wife being
compelled to live separate from him, was, under our
statutes, entitled to the custody of.the children as
against him, and if she had found persons ready to
adopt them, a decree for their adoption might have
been obtained, and by virtue of such a decree all the
rights of both parents to the custody and control of
the children would have ceased. If she chose to make
provisions for them without procuring such a decree,
it would be unreasonable to hold-that such an arrange-
ment would be binding only so long as the father re-
‘mained in prison. The present policy of our law re-
quires us to regard any reasonable arrangement made
by her as valid against herself and her husband,
though it should extend through the whole term of the
children’s minority, ete.

The mother, soon after her husband’s confinement in
the state prison, went to the Temporary Home for Des-
titute children, representing she could not take care
of her children, and signed a contract as follows:
“‘Boston, March 2, 1860. For and in consideration of
expenses already incurred by the managers of the
Temporary Home for the Destitute, in the case of my
child Eva Manetta, two years of age, and in considera-
tion of a suitable place being found for her in a good
family into which she may be adopted and suitably

6110 Allen (Mass.) 270,
CUSTODY OF CHILDREN. 611

provided for and educated, I hereby engage of my own
free will, to give her up to the managers of the institu-
tion, to be placed out as they may judge best, or for
adoption into a good family, and in case of the latter,
I now engage that I will not seek to discover, to molest
or to deprive them of the child, but that I will rely
upon the matron and managers to dispose of her as
they may deem best for the good of the child; and I
now agree to give her up to them fully and unreserv-
ably. Helen M. Dumain.’’

The court held that the rights of the parents were

subject to the rights of the other party to the contract,
_ but the rights of the corporation under it depended
upon the fulfillment in good faith on their part, and on
the part of the persons to whom they had transferred
the child. That the court had full power to inquire
into the matter without respect to the ordinary modes
of trial. That it could direct the child to be brought
before him, and examine her privately, and avail
himself of affidavits or other reasonable evidence, and
directed a further hearing upon an amended answer.
Upon such hearing it was found that the terms of the
contract had been well and fully complied with.

The circumstances were peculiar in a case before
and determined by the Michigan supreme court. The
question of awarding the custody to a parent was not
involved, but that of the-right of a probation officer,
in a county other than the residence of the child, to
detain the child less than twelve years old, under the
order of a probate court, not having jurisdiction, com4

,mitting her as a delinquent child, and the order of a
court so ordering her detained, and. also having been
charged with perjury, she was committed before trial
to the charge of such probate officer. The court state
that ‘‘the single question presented for determina-
612 HABEAS CORPUS.

tion, is, whether the probate court had authority to
commit the child. We assume for the purpose of de-
cision, that she is charged before that court with hav-
ing committed a felony in Wayne county, and that if
she were more than fourteen years of age she might
be tried for the offense charged in that county. She
is not fourteen years of age, therefore she cannot be
prosecuted for the felony in any court. Whether she
has committed a felony may be inquired about. If she
has her status is thereby fixed. She is a delinquent
child.’”’ The court held that under the statute, al-
though the offense was committed in Wayne county,
that the power to adjudge her a delinquent child was
in the court of the county where she resided. She was
a resident of Livingston county, living there with her
relatives, one of whom was and is by the order of the
probate court of that county, guardian of her estate, if
not of her person.’’ Upon the hearing in the court be-
low, the child was given in custody to the probation
‘officer of Wayne county. The supreme court directed
an order to be entered requiring her to deliver the
child to the petitioner (aunt of the child) upon request.
The child was in the custody of petitioner and lived
with her when she was summoned to appear as a wit-
ness in Wayne county.”

A commitment of a dependent or destitute child is
not invalid to the extent that he may be discharged
upon habeas corpus, on the ground that his parent or
guardian were not given notice, nor is a statute void
in not providing for notice thus to be given. The pro-
ceeding is summary intended to provide a summary
method for caring for destitute children. The party
is not without remedy. The courts are open to him.
The commitment does not operate to restrict the power

62 In re Mould, 162 Mich. 1, 126 N. W. 1049.
CUSTODY OF CHILDREN. 613

of the court on habeas corpus to inquire fully into the
cause of the detention and to determine upon the
whole case, whether the parent is entitled to the cus-
tody of his child.®

The proceedings prescribed by statute in respect to
commitment of children to industrial schools, must be
followed with reasonable strictness, and where not so
followed, as for instance, the filing in the probate court
of a petition which did not contain averments to the
effect that the child was within the class of children
which the statute provided might be so committed, the
whole proceeding is void for want of jurisdiction to
entertain it, and such child will be released upon hab-
eas corpus at the instance of one otherwise entitled to
its custody.

§ 155. Illegitimate children.

With respect to illegitimate children the mother has
the paramount right to their custody over their puta-
tive father.®

But it has been held that the father has the para-
mount right of custody as against all other persons
than the mother.* ;

In Texas, however, after the child has reached the
age of seven years, the father and mother stand on an
equal footing with respect to such custody.”

In all respects the rule as to their custody is prac-
tically the same as is applied to children who are legit-
imate, and the courts are actuated and controlled by
the same considerations. The welfare of the child is

6s Cincinnati House of Re- People v. Landt, 2 Johns. 375;

fuge v. Ryan, 37 Ohio St. 197. People v. Mitchell, 44 Barb. 245.

64 State ex rel. v. Kinmore, 54 66 People v. Cooper, 8 How.
Minn. 135, 55 N. W. eens 40 Am. Pr. 288; In Matter of Doyle, 1
St. Rep. 305. Clark’s Ch. (N. Y.), 154.

65 Alfred v. McKay, 36 Ga. 440; 67 Byrne v. Love, 14 Tex. 81.
614 HABEAS CORPUS.

the paramount question where the legal custody has
been given to another. If the mother is unfit for any
reason to have their custody, such custody will be
awarded to another, if a proper and fit custodian.
Such children may exercise their choice to the same ex-
tent and with the same effect as those who are legiti-
mate.®®

§ 156. Apprentice.

The master may not have the writ to restore the cus-
tody of his apprentice, where he is unlawfully detained
from him.®®

The purpose of the writ, as we have seen ante, is to
discharge persons from actual restraint, and except in
the cases of young children who are unable to choose
for themselves, and those where peculiar conditions
exist, and where persons are not held under process,
the person will be restored to liberty, and be left free
to choose for himself as to the person in whose custody
he shall remain. Its purpose and object is not primar-
ily to restore to custody, but to relieve from restraint.
Therefore, if one be entitled to the custody and serv-
ice of another as an apprentice, and he is unlawfully
detained by a third person, the court will discharge
him. After his discharge, whether the writ issues at
the instigation of the master or the apprentice, the
court will leave the master to pursue his appropriate
remedy at law, if any such he may have.”°

68 Simmons v. Bull, 21 Ala. 501, 70 Commonwealth v. Harrison,
56 Am. Dec. 259; Fullilove v. 11 Mass. 63; Matter of McDowell,
Banks, 62 Miss. 11; People v. 8 Johns. 328; People v. Pillow, 1

Landt, 2 Johns, 375. Sand. (N. Y.) 672; Ballinger
69 Lea v. White, 4 Sneed v. McLean, 54 Ga. 159. Contra,
(Tenn.), 73, 67 Am. Dec. 599. Commonwealth v. Beck, 1 Brown

(Pa.), 277.
CUSTODY OF CHILDREN. 615

The writ may be used, however, to discharge an ap-
prentice from custody, where the indentures under
which he is held are invalid.”

§ 157. Ward.

The writ will issue upon the application of a guard-
ian to relieve his ward from illegal restraint, but the
right of guardianship will not thus be tried. The rule
with respect to disposing of the custody of the child
is the same as in other cases. If the child be of suffi-
cient age, it will be merely relieved from the illegal re-
straint and permitted to go where it pleases. If not,
the court will exercise its judgment in the interest of
the welfare of the child.7?

§ 158. Jurisdiction of federal courts.

The district courts of the United States have no ju-
risdiction to determine by means of a writ of habeas
corpus, as to the proper custodian of the person of a
minor. It is said: ‘‘It is not the law and never was,
that every person held in unlawful imprisonment has
a right to invoke the aid of the courts of the United
States for his release by the writ of habeas corpus.
In order to obtain the benefit of this writ, and to pro-
cure its being issued by the court or justice or judge,
who has a right to order its issue, it should be made
to appear upon the application for the writ, that it
is founded upon some matter which justifies the exer-
cise of federal authority, and which is necessary to the

71 Musgrave v. Kornegay, 7 72Townsend v. Kendall, 4
Jones (N. C.), 71; Common- Minn. 412; Commonwealth v.
wealth v. Hamilton, 6 Mass. 273; Hammond, 10 Pick. 274; Wilcox
Ballinger v. McLean, 54 Ga. 159; =v. Wilcox, 14 N. Y. 575; Matter
People v. Weisenbach, 60 N. Y. of Heather Children, 50 Mich.
885; Matter of Goodenough, 19 261.

Wis. 274.
i
616 HABEAS CORPUS.

enforcement of rights under the constitution laws or
treaties of the United States.”’

The federal statutes limit the power and authority
of the courts to cases where a party is imprisoned or
held in custody for an act done by or under the author-
ity of the laws of the United States, or where his im-
prisonment is in violation of the Constitution of the
United States, or where it is supposed to be in viola-
tion of the laws of nations or of the United States.

It therefore follows, and so held, that in the case of
a child where the right to its custody is in question,
that the child is not restrained of his liberty, nor is the
possession and control of the party having the custody
thereof, under and by virtue of any authority of the
United States, or in violation of the constitution or any
law or treaty of the United States. The whole subject
of the domestic relations of husband and wife, parent
' and child belongs to the laws of the states and not to
the laws of the United States.”*

It was said in the case cited: ‘‘But whether the di-
verse citizenship of parties contesting this right to the
custody of the child could in the courts of the United
States, give jurisdiction to those courts to determine
that question, has never been decided by this court,
that we are aware of. Nor is it necessary to decide it
in this case for the order for a violation of which the
petitioner is imprisoned for contempt, is not a judg-
ment of the circuit court of the United States, but a
judgment of the District Court of the same district.
* * * The jurisdiction of that court is not founded
upon citizenship of the parties.’’

If it were conceded that the circuit: court of the
United States would have jurisdiction in such a case

73In re Burrus, 136 U. S. 586, 34 L. Ed. 500, 10 Sup. Ct.: Rep.
850.
CUSTODY OF CHILDREN. 617

on this ground of diverse citizenship, it does not seem
that such jurisdiction could be exercised by means of
the writ of habeas corpus, but if at all by a proceed-
ing in chancery. The proceeding by habeas corpus is
not to release a child from imprisonment. He is not
restrained of his liberty. It is not to restore him to
liberty, but simply as we have seen, in the interest of
his welfare, to determine the proper custodian.

Thus it was held by the same court, in a late case,
that a habeas corpus proceeding involving the care and
custody of a child of tender years, is not decided on the
legal rights of the petitioner, but upon the courts’
view, exercising its jurisdiction as parens patriae, of
the best interest and welfare of the child; such a pro-
ceeding does not involve the question of personal free-
dom, hence an appeal would not lie to the supreme
court of the United States, under sec. 1909, Rev. Stat.,
from the order of the supreme court of a territory
awarding the custody of a child of three years to one
: of several rival claimants therefor."

™ New York Foundling Hospital v. Gatti, 203 U. S. 429, 51 L. Ed.
254, 27 Sup. Ct. Rep. 53.
BOOK II.

- CERTIORARI.

Chapter.
I. Scope or THE WRIT IN GENERAL, secs. 159-176.

II. GENERAL CONSIDERATIONS, secs. 177-185.

III. Review oF PROCEEDINGS, secs. 186-190.
IV. FeperaL Courts; JURISDICTION; PROCEEDINGS, secs. 191-196.
620 CERTIORARI.

CHAPTER LI.
SCOPE OF THE WRIT IN GENERAL.

§ 159. Nature and Office of the Writ.
160. Classification.

I. Courts or GENERAL JURISDICTION PROCEEDING ACCORDING TO THE
Course oF THE ComMMOoN Law.

161. In General.
Review of Proceedings prior to Final Judgment.
162. Superintending Power of Control over Inferior Courts.

II. Courts oF GENERAL JURISDICTION NOT PROCEEDING ACCORDING TO
THE COURSE OF THE Common Law.

163. In General.
Where Record Discloses an Attempt, but not Strict Com-
pliance with the Statute.
Summary Proceedings.
Preliminary Statement.
Proceedings Classed as Summary.
Distinction between Special Powers Conferred and Gen-
eral Powers Extended.
164. Distinction between Jurisdiction and Error of Judgment.
Illustrations.
165. Ordinarily Writ will not Issue where there is another Ade-
quate Remedy.
166. Allowance of Writ when Discretionary.

III. Inresion Courts oF LIMITED JURISDICTION.

167. In general. :
Remedy by Appeal does not Preclude the Writ.
168. Distinction between Courts of General and Inferior Courts
‘of Limited Jurisdiction.
169. Probate Courts.
170. Statutory Courts.

IV. TRIBUNALS, OFFICERS AND Boarps EXERCISING QUASI JUDICIAL
FUNCTIONS.
171. In General.
172. Executive Legislative and Ministerial Acts not Subject to Re-
view.

178. Judicial and Nonjudicial Acts.
Appointment and Removal of Officers.
Boards of Audit; Proceedings.
SCOPE OF THE WRIT IN GENERAL, 621

Boards of Health; Acts of.
Boards of County Supervisors; Proceedings,
Highway Commissioners; Proceedings.
Municipal Corporations; Proceedings.
In General.
Licenses; Granting, Refusing, Revoking.
Land Commissioners; Acts of.
Civil Service and Other Commissioners; Acts of.
Canvassing Boards; Proceedings.
Taxing Officers and Boards; Proceedings.
In General.
Assessors,
Boards of Review and Equalization.

V. Writ ANCILLARY TO OTHER PROCEEDINGS,
174. General Review.
VI. Review or Haspeas Cogrus PROCEEDINGS.
175. General Review.
VIL. Review or CoNTEMPT PROCEEDINGS.

176. General Review.

§ 159. Nature and office of the writ.

In Bacon’s Abridgement, the writ is thus defined:
‘CA certiorari is an original writ issuing out of chan-
cery or the King’s Bench, directed to the judges or of-
ficers of inferior courts, commanding them to return
the records of a cause depending before them, to the
end that the party may have the more sure and speedy
justice, before him or such other justices as he shall
assign to hear the cause.’’

. The purpose of the writ is to have the entire record
of the inferior tribunal brought before the superior
court, to determine whether the former had jurisdic-
tion or had exceeded its jurisdiction or had failed to
proceed according to the essential requirements of the
law. |

The effect of issuing and serving of the writ is not
to open or vacate the judgment or action of the infer-
ior tribunal, like an appeal giving a new trial upon the

1 Neuman v. State, 76 Wis. 112, 45 N. W. 30.
622 CERTIORARI.

merits, but merely to remove the records thereof to the
superior court for inspection, and thus enable such
court to determine whether the inferior tribunal had
the rightful jurisdiction to render judgment or per-
form such act. The judgment of the court in the pro-
ceeding upon such writ, merely determines the valid-
ity or invalidity of the record of such inferior tribunal,
and either reverses or affirms the same, in whole or
in part, accordingly.”

The writ only issues to review the decisions of in-
ferior judicial or quasi judicial tribunals, is the state-
ment of the New York court of appeals? ;

But, as held in several other jurisdictions, that it
issues to review only the decisions of inferior courts,
and tribunals, officers and board exercising judicial or
quasi judicial functions.

In discussing the subject, and in the examination of
adjudications of courts, great care must-be exercised
in distinguishing between common-law writs and those
authorized by statute, called statutory writs; and
again with respect to common-law writs, those cases
where the writ issues to bring up the records or pro-
ceedings of courts, and where it issues to some body or-
inferior tribunal exercising judicial powers. The com-
mon-law writ, as its name implies, is not a creature of
the statute, but exists independent thereof. Though
in many jurisdictions its use has been either extended,
limited or qualified by legislative action, so that it is
more in the nature of a statutory writ than otherwise,
yet in most jurisdictions, when the common-law writ
issues and is directed to a court, it only brings up for
review jurisdictional questions. It will not lie on ac-

2 Neuman Vv. The State, 76 Wis. 8 People ex rel. v. McWilliams,
112, 75 N. W. 30; Hyslop v. Finch, 185 N. Y. 92.
99 Ill. 171. :
SCOPE OF THE WRIT IN GENERAL.

623

count of error or mistake, and I apprehend that in
most of the states, except those where the writ has
fallen into disuse and another appropriate remedy pro-
vided, notwithstanding there may exist a statutory
writ, the common-law writ may be used in all cases
where the court is proceeding without jurisdiction.‘

§ 160. Classification.

To an orderly treatment of the general subject, it
must be divided into classes, as the rule governing
each are widely different, as follows:

4Jackson v. People, 9 Mich.

111, 77 Am. Dec. 491; Stanley v.
Horner, 24 N. J. L. 611; Fowler v.
Roe, 25 N. J. L. 549; State v.
Smith, 101 Mo. 174.

The writ of certiorari is one
of common use, yet of all writs
and remedies its object and pur-
pose is the least understood.
Who can state correctly its pur-
pose in such a way that it will
meet the views of courts in all
jurisdictions? I am speaking

now with reference to the com--.

mon law writ. The office of the
writ is well understood. It is to
certify the record of the pro-
ceedings from an inferior to a
superior tribunal. Nothing is to
be certified but the record prop-
er, and the court acts upon that
record. Highways Com’rs. v.
Carthage, 27 Ill. 140; Petition
of Tucker, 27 N. H. 405. Un-
derstanding fully the office of
the writ does not meet the ques-
tion. That is, to what extent
will the record be examined, and
what errors will be deemed suf
ficient to authorize a reversal of

‘ercising judicial powers.

the judgment or proceedings.
But little reliance, as appears
in the discussion of this sub-
ject as we proceed, can’ be
placed upon general expressions. /
Those who have pretended to

treat the subject as some have
by merely collecting such gen-
eral expressions, have tended to

confuse rather than to demon-

strate and make plain. They
make no distinction between er-
ror of law and errors which are

jurisdictional, nor do they make
any distinction between proceed-

ings of inferior courts and pro-

ceedings of inferior boards ex-

It is

evident that these distinctions

must be observed, or else an in-

telligent treatment of the sub-

ject .is not made. Attention

should be called to the fact that

the purpose of the common law

writ is not held to be the same

in all jurisdictions with respect

to review of errors in proceed-

ings of inferior courts, and what

may be a rule in one state is of

no force in another.
624 CERTIORARI.

I. Courts of general jurisdiction proceeding accord-
ing to the course of the common law.

II. Courts of general jurisdiction not proceeding ac-
cording to the course of the common law.

I. Inferior courts of limited jurisdiction.

IV. Tribunals, officers and boards exercising quasi
judicial functions.

V. Ancillary to other proceedings.

VI. Ancillary to habeas corpus proceedings.

VII. Contempt proceedings.

I. Courts or GENERAL JURISDICTION PROCEEDING AC-
CORDING TO THE CoURSE OF THE Common Law.

§ 161. In general.

The common-law rule as generally recognized in this
country, is, that the writ with respect to courts, only is-
sues to reach jurisdictional defects and those com-
mitted only by courts of record, and courts of record
not proceeding in the course of the common law, and
courts not of record.® :

The doctrine seems to be well settled that upon a
writ addressed to a court of record, proceeding accord-
ing to the course of the common law, if allowed, its
judgment will not be reviewed though it proceeded
without jurisdiction, when the party has a remedy by
appeal or writ of error.®

With respect to such rule, it was said: ‘‘The gen-
eral rule as laid down in the books is that a common-
law certiorari will not issue where a party has another
adequate remedy; and it is certainly a novel applica-
tion of such writ to make it perform the office of a writ
of error to bring up for review a final judgment of a
court of record. * * * We know of no case which

8 Hauser v. State, 33 Wis. 678; 6 Wardsworth v. Sibley, 38
Martin v. State, 35 Wis. 294. Wis. 484; Cooke v. Petitioners, 15
Pick. 284,
SCOPE OF THE WRIT IN GENERAL. 625

holds that it is a proper process to bring up for review
the final judgment of a court of record proceeding ac-
cording to the course of the common law. The remedy
by appeal or writ of error has been deemed the proper
remedy or mode of procedure to use for bringing be-
fore the appellate court such judgments.’’*

To the same effect is the declaration of the Massa-
chusetts court. Thus it is said: ‘‘The question is,
what is the legal and proper remedy or process for the
purpose of correcting any errors in the proceedings
after final judgment rendered or the final decision of
the cause? And it seems to be well settled by the Eng-
lish authorities, that after the final judgment in a court’
of record proceeding according to the course of the
common law, the only remedy is by writ of error. But
where the court below is not a court of record or does
not proceed according to the course of the common
law, no writ of error will lie and the proper remedy is
by certiorari.’’ &

The doctrine thus stated cndabeaiee is the practice
and the rule in so far as the subject matter is involved.
‘Where, however, such a court of original jurisdiction
has rendered a judgment, where jurisdiction was not
obtained of the person, it would seem that the rule
ought not to apply. True, the party in such a case has
the right of appeal, but that does not reach the defect,
for the very plain reason that by resort to an appeal,
the jurisdiction originally wanting is conferred, hence
there is no remedy by appeal and none other than by
certiorari. True, such a judgment would be open to
collateral attack, but that can hardly be claimed as an
adequate remedy.

7 Wardsworth v. Sibley, 38 Wis. 8Cooke v. Petitioners, 15
484, Pick, 234.
40
626 CERTIORARI.

Review of proceedings prior to final judgment.

The doctrine as pronounced in the preceding part of
this section applied to final judgments of courts of orig-
inal jurisdiction, proceeding according to the course of
the common law. The same doctrine, however, applies
with respect to proceedings in such a court, prior to
final judgment. The writ was allowed by the court in
two cases; the one to review the decision of the infer-
ior court in refusing an application for a change of
venue,® the other, the decision of the inferior court in
refusing to dismiss the proceedings.’®

Subsequently the court criticised and condemned the
practice pursued in those cases, stating that the ques-
tion was not discussed and the point was passed sub
silento by the court. The court gives abundant reason
for its criticism upon the practice adopted in those
cases, aside from the one stated, to wit: the existence
of a remedy by appeal or writ of error, one of which is
that if the court was proceeding in the cause without
jurisdiction, the appropriate writ to be applied for,
from that court, would seem to be the writ of prohibi-
tion, and not the writ of certiorari. The court in
speaking of the inconvenience and the mischievous
consequences that might follow the allowance of the
writ under such circumstances, state: ‘‘If the writ is
a proper process for correcting the alleged error of the
circuit court,in refusing to dismiss the proceeding, it
might be resorted to in any stage of the cause to bring
up for review any erroneous decision which the court
might make.’’ 1!

The supreme court of Minnesota also held as a rea-
son for refusing the writ, that the law provided a rem-
edy by appeal or writ of error after judgment, which

® Hauser v. State, 33 Wis. 11 Chittenden v. State, 41 Wis.

678. 285.
10 Martin v. State, 35 Wis. 294.
SCOPE OF THE WRIT IN GENERAL. 627

was ample and exclusive, and also referred to the
mischievous consequences which might follow in case
the writ was allowed.12

§ 162. Superintending power of control.

The doctrine of the superintending power of control
over the proceedings of inferior courts, including
those of original jurisdiction, when proceeding accord-
ing to the course of the common law, is considered at
considerable length under the subject of mandamus.
The constitutions of several of the states provide either
identically or substantially the same as the constitution
of Wisconsin, wherein it is stated. ‘‘The supreme
court, except in cases otherwise provided in this consti-
tution, shall have appellate jurisdiction only, which
shall be co-extensive with the state; but in no case re-
moved to the supreme court shall a trial by jury be
had. The supreme court shall have a general superin- -
tending control over all inferior courts; it shall have
power to issue writs of habeas corpus, mandamus, in-
junction, quo warranto, certiorari and other original
and remedial writs, and to hear and determine the
same.’’ 18

The Wisconsin court state that such section contains
three separate grants of jurisdiction, namely; 1. Ap-
pellate jurisdiction, 2. Superintending control over in-
ferior courts, and, 3. Original jurisdiction exercised by
means of writs to protect the sovereignty of the state,
preserve the liberty of the people, and secure the rights
of its citizens. That by the grant of such superintend-
ing control over all inferior courts, the supreme court
- is endowed with a separate and independent jurisdic-
tion, which enables and requires it in a proper case to

12 State v. Noonan, 24 Minn. 18 Section 3, article VII.
124,
628 CERTIORARI.

control the course of ordinary litigation in such infer-
ior courts, and it also took at the same time all the an-
cient common-law writs necessary to enable it to ex-
ercise that high power, including the writs of manda-
mus, prohibition, certiorari and procedendo, and the
right to hear and determine the cause when the writ
has brought it before the court, including the determi-
nation of questions of fact; and no part of that power
can be taken away by a statute attempting to regulate
the trial of questions of fact in that court."

This power has been occasionally exercised, but most
commonly by means of mandamus or a writ in the na-
ture of mandamus. It has been exercised compelling a
circuit judge to make an order changing the venue of
an action.!®

The writ of prohibition has been granted preventing
further prosecution of certain contempt proceedings in
the circuit court, because the court was acting in excess
of its jurisdiction.*®

The writ of mandamus has also been granted to com-
pel a circuit court to retrace its steps in making cer-
tain orders, and to proceed as directed,” also to rein-
state a pending cause.’®

It is held, however, that this power of superintend-
ing control over the courts, like its other original juris-
diction, is not to be exercised upon light occasion. As

16State ex rel. v. Circuit
Court, 97 Wis. 1, 72 N. W. 193, 38
L. R. A. 554. See also St. Louis
K. & S. R. Co. v. Wear, 185 Mo.
230, 36 S. W. 357, 33 L. R. A.
341,

14 State ex rel. v. Johnson, 103
Wis. 591, 79 N. W. 1081, 51 L
R. A. 33; Attorney Geferal v.
Blossom, 1 Wis. 317; Attorney
General v. Railroad Cos., 25
Wis. 425; State ex rel. v. John-

son, 105 Wis. 164, 81 N. W. 146.

15 State ex rel. v. McArthur,
18 Wis. 407; State ex rel. v.
Dick, 103 Wis. 407, 79 N. W. 421.

17 State ex rel. v. Johnson, 103
Wis. 591, 79 N. W. 1081, 51 L.
R. A. 33.

18 State ex rel. vy. Phillips, 97
Mo. 311.
SCOPE OF THE WRIT IN GENERAL. 629

the ordinary appellate revisory powers of that court
have been found sufficient in the past, with extremely
rare exceptions, it is believed in the future, emergencies
transcending their sufficiency will seldom occur. The
writ of certiorari was therefore quashed upon the
ground, however, that the party had a remedy by ap-
peal from the order committing him for contempt.'®

II. Courts or GENERAL JURISDICTION NoT PROCEEDING
ACCORDING TO THE CouURSE OF THE Common Law.

§ 163. In general.

Special and sometimes summary powers are confer-
red upon courts of general jurisdiction by statutes
which are not within the inherent jurisdiction of the
court or within their general powers as constituted. It
is with respect to the exercise of jurisdiction in such
cases, that it is said such courts do not proceed accord-
ing to the course of the common law. When the law
confers upon them an authority not after the course of
the common law over property or rights, they act as
tribunals of special and limited jurisdiction. It is nec-
essary that it appear that they act. within the scope of
their powers. Many statutes merely provide as con-
ditions precedent to the exercise of jurisdiction by such
courts, certain preliminary steps or proceedings, and
thereafter, either in express terms or by inference, the
court is authorized to proceed in the ordinary manner
to determine the matter in controversy. The rule has
been very tersely stated to be that ‘‘when the special
powers conferred are brought into action, according
to the course of the common law and chancery proceed-
ings, by regular process and personal service, where a
personal judgment or decree is asked, or by seizure on

19 State ex rel. v. O’Neil, 104 Wis. 227, 80 N. W. 447.
630 CERTIORARI.

attachment of the property where a judgment in rem
is sought, the same presumption of jurisdiction will
usually attend the judgment of the court as in cases
falling within its general powers; but where special
powers conferred are exercised in a special manner
not according to the course of the common law, or
where the general powers of the court are exercised
over a class not within its ordinary jurisdiction, upon
the performance of prescribed conditions, no such pre.
sumption of jurisdiction will usually attend the judg-
ment of the court as in cases falling within its general
powers. The facts essential to such jurisdiction must
appear upon the face of the record.’’ ?°

When a power is given to a court of general jurisdic-
tion over a special subject, which is not in the usual
course of the common law, and a mode is prescribed for
its exercise, such mode must be pursued, and sufficient
must appear to show the case to be within the jurisdic-
tion of the tribunal. If upon the face of the' record
sufficient appears to give the court jurisdiction under
the statute conferring the power, then the same pre-
sumption in favor of the validity of its proceedings at-
taches as when proceeding in the exercise of its general
powers.?!

Where record discloses an attempt but not strict
compliance with the statute.

In proceedings other than those which are summary
in character, the rule in the federal court seems to be

20 Harvey v. Tyler, 2 Wall.328, Connor, 3 N. Y. 541, 53 Am.
17 L. Ed. 871; Galpin v. Page, Dec. 325; Cooper v. Sunderland,
18 Wall. 350, 21 L. Ed. 959; Ap- 3 Iowa, 114, 66 Am. Dec. 52;
plegate v. Lexington, etc, Min. Morrow v. Weed, 4 Iowa, 77, 66
Co., 117 U. S. 255, 29 L. Ed. 892, Am. Dec. 122; Adams v. Jef-
6 Sup. Ct. Rep. 742. fries, 12 Ohio 253, 272; Hahn v.

21 Harvey v. Tyler, 2 Wall. Kelley, 34 Cal. 391, 94 Am. Dec.
328, 17 L. Ed. 871; Embury v. 742.
SCOPE OF THE WRIT IN GENERAL. 631

that, if the record discloses such preliminary proceed-
ings to have been attempted, and that the proceeding
thus taken was of such character as to call for the ex-
ercise of the judgment of the tribunal and such judg-
ment was exercised either directly or by proceeding to
perform the act required, then it is that jurisdiction ap-
pears, though in fact such preliminary proceedings
were faulty in not conforming to the requirements of
the law. The act of the court in such case would be
error of judgment merely.”

In most of the state courts, however, the rule is oth-
erwise and to the effect (with the exception in some,
of affidavits for the publication of summons) that the
record must show a substantial compliance with all the
statutory requirements that are made conditions prec-
edent, and that when the record fails to show such
conditions to have been substantially complied with in
respect to statements in the preliminary proceedings
of matters of substance required to be stated therein,
then it is that it affirmatively appears that the judg-
ment rendered was coram non judice.

Summary proceedings.—Preliminary statement.

Confusion has been created in not observing the dis-
tinction between those cases where conditions are pre-
scribed precedent to invoking the jurisdiction of courts
of general powers, which thereafter proceed according
to their usual course, and those cases where certain
special powers are by statute imposed upon such
courts, and the statute prescribes with particularity
the manner in which such powers shall be exercised.
Cases of the latter kind we designate summary pro-

22 Grignon’s Lessee v. Astor, 2 18 L. Ed. 34; Mohr v. Manierre,
How. 319, 11 L. Ed. 283; Com 101 U. S. 417, 25 L. Ed. 1052.
stock v. Crawford, 3 Wall. 396,
632 CERTIORARI.

ceedings; by which is meant to include those cases
where the whole proceeding is without the ordinary
course of such courts, with the exception of the method
of hearing the parties. In such cases the rule is of al-
-most general application that the record must show
that the proceedings were in strict compliance with the
requirements of the statute; that nothing therein re-
quired will be presumed to have been performed.
With this distinction observed, most of the cases that
have apparently been considered in conflict, can be rec-
onciled.?°

Proceedings classed as summary.

Proceedings in insolvency are special and no intend-
ment can be made in favor of the jurisdiction of the
court. Everything bearing upon that question must ap-
pear affirmatively. If the record fail to show publica-
tion of a required notice the requisite number of days,
the proceedings are void.*+

So are the proceedings for the condemnation of land
for public purposes. They are in the nature of a public
inquisition, and are not to be considered by the general
rules applicable to courts of general jurisdiction, but
as to acts of a court setting under a limited special
statutory authority.*®

So are proceedings in contested election cases, where
they are of a special character and wholly distinct in
form and substantially different from the common-law
remedy.”®

23 Bates v. Merchant, 8 Port. 25Gilmer v. Lime Point, 19
89; Hamilton v. Verum, 3 Yerg. Cal. 47; Embury v. Connors, 3
865; Barry v. Patterson, 3 N. Y. 541, 53 Am. Dec. 325; In
Humph, 312; Maples v. Tunis, re Grove Street, 61 Cal. 438.

11 Humph. 108, 53 Am. Dec. 779. 26 Dorsey v. Barry, 24 Cal.

24McDonald v .Katz, 31 Cal. 449; Saunders y. Haynes, 13
167; Hanscom y. Tower, 17 Cal. Cal. 155. -

518; Hastings v. Cunningham,
39 Cal. 137.
SCOPE OF THE WRIT IN GENERAL. 633

So are proceedings under a statute of Maine to re-
cover annual compensation for the flowage of lands.?7

So an execution by a public officer of a power to sell —
lands for the nonpayment of taxes, must be in strict
conformity to the law under which it is made or no ti-
tle is conveyed. It is absolutely essential that it ap-
pear upon the record that the required publications
were made, and that the officer had returned that there
were no goods or property of the delinquent proprietor
out of which the taxes could be made.?8

Distinction between special powers conferred and
general powers extended. .

Here again a distinction must be observed between
conferring special powers upon a court of general ju-
risdiction and extending the general powers of such a
court over a special matter. Thus, extending the ju-
risdiction of such a court over the foreclosure of tax
deeds does not have the effect to make its jurisdiction
special with respect to such proceedings.”

So the subject of foreclosure of mechanics’ liens is
new, created by statute, and yet it is apprehended that
this, and its process, too, is to be adjudicated upon the
same rules that govern the ordinary power and pro-
ceedings of the court.®°

An attachment proceeding, though exclusively stat-
utory, is merely auxiliary to other proceedings over
which the jurisdiction of the court is, in all cases gen-
eral, and usually as antecedent to the attachment there
must be an indebtedness, a cause of action, in which
the jurisdiction of the court is not limited. The writ

27 Prentiss v. Parks, 65 Me. 29 Hunger v. Barlow, 39 Iowa,
559. 114.
28Thatcher v. Powell, 6 30Cooper v. Sunderland, 3

Wheat. 119, 5 L. Ed. 221. Iowa, 114, 66 Am. Dec. 52.
634 CERTIORARI.

of attachment is issued in aid of that jurisdiction. It
is not the object of the writ to curtail and limit that
general power, but rather to augment and make it more
secure. Without this auxiliary process the creditor
could obtain a judgment and subsequently an execution.
Therefore an attachment proceeding, after jurisdiction
is obtained to seize the property, must have the same
intendment in regard to the exercise of official duties as
applies to any other cases of general jurisdiction.*2

There are courts which do not recognize the position
first assumed, but on the contrary hold that proceed-
ings like those of attachment are out of the course of
the common law, and hence certiorari is the proper
remedy. I understand that such is the doctrine of the
New Jersey and Michigan courts, and perhaps that of
Pennsylvania.*?

If so, it does not seem that the inquiry upon the writ
could extend beyond the proceeding that is special, and,
where such proceedings are auxiliary to the action for
the debt, that the judgment for debt could not be the
subject of inquiry. The courts of Michigan and New
Jersey give a very extended scope to proceedings by
certiorari. The former hold, where an order of a pro-
bate court granting leave to the administrator of an es-
tate of an incompetent person to sue upon a guardian’s
bond has been set aside by the circuit court and the
proceedings reversed, the entire proceedings may be
reviewed by the supreme court on certiorari, on the
ground that the proceedings are not according to the
course of the common law.**

81 Rowan v. Lamb, 4 G. ‘Gr. 16N. J. L. 100; Parks v. Watts,
(Jowa) 468; Jarvis v. Barrett, 112 Pa. St. 4; Patterson v.
14 Wis. 591. Goodrich, 31 Mich. 225.

32 Curtis v. Steever, 36 N. J. 33 Welch v. Van Auken, 76
L. 304; Thompson v. Eastburn, Mich. 464, 43 N. W. 371.
SCOPE OF THE WRIT IN GENERAL. 635

The supreme court of Massachusetts, however, speak-
ing with reference to probate courts and their proceed-
ings, hold, as stated by another, that, like the ecclesi-
astical courts of Great Britain, they are a court of pe-
culiar jurisdiction, having a separate and exclusive ju-
risdiction over an important class of subjects. Such
courts proceed according to the civil law; their juris-
diction is separate and distinct from that of the com-
mon-law courts; and the fact that they proceed accord-
. ing to the course of the civil law does not bring them
within the provision allowing certiorari to such juris-
dictions as do not follow the course of the common
law.33# The court simply holds the above with refer-
ence to the probate court of that state, in consideration
of the legislation with respect to review of their deci-
sions. In that state the court acts in such matters as
a supreme court of probate, and the common-law courts
as such have no control over their proceedings and can-
not review their decisions.**

Proceedings pursuant to a statute upon an informa-
tion filed for the purpose of causing a convict in the
state’s prison to be sentenced to additional punishment
by reason of his being imprisoned upon a second or
third conviction were held to be according to the course
of the common law; and the remedy was by writ of
error, and not certiorari.*®
_ So a police court in Massachusetts, in receiving com-
plaints and issuing warrants for the seizure of intox-
icating liquors illegally kept, proceeds according to the
course and principles of the common law. Police courts
are courts of record of common-law jurisdiction, civil
and criminal, in that state.®*

33a Note to Ency. of Practice, 35 Cook et al. v. Petitioners, 15
vol. 4, p. 89. Pick. 234.
34Peters v. Peters, 8 Cush. 36 Lynch y. Crosby, 184 Mass.

529. 313.
636 CERTIORARI.

It was stated by the supreme court of Michigan that
a proceeding to recover the possession of lands under
the law of forcible entry and detainer, being summary
and unknown to the common law, certiorari only lies
to bring the cause into that court; but when appealed
to the circuit court as provided by law, it becomes a
proceeding according to the course of the common law,
and error is the only mode of reviewing the judgment
of the circuit court.27

Contempt proceedings are familiar instances where
the court proceeds in a special and summary manner.
Of course they were known to the common law, but the
proceeding is unlike that pursued in ordinary cases,
or what may be termed common-law proceedings, cer-
tiorari being the only direct remedy, as ordinarily
there was no appeal.

The principles thus underlying the question of the
jurisdiction of courts of record not proceeding accord-
ing to the course of the common law, have been stated
at some length for the reason that it is in such cases
largely that the rule is applied, in effect, that the only
question considered upon certiorari addressed to a
court is that of jurisdiction. It is otherwise, as later
appears, when the writ issues to review the proceedings
of officers or bodies not proceeding. according to the
common law.*®

§ 164. Distinction between jurisdiction and error of
judgment.

The foregoing comments upon the law of jurisdic-

tion have particular reference to procedure, and not to

37 Parker vy. Copland, 4 Mich. State ex rel. v. Circuit Court,

528. 101 Wis. 422, 77 N. W. 745; Har-

38 State ex rel. v. Circuit ris v. Barber, 129 U. S. 366, 32
Court, 71 Wis. 595, 38 N. W. 192; L. Hd. 697, 9 Sup. Ct. Rep. 314.
SCOPE OF THE WRIT IN GENERAL.

637

the judgment of the court in respect to the matters in-
volved in the action or proceedings, where jurisdiction
of the subject matter and of the person has been ob-
tained. Jurisdiction is the power to hear and deter-
mine the subject matter in controversy, to adjudicate
or exercise any judicial power over the parties. What
shall be adjudged or decreed between the parties, and
with which is the right of the case, is judicial action and
judgment by hearing and determining it. Bracton de-
fines jurisdiction to be authority to judge or declare
the law between parties brought into court. It was
said by Ryan, C. J., in In re Pierce,?** that this defini-
tion had never been bettered, probably never would be,
and is of universal authority.

It is coram judice whenever a case is presented that
brings the power to hear and determine a cause into
action. But before this power can be affirmed to ex-
ist, it must be made to appear that the law has given
the tribunal capacity to entertain the complaint against
the person or thing sought to be charged or affected,
that such complaint has actually been preferred and
that such person or thing has been properly brought
before the tribunal to answer the charge therein con-
tained.*®

38a 44 Wis. 454.

39 Sheldon v. Newton, 3 Ohio
St. 494; State ex rel. More-
Jand v. Whitford, 54 Wis. 150,
11 N. W. 424; Ex parte Walker,
25 Ala. 577; Jones v. Brown, 54
Iowa, 74, 6 N. W. 140, 37 Am.
Rep. 185; Succession of Weigel,
17 La. Ann. 70; Mills v. Com-
monwealth, 13 Pa. St. 627;
Goodman v. Winter, 64 Ala. 410;
Tramwell v. Town of Russelville,
34 Ark. 105, 86 Am. Rep. 1;
Hickman v. O’Neill, 10 Cal. 292;

Ex parte Bennett, 44 Cal. 84;
Bush v. Hanson, 70 Ill. 480;
Schroeder v. Insurance Co., 104
Ill. 71; Brownsville v. Basse, 43
Tex. 440; People v. Sturtevant,
9 N. Y. 263, 59 Am. Dec. 536.

In People v. Sturtevant, supra,
the judge who wrote the opinion
had occasion to say, after quot-
ing the doctrine first herein
given: “This, I apprehend,
points to the true line of in-
quiry to determine the question
of jurisdiction.” In that case a
638 CERTIORARI.

It is only when the court pronounces a judgment
which is not authorized by law under any circum-
stances, in the particular case made by the pleadings or
proceedings, whether the trial has proceeded regularly
or not, that the judgment can be said to be void.*?

This distinction is treated at considerable length in
a chapter under the subject of habeas corpus, which
should be consulted, hence it is deemed unnecessary to
repeat what is there stated in this connection.

Tllustrations.

The distinction between error and lack of jurisdic-
tion is illustrated in. the following cases: ‘‘A writ
was issued to the municipal court of one of the counties
in Wisconsin, such court being a court of record, and
before final judgment therein. The question raised was
whether a corporation could be ‘the object of a crim-
inal libel. A motion was made to quash the informa-
tion, which was denied, whereupon the writ was issued.
It was held that the question raised was not jurisdic-
tional to the extent that it could be raised by certiorari.
The reasoning was: Conceding for the sake of argu-
ment that a corporation could not be the object of a
criminal libel, the municipal court had jurisdiction
to hear, try and determine criminal prosecutions for
libel. This necessarily includes jurisdiction to hear

person had been adjudged guilty correct or erroneous, is the law

of contempt in not obeying an
injunction. It was further
stated in the opinion: ‘‘We are
not called upon to say whether
the court decided right or not
in granting the injunction, but
whether it became their duty to
decide either that it should be
granted or denied. If such was
their duty, then they had juris-
diction, and their decision, be it

of the case until it shall be re-
versed upon appeal, and can
only be questioned upon a direct
proceeding to review it, and not
collaterally.”

40 State v. Sloan, 65 Wis. 647,
27 N. W. 616; People v. Lis-
comb, 60 N. Y. 559, 19 Am. Rep.
211; Ex parte Gibson, 31 Cal.
619, 91 Am. Dec. 546.
SCOPE OF THE WRIT IN GENERAL. 639

and determine motions to quash informations therefor,
and to determine whether the information in a given
case does or does not charge that the accused had com-
mitted a criminal offense. Conceding'that the decision
of the municipal court was erroneous, the court makes
the inquiry, ‘‘Is the error a jurisdictional one?’’ It
may be so, they answer, in the sense that no court has
jurisdiction to make a wrong decision; but as they
again ask, ‘‘Is it a jurisdictional error in the sense
which will authorize this court to review and correct it
on certiorari? It is not perceived that this case differs
in principle from any other criminal prosecution in
which the indictment or information fails, for any rea-
son, to show by apt and proper averments that a crim-
inal offense has been committed, or from a civil action
the complaint in which fails to state facts sufficient to
constitute a cause of action.’’ If the court should de-
cide erroneously in respect to the sufficiency of such
an information or complaint, proceedings could not be
reviewed upon certiorari.*!

This conclusion, the court seeks to justify by what
was held in a prior case. The federal court had ren-
dered a judgment for a penalty for violation of a fed-
eral law. The supreme court of Wisconsin had previ-
ously declared the law exacting the penalty to be un-
constitutional. In an action of replevin brought in the
state court against the marshal, it was urged that, the
act having been declared void, the judgment of the fed-
eral court was void, as being without the jurisdiction
of the court. The state court held, however, that the
federal court was empowered to exercise its judgment
as to the validity of that law; and having done so,
though it arrived at a wrong conclusion, it was mere
error.*”

41 Hauser v. State, 33 Wis. 42 Arnold v. Booth, 14 Wis.
678. 180.
640 CERTIORARI.

€

The decision of the court with respect to the jurisdic-
tion of the trial court to determine whether it was a
criminal libel was undoubtedly correct and sustained
by the decisions of the federal supreme court in sev-
eral cases.*®

The rule which applies is that, where a court has ju-
risdiction, it has a right to decide every question which
occurs in the case; and, whether its decision be cor-
rect or otherwise, its judgment, until reversed, is bind-
ing on every other court.*# :

The contention in the case last cited was that dam-
ages were not recoverable in admiralty for the drown-
ing of certain persons in consequence of a collision of
vessels. It was held this was a question proper for the
court to decide. Where a court has jurisdiction to dis-
miss appeals for failure to prosecute,*® or jurisdiction
to hear a motion to set aside the service of a summons
in a justice’s court upon motion,*® an erroneous deci-
sion cannot be reviewed by certiorari. It is error
merely. Yet we find that where the court in fact has
jurisdiction, and erroneously, dismisses an appeal on
the ground of want of jurisdiction, mandamus will lie
to compel the court to proceed to a trial of the appeal.*”

This distinction has been illustrated in the several
chapters of this work. A reference to the index will
locate the particular sections.

It is true that the supreme court of the United
States, and other courts, have stated that a writ of
certiorari, when its object is not to remove a case be-
fore trial or to supply defects in a record, but to bring

43 Ex parte Gordon, 104 U. 8. 44 Ex parte Gordon, 104 U. S.
515, 26 L. Ed. 814; Bx parte 515, 26 L. Ed. 814.
Hagar, 104 U. S. 520, 26 L. Ed. 45 Alexander v. Municipal Ct.,
816; Ex parte Pennsylvania, 109 66 Cal. 387.
U. S. 174, 27 L. Ed. 894, 3 Sup. 46 History Company v. Light,

Ct. Rep. 84. 97 Cal. 56.
47See Mandamus.
SCOPE OF THE WRIT IN GENERAL. 641

up after judgment the proceedings of an inferior court
or tribunal whose procedure is not according to the
course of common law, is in the nature of a writ of er-
ror, yet it is only such, so far as ordinary courts are
concerned, as to questions of jurisdiction. The judg-
ment cannot be reviewed on other grounds.*®

Upon the question of review of judgments of infer-
ior courts, it was stated in a recent case by the supreme
court of Illinois, speaking with reference to the com-
mon-law writ: ‘‘It is assumed by the petition that such
a writ may be used as a complete substitute for a writ
of error or an appeal, and that by virtue of it, errors
in ruling upon the law and the evidence in the progress
of the trial, and in the application of the law to the faets
in the rendition of the judgment, may be corrected.
This is a grave misapprehension. The office of the writ
is only to bring before the court awarding it the record
of the proceedings of the inferior tribunal, and the
judgment must either be that the writ be quashed and
a procedendo awarded, or that the record of the pro-
ceedings be quashed. * * * The rulings of the court
upon the law and the evidence in the progress of the.
trial and in the application of the law to the facts in
the rendition of the judgment, cannot be reviewed in
this manner. We can only inquire, where a return is
made to the writ bringing the record before us, whether
the inferior court had jurisdiction, and proceeded le-
gally—that is, followed the form of proceeding legally
applicable in such cases,—and not whether it correctly
decided the questions arising upon the admission or ex-
clusion of evidence, the giving and refusing of instruc-
tions and other like questions during the progress of
the trial before the court and jury, and in the overrul-.

48 Harris v. Barber, 129 U. S. Rep. 314; Owens v. State, 27
366, 32 L. Ed. 697, 9 Sup. Ct. Wis. 456,

41
642 CERTIORARI.

ing of motions for new trials and in arrest of judgment,
and the rendition of judgment after verdict, etc. The
rulings of a court may be erroneous, and yet it may
have jurisdiction and proceed legally. If the position
of counsel for the petitioners were correct, the consti-
tutional and statutory limitations would be utterly use-
less, for in every case it would only be necessary to sue
out a certiorari to bring all the rulings of the inferior
court before the appellate court for review. Where
decisions upon questions of law and fact arising dur-
ing the progress of the trial or in the rendition of the
judgment, other than such as relate to the question of
jurisdiction or the legality of the proceedings, are re-
viewable upon certiorari, it is by virtue of some stat-
ute which has no existence in this state.*®

Where it was sought by means of the writ to review
the action of a court of justice of the peace in overrul-
ing a plea of former conviction, it was said: ‘‘This was
obviously no error, if error it was, going to the juris-
diction of the justice, and therefore not a matter to
be inquired of upon the common-law writ of certiorari,
which reaches only jurisdictional defects. The remedy
for such errors or mistakes is by appeal. The doctrine
has long been settled in this state (Wisconsin), that,
when the party aggrieved has any other remedy, it is
only errors and abuses going to the jurisdiction which
will be examined upon this writ.’’ *°

Such is the rule in West Virginia. It was there stated:
‘‘That although the general rule is that inquiry will
be made into only such errors and defects as go to the
jurisdiction of the court below, and that for all other
errors or irregularities the party must resort to his

49 Hamilton v. Harwood, 113 50 Owens v. State, 27 Wis. 456.
Til. 154.
SCOPE OF THE WRIT IN GENERAL. 643

remedy by appeal or writ of error, yet if the inferior
tribunal proceeds in a summary manner, and not ac-
cording to the course of the common law, and there is
no remedy by appeal or writ of error, the court will
consider other than jurisdictional questions.’’ *4

Under the California practice act, which was in force
in 1860, and was held to be merely an affirmance of the
common law, it was said: ‘‘That a common-law writ
tries nothing but the jurisdiction, and incidentally the
regularity of the proceedings upon which the jurisdic-
tion depends. Under no circumstances can the review
be extended to the merits. Upon every question except
the mere question of power, the action of the inferior
_tribunal is final and conclusive.’’ >?

It might be said that the New York courts at first
gave a more extended application to the writ. It was
stated that the superior court had the power at com-
mon law to review the proceedings of all inferior tri-
bunals to pass upon the jurisdiction of such tribunals,
and to review all legal decisions made by them, but not
their determinations upon questions of facts, which are
conclusive.®*

The court had under consideration the proceedings
of a tribunal other than a court; and such is the rule
in most jurisdictions with respect to a review of their
proceedings. It was subsequently stated that the main
object of the writ was to confine the action of inferior
officers within the limits of their delegated powers.**

The court evidently did not intend to declare that
the legal decisions of an inferior court could be thus
reviewed.*®

51Poe v. Marion Machine 53 Starr v. Trustees, 6 Wend.
Works, 24 W. Va. 517. 564.

52 Whitney v. Board of Dele- 54 People v. Goodwin, 1 Seld.
gates, 14 Cal. 479. 568, 5 N. Y. 572.

55General expressions to the
644 CERTIORARI.

The supreme court of the United States state the
purpose of the writ to be that stated by the Wisconsin
court, when applied to inferior courts, and the same
reason is given. Thus they say: ‘‘As an appeal lies
from the judgment of the justice of the peace, his pro-
ceedings cannot be quashed by writ of certiorari, unless
for want of jurisdiction appearing on the face of the
record.’’ 56

The difficult question, and one with respect to which
courts are not agreed, is as to the extent of the inquiry,
to determine the question of jurisdiction. The argu-
ment advanced by the New York court is that as the
main object of the writ is that above stated, to wit, ‘‘to
confine the action of inferior officers within the limits
of their delegated powers,’’ the reviewing court must
necessarily re-examine, if required, the decision of the

effect that the writ will lie to
review irregularity in the pro-
ceedings of inferior tribunals
and errors of law therein have
frequently been made, yet in all
such cases the court had under
consideration proceedings of of-
ficers, not of courts. Such were
Susquehanna Bank vy. Super-
visors, 25 N. Y. 312; Baldwin v.
Buffalo, 35 N. Y. 380; Swift v.
Poughkeepsie, 37 N. Y. 511;
People v. Assessors, 39 N. Y. 81;
People v. Assessors, 40 N. Y.
154; People v. Supervisors, 51
N. Y¥. 442; People v. Allen, 52
N. Y. 588. The New York court,
in a later case, makes the dis-
tinction herein stated, and re-
ferring to the cases cited state:
“It is thugs seen that the office
of a common-law writ of cer-
tiorari has been somewhat en-
larged since the decision of the
30th New York (People v. Com-

missioners of Highways, p. 72).
But it will also be seen that it
is in cases. where the relator has
no other available remedy, and
where injustice would be done
if the writ was not permitted to
do its work.” The rule still re-
mains unimpaired, at least in
principle, that where there is a
remedy by appeal the writ will
be confined to its original and
more appropriate office, which
was said to be to bring up the
record of the proceedings of an
inferior court or tribunal to en-
able the court of review to de-
termine whether the former has
proceeded within its jurisdic-
tion, and not to correct mere
errors in its proceedings. Peo-
ple v. Betts, 55 N. Y. 600.

56 Harris v. Barber, 129 U. S.
366, 32 L. Ed. 697, 9 Sup. Ct.
Rep. 314. To the same effect is
Gaither v. Watkins, 66 Md. 576.
SCOPE OF THE WRIT IN GENERAL. 645

magistrate on all questions on which his jurisdiction
depends, whether of law or fact. That inferior mag-
istrates, when required by writ of certiorari to return
their proceedings, must show affirmatively that they
had authority to act, and when their authority and ju-
risdiction depends upon a fact to be proved before
themselves, and such fact be disputed, the magistrate
must certify the proofs given in relation to it, for the
purpose of enabling the higher court to determine
whether the fact be established.57
_ The statute of that state denied to commissioners of
highways the power to lay out a road through any
building without the consent of the owner. There was
a barn standing on the land laid out for the highway
in controversy, and unless the owner’s consent was
given the officers were without authority, and it was
with reference to this fact that the language of the
court was used.

The California court, while conceding that in many
cases it is held that the record alone can be regarded,
and that it is not the office of the writ to bring up the
evidence even upon a disputed jurisdictional fact, as-
sert that the cases are very numerous to the effect that
the review may be extended to every issue of law and
fact involved in the question of jurisdiction, and that
not only the record, but the evidence itself, when nec-
essary to the determination of this question, must be
returned, and adopt this latter rule as the most reason-
able, and in their opinion the true rule.**

The rule thus stated was that which had been adopted
in prior cases in New York and followed in others
since; in one where the question was whether consent
had been given to the construction of a highway

37 People v. Goodwin, 1 Seld. 58 Whitney v. Board of Dele-
568, 6 N. Y. 572. gates, etc. 14 Cal. 469.
, 646 CERTIORARI.

through an orchard,®® and another whether a road ter-
minated in a private inclosure so that it could not be a
public road,®° and has since been approved in Califor-
nia.®!

The great difficulty lies in applying the rule; yet it
cannot be said but that the rule is the same as that
which permits an attack upon judgments of courts by
other proceedings for want of jurisdiction. A decision
of the New York court of appeals is often mis-stated,
as holding that, upon a common-law writ to review sum-
mary proceedings by a landlord against his tenant, the
evidence as to whether the relation of landlord and ten-
ant existed could be reviewed, as that was a jurisdic-
tional fact. The fact is that the court make the excep-
tion in that case that the writ was statutory.®

The exact question was decided by the supreme court
of the United States, and to the effect that such ques-
tion could not be determined upon a common-law writ.
That errors of judgment in the exercise of jurisdic-
tion could not be thus reviewed. Want of jurisdiction
must appear from the record.

Ordinarily the return to the writ brings up the rec-
ord proper and not the evidence, where used to review
the proceedings of inferior courts. We meet with ex-
tremes when the writ is addressed to inferior tribunals.
In some jurisdictions the rule is applied that is stated
with respect to courts, while in others it is held, as we
have seen, that it is a part of the record, or may be con-
sidered to the extent of determining jurisdictional
facts, while in others the evidence may be brought up

59 People v. Dutchess County, 62 Benjamin v. Benjamin, 5 N.
23 Wend. 360. Y. 383.

60 People v. Van Alstyne, 32 68 Harris v. Barber, 129 U. S.
Barb. 1381. 366, 32 L. Ed. 697, 9 Sup. Ct.

61 Blair y. Hamilton, 32 Cal. Rep. 314.
49.
SCOPE OF THE WRIT IN GENERAL. 647

and reviewed, to the extent, at least, of determining
whether there is sufficient evidence—in some states lim-
ited to whether there is some evidence—to sustain the
judgment. The cases last stated must be influenced by
statutory enactments. They are referred to later.

§ 165. Ordinarily writ will not issue where there is an-
other adequate remedy.

The general rule is that certiorari will not issue
where there exists'a plain, speedy or adequate remedy,
and in some of the states such is the provision of their
statutes.*

What may constitute such a remedy so as to be ef-
fectual to exclude mandamus, is a question which has
received much of consideration by the courts, and is so
much dependent upon the facts of particular cases, that
the formulation of a general rule is not practicable
even if possible.

In the quotation made from Bacon, of the object and
purpose of the writ, it is stated, that its purpose was
“‘to the end that the party may have the more sure and
speédy justice,’? which must mean that he should not
be compelled to await in a proper case, the slow and
tedious methods prescribed in the ordinary course of
judicial trials. However, the practice in this country
has been quite uniformly settled, that the remedy by
appeal where a court of general jurisdiction, proceed-
ing according to the course of the common law, is an
adequate remedy, but not to that extent in all cases as
to such courts, when not proceeding in that manner.

64 Wardsworth v. Sibley, 38
Wis. 484; State ex rel. v. O’Neill,
104 Wis. 227, 80 N. W. 447; Ran-
som v. Cummings, 66 Iowa,
137, 23 N. W. 801; People v.
Betts, 55 N. Y. 600; Hillsboro v.
Smith, 110 N. C. 417, 14 S. EB.
972; State v. Circuit Court, 108

Wis. 77, 83 N. W. 1115; State v.
Plainfield, 60 N. J. L. 260, 37
Atl. 615; In re Tampa Subur-
pan Ry. Co., 168 U. S. 583, 42 L.
Ed. 589, 18 Sup. Ct. Rep. 177;
In re Huguley Mfg. Co., 184 U.
8. 297, 46 L. Ed. 549, 22 Sup. Ct.
Rep. 455.
648 CERTIORARI.

A remedy to be adequate, must be plain, speedy and
adequate in the ordinary course of the law. Such is a
provision of the California statute which is but a dec-
laration of the common law.

It has been held that a remedy by appeal or writ of
error is not an adequate remedy unless it is sufficient
to meet the necessities of the case.**

The mere right to sue an officer acting under a void
order, is not such a remedy as will preclude the writ.

The construction placed upon this term has been
fully stated in a chapter upon mandamus, conditions as
to the allowance of that writ being the same as respects
certiorari.

Almost universally an appeal or writ of error lies
from the judgments of a court thus proceeding as well
as in other cases within their original jurisdiction.
However, that fact is not conclusive as to the issue of
the writ. If such remedy is not adequate and cannot
be applied promptly, then the aggrieved party may in
. the discretion of the court, have the writ. The true
rule we think is as stated by the United States supreme
court: ‘‘That when sought as between private persons,
the general rule is that the writ of certiorari will be
granted or denied in the sound discretion of the court
on special cause or ground shown, and will be refused
when there is a plain and equally adequate remedy by
appeal or otherwise.’’ 7

§ 166. Allowance of writ when discretionary.

It is often stated the allowance of the writ is largely
discretionary. It is so generally held, in cases other
than where an adequate remedy is provided by appeal

65 State ex rel. v. Guinotte, Bank v. Rose, 4 N. Dak. 319, 58
156 Mo, 518, 57 S. W. 281, 50 L. N, W. 514, 26 L. R. A. 593.

L, A. 787. 8tIn re Tampa Suburban R.

.66 State ex rel. Enderlen State Co., 168 U.S. 583, 42 L. Ed. 589,
18 Sup. Ct. Rep. 455.
SCOPE OF THE WRIT IN GENERAL. 649

or otherwise, but where it is manifest that injustice
has been done, and no other adequate remedy exists,
and there is an absence of neglect on the part of the re-
lator quite generally the writ is a matter of strict
right.®

In Maine and Massachusetts and some other states
there is no discretion where the proceedings sought to
be reviewed were without jurisdiction, though injus-
tice was not done.®?

And such is the doctrine of the Wisconsin court. It
was urged that certiorari would not lie, as the city
charter gave a remedy by appeal, which was declared
to be exclusive. It was said by the court: ‘‘But as we
understand, this remedy by appeal is only given by the
charter as to matters within the jurisdiction of the com-
mon council. Certainly it was not designed to take
away the remedy by, writ of certiorari. The jurisdic-
tion of the circuit court to issue such writ is secured
by the constitution of the state, and of course cannot
be taken away by legislative action.’’ 7°

That the court had previously declared that ‘‘the
doctrine had long been settled in this state, that where
the party has any other remedy, it is only errors and
abuses going to the jurisdiction which will be examined
upon the writ.’’7

If it be true that such doctrine generally applies, with
the interpolation of the word ‘‘adequate’’ before rem-

68 Farrell v. Taylor, 12 Mich.
113; Gaither v. Watkins, 55 Md.
580; Wood v. Lewis, 80 Md. 126,
30 Atl. 610; Flourney v. Payne,
28 Ark. 87; Hyslop v. Finch, 99
IH. 171; People v. Board of Po-
lice, 82 N. Y. 506; ‘School
Trustees v. School Directors, 88
TH. - 100.

69 White v. County Commis-
sioners, 70 Me. 317; Bangor v.

County Commissioners, 30 Me.
270; Worcester & Nashua R.
Co. v. Commissioners, 118 Mass.
561.

7 State ex rel. v. Common
Council, 71 Wis. 502, 37 N. W.
809.

71 Owens v. State, 27 Wis. 456.
See also Tallmadge v. Potter, 12
Wis. 317.
650 CERTIORARI.

edy, to actions and proceedings in courts of general ju-
risdiction, not proceeding according to the course of
the common law, and to proceedings of tribunals other
than courts, then much of apparent confusion, .in the
cases is obviated and a general rule stated which in fact
does prevail in the majority of cases, to wit: That the
writ will issue in all such cases to test-or examine the
question of jurisdiction of inferior courts of limited
jurisdiction, notwithstanding there may be a remedy by
appeal, errors of law being excluded, such being held
jurisdictional by some courts in proceedings by trib-
unals other than courts.

Before the Maryland court it was argued that cer-
tiorari ought not to be allowed where the party has a
remedy by appeal or writ of error. In reply it was
stated that the court was not prepared to go to that ex-
tent. This much, however, they would say, ‘‘that as it
is a matter resting in the legal discretion of the court,
the writ ought not to be granted in any case where the
party has a right of appeal except for the purpose of
testing the jurisdiction of the tribunal below.’’ 7 :

Stated by the Maine court: ‘‘When the commission-
ers have no jurisdiction in a given proceeding, the court
has no occasion to exercise its discretion in the matter,
but on due presentation of the matter orders the writ
to issue at once, for in such case the action of the com-
missioners being without the authority of law, parties
aggrieved thereby have the legal right to have the pro-
ceeding quashed for the asking.’’

In most of the cases cited, the writ was not addressed
to any court, but to boards of commissioners. Yet it

72 Gaither v. Watkins, 66 Md. 73 Hayford v. County Commis-
580; Wood v. Lewis, 80 Md. 126, sioners, 78 Me. 158; Fairfield v.
30 Atl. 610. County Commissioners, 66 Me.

385,
SCOPE OF THE WRIT IN GENERAL. 651

would seem if there is any distinction it would be in
favor of the right to the writ where the proceedings
sought to be reviewed were those not had in organized
courts. The remedy by appeal from such boards is
much more prompt than is afforded in cases of appeals
from courts. Another distinction is that in appeals
from such boards, errors of law are generally review-
able, and the court’ can determine the whole contro-
versy. However, the remedy by appeal as being ade-
quate, is placed upon the same ground where proceed-
ings of courts and proceedings of tribunals other than
courts are involved, with the exception of inferior
courts of limited jurisdiction, such as justices’ courts,
where a remedy by appeal does not in most jurisdic-
tions preclude the writ.

TIl. Inrerion Courts or Limitep JurRiIspIcrion.

§ 167. In general.

It is not the purpose herein to include the federal cir-
cuit and district courts. They are in a sense courts of
limited jurisdiction, do not proceed according to tha
course of the common law, being purely creatures of
the statutes, which also is the source of their authority,
but only such inferior state courts not courts of record,
whose jurisdiction and the manner of its exercise is

prescribed by statute, such as justices’ courts, police
courts and the like.

It is said the object of the writ of certiorari is to con-
fine inferior tribunals within their jurisdiction, to pre-
vent them from exercising powers not delegated to
them, but not to correct every error they commit in ex-
ecuting the powers that are delegated.”*

The jurisdiction of a court of general jurisdiction

74 Tallmadge v. Potter, 12 Wis. 317; Stokes v. Knarr, 11 Wis.
389.
652

CERTIORARI.

will be presumed until the contrary appears, but jus-
tices courts, except in some states, being courts of in-
ferior and limited jurisdiction, jurisdiction must ap-
pear, both as to person and subject matter upon the
face of their proceedings, and will not be presumed.
This is elementary.”

It is also elementary that a justice of the peace must
keep strictly within the powers delegated to ‘him by law
and that his acts outside thereof are nullities.”®

Thus, where the statute requires an entry to be made
in his docket, and none appears, the omission is fatal
to his jurisdiction, as where the statute requires an en-
try upon his docket of the time when and the place to
which the cause is adjourned, and the record only dis-
closes the time, no presumption arises that it was at his
office."

So the record must show a service of the summons
and if it be silent as to service the judgment will be
void.78

It also must appear thereon, what the issue was; that
it was a matter within the jurisdiction of the justice.”

In some states such courts are declared to be courts
of record and consequently superior courts, with re-
spect to the presumption that applies, after jurisdic-
tion ‘once obtained, to the subsequent proceedings.

75 Jones v. Hunt, 90 Wis. 199,
63 N. W. 81; Clark v. Costello,
59 N. J. La 284, 36 Atl. 271;
Commonwealth v. Fay, 126 Mass.
235; Benson v. Dyer, 69 Ga. 190;
Barnes v. Holton, 14 Minn. 357;
White v. Thompson, 3 Oreg. 115;
Mudge v. Yaples, 58 Mich. 307,
25 N. W. 297; Rohrbrough v.
Reed, 57 Mo. 292; Allen v. Jack-
son, 86 N. C. 321; Kane v. Des-
mond, 63 Cal. 464.

76 Starry v. State, 115 Wis. 50,
90 N. W. 1014.

77 Brahmstead v. Ward, 44
Wis. 591; Mudge v. Yaples, 58
Mich. 307, 25 N. W. 297.

78 Robbins v. Clemmons, 41
Ohio St. 285; Kane v. Desmond,
63 Cal. 464.

7@ Jones v. Hunt, 90 Wis. 199,
63 N. W. 81.
SCOPE OF THE WEIT IN GENERAL. 653

Such is the doctrine in Vermont,®° Connecticut,*! Mis-
sissippi,*? Pennsylvania,®* Texas, and apparently in
Kansas.®>

Though not classed strictly as superior courts or
courts of general jurisdiction, the presumption applies
that jurisdiction once appearing, it continues until the

contrary appears. That in this respect the rule is the
same as is applied to judgments of courts of general
jurisdiction.®*

And such judgments are within the provisions of the
constitution and act of congress relating to the faith
and credit that shall be given to judgments of sister
states.27

in Michigan and Iowa it has been held that where it
appears that the parties were regularly brought into
court, no presumption could be indulged that the jus-
tice lost jurisdiction by any misstep afterwards.§7

Remedy by appeal does not preclude the writ.

The question of another adequate remedy is not in-
volved where certiorari is resorted to, to review the
judgments of justices’ courts, in those jurisdictions
where they are declared to be inferior courts of limited
jurisdiction. Certiorari, when so addressed, reaches

80 Wright v. Hazen, 24 Vt. 143.

81 Holcomb vy. Cornish, 8 Conn.
375; Fort v. Hoyt, 12 Conn. 491.

82 Stevens v. Mangum, 27 Miss.
481; Taggart v. Musi, 60 Miss.
870.

83 Cumberland Co. v. Boyd, 113
Pa. St. 52; Morgan v. Neville, 74
Pa. St. 52; Hazelett v. Ford, 10
Watts, 101. See, however, Graver
v. Fehr, 89 Pa. St. 460.

84 Williams v. Ball, 52 Tex.
603, 36 Am. Rep: 730; Holmes v.
Buckner, 67 Tex. 107.

85 Martin v. Gray, 19 Kan. 458.

86 Rowley v. Carron, 117 Pa.
St. 52.

87 Bissell v. Edwards, 5 Day
(Conn.) 363; Scott v. Cleveland,
3 Monroe (Ky.) 62; Stark-
weather v. Loomis, 2 Vt. 573;
Blodgett v. Jordon, 6 Vt. 580.

87a Schlatterer v. Nickodemus,
50 Mich. 315, 15 N. W. 489;
Smith v. Engle, 44 Iowa, 265;
Church y. Crossman, 49 Iowa,
444,
654 CERTIORARI.

only jurisdictional defects; errors and abuses going to
the jurisdiction of the court will be examined, notwith-
standing the party aggrieved has another remedy by
appeal or otherwise.®%

The fact is that appeals almost universally lie from
such judgments, and as universal is the remedy by cer-
tiorari recognized and applied, which precludes any
assumption that certiorari is precluded by other rem-
edies.

It is stated: ‘‘It by no means follows because a judg-
ment may be removed from a justice of the peace by
appeal, that it cannot be challenged by certiorari.
Many situations might be suggested where a justices’
judgment would be held void and subject to reversal
on certiorari for jurisdictional defects, yet, the way be
open to remove the cause to a higher court by appeal.
If the latter method in such a situation be resorted to,
it will not reach the jurisdictional defect, but will waive
it. Upon the theory of the attorney general, a person
against whom an illegal judgment is rendered in jus-
tices’ court cannot have it judicially condemned for the
illegality since he may appeal and have the cause re-
tried, notwithstanding that course would waive the
jurisdictional defect, that is, a person so circumstanced
cannot have relief except by waiving the very defect of
which he complains. The mere statement of the prop-
osition renders argument to demonstrate its unsound-
ness unnecessary. It was held certiorari was the ap-
propriate remedy.®® .

As stated by another court: ‘‘He appeals from the
frying pan to the fire.’’ °°

88 Owens v. State, 27 Wis. 456; 89 Starry v. State, 115 Wis. 50,
Starry v. State, 115 Wis. 50, 90 90 N. W. 1014.
N. W. 1014. 90 Coburn v. Mahaska County,

4G. Gr. (Iowa) 242,
SCOPE OF THE WRIT IN GENERAL. 655

§ 168. Distinction between courts of general and in-
ferior courts of limited jurisdiction.

The true test to determine whether a court is one of
general or inferior jurisdiction, with respect to the pre-
sumptions which attach to their judgments, is said to
be whether a court of record or not of record.*+

The subject was discussed at great length in Grigu-
ous Lessee v. Astor,®!# in reference to a decree of a pro-
bate court, and the conclusion reached that its records
were a verity to the same extent as those of courts of
general jurisdiction. The rule declared was that all
courts of record, which have an original general juris-
diction over any particular subject are not courts of
special and limited jurisdiction; they are not inferior
courts in the technical sense of the term, merely per
cause an appeal lies from their decision.

The New Jersey court undertakes to define what is
meant by the term ‘‘limited jurisdiction.’’ First they
state the term is ambiguous, and again that courts use
it indiscriminately in place of special. Then the opin-
ion is expressed that the true distinction between courts
is such as possess a general and such as have only a
special jurisdiction for a particular purpose, or clothed
with special powers for the performance of specific du-
ties, beyond which they have no manner of authority,
and these powers to be exercised, in a summary way,
either by a tribunal already existing for general pur-
poses, or by persons appointed or to be appointed in
some definite form. It classifies boards of commission-
ers and the like as such, which we have classified as in-
ferior tribunals, and state that unless their proceedings

91De Vaughn v. De Vaughn, Brinkerhoff, 2 Scam. (I1L) 269;
19 Gratt. (Va.) 566; 'Grigon’s Taylor v. Barron, 30 N. H. 78,
Lessee v. Astor, 2 How. (U. S.) 64 Am. Dec. 281.

319, 11 L. Ed. 283; Baubien v. o1a 2 How. 319.
656 CERTIORARI.

on their face show a compliance with the directions re-
quired by statute under which they aet, it never could
be known whether they acted within their jurisdiction
or exceeded it. But they say the orphan’s court is not
organized for a single purpose. It has a general ju-
risdiction as broad as the common pleas or circuit
court, or perhaps the supreme court itself, exclusive
of its appellate and superintending authority. It pos-
sesses no attribute of a special court for one purpose
only, but a jurisdiction for the general administration
of justice within certain departments. That its decrees
are entitled to every presumption in favor of their reg-
ularity, that the judgments of the supreme court are en-
titled to and such as must be considered legal until
reversed by due course of law.®? -

In California it was held that the superior court of
San Francisco, though created and its power defined
by statute, and its jurisdiction limited (though only in
respect to territory and subjects), but general in re-
spect to matters conferred, was in the sense which we
are considering, a court of general jurisdiction.®

The distinction is very important to be observed as
certiorari only brings up the record for review, and the
question of jurisdiction is determined from it alone,
therefore if the record is silent in the one case, juris-
dietion is presumed, while in the other, the want of it.

It will be found, however, that the fact of a court
even of limited jurisdiction, is a court of record, is not
conclusive upon the question that jurisdiction is pre-
sumed with respect to those matters which are made by
statute conditions precedent to the exercise of its ju-

e2 Obert v. Hamel, 3 Harr. 73. Savings Institution, 46 N. J. L.
See also Clark v. Costello, 59 N. 229.

J. L. 234, 36 Atl. 271; Plum vy. 98 Vassault yv. Austin, 36 Cal.
691.
697

SCOPE OF THE WRIT IN GENERAL.

risdiction, even where in respect to the matters pecu-
liarly within their jurisdiction they may be considered
as courts of general jurisdiction. It may be the doc-
trine of some courts, and so prevails in New Jersey,
but not so generally.

§ 169. Probate courts.

There is much diversity of opinion as to the charac-
ter of probate courts, sometimes designated differently,
whether superior, limited or inferior. In New York
the surrogate court (a probate court) is held to be not
an inferior court, but a court of limited jurisdiction.
And courts clothed with the same powers have been so
classed in Maine,®* Massachusetts,®* Mississippi,*? Ver-
mont,®8 Wisconsin; °%® while in Arkansas,’ California?
Pennsylvania (by statute a court of record),? Ala-
bama,t New Jersey,® Texas,® and Missouri,’ they are
classed as superior courts. _

It by no means follows from such classification that
where the record is silent, that the judgment is closed
against direct attack by certiorari, on the ground of

%Roderigas v. East River
Savings Institution, 76 N. Y.
316, 32 Am. Rep. 309; Corwin v.
Merritt, 3 Barb. 341.

9 White v. Riggs, 27 Me. 114.

96 Sigourney v. Sibley, 21 Pick.
101, 32 Am. Dec. 248; Chase v.
Hathaway, 14 Mass. 222.

‘97 Enos v. Smith, 7 Smedes M
85.

98 Hendrick v. Cleveland, 2 Vt.
329.

29 Royston, Appeal of, 53 Wis.
612, 11 N. W. 86; Chase v. Whit-
ing, 30 Wis. 544.

1 Fleming v. Johnson, 26 Ark.
421,

42

2 Burroughs v. De Couts, 70
Cal. 361.

3 McPherson v. Cunliff, 11 S.
& R. 422, 14 Am. Dec. 642;
Frank v. Groff, 14 S. & R. 181;
Herron v. Datur, 120 U. S. 464,
30 L. Hd. 748, 7 Sup. Ct. Rep.
620.

4Barclift v. Freece,
528.

5QObert v. Hammel, 3 Harr.
73; Clark v. Costello, 59 N. J. L.
234, 36 Atl. 271.

6Genlford v. Iowa, 49 Tex.
715.

7 Zwerbaugh v. Hawkins, 82
Mo. 180.

77 Ala.
658 CERTIORARI.

want of jurisdiction. In some courts it appears they
are so conclusive, while in others they are not. They
are merely at most conclusive against collateral attack.
Thus in Wisconsin, county courts, when exercising pro-
bate jurisdiction, are courts of record.’

Yet in matters of administration of estates, where
notice is required, it is essential to jurisdiction and
must appear of record to have been given.®

So with respect to proceedings in guardianship, they
are purely statutory involving rights of both person
and property, and the statute must be strictly followed
or the court will not obtain jurisdiction, and full com-
pliance must appear on the face of the proceedings.’°

The general rule, except in states, some of which are
hereafter mentioned, undoubtedly is, that where such
court in the exercise of its general powers, acquires ju-
risdiction in the manner required by law, thereafter as
to subsequent proceedings, with the exception of such
as the statute specially directs, in respect to notice, the
presumption applies that the powers conferred upon
the court are rightfully exercised.

That therefore the presumption that is withheld from
such courts is only that which is withheld from superior
courts when jurisdiction is to be exercised in a special
manner outside of the course of the common law or out-
side of the ordinary manner conferred while in the ex-
ercise of its general jurisdiction.

The record must disclose conformity to conditions
precedent imposed. Such in effect is the declaration of

8 Chase v. Whiting, 30 Wis. 11 Bond v. Merkle, 46 Ind. 96;
544, Smith v. Engle, 44 Iowa, 265;
9Mohr y. Tulip, 40 Wis. 66; Church v. Crossman, 49 Iowa,
Mohr v. Porter, 51 Wis. 487, 8 444; Brown v. Wood, 17 Mass.
_N. W. 364; Royston’s Appeal, 53 68; Miller v. United States, 11
Wis. 612, 11 N. W. 36. Wall. 268; Galpin v. Page, 18
10 Royston’s Appeal, 53 Wis. Wall. 350, 21 L. Hd. 959.
612, 11 N. W. 36.
SCOPE OF THE WRIT IN GENERAL. 659

the courts of New York,!? Iowa,!? Massachusetts,!* the
federal courts, Indiana,!* and Maine.!7

In New Jersey the conclusive presumption extends to
prerequisite conditions, essential to jurisdiction, such
as petitions, notices and the like; and where the record
is silent, it will be conclusively presumed that the court
had before it and passed upon all such matters.1® And
the same is the doctrine of the Texas court.!®

It appears that the supreme court of Arkansas make
no distinction with respect to courts of limited jurisdic-
tion as to the conclusive effect that attaches to their
records and recitals. It is held that a probate court
is a superior court under the law, whose jurisdiction is
obtained over the estate of the decedent as well as of
the person of the administrator, by the grant of letters
of administration, although previous notice of some of
the steps to be taken in the course of administration
is required by the statute; that the neglect to observe
these requirements does not render the judgment or
orders void, but voidable merely. That it is not neces-
sary that jurisdictional facts should appear of record
in such a court, for the reason stated, to wit, that such
court is a court of general jurisdiction, and hence evi-
dence outside of the record cannot be heard to contra-
dict the presumption which attaches to the silent rec-
ord.2° ,

12 Sheldon v. Wright, 1 Sel- 17Penobscot R. R. Co. v.

don, 497; Sibley v. Waffles, 16
N. Y. 180.

13 Smith v. Engle, 44 Iowa,
265; Church v. Crossman, 49
Towa, 444.

14 Brown v. Wood, 17 Mass. 68.

15 Veach v. Rice, 131 U. S. 293,
33 L. Ed. 163, 9 Sup. Ct. Rep. 730.

16Gavin vy. County of Wells,
104 Ind. 201, 3 N. E. 846; New-

_Maan vy. Manning, 89 Ind. 422.

Weeks, 52 Me. 456.

18 Clark v. Costello, 59 N. J. L.
234, 36 Atl. 271; Plum v. Sav-
ings Institution, 46 N. J. L. 229.

19 Martin v. Robinson, 67 Tex.
368, 3 S. W. 550.

20 Boyd v. Roane, 49 Ark. 397,
5 S. W. 704; Borden v. State, 11
Ark, 519, 54 Am. Dec. 217.
660 CERTIORARI.

In Massachusetts it is held, that like the ecclesiastical
courts of Great Britian, probate courts are a court of
peculiar jurisdiction, having a separate and exclusive
jurisdiction over an important class of subjects. Such
courts proceed according to the civil law; their juris-
diction is separate and distinct from that of the com-
mon-law courts, and the fact that they proceed accord-
ing to the course of the civil law does not bring them
within the provision allowing certiorari to such juris-
dictions as do not follow the course of the common
law.?!

In that:state the court acts as a supreme court of pro-
bate, and the common-law courts as such have no con-
trol over their proceedings, and cannot review their de-
cisions.2? .

§ 170. Statutory courts.

With respect to statutory courts, the rule is that
when a court is created by the legislature, with partic-
ular powers expressly conferred, the record of their
proceedings must affirmatively show a compliance with
the statutory requirements and that as to such matters
favorable presumptions will not be indulged in.?*

It is held in Massachusetts police courts in receiving
complaints and issuing warrants for the sale of intox-
icating liquors illegally kept, proceed according to the
course and the principles of the common law. Police
courts are courts of record of common-law jurisdiction,
civil and criminal in that state.2*

21Peters v. Peters, 8 Cush.
((Mass.) 529. See also Frazer v.
Fulcher, 17 Ohio, 200; Massachu-
setts Life Ins. Co. v. Elliot, 24
Minn. 134.

22 Peters v. Peters, 8 Cush.
529.
23 Harrington v. People, 6

Barb. 607; Wightman vy. Kanner,

,

20 Ala. 446; Swain v. Chase, 12
Cal. 283; Kane v. Desmond, 63
Cal. 464; Joiner v. Winston, 68
Ala, 129; Striker v. Kellogg, 7
Hill. 9; Taylor v. Barron, 30 N
H. 78, 64 Ann. Dec. 281; Taylor
v. Barron, 34 N. H. 484.

24 Lynch vy. Crosby, 134 Mass.
313.
SCOPE OF THE WRIT IN GENERAL. 661
IV. Trisunats, Orricers anp Boarps Exercising
Quasi Jupicia, Functions.

’

f§ 171. General rule.

It is a well settled principle that the common-law
writ of certiorari issues to review only the decisions of
inferior judicial or quasi judicial tribunals.?®

A common-law certiorari is in the nature of an ap-
peal from the judgments and judicial determination of
inferior tribunals and officers acting under statutory
authority, or when the proceeding is not aceording to
the common law. The writ lies only to inferior courts
and officers exercising judicial powers affecting the
property or rights of the citizen, and is directed to the
court, magistrate or board exercising such powers re-
quiring them to send into the superior court from which
the writ issues, the proceedings in a cause, and ordi-
narily in a matter already terminated.?*

The jurisdiction of inferior magistrates and officers
exercising judicial powers is always open to review
upon a writ of certiorari.?”

A distinction is again to be observed. between the ex-
ercise of functions that are judicial and proceedings
which are judicial in character. A familiar illustration
is that of the condemnation of land for public purposes.
Tt is said the proceedings to condemn lands, although
made under the railroad laws subject to judicial review
and supervision for certain purposes are not in them-
selves and never have been regarded as judicial pro-
ceedings. The inquiry is an appraisal of values and

25 People ex rel. v. Williams, rel. v. Supervisors, 153 N. Y.
185 N. Y. 92; People ex rel. v. 370, 47 N. E. 790.
Board of Health, 140 N. Y. 1, 35 26 People ex rel. v. Walters, 68
N. E. 320, 23 L. R. A. 481; Peo- N. Y. 403.
ple ex rel. v. Supervisors, 131 N. 27 People ex rel. v. Walters, 68
Y. 468, 30 N. E. 488; People ex N. Y. 403.
662 CERTIORARI '

not a contest of litigious rights and includes what is
not elsewhere included, an inquiry into the necessity of
the proposed taking for public purposes which are
never made by courts, but always heretofore by the leg-
islature or some unjudicial body of its creation.?®

It was held that the appropriate remedy to review
such proceedings was by certiorari; that mandamus
would not lie.?°

The supreme court of California, however, but not
with respect to the particular proceeding, that of con-
demnation of land, generally disagrees with the Mich-
igan court. It is there held that the officer or trib-
unal to whom the writ is issued, must be an inferior
officer or tribunal exercising judicial functions and the
proceeding brought up for review must be a judicial
proceeding.*°

‘

§ 172. Executive legislative and ministerial acts not
subject to review.

Official acts, executive, legislative, administrative or
ministerial in their character or nature, are not subject
to review by the common-law writ of certiorari.3+

The difficulty in treating this branch of the law of
certiorari is to determine what acts are judicial or
quasi judicial as distinguished from those that are ex-
ecutive, legislative, administrative or ministerial. By
some courts the test has been declared to be the exer-
cise of judgment and discretion. That where a duty is

28 Toledo A. A. & G. T. Ry. Vv.
Dunlap, 47 Mich. 456, 11 N. W.
271; Hartz v. Murfin, 164 Mich.
231, 129 N. W. 25.

29 Hartz v. Murfin, 164 Mich.
231, 129 N. W. 25.

30 People v. Bush, 40 Cal. 344,

81 People ex rel. v. McWill-
jams, 185 N. Y. 92; Brown v.

San Francisco, 124 Cal. 274, 57
Pac. 82; Carr v. State, 98 Ga. 89,
27 S. E. 148; Devlin v. Dalton,
171 Mass. 338, 50 N. E. 632, 41
L. R. A. 379; State v. Harrison,
141 Mo. 12, 41 S. W. 971; State
v. Timme, 70 Wis. 627, 36 N. W.
325; People ex rel. v. Bush, 40
Cal, 344.
SCOPE OF THE WRIT IN GENERAL. 663°

imposed by law on an inferior court tribunal or officer,
in the performance of which there is no discretion to be
exercised, action in the performance of such duty is
ministerial, but where the law imposed a duty in the
performance of which the tribunal, board or officer is
required to exercise judgment and discretion, such ac-
tion in its nature is quasi judicial. The distinction be-
tween a legislative and judicial act was stated by Field
J., i the Sinking Fund Cases *1# to be well defined:
“The one determines what the law is and what the
rights of the parties are, with reference to transactions
already had; the other prescribes what the law shall
be in future cases arising under it. Whenever an act
undertaken to determine a question of right or obliga-
tion or of property as the foundation upon which it pro-
ceeds, such act is to that extent a judicial one and not
the proper exercise of legislative functions.’’ ‘

The fault with these general statements is that they
are not sufficiently comprehensive.

The question was raised and decided by the New
York court of appeals as to the meaning of the word
‘‘judicial’’ as used in this connection. It is stated, ‘‘it
is used in judicial literature in opinions and text books
in two distinctly different senses. That the action of
an administrative or executive officer or board may in-
volve the exercise of judgment, and their action is quite
often termed judicial. That the word when so em-
ployed is in an entirely different sense from that which
is meant when applied to the acts of judges, as judicial
officers, and the fact that public officers or agents ex-
ercise judgment and discretion in the performance of
their duties, does not make their action judicial in char-
acter, so as to subject it to review by certiorari.’’ *

31a 99 U. S. 700, 25 L. Ed. 496. Health, 140 N. Y. 1, 35 N. E. 320,

32 People ex rel. v. McWill- 23 L. R. A. 481; People ex rel. v.
jams, 185 N. Y. 92. See also Brady, 166 N. Y. 44, 59 N. E. 701.
People ex rel. v. Board of
664 CERTIORARI.

Stated by another, the exercise of judgment is not
the criterion by which a proceeding must be viewed,
to determine its character. To render it the exercise
of a judicial function, its judgment must act in a mat-
ter which is judicial.2*

And by another: The fact that it requires skill and
involves judgment and discretion will not give the act
a judicial character. That it is impossible to conceive
of any ministerial duty to be performed by an officer
that may not be, that is not, accompanied by circum-
stances which require the exercise of judgment and dis-
cretion.*4

It must be true that where an officer is required to
act upon evidence, such act is judicial, and it. may be
that an act is judicial when the officer or board is re-
quired to act upon physical evidence only. Boards of
commissioners and those having like powers are au-
thorized to determine the necessity for laying out pub-
lic ways. The exercise of this power is judicial. The
board of necessity must consider many questions to ar-
rive ata conclusion. It may not require the considera-
tion of oral testimony, yet the board must necessarily
eonsider physical facts and conditions. of which they
obtain knowledge by observation or otherwise.®*

In Michigan it was held the action of a board of su-
pervisors in discontinuing a road was legislative in
character.3¢ |

An order of a board of supervisors creating a swamp
land district under the California statute, was held to
be legislative in character.37 And as well the action of
the board in the matter of directing a supplemental

33 People v. Board of Hduca- 8¢ People v. Board. of Super-
tion, 54 Cal. 273. visors, 38 Mich. 642.

84 McCord v. High, Peck, J., 24 37 Williams v. Sacramento
Iowa, 330. County, 65 Cal. 160.

36 Parks v. Boston, 8 Pick. 218,
19 Am. Dec. 322.
SCOPE OF THE WRIT IN GENERAL. 665

assessment, the appointment of commissioners to make
it, and the subsequent rescission of the order.*®

The appointment of police officers by the municipal
authorities of a city is not a judicial proceeding. It is
an important duty, and like most administrative duties.
involves the exercise of judgment and discretion, but
it is administrative and not judicial in character. No
one has the right to be heard and their decision is not,
within the meaning of the law, an adjudication or de-
termination of any question or the rights of any par-
ties.29

§ 173. Judicial and nonjudicial acts.—Appointment
and removal of officers.

It is generally held that the appointment of public
‘officers by municipal authorities or other power is ad-
ministrative and not judicial.*? But the power to re-
move officers for cause is judicial.“

It. was, however, held in New York in-an early case
that the appointment of a constable and three justices
of the sessions was the exercise of judicial power.*?

It was stated in the latter case that whenever the
rights of an individual are infringed by the acts of per-
sons clothed with authority to act, and who exercise
that authority illegally and to the injury of an individ-
ual, the person injured may have redress by certiorari.
The proceedings of a municipal board in determining
as to the eligibility of one of their number is judicial.‘#

38 Bixler v. Sacramento Coun- 41 Macon v. Shaw, 16 Ga. 172;
ty, 59 Cal. 698. State v. Duluth, 53 Minn. 238,
39 Attorney General vy. North- 60 N. W.546,39 Am. St. Rep. 595.
ampton, 143, Mass. 589, 10 N. E. 42 Wood v. Peake, 8 Johns. 69;
450. Wildy v. Washburn 16 Johns, 48.
40 Attorney General v. North- 43 Board of Aldermen v. Dar-

ampton, 143 Mass. 589; People row, 138 Colo. 460.
v. Bush, 40 Cal. 344.
666 CERTIORARI.

Boards of audit, proceedings.

Boards of audit are quasi judicial bodies for the pur-
pose of examination and settlement of accounts and
claims. In respect to such matters, the character of
their act is judicial.

The allowance and settlement are an adjudication
of the claim; an act which affects the right of parties.

Boards of health, acts of.

Boards of health ordinarily have the power confer-
red upon them to summarily remove or abate a public
nuisance. Yet itis held that their proceedings are not
subject to review by certiorari. Such a board is not
required to give any person a hearing before exercis-
ing its jurisdiction, and is not required to, and has no
power to call and swear witnesses, but may act upon
its own inspection and knowledge. Their determina-
tions are not final and conclusive upon the owners of
the premises where the nuisance is alleged to exist, as
to the existence of a nuisance. If it was, then the exer-
cise of such summary power could not be upheld. Their
determination that certain conditions existing consti-
tute a nuisance does not make them a nuisance. It is
the actual existence of a nuisance which gives them ju-
risdiction to act. The board acts at its peril.**

Boards of county supervisors, proceedings.

There are many duties imposed upon boards of su-
pervisors which are legislative in character, and hence
their proceedings are not subject to review by certior-
ari. The creating subdivisions, such as towns, school
districts and the like, or dividing the same are in gen-
eral of such a character.*®

44People v. Board of Health, 45Lemont vy. Dodge County,
140 N. Y. 1, 35 N. E. 320, 23 389 Minn. 385, 40 N. W. 359;
L. R. A. 481; Yates v. Milwau- Moede v. Stearnes County, 43
kee, 10 Wall. 497, 19 L. Ed. 984. . Minn. 312, 45 N. W. 435; Christ-
SCOPE OF THE WRIT IN GENERAL. 667

The contrary was held by the Wisconsin court, but
on the ground that the action of the board was in direct
violation of a valid statute, and which provided that the
validity of any ordinance purporting to organize or set
off any town or to change the boundaries of any exist-
ing town or towns, may be tested by certiorari, brought
directly for the purpose of vacating such ordinance, in
a court of competent jurisdiction.**

There are other duties imposed on such boards,
which are judicial in character, for instance, acting
upon petitions for the reduction of taxes.*7

Acting upon a petition for the removal of a county
seat.*8

Acting upon petitions generally.*®

Such petitions are in the nature of evidence which
they must consider and upon which must be based their
determination.®°

The supreme court of Georgia, however, is not in ac-
cord with the foregoing proposition at least to the ex-
tent as stated. Thus, where a statute of that state pro-
vided for elections respecting fence and stock laws in
and for a single military district, but made no provi-
sion for a counter petition or for any contest or hear-
ing before the ordinary, it was held that the action of
the ordinary was purely ministerial and hence certio-
rari would not lie.®?

When acting as a board of audit, which is among
their functions in many states, their actions are judi-

lieb v. Hennepin County, 41 48 Herrick v. Carpenter, 54

Minn. 142.

46State ex rel. v. Forest
County, 74 Wis. 610, 43 N. W.
551; State ex rel. v. Town of
Manitowoc, 92 Wis. 546, 66 N.
W. 702.

47 Collins v. Davis,
256, 10 N. W. 643.

57 Iowa,

Iowa, 349, 6 N. W. 577.
49 Jordon v. Hayne, 36 Iowa, 9;
People v. Smith, 45 N. Y. 772.
50 Jordon v. Hayne, 36 Iowa, 9.
51 Meadows v. Taylor, 86 Ga.
804, 18 S. HB. 155.
668 CERTIORARI.

cial, but as there is usually provided a remedy by ap-
peal or other method of review, certiorari is rarely ap-
plied.*?

Also when acting as a board of equalization, their
duties are judicial in character and usually certiorari
will lie to review their action.®#

Highway commissioners; proceedings.

The writ is frequently used to review the proceedings
of highway commissioners, or those exercising the same
powers, in laying out, establishing, opening and vacat-
ing highways.**

In Massachusetts, Maine, New Hampshire and possi-
bly some other states, the doctrine is that the writ will
not lie in the case of a town highway laid out by select-
men and accepted by the town, to quash the proceed-
ings; that the proceedings of the town in such a case
may be examined and controverted in actions of tres-
pass quare clausum.**.

The same courts hold, however, that the writ will lie
as to proceedings of courts of sessions and of county
commissioners in laying out and establishing roads,**

sioners, 30 Mich. 490; Campau
v. Button, 33 Mich. 525; Vander-

82 Eldorado County v. Elst-
ner, 18 Cal. 144; Robinson v.

Supervisors, 16 Cal. 208.

53 Royce v. Jenny, 50 Iowa,
576. ;

64 Baker v. Runnells, 12 Me.
235; Longfellow v. Quimby, 29
Me. 196; Dwight v. Springfield,
4 Gray, 196, 98 Am. Dec. 525;
Dietrick v. Highway Com’rs, 6
Ill. App. 70; State v. Goodwin,
24 Wis. 286; Ex parte Keenan,
21 Ala. 558; People v. Brighton,
20 Mich. 57; Names v. Commis-

stolph v. Boylan, 50: Mich. 330,
15 N. W. 495; Morris v. Fergu-
son, 14 Wis. 266.

55Gay v. Bradstreet, 49 Me.
580, 69 Am. Dec. 272; Robbins
v. Lexington, 8 Cush. 292; Rob-
bins v. Bridgewater, 6 N. H. 524.

56 Longfellow v. Quimby, 29
Me. 196, 98 Am. Dec. 525; Gay |
v. Bradstreet, 49 Me. 580, 69
Am. Dec. 272; Robbins v. Lex-
ington, 8 Cush. 292.
SCOPE OF THE WRIT IN GENERAL. 669

and also to the mayor and aldermen of cities to remove
and review their proceeding on the location of ways.*”

It was said by the Massachusetts court that the
ground upon which it is held that the writ will lie in
the latter cases is that the powers of the mayor and
aldermen in such cases are like those of county com-
missioners and require no act or vote of the town.**

The distinction seems to be that, in the latter case
mentioned, the powers of the officers which they ex-
ercise are judicial. I do not find that the distinction
made by the courts referred to is recognized in other
jurisdictions; yet it is to be kept in mind that, in the
great majority of states, highways are not established
‘or accepted by vote of the inhabitants. In Michigan
it was stated that, where proceedings of town highway
commissioners were void, the owners of the lands ap-
propriated may treat them as being so, and bring tres-
pass when their occupation is disturbed; but that is
not as appropriate and suitable a remedy, as certio-
rari.5® :

The doctrine of the Massachusetts court further is:
The proceedings of county commissioners cannot be
impeached collaterally for errors not affecting their
jurisdiction; that the proper remedy is a petition for
certiorari, upon which any omissions or errors of
form may be cured by amendment, and-on which the
whole proceedings may be quashed if the errors are
such as demand it.®°

The court intimate at least, if they do not so decide,
that the failure to give sufficient notice of meetings

57 Parks v. Boston, 8 Pick. 218, 58 Robbins v. Lexington, 8
19 Am. Dec. 322; Robbins v. Cush. 292.
Lexington, 8 Cush. 292; Preble 59 Names v. Commissioners, 30
v. Portland, 45 Me. 241; Gay v. Mich. 489.
Bradstreet, 49 Me. 580, 69 Am. 60 Gilkey v. Watertown, 141
Dec. 272. Mass. 317, 5 N. E. 152, and cases

cided.
-670 CERTIORARI.

merely goes to the formality and regularity of the pro-
ceedings and record and does not affect the jurisdic-
tion of the commissioners. If the notice referred to
was prescribed by law, and its provisions were not com-
plied with it is evident upon all authority that the com-
missioners were without jurisdiction.. If the suff-
ciency of the notice was a matter of discretion, then
of course the jurisdiction of the commissioners was not
affected.

Municipal corporations; proceedings.—In general.

Like unto county boards of supervisors, the duties
of a common council of a municipal corporation, em-
brace such as are legislative, and others that are ju-
dicial. The regularity of proceedings by ordinance or
resolutions, under the right of eminent domain, open-
ing streets, constructing sewers, voting taxes, appoint-
ing officers and the like, it has been held, partake of
the character of legislative mes and hence not review-
able by certiorari.*!

And this may be the rule in so far as declaring the ne-
cessity for the improvements mentioned, the plans
thereof and the adoption of the ordinance or resolution
in respect thereto, but, with respect to subsequent pro-
ceedings under such an ordinance or resolution, if the
municipal authorities fail to follow the provisions en-
acted for their action, or exceed the powers conferred,
their action is subject to review by certiorari.

It is true that in most jurisdictions, an action in
equity will lie to enjoin the exercise of such illegal or
excess of power, although the supreme court of the

61 People v. Mayor, 2 Hill, 9; . 62 wing v. St. Louis, 5 Wall.
Dixon y. Cincinnati, 14 Ohio, 413, 18 L. Ed. 657.
240.
SCOPE OF THE WRIT IN GENERAL. 671

United States were of a contrary opinion; yet certiorari
may undoubtedly issue in the discretion of the court.®

It is stated by Judge Dillon in his work on Municipal
Corporations (sec. 926): ‘‘If an appeal be not given
or some specific method of review provided, the super-
ior common-law courts will on certiorari examine the
proceedings of municipal corporations, even though
there be no statute giving this remedy; and if it be
found they have exceeded their charter powers, or
have not pursued those powers, or have not conformed
to the requirements of the charter or law under which
they have undertaken to act, such proceedings will be
reversed or annulled. An aggrieved party is in such
case entitled to certiorari ex dibito justitiae.’’

Certiorari was held not the appropriate remedy to
review the action of a board of commissioners of a city
in giving their consent to the erection of a bridge across
a river, or in making a contract in respect thereto with
a street railway company. It is said, if they had the
power claimed to give the permission and enter into
the contract, they acted as public agents in the exercise -
of delegated governmental powers, and their action
was not reviewable upon certiorari. Their consent
bound only the state or the municipality, and could not
affect the rights of the relator. On the other hand, if
the park commissioners had no power in the matter,
their consent was a mere nullity, binding no one, and
affecting the rights of no one. The fact that a public
agent exercises judgment and discretion in the per-
formance of his duties, does not make his action or
powers judicial in character.**

63 Hwing v. St. Louis, 5 Wall. 64 People ex rel. v. Board of
413, 18 L. Ed. 657. Commissioners, 97 N. Y. 37.
672 CERTIORARI.

The validity of an ordinance requirmg the removal
of poles and wires of an electric light company, from
a street enacted by a municipal corporation, it was
held, could not be tested by certiorari. That the action
of its common council in enacting such an ordinance,
was legislative in character and not judicial.®

License; granting, refusing, revoking.

With respect to the granting of licenses by municipal
boards, in some jurisdictions it is held that their ac-
tion is judicial; in others the contrary is held. Thus,
in Massachusetts it is held that the proceedings in re-
lation to the granting of a ferry license are judicial;
hence certiorari will lie.**

In that case, however, there was a hearing upen pe-
tition. The supreme court of California, however,
held that the power to grant a ferry license was not
judicial; but this ruling was placed upon the ground
that the power was vested in the board of supervisors
—a political body—and hence was not judicial.** Later
they took occasion to correct their manifest error.®®

The granting of dram shop licenses was held in Mis-
souri a judicial act.®

The same was held in Rhode Island; but the statute
there forbids the granting of such licenses for certain
reasons and under certain conditions, and hence the
determination with respect to such reasons and condi-
tions is judicial in character.”

65,Greenville G. H. L. & P. Co. 69 State v. Heege, 37 Mo. App.
v. Greenville, 165 Mich. 1385, 130 338.
N. W. 333. 70 Rhode Island Soc. v. Bud-
66 Fay v. Petitioners, 15 Pick. long, 25 Atl. 657. In Minnesota
248. : , and North Carolina the con-

67 Chard vy. Stone, 7 Cal. 117. trary is held. State v. Lamber-
68 People v. Eldorado County, ton, 37 Minn. 362; Raleigh v.
8 Cal. 58. Kane, 2 Jones, 288.
SCOPE OF THE WRIT IN GENERAL.- 673
Proceedings, however, to revoke a license granted
are judicial and hence reviewable by certiorari.”

Land commissioners.

Judicial powers are not conferred upon commission-
ers of public lands by a statute which provides that
“in case of a sale of public lands made by mistake or
not in accordance with law, or obtained by fraud, such
sale shall be void and no certificate of purchase or pat-
ent issued thereon shall be of any effect, but the holder
of any such certificate or patent shall be required to
surrender the same to the commissioners. ’’ 7?

The-reason given is that the acts of the commission-
ers under the statute are not binding or conclusive
upon any one, but such powers are given to facilitate
the convenient transaction of business in the state land
department, and the exercise thereof is always subject
to review and correction in the courts in collateral ac--

tions.
Civil service and other commissions.

The determination of a municipal civil service com-
mission in classifying positions in the public service,
although involving the exercise of judgment, and dis-
cretion, is more of a legislative or executive character
than judicial or quasi judicial, and therefore is not re-
viewable by certiorari.

Such determination, however, is not final, but is sub-
ject to a limited and qualified judicial control to be ex-
ercised in a proper case by mandamus.”*

71 Gaertner v. Fond du Lac, 34
Wis. 497; Oshkosh v. State, 59
Wis. 425, 18 N. W. 324; State ex
rel. v. Tomah, 80 Wis. 198, 49
N. W. 753.

72Gough v. Dorsey, 27 Wis.
119; Gunderson v. Cook, 33 Wis.
551; State ex rel. Anderson y.

43

Timme, 60 Wis. 344, 18 N. W.
837; State ex rel. Anderson v.
Timme, 70 Wis. 627, 36 N. W.
325.

73 People ex rel. v. McWil-
liams, 185 N. Y. 92, overruling
People ex rel. v. Collier, 175 N.
Y. 196, 67 N. E. 309.
674 CERTIORARI.

Where, under a statute which provided that a per-
son holding a position subject to competitive examina-
tion in the civil service could be removed or reduced
in grade only after the reasons therefor had been stated
in writing, and filed with the head of the department,
and the person so removed given an opportunity to
make an explanation, it was held that the action of the
head of the department in removing the subordinate
was not judicial and was not subject to review by cer-
tiorari. It was reasoned that he was entitled to an
opportunity to make an explanation, and-this he had.
He was entitled to have the reasons for his removal
expressed in writing and filed in the department, and
this provision of the statute was complied with. He
was not entitled to be sworn or to introduce witnesses
with respect to the truth or merits of the reasons which
were assigned for his removal. He was not entitled
to a trial or judicial hearing, and manifestly there was
no trial or judicial hearing before the commissioner."

And where under a statute a commissioner was re-
quired to adopt plans and specifications for a public
improvement, to give public notice and a hearing to all
parties interested before final adoption of the plans
and specifications, it was held that the determination
of the commission sought to be reviewed was neither
judicial or quasi judicial and therefore not subject to
review by certiorari.

The New York court had previously determined that
the determination of the board of railroad commission-
ers granting the application of a railroad company for
a certificate of public necessity and convenience, was
reviewable by certiorari. That decision proceeded
upon the ground that the commissioners were author-

Zr People ex rel. v. Brady, 166 7 People ex rel. v. Feathers-

N. Y. 44, 59 N. E. 701, tonhaugh, 172 N. Y. 112, 64 N.
E. 802, 60 L. R. A. 768.
SCOPE OF THE WRIT IN GENERAL. ' 675

ized and required to take evidence, and all the parties
interested were entitled to notice and a hearing.”®

It was stated, however, later that the foregoing case
represents the farthest limit to which it had ex-
tended the rights of review of the acts of subordinate
officers by certiorari.77

The federal supreme court declares that the action
of the Virginia state corporation commission, created
by the constitution of that state, in fixing future rates
of transporting of passengers on railroads, is not ju-
dicial, but legislative.7®

The New York court of appeals, however, hold that
such determination is not controlling as to the powers:
and proceedings of the courts of that state. That the
function of rate making, and determining -what rates
are reasonable is judicial or quasi judicial in charac-
ter.79

That an order requiring two connecting street rail-
road companies to establish through rates and joint
rates and fixing the proportionate share of each com-
pany in such rates, made by the public service com-
mission after a hearing granted to such railroad com-
panies, is quasi judicial in character and hence subject
to review by certiorari.®°

Canvassing boards.
It is held in some jurisdictions that the acts of in-
spectors in rejecting ballots as defective, as well as
their subsequent canvass of the result, are ministerial

76 People ex rel. v. Commis- 79 Saratoga Springs v. Sara-
sioners, 160 N. ¥. 202, 54 N. E. toga, G. & EB. L. & P. Co, 191 N.
697. Y. 123; People ex rel. v. Willcox,”

77 People ex rel. v. McWil- 194 N. Y. 383.
liams, 185 N. Y. 92. 80 People ex rel. v. Willcox,

78Prentis v. Atlantie Coast 198 N. Y. 433.
line, 211 U. S. 210, 53 L. Ed. 150.
676 CERTIORARI.

rather than quasi judicial acts, and hence not review-
able by certiorari.*!

That mandamus is the proper remedy to compel a
board of canvassers to perform a plain duty under the
law which they have neglected or refused to perform.®?

Taxing officers and boards.—In general.

Upon certiorari the proceedings of boards and cor-
porate bodies in levying a tax may be reviewed and the
constitutionality of the legislative act under which the
proceedings were had may be inquired into and deter-
mined.®8

Assessors.

The acts and determination of assessors in valuation
of property has quite generally been considered as ju-
dicial in character. They are required ordinarily to
act upon the best information they can obtain, and
sometimes with respect to real property from actual
view. They certainly are required to act upon evi-
dence.®#

In Barhyde v. Shepard, 35 N. Y. 238, the court re-
views the several provisions of the statute relating to
the duties of assessors, both as to taxable property
and that which is exempt. They say: ‘‘As a rule all
buildings are taxable, and it is the duty of the assess-
ors to include them in the list; but if a particular build-
ing is claimed and is found to have been built for a
seminary of learning, it must be stricken from the list.

People ex rel. v. Cicott, 16 Mich.
283. See Mandamus.
83 State ex rel. v. Bell, 91 Wis.

81 State ex rel. v. Emerson,
187 Wis. 292, 118 N. W. 136;
State ex rel. v. McIntosh, 95

Minn. 243, 108 N. W. 1017; State
ex rel. v. Grace, 83 Wis. 295, 53
N. W. 444.

82 State ex rel. v. Grace, 83
Wis. 295, 53 N. W. 444;, People
“ex rel. v. Hilliard, 29 Ill. 420;

271, 64 N. W. 845; People v. Su-
pervisors, 82 N. Y. 275.

84 Buffalo & State L. R. Co. v.
Supervisors, 48 N. Y. 93; Swift
v. Poughkeepsie, 37 N. Y. 511.
SCOPE OF THE WRIT IN GENERAL. 677

The assessors hear the proof by the statement of the
claimants and decide whether the building was erected
for that purpose.’’ The court further illustrates, tak-
ing property of a corporation for an example. They
say: ‘‘Two propositions must be established before
them, one of fact, to wit: that they are an incorporated
company; another of law, that such an incorporation
is not liable to taxation on its capital.’? Again, cer-
tain classes of persons are under the law entitled to
certain exemptions. To determine who are within
those classes requires not only the exercise of judg-
ment, but a determination upon evidence. This evi-
dence usually involves difficult and nice questions both
of fact and law, but it is the duty of the assessors to
make the inquiries, to hear the evidence, and to deter-
mine the validity of the claim. Again, the law pro-
vides in some cases that debts owing may be deducted
from taxable property; also that a minister of the |
gospel is entitled to certain exemptions. In each and
all of these cases, say the court in the case last cited,
‘‘the action of the assessors is eminently judicial in its
nature. To administer oaths, to hear evidence, to
weigh its effect, to compare it with the law, and to de-
cide the question presented, are of the essence of ju-
dicial action.’’ The court further states: ‘‘That this
action (on the part of the assessors) is judicial is
clearly indicated by two expressions of the statute in
addition to those quoted. First, the names of all the
taxable inhabitants of the town, are to be ascertained
by the assessors upon ‘diligent inquiry.’ This implies
an examination and investigation of a judicial char-
acter, similar to that undertaken by a grand juror.
* * * ‘The other expression is found in section 9, in
which the assessors are directed to prepare an assess-
ment roll in which they should set down the details
pointed out, embracing names, quantity and value, and
678 , CERTIORARI.

this roll shall be prepared according to the best in-
formation in their power. They are to inform them-
selves; they are to ascertain by all means within their
reach, by oral statements, by written proof, by per-
sonal observation and judgment, are to reflect and con-
sider, and finally to adjudicate according to their best
information and prepare the roll accordingly.’’

The purpose of quoting so much at length from the
opinion in this case is twofold: First, as all the acts
on the part of assessors are not judicial (for instance,
making figures on the roll indicating a deduction and
making the deduction itself), to indicate generally what
are judicial; and second, as sustaining the definition
or test which we have stated of judicial action.

However the writ must be directed to them before
their action has been consummated and put beyond
their power of recall.85 .

The action of the city council or other body possess-
ing similar powers in passing upon a petition for the
reduction of taxes is judicial.®¢

So is the action of a board of supervisors acting as
a board of equalization.*”

The action of township trustees in calling an election
upon the presentation of a petition signed by one third
of the resident tax payers of the township, as provided
by law, for the purpose of having decided thereat a
proposition to vote a tax to aid in the construction of
a railroad, so far partakes of a judicial character as
that its legality may be determined in a proceeding of
certiorari.®*

The action of a county board of supervisors upon a

85 People ex rel. v. Walter, 68 8&7 Royce v. Jenny, 50 Iowa,
N. Y. 103. 676.

86 Collins v. Davis, et al, 57 88 Jordon vy. Hayne, 36 Iowa, 9.
.Jowa, 256, 10 N. W. 643.
b SCOPE OF THE WRIT IN. GENERAL. 679

petition presented for the removal of a county seat is
judicial.®

And quite generally as before stated, action taken
upon any petition is judicial in character. It is in the
nature of evidence which they must consider, and upon
which must be based their determination. The su-
preme court of Georgia, however, do not recognize this
rule, if it may be called such, to the extent at least
which it is stated. Thus, where the statute of that state
provided for elections respecting fences and stock law
in and for a single militia district, but made no pro-
vision for a counter petition, or for any contest or hear-
ing before the ordinary, it was held that the action of
the ordinary upon the petition presented was minis-
terial, and hence certiorari would not lie.®°

Boards of review and equalization.

The writ lies to bring up the proceedings of boards
of review. Their duties are clearly judicial and while
in certain matters they are clothed with a discretion,
yet that discretion must be exercised in the manner re-
quired by law, not arbitrarily, and against the evi-
dence.*?_ They cannot arbitrarily change the valuation
as presented by the assessors by raising the same;
nor to refuse to lower such valuation to correspond
with the uncontradicted evidence; %* nor value articles
in a different manner than or by law required; ** nor
value logs at the place where the mills are located at
which they are to be manufactured instead of where

457; Phillips v. Stevens Point,
25 Wis. 594; Milwaukee Iron

s9 Herrick v. Carpenter, 54
Iowa, 349, 6 N. W. 577.

90 Meadows v. Taylor, 86 Ga.
804, 13 S. E. 155.

91Milwaukee Iron Co. v.
Schubel, 29 Wis. 444, 9 Am. Rep.
591.

92 Wilson v. Hiller, 32 Wis.

Co. v. Schubel, 29 Wis. 444, 9.
Am. Rep. 591.

93 State ex rel. v. Lawler, 103
Wis. 460, 79 N. W. 777.

#4 Pennsylvania Coal Co. ‘Vv.
Porth, 63 Wis. 77, 28 N. W. 105.
680 CERTIORARI.

located, in the absence of the statement and affidavit
required by statute to permit assessment at the former
place.®®

Where, however, the determination of value is left
to the discretion of the board and they may in the ex-
ercise of that discretion raise or lower the valuation
placed upon the property of an individual, certiorari
will not lie to review a discretion so exercised.®®

With respect to proceedings instituted for the de-
termination and levy of taxes, the writ has been largely
used to review them. The writ lies to bring up the pro-
ceedings of town boards of review. The sworn state-
ments and examinations, where such are permitted by
law, are a part of the record where made, and will be
brought up by the writ, and all questions arising upon
the face of such record may be reviewed, and errors
of law appearing therein may be corrected.”

And the same rule applies to commissioners of
equalization where they exist by law, to equalize the
valuation between the different towns of a county.®®

Boards of review have no authority to act arbitrar-
ily and capriciously in determining the question of val-
uation. They must act upon the evidence submitted,
unless they are vested with a discretion and evidence
is not permissible, and if they ignore proper evidence
submitted and arbitrarily fix a valuation, their pro-
ceeding is void and will be reversed upon certiorari.”

The proceedings of boards and corporate bodies in

95 State ex rel. v. Bellew, 86
Wis. 189, 56 N. W. 182.

96 Smith v. Supervisors, 30
Towa, 531.

97 Milwaukee Iron Co. v. Schu-
bel, 29 Wis. 444, 9 Am. Dec. 591;
Knapp v. Heller, 32 Wis. 467;
People v. Hadley, 76 N. Y. 338;

State v. County Clerk, 59 Wis.
15, 16 N. W. 617.

98 State v. County Clerk, 59
Wis. 15, 16 N. W. 617.

99 Milwaukee Iron Co. v.
Schubel, 29 Wis. 444, 9 Am. Dec.
591; Knapp v. Heller, 32 Wis.
467.
681

SCOPE OF THE WRIT IN GENERAL.

levying a tax may be reviewed and reversed. if found
to be void. It has been said that great care should be
exercised in the issuance of the writ in such cases, and
that it is frequently refused on the ground of public
inconvenience. Upon such review the validity as well
as the constitutionality of the law under which the
board or officer assumes to act may be determined.'

In New York the writ was issued and directed to the
board of supervisors, but they had previously issued
the warrant to collect the taxes to the collector. It
was held that the jurisdiction of the supervisors and
the power of the board to change the roll terminated
with the levy of the tax and delivery of the tax roll
and warrant to the proper town officer; that neither
the tax roll nor warrant was before the court when
the judgment was rendered on the return of the writ,
and a direction to the board of supervisors to correct-
the roll or amend the warrant was wholly unavailing.”

1State v. Bell, 91 Wis. 271, 64
N. W. 845; People v. Super-
visors, 82 N. Y. 275.

2 People v. Supervisors, 82 N.
Y. 275. See, however, Goetzman
v. Whitaker, 81 Iowa, 257, 46 N.
W. 1058.

While in many states the
writ is used to review the pro-
ceedings of taxing officers,- the
supreme court of Michigan an-
nounce the doctrine that the
writ will not lie in that state in
such cases. No particular legal
ground is stated as the founda-
tion of this rule, but inferen-
tially, at least, it is upon the
ground of discretion. They state
that “the employment of the
writ in tax cases may be very
troublesome. The writ is one
easily obtained; a considerable

number of officers may allow it;
it is issued on no other consid-
eration than the allowance, and
the plaintiff incurs no responsi-
bility for consequent damages.
The writ when served is sup-
posed to remove the record into
the (superior) court, so that all
proceeding of the officers to
whom it is addressed are imme-
diately stayed.” They state an-
other reason why the allowance
of the writ is inexpedient, in
substance, “that the writ is not
a flexible remedy; all the court
can do is to quash or refuse to
quash the proceedings. If suit
in equity were resorted to, the
complaining party might be re-
quired, as a condition to any re-
lief, to do what under the cir-
cumstances appeared to be just;
682 CERTIORARI.

V. Wait Ancruuary To OTHER PRocEEDINGS.

§ 174. General review.

The writ is frequently used as ancillary, to other pro-
ceedings, to bring up the record, where such record
is necessary to a complete understanding of the case.

Thus, if a record is defective or incomplete, the er-
rors or omissions should be suggested and a certiorari
moved to bring up a correct record.

Such is the frequent use of the writ. In Ex parte
Yerger,** the power of the court and the use of the
writ were stated as follows: ‘‘In all cases where a cir-
cuit court of the United States has, in the exercise of
its original jurisdiction, caused a prisoner to be
brought before it,'and has, after inquiring into the
cause of detention, remanded him into the custody from
which he was taken, this court, in the exercise of its
appellate jurisdiction, may by the writ of habeas cor-
pus, aided by the writ of certiorari, revise the decision
of the circuit court, and, if it be found unwarranted by
law, relieve the prisoner from the unlawful restraint
to which he has been remanded.’’ It appeared that the
action sought to be revised was that of a tribunal whose’
decisions were subject to revision by the supreme court
in ordinary modes. A similar proceeding was that
adopted in Ex parte Lange.*” There the court was met

and if he is injured to the ex-
tent only of a part of the taxes,
he will be decreed to pay the re-
mainder.” Whitbeck v. Hudson,
50 Mich. 86, 14 N. W. 708.

8 Bx parte Jackson, 96 U. S.
727, 24 L. Ed. 877; Ableman v.
Booth, 21 How. 506, 16 L. Hd.
169; Ex parte Virginia, 100 U. S.
339, 25 L. Ed. 676; State v.
Gleen, 54 Mo. 610; State v. Neel,
48 Ark, 283; Ex parte Lange, 18
Wall. 163, 21 L. Ed. 872.

4Hudgins v. Kemp, 18 How.
530, 15 L. Ed. 511; Stearns v.
United States, 4 Wall. 1, 18 L.
Ed. 451; Sweeney v. Lommie, 22
Wall. 208, 22.L. Ed. 727; Mis-
souri, Kan. & Tex. R. R. Co. v.
Dinsmore, 108 U.S. 30, 27 L. Ed.
640, 2 Sup. Ct. Rep. 9.

4a8 Wall. 85, 19 L. Hd. 332, 2
Sup. Ct. Rep. 9..

4b18 Wall. 168, 21 L. Hd. 872.
SCOPE OF THE WRIT IN GENERAL. 683

with the objection that the United States supreme court
was without appellate jurisdiction to review the judg-
ment of the subordinate courts in criminal cases, and
Justice Clifford dissented from the opinion of the ma-
jority on this ground. It was said, however, that ‘‘the
authority of the supreme court in such case, under the
constitution: of the United States and the fourteenth
section of the judiciary act of 1789, to issue the writ,
-and to examine the proceedings in the inferior court,
so far as may be necessary to ascertain whether the
court has exceeded its authority, is no longer an open
question. Disclaiming any assertion of a general
power of review over the judgments of the inferior
courts in criminal cases, by the use of the writ of ha-
beas corpus or otherwise, we proceed to examine the
case as disclosed by the record of the circuit court and
the return of the marshal in whose custody the pris-
oner is found, to ascertain whether it shows that the
court below had any power to render the judgment by
which the prisoner was held.’’ It was said in In re
Martin, 5 Blatchf. 303, that ‘‘It is common practice for
courts to bring before them the evidence produced be-
fore the committing magistrate upon which the com-
mitment is founded; and when the evidence is reduced.
to writing in the form of a deposition, whether by the
committing magistrate or by other competent author-
ity. This is frequently done by certiorari in aid of ha-
beas corpus.’’? Thus the writ will lie in aid of habeas
corpus where such latter writ issues in the exercise
of original jurisdiction, as well as where it issues in
the exercise of appellate jurisdiction.®

It must be kept in mind that in some jurisdictions
the inquiry upon habeas corpus is more extended than
in others. That in many the only question determined

5In re Stupp, 12 Blatchf. 501.
684 CERTIORARI.

is that of jurisdiction, and this is determined from the
petition and return. In such cases the office of a writ
of certiorari would be limited at least to the record.
Where the scope of inquiry is more extended, it may be
the evidence may be brought up as well. In Pennsyl-
vania certiorari and habeas corpus may be severally
used as ancillary to each other. If a habeas corpus at
common law issues, and the return shows that the pris-
oner is held by virtue of proceedings in a court or be-
fore a magistrate over which the court issuing the writ
of habeas corpus has a supervisory authority, the lat-
ter court may bring up the record by means of certio-
rari. If a certiorari be used to bring a case into a
higher court for hearing or review, it is not only proper
to issue a habeas corpus to bring up the defendant, but
the only means, where his presence is necessary.®

The supreme court of Georgia ** is authority for
the statement that the writ lies in aid of habeas cor-
pus, although not specifically granted by legislative
act. The constitution itself gives such a right when it
declares that the superior courts shall have power to
correct errors in inferior jurisdictions by a writ of
certiorari. In Montana the writ will also lie in aid of
habeas corpus where the proceedings are of a prelimi-
nary nature and no final judgment has been rendered,
and the prisoner has no remedy by appeal.’

The supreme court of Wisconsin, in the exercise of
its original jurisdiction, issued the writ and deter-
mined the questions presented in two cases while the
proceedings were pending and before final judgment,®
not in aid of or ancillary to habeas corpus. Subse-

6Gosline v. Place, 32 Pa. St. 7™In re McCutcheon, 10 Mont.
520. See also Kirby v. State, 62 115.
Ala, 51. 8 Hauser v. State, 33 Wis. 678;

éa Livingston v. Livingston, Martin y. State, 35 Wis. 294.
24 Ga. 379.
SCOPE OF THE WRIT IN GENERAL. 685

quently, however, it virtually declared that such prac-
tice ought not to prevail, even though the writ could
be used in such a case, which the court doubted.®

The office of such a writ, when used as ancillary to
that of habeas corpus, is to bring up the record from
the subordinate court for the inspection of the appel-
late court, in order that the court may inquire into the
cause of commitment and ascertain whether the court
was possessed of jurisdiction to make the order.’

So the writ may be used to review proceedings upon
habeas corpus, though when an-appeal is allowed
from the order of the judge or court the writ will not
lie.??

A judgment of discharge, not actually void for want
of jurisdiction, is a final judgment and cannot be im-
-peached collaterally.'*

The authorities are well agreed that the common-law
writ of certiorari will issue to review such proceedings
where the prisoner has been remanded, and it would
seem that upon the return to the writ the court can de-
termine not only the question of the jurisdiction of the
officer to render the order or judgment, but also
whether his decision or judgment was erroneous or
otherwise.'* ;

In Michigan the writ may be used to bring before
the appellate court the acts and proceedings of courts
that may or may not be embraced in the record, in con-
nection with or as ancillary to a writ of error, as where

® Chittenden y. State, 41 Wis. W. 713; Ex parte Milburn, 9
285. Peters, 704, 9 L. Ed. .280;

10Ex parte Lange, 18 Wall. Mathes v. Colbert, 24 Ga. 384.

163, 21 L. Ed. 872; Kirby v. 12 People v. Tucker, 19 N. Y.
State, 62 Ala. 51; Livingston v. 902.

Livingston, 24 Ga. 379.

11 In re Martin, 5 Blatchf. 303;
Ex parte Collier, 6 Ohio St. 55;
In re Crow, 60 Wis. 349, 19 N.

18 In re Crow, 60 Wis. 349, 19

N. W. 713.
14In re Crow, 60 Wis. 349, 19

N. W. 718.
686 CERTIORARI.

the judge addressed a jury in the jury room in the ab-
sence of counsel.!5

VI. Review or Hasras Corpus Proceepines.

§ 175. General review.

Habeas corpus being a collateral proceeding, it is
quite generally held that no question other than that
of the jurisdiction of the officer or court to render the
judgment of discharge can be reviewed. Thus, where
a person convicted of the commission of offenses was
discharged by a court commissioner upon the ground
that the defendant had fully satisfied the sentence of
the law, and he was rearrested or detained by the sher-
iff, and he sued out a second writ directly from the su-
preme court, it was held that such prior judgment of
discharge was final; that the court commissioner had
jurisdiction, ‘and that such judgment could only be re-
viewed upon certiorari.'¢

The discussion indulged in by the very able judge
who delivered the opinion is devoted almost wholly to
the proposition that the proceedings on the part of the
commissioner, which resulted in the discharge of the
defendant, could not be reviewed upon the second writ
of habeas corpus; that the only mode of review was
by certiorari. Hence, it would seem to follow that the
errors of such an officer, in such a proceeding, were
subject to review. It was stated by the court: ‘‘It can
be readily seen that this return undertakes to have
the question whether the petitioner had actually suf-
fered his full sentence before his discharge, retried and
redetermined upon the allegation of new facts only on
the second writ of habeas corpus, which we have seen

15 Fox v. Peninsular W. L. & 16In re Crow, 60 Wis. 349, 19
C. Works, 84 Mich. 676,48 N. W. N. W. 713.
"203."
SCOPE OF THE WRIT IN GENERAL. 687

by the authorities cannot be done. That was the real
and only question adjudicated by the commissioner,
and it can be reviewed only by certiorari, and until re-
viewed in that way is final.’’ The rule as stated by this
court is: ‘‘That where a prisoner is held by legal proc-
ess the writ of habeas corpus does not operate, so to
speak, by way of change of venue from the court or
officer issuing the process of arrest, to the court or of-
ficer issuing the habeas corpus. The latter writ, in
such a case, raises only the question of jurisdiction of
the court or officer to issue the process of arrest.’’ 17

If the officer, upon habeas corpus, should remand
the prisoner, when in fact it appeared that the commit-
ting magistrate was without or acted in excess of his
jurisdiction, then, as I understand from what was said
in In re Crow, that would be such an error as would be
reviewed upon certiorari; and if the officer should dis-
charge the defendant upon habeas corpus, when in fact
the committing magistrate had jurisdiction, this also
would be such error as would be reviewed and revised
upon certiorari, and like effect would follow the de-
termination of the question whether the sentence im-
posed had been satisfied. In every such case the officer
issuing the writ would be acting within his jurisdiction,
and the decision he might render, whether right or
wrong, would be but error. The determination of a
judge or court commissioner in such proceedings, be-
ing out of the course of the common law, summary in
character, where there is no right of appeal, are thus
placed by the Wisconsin court upon the same footing
as the determination of inferior tribunals, not judicial,
but exercising judicial or quasi judicial powers.

Such was the doctrine of the Wisconsin court and
as first declared. Subsequently a statute was enacted

17In re Bidred, 46 Wis. 538, 1 N. W. 175.
688 CERTIORARI.

giving the state as well as the accused the benefit of a
writ of error to obtain a review of a judgment in a
habeas corpus action before the supreme court, and it
is held that the suing out of a writ of habeas corpus is
in effect the commencement of an action wherein there
is a plaintiff and defendant. That the conclusion
reached in the first instance, whether it be by a judge
at chambers, within the jurisdiction of the officer to de-
cide at all, is res adjudicata until set aside by some
subsequent proceeding in the same matter according to
the legal procedure for reviewing judicial errors. That
certiorari will only lie to test the validity of some ju-
dicial or quasi judicial proceeding. The writ may be
used as an ancillary proceeding, but when used as the
foundation for jurisdiction to bring up and decide upon
the validity of a judicial determination by any body or
officer, jurisdictional questions only are reached, and
by this is meant that unlike a review of proceedings of
boards and quasi judicial tribunals, error merely in de-
ciding the questions involved either of law or fact, is
judicial error merely and not jurisdictional error. If
it be desired to review a determination upon the merits,
a motion should be made in the ordinary way, for a
review before the circuit court, and if it be desired
thereafter to present the question of whether the de-
cision rendered is right, a writ of error may be sued
out of the supreme court for that purpose."®

In Minnesota it was held that an order discharging
a person brought up on a writ of habeas corpus, could
not be reviewed upon certiorari. The reasoning is, that
a proceeding in habeas corpus is a special proceeding,
not only because it is not an ordinary civil action, but

18 State ex rel. v. Whitcher, mer, 113 Wis. 96, 89 N. W. 111;
117 Wis. 668, 94 N. W. 787, 98 Longstaff v. State, 120 Wis. 346,
Am. St. Rep. 968; In re Ham: 97 N. W. 900.
SCOPE OF THE: WRIT IN GENERAL. 689

because it is so expressly classified in the statutes. An
order discharging a person brought up on habeas cor-
pus is a final order because it fully disposes of and
makes an end of the proceeding in which: it is made.
That it follows that such order may be brought to the
appellate court for a full review by appeal under sec-
tion 8, chapter 66, statutes of 1878, which inter alia
provides that an appeal may be taken by an aggrieved:
party to the supreme court from a final order affect-
ing a substantial right made in a special proceeding
If, as is alleged, in the case at bar, a person imprisoned
for crime is wrongfully discharged upon habeas cor-
pus, the state is the aggrieved party whose substantial
right is affected. As an appeal lies from an order of
discharge in habeas corpus proceedings, a certiorari
does not lie, it being the settled doctrine of that court
that certiorari will not lie in a case in which the appel-
late jurisdiction of the court can be adequately invoked
by appeal.?®

As ordinarily the only question raised by a writ of’
habeas corpus is that of jurisdiction of the court or
officer, in criminal proceedings, the question is whether-
the decision of the officer who made the order upon
the return of the writ upon that question was correct.
It would also seem by the great. weight of authority |
that the state is entitled to the writ to review the pro-
ceedings where the prisoner has been discharged upon.
habeas corpus.??

The supreme court of Ohio, however, held that the
remedy by certiorari was not available to the state
where a prisoner charged with a crime had been dis-

19 State v. Buckham, 29 Minn. Rob. (La.) 495; Weddington v.
462, 138 N. W. 902. Sloan,. 15 B. Mon. 147; United’:

20In re Crow, 60 Wis. 349, 19 States v. Wingall, 5 Hill. (N.
N. W. 713; Ex parte: Fonta, 2 Y.), 17.

44
690 CERTIORARI.

charged upon habeas corpus; that the right to pros-
ecute a writ of error, or certiorari, against one who
is indicted and tried for a crime or offense is not given
to the state nor to those who prosecute offenders under
the laws.?1

While the United States circuit courts have the
power to issue the writ as auxiliary to the writ of ha-
beas corpus, it is wholly discretionary with such
court.??

VII. Contempt Procreprnes.

§ 176. General review.

The writ lies to review proceedings against one
charged with contempt, such proceedings being sum-
mary in character and ordinarily not reviewable upon
appeal or by writ of error.”*

This rule does not, however, apply to orders punish-
ing civil contempts, for the reason that such orders are
appealable or the party has another adequate rem-
edy.?*

The New York code provides that certiorari and not
habeas corpus may issue, if specifically applied for,
where it appears by a petition for habeas corpus that

21 Ex parte Collier, 6 Ohio St.
55. See Chapter in Habeas Cor-
pus where the question of re-
view of habeas corpus proceed-
ings is fully discussed.

22 Hyde v. Shine, 199 U. S. 62,
50 L. Ed. 90, 25 Sup. Ct. Rep.
760.

238 People v. Turner, 1 Cal. 143,
52 Am. Dec. 295; Lutz v. Ayles-
worth, 66 Iowa, 629, 24 N. W.
245; State v. District Court, 13
Mont. 347; “Ver Straeton v.
Lewis, 77 Iowa, 130, 41 N. W.
594; People v. Donahue, 22 Hun,

470; State v. Leftwich, 41 Minn.

2,42 N. W. 598; State v. Willis,
61 Minn. 120, 68 N. W. 169;
Montgomery v. Muskegon Boom-
ing Co., 62 N. W. 561, 104 Mich.
411,

24 State v. Leftwich, 41 Minn.
42, 42 N. W. 598; State v. Willis,
61 Minn. 120, 68 N. W. 169;
State v. District Court, 36 Pac.
757 (Mont.); Montgomery v.
Muskegon Booming Co., 104
Mich. 411, 62 N. W. 561; State
ex rel. v. O'Neill, 104 Wis. 227,
80 N. W. 447.
SCOPE OF THE WRIT IN GENERAL. 691

the offense for which the prisoner is detained is not
bailable. It was held that under this statute the writ
of certiorari would lie to review the proceedings where
a party was committed for contempt for failure to pay
money as ordered by the court.?5

It was held that a judgment rendered refusing, in
a contempt proceeding, to compel the party in contempt
1o reimburse the relator for loss occasioned by his con-
tempt, was not reviewable upon certiorari. The par-
ticular ground was that the relator still had his right
of private action against the party in contempt.Ӣ

There is some controversy over the question whether,
where the court has by its order refused to punish for
civil contempt, the writ will lie to review such order.
In Michigan it was held that the writ would not lie in
the particular case. The proceedings were against a
sheriff to punish him for intentional and gross miscon-
duct in omitting to do his duty under an execution.
The court denied the application to punish the sheriff
and certiorari was brought to review that action. The
court held that while judgments against a party who
has been subjected to liability to pay money or stand
imprisoned was final, and within the jurisdiction of
the supreme court to review, the refusal to give any
relief in the proceeding was not a final judgment.
There was nothing in the statutes which provides that
such proceedings shall, in themselves, either stay or
supersede any other legal remedies which the relator
may resort to. This being so, and the usual common-
law remedies remaining open, the mere failure to pun-
ish the offender is not conclusive, or even prima facie,
that he has not made himself liable for the results of

25In re Hess, 1 N. Y. Supp. 26 Montgomery v. Muskegon
811; People ex rel. Taylor v. Booming Co., 104 Mich. 411, 62

Forbes, 143 N. Y. 219, 38 N. E, N. W. 561.
303.
692 CERTIORARI.

misconduct. The court procasds to argue, and by anal-
ogy to what was determined'in a case in-New York

- quite dissimilar, that the fine ordered to be paid in civil

contempts is not:strictly.a debt, but that the proceed-
ing was a criminal prosecution, and seem to hold that
where the party. has been ordered to make indemnity,
even to the whole amount due, ‘that still such proceed-
ing is criminal, not civil, which would give the result

that the payment of such a fine, in the absence of a stat-

ute, would not bar the action for the debt. We have
seen in the chapter on contempts in habeas corpus, that
proceedings to enforce performance of duty, such as
the payment of money in civil actions, are civil con-
tempts and not criminal prosecutions.?"

In Iowa it was said that in the absence of statutory
authority: there was none for reviewing, on certiorari,
the action of a court in refusing to. punish an alleged
contempt against the authority of the court. In that
state, however, there was a statute which provided:

‘‘No appeal lies from an order to punish for contempt,

but the proceedings may, in a proper case, be taken to
a higher court for revision by certiorari.’’ (Code, sec.
3499); and the court gave to it the construction that
the action of the court may, in a proper case, be so re-
viewed, whether the defendant has or has not been
punished, in all cases where there exists a substantial
right, either public or private, which can only be pro-
tected or enforced by the. proceeding in contempt.”8
With respect to what questions will be reviewed by
the superior court upon return to the writ in contempt
cases, it must be said that the courts are so widely:
apart upon the proposition that a definite answer can

27 Schwab v. Coots, 44 Mich. Court, 75 Iowa, 509, 39 N. W.
467, 7 N. W. 61. . 817; Currier v. Mueller; 79° Towa,
28 Lindsay v. Clayton District 316, 44 N. W. 555.
SCOPE OF THE WRIT IN GENERAL. 693

not be given. The question of the jurisdiction. of the
court to make the order is always open to inquiry.?®

In the chapter treating of contempts in habeas cor-
pus, it was stated that the doctrine generally prevail-
ing was, that judgments in.cases of criminal contempts
were not subject to review upon appeal or writ of er-
ror, but orders made in civil actions or orders punish-
ing for civil contempts, so called, were appealable, and
‘hence it was quite generally held that in cases of the
latter kind certiorari would not lie, as the defendant
had an adequate remedy by appeal. Under the pro-
visions of the New York code, it seems that such pro-
ceedings are subject to review by means of the writ of
certiorari.*°

It is clear that the question whether the act punished
is or is not a contempt is not jurisdictional. This has
been fully discussed in the chapter on contempts.
Hence it follows that in those courts which hold that
upon certiorari only jurisdictional questions will be
reviewed, the question whether the act punished as a
contempt was so in fact is not thus subject to review.*!

If subject to review in other jurisdictions it must be
upon the ground recognized by some, that where a court
of record is proceeding out of the course of the com-
mon law, and’ there is no remedy by appeal, the court
will review upon certiorari not only questions affecting
the jurisdiction of the court, but also errors and ille-
galities in the proceedings. The New York court of ap-
peals is one of a number which hold that the question
is not jurisdictional; *? yet they hold that the question

29 People ex rel. Munsell v. 30 People v. Forbes, 143 N. Y.
Court, 101 N. Y. 245, 4. N. H.259, 219, 38 N. E. 303.
54 Am. Rep. 691; People v. 31 State ex rel. v. O’Neill, 104
Forbes, 143 N. Y. 219, 38 N. E. Wis. 227, 80 N. W. 447.
303. 382 Fisher v. Langbien, 103 N.
Y. 84, 8 N. E. 251.
694 CERTIORARI.

is one which may be reviewed and determined upon
certiorari.??

Yet, by reason of the provisions of their code, and
perhaps to some extent the exceptional doctrine of
their courts, the cases there decided are not to be re-
lied upon as authority in other jurisdictions. In North
Carolina, under the constitution of that state, provid-
ing that the appellate court shall have ‘‘power to is-
sue any remedial writs necessary to give it a general
supervision and control of the inferior courts,’’ a cer-
tiorari in the nature of a writ of error lies to bring be-
fore it for review the action of an inferior court in con-
demning and punishing an officer of the court for con-
tempt. Such writ, however, is not the common-law
writ, but, as stated, is in the nature of a writ of error.*#

And other states where there exists a similar consti-
tutional provision have assumed the right to issue such
a writ; and in several states, by force of statute, the
right to determine the question of the matter charged
being a contempt is exercised. The supreme court of
California, is of those courts which hold that, upon cer-
tiorari, the inquiry will be confined to the question
whether the inferior court has exceeded its jurisdic-
tion. Yet they hold that this includes the power to de-
termine whether the matter alleged as a contempt, is
such in fact; for they argue that if it was not a con-
tempt, then the court had no jurisdiction to punish it
as such.®®

83 People v. Oyer and Ter- 84x parte Biggs, 64 N. C.
miner, 101 N. Y. 245, 4 N. BE. 202.
259, 54 Am. Rep. 691; People v. 35 For other cases, see Con-

Forbes, 143 N. Y. 219, 38 N. E. tempts.
303; People v. Dwyer, 90 N. Y.
402,
GENERAL CONSIDERATIONS. 695

CHAPTER II.

GENERAL CONSIDERATIONS.

§ 177. Discretion; Exercise of in Respect to Review of Proceedings.
In General.
Void Proceedings; Rule.
178. At what Stage of Proceedings the Writ will Issue.
In General.
Justices’ Court.
Tribunals Other than Courts.
Municipal Corporations.
179. Who may Prosecute the Writ.
180. The Petition.
181. Application for the Writ.
Rule in Massachusetts and other States.
Rule in Several States.
182. Allowance of Writ not Conclusive on the Courts,
183. Time within which Writ should be Applied for.
184, Direction of Writ.
185. The Return; Conclusive Effect of.

§ 177. Discretion; exercise of in respect to review of
proceedings.

That the superior court may exercise a discretion
in respect to review of proceedings of courts not pro-
ceeding according to the course of the common law
has been stated. That the writ issues as a'matter of
course to review the question of jurisdiction only of
justices’ court, where not courts of record, has also
been stated.. Where there is no right of appeal or other
remedy it is generally a matter of course also to review
the proceedings of tribunals, officers and boards exer-
cising quasi judicial functions.

Thus it is said: ‘‘If in the exercise of a sound ju-
dicial discretion an injured person ought to be accorded
an original writ of certiorari, it is an abuse of author-
ity to refuse it.’??

1 State ex rel. v. Chittenden, 127 Wis. 468, 107 N. W. 500. See also
sec. 166, where the question of discretion is also discussed.
696 CERTIORARI.

The question of the exercise of discretion has almost
exclusively been confined to the proceedings of such
tribunals and officers, where there is a remedy by ap-
peal or otherwise, and relief refused where such other
remedy was considered adequate, and granted where

-not so considered. The statements in the decisions,
however, have frequently been general, stating in gen-
eral terms that the court will exercise a discretion in
allowing the writ and will not lie where there is a rem-
edy by appeal or other adequate remedy, which often-
times is misleading and has tended more than anything
else to confuse the subject. It certainly has made it
necessary to classify it.

I do not understand that where the proceedings of
such tribunals are without jurisdiction, as distin-
guished from errors of law, that courts exercise their
discretion so as to deny the right of review by means
of the writ. But as the courts in reviewing the pro-
ceedings of such tribunals, determine questions of law
as well as.jurisdiction proper, and will reverse the
proceedings if it be found that error of law have been
committed, they will, where another remedy is avail-
able for the review of such errors, exercise a discretion
whether they will correct it upon certiorari or leave
the party aggrieved to pursue such other remedy, and
will pursue the latter course, where such other remedy
is equally as adequate and available. Where it ap-
pears, however, that no injustice has been done the re-
lator, the use of the writ may be denied though the pro-
ceedings were not in some respects in accord with strict
requirements of a charter’ or of the law. This, how-
ever, is the result of another principle.”

2State ex rel. v. Common Wis. 606, 93 N. W. 542, 61 L. R.

Council, 101 Wis. 208, 77 N. W. A. 33.
167; ‘State ex rel. v. Gosnell, 116
GENERAL: CONSIDERATIONS. 697

It is said that the proceeding is quite analogous to
a proceeding in equity to set aside.a tax where the
court inquires whether any injustice has been done,
and whether there is any equitable ground for inter-
ference. If there is not the court will decline to inter-
fere in the matter.*

‘Where the relator has been guilty of laches it’ may
be a sufficient reason for denying: him the use of the
writ.*

The cases proceed upon the assumption that the
party to whom laches is imputed has the knowledge of
his rights and an ample opportunity to establish them
in the proper forum; that by reason of the delay, the
opposite party has had good reason to believe that the
alleged rights are worthless or have been abandoned,
and that because of the change in condition or relations
during this period of delay it would be an injustice to
the latter to permit the former to now assert them.®

The Wisconsin court recognizes the rule that the
granting of the writ rests within the sound discretion
of the court, even though an error has been committed;
yet if it appears that no injustice has been done the
court should quash the proceedings. They state:
“And we also think we ought to exercise a discretion
even after a return is made, or on motion to quash un-
der our practice, and examine all the circumstances,

Knapp v. Heller, 32 Wis.
467; State ex rel. v. Common
Council, 101 Wis. 208, 77 N. W.
167.

4Galliher v. Cadwell, 145 U. S.
868, 86 L. Ed. 738, 12 Sup. Ct.
Rep. 873; Penn. Mut. L. Ins. Co.
y. Austin, 168 U. S. 685, 42 L.
Ted. 626, 18 Sup. Ct. Rep. 2238;

State ex rel. v. Common Council,
101 Wis. 208, 77 N. W. 167.
‘6.Galliher v. Cadwell, 145 U.
S. 368, 36 L. Ed. 738, 12 Sup. Ct.
Rep. 873. See also State v.
Logan, 43 N..J. L. 421; In re
Lantis, 9 Mich. 324,.80 Am. Dec.
85; Noyes v. Springfield, 116
Mass. 87; Trustee of Schools v.
School Directors, 88 Ill. 100.
698 CERTIORARI.

and, if we find substantial justice has been done, dis-
miss the proceedings.’’ ®

In the case cited the writ was brought to review the
action of a town board in fixing the valuation of both
personal and real property of the plaintiffs in that
town for the purpose of taxation. A motion was made
_ to quash the writ. It appeared from affidavits read
in support of the motion to quash that there was a
large amount of personal property liable to taxation in
that town which was not included in the assessment
roll and on the hearing the motion to quash, all pro-
ceedings in relation to the personal property of. the
plaintiff were discontinued, and the writ of certiorari,
so far as it related to the personal property, was, with
the consent of the defendant, dismissed. The motion
to quash the writ, so far as it related to the real es
tate, was denied, and on the final hearing the valuation
made by the board of review was set aside. The su-
preme court reversed the order and judgment of the
court below on the ground that it appeared (though
such matter was withdrawn) that the personal prop-
erty omitted, more than counterbalanced the alleged
overvaluation of the real estate, claiming that in the
exercise of the discretion which they had, they could
quash all the proceedings upon the writ even after
judgment.’

It appears the plaintiffs were not called upon to meet
such issue, it having been withdrawn, and it only inci-
dentally appeared. Upon a hearing of that question
they might have been able to show that such property
had not been omitted or was such that they were not
obligated to pay taxes upon it.

It is held that the discretion of the officer in allow-

6 Knapp v. Heller, 32 Wis. 467. 7Knapp v. Heller, 32 Wis.
467.
GENERAL CONSIDERATIONS. 699

ing the writ will not be reviewed on motion to dismiss.
Where certiorari was brought to review proceedings
to lay out a highway, it was held sufficient ground to
quash proceedings under the writ that the interest of
the petitioner arose only from his being a taxpayer,
and therefore liable to be called upon to pay a trifling
portion of the tax which would be levied to satisfy the
appraised damages.®

It is upon the ground of discretion that the court of
Michigan may refuse to entertain proceedings when
sought to review the action of inferior courts, in sum-
mary proceedings where resort may be had to the rem-
edy by appeal. In such cases, which we discuss later,
appeal and certiorari may be concurrent remedies, not
to review the same questions, but the one to review
errors of law and the other to review the question of
jurisdiction. The Michigan court, however, state that
where other adequate remedies exist, the power of re-
view should be sparingly exercised, and that where a
decision can be taken up by appeal, and on that appeal
the jurisdictional questions as well as those arising
upon the merits can be fully disposed of, a certiorari
should not be allowed, unless circumstances exist
which show that a failure of justice will result from de-
nying it.?

Accordingly, the court dismissed proceedings under
such a writ in a case of summary proceedings against
a tenant holding over. It was stated that the object of
the law providing for the exercise of summary jurisdic-
tion in such cases was to prevent delay and injurious
consequences that might follow. That if the proceed-
ings could be removed and stayed by certiorari, the se-
curity for the payment of rent, which the statute pre-

8 Vanderstolph vy. Boylan, 50 9 Farrell v. Taylor, 12 Mich.
Mich. 330, 15 N. W. 495. 113.
700

CERTIORARI.

seribes in cases of appeal, would be evaded. This
court, however, where proceedings have been taken’ by
municipal officers and boards which affect substantial
rights of parties with respect to the taking of their
property, will review ‘such proceedings upon certio-
rari, though there may exist a right of appeal. It is
stated that the rule is relaxed in such cases. ‘The court.
however, will not review the question of damages.!°

Void proceedings; rule.

It is generally held that proceedings which are void
may be reversed by certiorari, even though’ their in-
validity was of such a character as to be subject to suc-
cessful collateral attack.1!

There are some cases where the writ has been re-
fused to set aside void proceedings, but not always
upon the ground that such proceedings was unneces-
sary, though in some instances the denial of the writ
was placed upon that ground.!?

Quite generally the writ has been denied upon the
ground that the relator had another adequate remedy,
and the rule prevailing in their jurisdiction being that
in such cases the writ does not lie, and it will be found
that the doctrine thus held by such courts was applied
to proceedings of tribunals other than organized courts.
Certainly a judgment though absolutely void, which
might embarrass the title to real property, should not
be allowed to stand, and as it has been held that the

'

10 People v. Village of Brigh-

ton, 20 Mich. 57; Specht v. De-
troit, 20 Mich. 168.

11 State v. Thompson, 2 N. H.
236; State ‘v.' Richmond, 26 N.
H. 237; Combs v. Dunlap, 19
Wis. 591; Crandall v. Bacon, 20
Wis. 639, 91 Am. Dec. 451; Mat-
ter v. Brackett, 27 Hun, 605;
Fitch v. Highway Comm., 22

Wend. 132; Carron v. Martin, 26
N. J. L. 594, 69 Am. Dec. 584;
State v. Fowler (La.), 16 So.
565; Old Colony R. Co. v. Fall

River, 147 Mass. 455, 18 N. E. .

425.

12 State v. Village of Lamber-
ton, 37 Minn. 362; Spooner v.
Seattle, 6 Wash. 371.
GENERAL: CONSIDERATIONS. 701

invalidity. of a judgment may be of such a character
that an action in equity. would not lie to remove. it as a
cloud upon title. Nevertheless it would operate to the
prejudice of the owner, in respect to his title, and cer-
tiorari ought to lie to remove the same from the record.

It was held by the Wisconsin court that a void order
on the part of the land commissioners in reference to
a.patent would not be reversed on certiorari, as the or-
der could not in any manner affect the right or claim
of the petitioner.1?

And the same was held with respect to the proceed-
ings of a common council where attempting to decide
the question whether a license should be revoked. It
was said, since. in the. absence of any: charter or stat-
utory authority for.the action of the common council,
it concluded no one, but might be attacked collaterally
and wholly disregarded by: the forum in which the va-
lidity of ‘the license might be presented for considera-
tion and discussion. That the writ should not issue to
revoke the action of a common council, when such. ac-
tion is so entirely beyond its jurisdiction: as to be inno-
cuous, and if issued, should be dismissed upon the filing
of the return.1*

The Massachusetts court inclines to the opinion: that
certiorari is the only available remedy to reach juris-
dictional defects, as they state: ‘‘It may be questioned.
if the proceedings of tribunals exercising judicial func-
tions can be impeached upon: ground which are: open
under a-writ of certiorari. * * * The record of an
inferior court or tribunal not proceeding according to
the course of the common law cannot be impeached for
mere: informalities, either in an action of tort against
one: exercising authority under its: order. or decree or

13State v. Timme, 70 Wis. 14 State ex_rel. v. Schroff, 123
627, 36 N. W. 325. Wis. 98, 100 N. W: 1080.
702 CERTIORARI.

by bill in equity to enjoin him from so doing * * *
Iiven if in a limited sense the error committed by such
a tribunal may be said to affect its jurisdiction, as
where notice of its proposed proceedings is defective,
advantage of this can be taken by certiorari only.’’
It was held the particular act in question (laying out a
road forty instead of fifty feet in width) was an excess
of authority while dealing with a matter within the ju-
risdiction of the officers, rather than an act without ju-
risdiction, and was therefore wholly void. It was fur-
ther stated: ‘‘The office of a writ of certiorari is to cor-
rect the errors and restrain the excesses in the exercise
of jurisdiction by inferior courts or officers acting ju-
dicially. It is not intended that their proceedings shall
be attacked collaterally, which might often result in
confusion and perhaps grave injustice, and careful
provision has been made by legislation for the protec-
tion of the rights of all parties interested when such
proceedings are brought up for revision on certiorari.
In such case this court, if it finds error therein, may
not only quash the proceedings, but may order them to
be amended; may enter such judgment as the inferior
tribunal should have entered; or may direct it to pro-
ceed anew according to law.’’ #®

The foregoing is but an illustration of what we find
in the books. But for the concluding portion of the
statement as quoted, nothing appears to inform the
reader that the court was speaking with reference to
a statutory writ. Evidently at the outset they are
speaking with reference to the common-law writ, as
they state the office of such a writ, but confine it to cor-
recting the errors and restraining excesses in the ex-
ercise of jurisdiction. When there is an entire want

15 Old Colony R. Co. v. Fall River, 147 Mass. 455, 18 N. BH. 425.
GENERAL CONSIDERATIONS. 703

of jurisdiction, and the proceedings of inferior tri-
bunals are void for that reason, it seems that court
holds that certiorari will not lie; that no writ is re-
quired to set them aside, and remedies by action are
not barred.1¢

Thus it was held that a statute which confers judicial
powers upon selectmen, and which is to take effect
upon its acceptance by the town, if not legally accepted
the selectmen acquire no jurisdiction under it, and their
proceedings are void, and a writ of certiorari will not
lie to quash them.!7

It would seem to follow that in that state, when the
officer or tribunal acts in excess of its jurisdiction, cer-
tiorari is the only remedy. Where they act without
jurisdiction certiorari will not lie. The proceedings are
subject to collateral attack. The supreme court of the
United States apparently hold such to be the general
rule with respect to tribunals other than courts. They
say: ‘‘With the proceedings and determinations of in-
ferior boards or tribunals of special jurisdiction, courts
of equity will not interfere, unless it should become
necessary to prevent a multiplicity of suits or irrepara-
ble injury, or unless the proceedings sought to be an-
nuled or corrected is valid upon its face and the alleged
invalidity consists in matters to be established by ex-
trinsic evidence. In other cases, the review and cor-
rection of the proceedings must be obtained by the writ
of certiorari. This is the general and well established
doctrine.’’ It does not follow that the term other cases,
as here used, includes all cases, and it would seem that
the court did not intend so to declare from what is
stated immediately preceding the language quoted, as
follows: ‘‘If the statutes and ordinances under which

1¢Zocke vy. Lexington, 122 17Locke v. Lexington, 122
Mass. 290. Mass. 290.

Het
704 CERTIORARI.

\

the mayor undertook to act did not invest him with any
authority. to render the judgments against the com-
plainant; the judgments were void, and could not cast
a cloud upon his title or impair any remedies at law
provided for the protection of his property or the re-
dress of trespasses to it. On the other hand, if the stat-
utes and ordinances invested the mayor with authority,
when new streets in the city were to be opened, to ren- _
der judgments for the amount of benefits assessed
against the. owners of adjoining property, and in this
instance he failed to follow their provisions, or ex-
ceeded the jurisdiction they conferred, the remedy of
the complainant was by certiorari at law, and not by
bill in equity.’ 18

The distinction made by the Massachusetts court be-
tween want of jurisdiction and excess of jurisdiction:
is here recognized. In the former the proceedings are
subject to collateral attack. In the latter they are sub-
-ject to review upon certiorari. It is doubtful if the
courts generally hold the doctrine that, where the judg-
ment or proceedings are void upon their face, certio-
rari will not lie. It maybe that where the tribunal is
wholly without any authority in the premises, and such
clearly appears upon the record, the writ will not lie,
on the ground that the judgment or proceedings can-
not, if allowed to stand, prejudice the rights of or work
mischief to any person. It was so held in Wisconsin
with reference to a void order on the part of land com-
missioners respecting the withholding of a patent for
land. The powers thus conferred upon the: commis-
sioners were not judicial, within the. constitutional
meaning of the term: The reason given is that the acts”
of the. commissioners under the. statute conferring the
power are not binding or conclusive upon any one, and

18 Ewing v. City of St. Louis, 5 Wall 413, 18 L. Bd. 657.
GENERAL CONSIDERATIONS. 705

their exercise is always subject to review and correc-
tion in the courts in collateral actions. The court say:
‘‘We are aware of no principle of law by which a de-
termination of any tribunal so entirely wanting in ef-
ficacy and so barren of results can be reached by cer-
tiorari. The function of that writ is to bring up for
review determinations of inferior tribunals, which if
allowed to stand will prejudice the rights of or work
mischief to somebody.’’ 19

In New York it was held that where the statute pre-
scribes the form of an order or other summary proceed-
ings it must be followed as far as is consistent with the
nature and exigency of the particular proceeding, and
hence an order for the removal of fences, made by two
commissioners in the case of an encroachment of a
highway, was void, it not appearing on the face of the
order that the third commissioner was duly notified
to attend the meeting of the board and apprised of the
purpose for which he was required to attend. It was
said: ‘‘But the order being void does not preclude the
party from treating it as voidable and bringing a cer- °
tiorari to quash it, at his election.’’?°

Again it was stated, speaking with,reference to high-
way commissioners: ‘‘If they act without jurisdiction
their action is not binding or conclusive, and any order
they may make is a mere nullity, affecting no rights.
Such orders can be reviewed by a common-law certio-
rari and vacated.’? 21

In State v. Mayor of St. Paul,?1* the proceedings of
the mayor of the city of St. Paul in revokmg an auc-
tioneer’s license were brought up for review by means

19 State v. Timme, 70 Wis. 627, 21 People v. Harris, 63 N. Y.
36 N. W. 325. 391; People v. Williams, 36 N.
* 20 Fitch v. Commissioners, 22 Y. 441.

Wend. 132. 21a34 Minn. 250, 25 N. W.
‘ 449,

45
706 CERTIORARI.

of the writ of certiorari. It appeared that the mayor
had no authority in the premises; that the power was
vested in the common council. It was held that his act
was not only not judicial, but was not official, and, the
act being absolutely without authority, certiorari would
not lie. Where a village board attempted, months after
an election upon the question of granting license, to
recanvass the vote, and declared a result different from
that first declared, it was held that their proceedings
were so utterly without authority, and consequently
void, that certiorari would not lie. It was further held
that the act of granting a license by the council was
not of a judicial character, and hence the writ would
not lie.??

With respect to judgments of inferior courts, such
as those of a justice of the peace, the rule generally
prevails that want of jurisdiction, as well as excess of
jurisdiction, is sufficient to sustain the writ. Their
proceedings are wholly judicial. There might be cases
where the judgment and proceedings would be so
wholly without the semblance of authority that it might
‘be held the writ would not lie, yet it is difficult to con-
ceive of such a case. Their judgments may be docketed
in courts of record, execution may issue upon them,
and title to real estate may be clouded, and property
may be seized and sold. Necessarily they prejudice
the rights of persons, though subject to collateral im-
peachment. Where the. plaintiff in an action before a
justice of the peace failed to appear within one hour
after the time to which the cause was adjourned, it
was held that the justice was bound, under the statute,
to render a judgment of nonsuit against him. Proceed-

22 State v. Village of Lamberton, 37 Minn. 362, 34 N. W. 336.
GENERAL CONSIDERATIONS. 707

ing in the cause was not error merely, but a usurpation
of power not conferred by statute; and although the
judgment may be void upon its face, still, as it is one of
the principal objects of the common-law certiorari to
keep inferior courts and tribunals within their juris-
diction, it will nevertheless be reviewed and reversed
upon such writ.23

The same was held where the court, in adjourning
the cause for one week, lost jurisdiction in not specify-
ing the hour of the day or the place to which it was
adjourned.”4

It was said by Marcy, J., in Striker v. Mott,?4# in an-
swer to the suggestion that, the judgment being void,
there was no necessity for the writ: ‘‘I can see no way
whereby the plaintiff can prevent the judgment from
being carried into effect against him but by a reversal.
The execution which may be.issued thereon would not
show upon its face a want of jurisdiction in the mag-
istrate, either as to the person of the party or the sub-
ject matter of the suit. The officer would therefore
be protected in executing it.’? The New Jersey court
make no distinction between want of jurisdiction and
excess of jurisdiction, or between inferior courts and
tribunals exercising judicial or quasi judicial powers.
Thus it was said that the supreme court has a right to
review the proceedings of corporations and all other
inferior tribunals that do acts affecting the rights and
property of individuals which are judicial or quasi
judicial in their nature, and they do this as well where
those proceedings are wholly void for want of any
power or jurisdiction in the tribunal to act as where
they are illegal in consequence of some material irreg-

23Combs vy. Dunlap, 19 Wis. 24 Crandall v. Bacon, 20 Wis.
591. ‘ 640, 91 Am. Dec. 451.
24a 6 Wend. 465.
708 - CERTIORARI.

ularity. The judgment of a justice of the peace in a
case of replevin, should he erroneously proceed in such
a case, would undoubtedly be wholly void, but it also
might be set aside by means of a certiorari.2®

The same, in effect, is the doctrine of the New Hamp-
shire court.?¢

In Ohio, where the action of the mayor in entering
up a judgment for taxes was wholly unauthorized, it
was held that, the judgment being a perfect nullity, it
could not be made more so by reversal.??

In Louisiana it seems that the writ can only be re-
sorted to when the proceedings are absolutely null and
void;28 and in Tennessee that the writ lies to review
judgments absolutely void.?®

§ 178. At what stage of proceedings the writ will lie —
In general.

The question whether the writ will lie before judg-
ment is not decided alike by all courts. The character
of the tribunal, whether proceeding according to the
course of the common law or otherwise, as well as the
nature of the proceeding, sometimes determines the
question. The New Jersey court states the rule to be
in that jurisdiction: ‘‘It (the supreme court) has the
superintendence of all inferior courts, both civil and
criminal, of all corporations in the exercise of their
corporate powers, and of all public commissioners in
the execution of their special authorities and public
trusts. It causes their proceedings to be certified be-
fore it in order that, upon inspection, they may be
stayed, affirmed or set aside, as the case may require,

25Canon v. Martin, 26 N. J. 27 Dixon v. Cincinnati, 14 Ohio,
L. 594. 240.

26 State v. Richmond, 26 N. H. 28 State v. Koenig, 39 La. 776.
237, 20 Holmes vy. Wason, 8 Lea,

754.
GENERAL CONSIDERATIONS. 709

and that in many cases before, as well as after, judg-
ment.?? 8°

This court later stated that it was not ordinarily a
proper use of the writ to intercept and review proceed-
ings preliminary to final action, except when the court
issuing the writ can continue them to completion. The
operation of this rule is confined to those cases where
the office of the writ is in the nature of a writ of error.
In other cases it is a discretionary writ, and in the ab-
sence of any statute governing the time it shall issue,
it is subject to that discretion. Where the object is
to review municipal action, especially if that action is
said to be beyond the corporate power, it is a frequent
practice for the writ to go, while the final step that
completes the injury is yet but threatened.*4

And again it was said the common-law writ still lies;
but when the statutory substitute for the writ of error
is used, the judgment must be final.

In Pennsylvania it was held that in criminal cases
the writ would lie before judgment when a writ of er-
ror would not lie,?? and in Virginia that the writ would
lie either before or after verdict.**

We have heretofore stated that the writ has been is-
sued to superior courts to review their proceedings
taken before judgment upon questions of jurisdiction
only.?®

We also find that such a practice was criticised in a
subsequent case, and that the Wisconsin court, as well

80 Ludlow v. Ludlow, 4 N. J. L. 271; Mowery v. ‘Camden, 49
L. 367; Whithead v. Gray, 12 N. J. L. 106; Quimby v. Hop-

N. J. L. 36. ping, 52 N. J. L. 117; Engle v.
31 State v. Patterson, 34 N. J. Crombie, 21 N. J. L. 614.
L. 163; State v. Jersey City, 35 33 Commissioner v. Simpson, 2

N. J. L. 404; State v. Commis- Grant’s Cases, 438.
sioners, 37 N. J. L. 12; State v. 34 McCaboy’s Case, 2 Va. Vas.

Patterson, 39 N. J. L. 489. 858.
32 Hinchman y. Cook, 20 N. J. 35 Hauser v. State, 33 Wis. 678.
710 CERTIORARI.

as the Minnesota court, contend that such is not the
province of the writ. See sec. 161.

We find however,?* that the California court has al-
lowed the writ to courts of record proceeding accord-
ing to the course of the common law to review juris-
dictional errors before judgment. In other cases in
_ that state, where it was held that the writ would not
lie before judgment, it was stated that the alleged er-
rors were not jurisdictional. Thus the rule was ap-
plied where a court granted a new trial in disregard of
the statutory method of procedure. Its action was but
error and did not affect in any manner the jurisdic-
tion of the court.37

Also where a court dismissed an appeal for the fail-
ure to prosecute it. The question of such failure was
within its jurisdiction, and though the court came to
a wrong conclusion, it constituted error of judgment
merely.3§

The general rule is that a common-law certiorari will
not issue where a party has another adequate remedy
and the law provides for an appeal or writ of error
from the final judgments of such a court. Mandamus
is the remedy to compel a court to proceed where it
has jurisdiction. Prohibition lies to restrain a court
from proceeding where jurisdiction is wanting. As pro-
hibition and certiorari only issue where the question
involved is that relating to the jurisdiction of the court,
it must follow, if the latter will issue to review the pro-
ceedings of courts taken prior to final judgment, that
to a certain extent at least they are concurrent rem-
edies—the one to restrain action, the other to annul
proceedings. If certiorari will not lie prior to judg-

3¢ Baker v. Superior Court, 71 38 Alexander y. Municipal Ct.,
Cal. 583. 66 Cal. 387.

87 Yenawine v. Richter, 43 Cal.
312.
GENERAL CONSIDERATIONS. 711°

ment, then it is demonstrated that certiorari will not
lie in any case to annul the judgment of superior courts
if proceeding according to the course of the common
law, where the party has an adequate remedy by ap-
peal or writ of error. See sec. 165.

Justices’ court.

Certiorari lies to annul the judgments of courts of
justices of the peace and other inferior courts not of
record, but only after final judgment. Such is the gen-
eral rule.®®

’ The order of the court upon the hearing is either
that of affirmance or reversal of the judgment below.
The writ is a writ of review. Its office is to bring up
for review final determinations of such courts. Were
the rule otherwise a writ might issue at any step in
the proceedings of the inferior court and thus with-
draw the case from its consideration.*°

The old common-law writ was frequently used to re-
move proceedings from one court to another, and this
before judgment, but that rule in most states has been
modified in this respect by judicial action to the extent
that there must be a final Judgment or order, and this
rule as thus modified is still termed the common-law
rule.

Tribunals other than courts.

With respect to proceedings of officers and inferior
tribunals or bodies other than established courts, there
is such diversity of opinion in different jurisdictions,
more or less in many cases influenced by provisions of

s9 Varrel vy. Church, 36 Wis. 40 People v. County Judge, 40
318; Callon v. Sternberg, 38 Cal. 479. See Haines v. Backus,
Wis. 539; Healey v. Kneeland, 4 Wend. 213; People v. Walter,
48 Wis. 479, 4 N. W. 586; State 68 N. Y. 403; Lynde v. Noble, 20
vy. Cohen, 13 S. C. 198. Jobns. 80.
712

CERTIORARI.

statutes, that a general rule upon the subject as now
prevailing cannot be stated. In New Jersey it is stated
that the common-law writ still lies, but when the stat-
utory substitute for the writ of error is used the judg-
ment must be final; ‘*! that a certiorari at common law
goes to special and summary tribunals and brings up
the whole or any part of the proceedings according to
the command and exigency of the writ, and such writ
may be issued before the inferior jurisdiction had con-
summated its authority.‘?

The Missouri court, however, did not have the same
understanding of the common-law writ. They say that
at common law the writ issued, when not ancillary to
other process, as a writ in the nature of a writ of er-
ror addressed to inferior tribunals whose proceedings
were not according to the, course of the common law,
and could issue on final judgments only.**

Municipal corporations.

The doctrine which generally prevails in respect to
inferior tribunals and officers is the same as that stated
respecting inferior courts, with the possible exception
of municipal corporations, in effect that the writ only
issues after final determination.**

With respect to municipal proceedings, it is stated

22 N. W. 174; Galloway v. Stoph-
let, 1 Ohio St. 484; Palms v.

41 Hinchman vy. Cook, 20 N. J.
L. 271; Mowery v. Camden, 49

N. J. L. 106. Campau, 11 Mich. 109; Sanders
42 Hinchman v. Cook, 20 N. J. v. Plunkett, 40 Ark. 507; Morris
L, 271. v. Shyrock, 50 Miss. 590; Eve-

43 State v. ‘Schneider, 47 Mo.
App. 675; State v. Edwards, 104
Mo. 125. :

44 State v. District Court, 44
Minn. 244, 66 N. W. 349; People
v. Walter, 68 N. Y. 408; Grin-
nager vy. Norway, 33 Minn. 127,

ridge v. Bemys, 93 Ga. 760;
Kirk v. Graham, 14 Tex. 316;
Richardson v. Smith, 59 N. H.
517; Goodwin v. Sagadahoc
County, 60 Me. 328; State v.
Timme, 70 Wis. 627, 36 N. W.
325.
GENERAL CONSIDERATIONS. 713

that the common-law writ still lies at any stage of the
cause.45

The rule stated elsewhere is repeated in this con-
nection: ‘‘It is not a proper use of the writ to intercept
and remove for review the steps in a procedure pre-
liminary to a decision or final resolution therein, ex-
cept when the court issuing the writ can continue the
proceedings to completion. But this rule is not one
of universal force. Its operation is properly confined
to those cases where the office of the writ is in the
nature of that of a writ of error, and when, therefore,
its allowance is governed by similar principles. But
in other cases it is a discretionary writ, in the absence
of any statute requiring it to be granted, and the time
for its allowance as well as other circumstances is
* subject to that legal discretion. Where the object is
to review municipal action, especially if that action is
said to be beyond the corporate power, it is a frequent
practice for the writ to go while yet the final step that
completes the injury is but threatened.’’ #¢

§ 179. Who may prosecute the writ.

A suitor, it is said, has no absolute right to the com-
_ mon-law writ.*7

I assume, however, that such statement applies more
particularly where a party aggrieved has another rem-
edy, and relates more particularly to those conditions
where the court may exercise a discretion, which we
have considered ante. ‘

It was further stated: ‘‘ Where the relator shows no
equity and so far as his legal rights are concerned, has

45 Matter of Hamilton,58 How. L. 163; State v. Jersey City, 35
Pr. 290; State v. Patterson, 34 N. J. L. 404.
N. J. L. 163. 47 State ex rel. v. Gosnell, 116
46 State v. Patterson, 34 N. J. Wis. 606, 93 N. W. 542, 61 L. R.
A. 33.
714 CERTIORARI.

suffered no injury not remediable at law, it is proper
to deny the use of the writ, and where it further ap-
pears that the relator as a private individual, with a
trifling injury remediable by ordinary means complains
against the acts of a municipal corporation, acting
without or in excess of authority, it is an abuse of dis-
cretion to permit the use of the remedy by certio-
rari.’’ 48

It is undoubtedly the rule that where the relator
shows no equity and so far as his legal rights go, no
injury not remediable at law, it is proper to deny the
use of the writ, to review proceedings of tribunals
other than courts. ,

A taxpayer has such an interest that he may apply
for the writ to review the action of town, county and
city boards in matters where the amount of his taxes
has been increased.*®

This rule has been carried to the extent that proceed-
ings reducing the assessment of another tax payer
might be thus reviewed.®°

And also has such an interest that he may apply for
the writ to test the validity of the action of a county
board in changing the boundaries of two towns and
organizing a new one.*}

So a party injuriously affected by the action of high-
way commissioners, acting under a statute in placing
an encroachment upon a highway, may apply for the
writ though not technically a party to the original pro-
ceedings.®?

48 State ex rel. v. Gosnell, 116 v. Schubel, 29 Wis. 444, 9 Am.
Wis. 606, 93 N. W. 542, 61 L. R. Rep. 591.

A, 33. 50 Collins v. Davis, 57 Iowa,
49 Collins v. Davis, 57 Iowa, 256,10 N. W. 643.
256, 10 N. W. 648; Knapp v. 51 State ex rel. v. Forest Coun-

Heller, 32 Wis. 467; Goetzman ty, 74 Wis. 610, 43 N. W. 551.
y. Whitaker, 81 Iowa, 257, 46 62 Campau v. Button, 33 Mich.
N. W. 1058; Milwaukee Iron Co. 525.

w
GENERAL CONSIDERATIONS. 715

The rule as declared by a court is that ‘‘In the ex-
ercise of its discretionary authority, a court of general
jurisdiction upon the application of any party to a ju-
dicial proceeding, or person interested in a proceeding
of a judicial or quasi judicial nature, because of some
special or peculiar injury to himself, in person or prop-
erty, for which he had no other reasonably available
remedy, may grant the use of its writ of certiorari to
review the same for jurisdictional error, and upon rea-
sonably clear prima facie showing in that regard, dis-
cretionary authority should be so exercised.’’ 53

Such rule was applied to a decision as to the status
of a dental college, incidental to passing upon an ap-
plication for a license to practice dentistry based on a
diploma issued by such college.

Where one not a party seeks to use the writ, he must
show that the decision sought to be reviewed is di-
rected against him or his property in the sense that the
enforcement of the decision would involve special, im-
mediate and in effect a direct injury to his interests.*4

The Wisconsin court, while conceding the genera!
doctrine that a taxpayer may maintain an action in
behalf of himself and others to prevent an illegal
charge, where the municipality refuses, yet it held
that certiorari would not lie upon the relation of a tax-
payer in behalf of himself and others to review the de-
cision of an appellate jury appointed by the county
judge to review an award of damages to another. The
effect of the decision of the jury on the plaintiffs was
neither special, immediate nor direct. If any it fell

83 State ex rel. v. Chittenden, Atl. 895; Wolpert v. Newcomb,
127 Wis. 468, 107 N. W. 500. 106 Mich. 357, 64 N. W. 326;
34State ex rel. v. Drake, 130 State ex rel. v. Anderson, 130
Wis. 152, 109 N. W. 982; Tallon Wis. 227, 109 N. W. 981.
v. Hoboken, 60 N. J. L. 212, 37
716 CERTIORARI.

upon the plaintiffs only through the general process
of taxation.®®

Nor would the writ lie on the relation of an individ-
ual to review an order discontinuing a highway, whose
injury was of the same character though different in
degree only as other members of the community.**

The owners of land abutting on a public street may
prosecute the writ, to review the validity of an ordi-
nance, which in terms confers upon a railroad com-
pany the right to place rails and poles in the street in
front of their land.*”

Where the writ is applied for by an officer in behalf
of a town, he must be specially directed by a vote of
the electors.®8

§ 180. The petition.

It appears to be settled practice that the petition for
the writ should specify the jurisdictional defects relied
on, those not so specified will be considered as waived.®®

The reasoning is that the writ is not one of strict
right, whether it shall or shall not issue resting in the
discretion of the court. See however sec. 166. Hence
the propriety of requiring every jurisdictional defect
upon which the petitioner intends to rely to be plainly
pointed out and brought to the attention of the court in
order that its discretion may be intelligently exercised
in passing upon the application for the writ, and the

55 State ex rel. v. Anderson,
130 Wis. 227, 109 N. W. 981.

56 Davis v.. Hampshire County,
153 Mass. 218, 26 N. E. 848, 11
L. R. A. 750.

* 87 State ex rel. v. Jersey City,
57 N. J. L. 2938, 30 Atl. 531, 26
L. R. A. 281.

58 State ex rel. v. County

Clerk, 59 Wis. 15, 16 N. W. 617.

59 Tourville v. S. D. Seavey
Co., 124 Wis. 56, 102 N. W. 352;
Everett v. C. R. I. & M. R. Coa.,,
28 Iowa, 417; Hollins v. John-
son, 3 Head (Tenn.), 346;
Adams v. Fitzgerald, 14 Ga. 36;
New Jersey R. & T. Co. v. Syn-
dam, 17 N. J. L. 69; State ex rel.
v. Schweitzer, 181 ‘Wis. 188, 111
N. W. 219.
GENERAL CONSIDERATIONS. 717

propriety of examining the return also as it responds
to the points challenged. The return on such points
where it fully presents the record is conclusive and
furnishes the sole basis for answering the question,
whether the judgment should be affirmed or reversed.”

This strict rule was applied where certain jurisdic-
tional defects were specified in the petition, but the one
- that in the particular action the justice was not author-
ized to render judgment for unpaid rent, which was
fatal to the judgment, was omitted.’

§ 181. The application for the writ.—Rule in Massa-
chusetts and other states.

It seems that in Massachusetts, Maine and some
other of the states, the practice is to allow a writ of
certiorari only upon petition, in order to avoid unnec-
essary expense and delay, and to enable the court to
deal with the substantial justice of the case, untram-
meled by merely formal and technical defects in the
record. They adhere to the rule that all evidence ex-
trinsic to the record must be excluded when the record
is before the court on the writ. But it is otherwise in
the hearing on the petition for the writ. Such petition
is addressed to the discretion of the court, and upon the
hearing the court is not limited by the record with its
infirmities in matters of form, but will enlighten its
discretion by inquiring into so much of the proceedings
under revision as will enable it to deal with the sub-
stantial justice of the case. The procedure and prac-
tice they state to be, that the petition should set out,
among other things, such of the proceedings as the pe-
titioner desires to have raised, bearing in mind that
the writ only deals with errors in law, and not with the

60 Tourville v. S. D. Seavey 61 State ex rel. v. Schweitzer,
Co., 124 Wis. 56, 102 N. W. 352. 131 Wis. 138, 111 N. W. 219.
718 CERTIORARI.

evidence, unless some question of law is raised in re-
lation thereto. Notice must be: served upon the tri-
bunal to which the writ, if granted, will be addressed.

Such tribunal is the only real party respondent, al-
though other parties may appear to maintain or object
to the proceedings and be subject to costs. The re-
spondent tribunal should file an answer under oath,
setting out therein (when annexed to the petition) a
copy of the record. If the original record be defective
it may be amended by the tribunal in accordance with
the facts at any regular session. If it do not contain
a full, detailed statement of the facts (not evidence)
proved and the rulings thereon, so far as the points
complained of in the petition are concerned, so as to
enable the court to determine the questions of law
raised, such omissions should be supplied in the an-
swer when completed, and signed and sworn to by the’
members of the tribunal whose proceedings they are.
The answer, being in the nature of a return, is con-
elusive of all matters of fact within its jurisdiction.
If the tribunal does not appear and file its answer so
that the case may be decided upon its merits, or wil-
fully refuses to make a full statement of facts and rul-
ings, the superior court, having full power to correct
abuses as well as errors, may require such statement
to be certified together with the record, whenever the
case was within the jurisdiction of an inferior tribunal.
It is not competent for the petitioner to contradict the
record or return, but when extrinsic evidence is intro-
duced by the respondents tending to show that substan-
tial justice does not require the proceedings to be
quashed, then the petitioner may introduce like evi-
dence in rebuttal. After the writ has been issued and
the record certified in obedience to it, the court is bound
to determine, upon an inspection of the whole record,
GENERAL CONSIDERATIONS. 719

whether the proceedings are illegal or erroneous; but
the granting of the writ in the first instance is not a
matter of right and rests in the discretion of the
court.

Rule in several of the states.

In many of the states the petition is presented di-
rectly to the court, judge or other officer clothed with
the power to allow it, and the writ issues upon such al-
lowance. If the petition is sufficient in form and sub-
stance then the respondent makes his return. The
whole question is then determined from the record. It
is said that in such cases the court exercises the discre-
tion that the courts of Massachusetts and Maine exer-
cise upon the hearing of the petition prior to the allow-
ance of the writ. Even in the states named (Massa~
chusetts and Maine) there is no discretion, where the
proceedings sought to be reviewed were without juris-
diction, though injustice was not done.*

They say that ‘‘when the commissioners have no ju-
risdiction in a given proceeding the court has no oc-
casion to exercise its discretion in the matter, but on
due presentation of the matter orders the writ at once;
for in such case, the action of the commissioners being
without the authority of law, parties aggrieved thereby
have the legal right to have the proceedings quashed
for the asking.’’ %4

In the federal courts the practice adopted by the
Massachusetts court would seem to be followed, as they

62 Levant v. County Com’rs, 67
Me. 429; Tewksbury v. County
Com’rs, 117 Mass. 563; Farming-
ton R. & W. Co. v. Commission-
ers, 112 Mass. 206; Worcester &
Nashua R. Co. v. Commissioners,
118 Mass. 561.

63 White v. County Commis-
sioners, 70 Me. 317; Bangor v.
County Commissioners, 30 Me.
270.

64 Hayford v. County Commis-
sioners, 78 Me. 153; Fairfield v.
County Commissioners, 66 Me.
385.
720 ; CERTIORARI.

state that ‘‘when the writ is sought between private
persons, the general rule is that the writ will be granted
or denied, in the sound discretion of the court, on spe-
cial cause or ground shown.”? &

§ 182. Allowance of writ not conclusive on court.

In Michigan, as well as in Wisconsin, it is held that
the allowance of the writ by the proper officer is not
conclusive upon the court. That the propriety of the
allowance is always open to examination by the court
itself. The writ is not of right, but is granted under
discretion. That to allow a single judge or a person
not a member of the court to bind it in advance would
be to take away the authority of the court itself. That
unless the writ is granted by the court itself, the pro-
priety of its allowance will be considered on motion or
on the hearing.**

§ 183. Time within which the writ should be applied
for.

The time within which the writ should be applied for
in some jurisdictions, is prescribed by statute. In oth-
ers it comes within the discretion of the court. Some
courts have declared that the writ ordinarily should
not be allowed after one yéar, and others after two.
The doctrine of laches, however, is quite generally ap-
plied, especially where the statute is silent. It was held
in Michigan that the statutory provisions requiring
the writ to be issued within two years, and providing
for its allowance out of court, do not take away the dis-
cretionary power of the court. To this proposition
Justice Campbell dissented, and expressed doubt

es In re Tampa Suburban R. 324, 80 Am. Dec. 85; Farrell v.
Co., 168 U. S. 583, 42 L. Hd. 589, Taylor,.12 Mich. 113. See, how-
18 Sup. Ct. Rep. 177. ever, Rowe v. Rowe, 28 Mich.

6¢ Lantis, Matter of, 9 Mich. 358.
GENERAL CONSIDERATIONS, 721.

whether, where the question of jurisdiction is involved:
and the defect in this particular is apparent upon the
face of the record, the court could dismiss the writ
after its allowance. In the particular case proceedings
were taken for the draining of. swamps, pursuant to
statutory provisions, and the report of the commis-
sioners had been confirmed. Eleven months after-
wards, parties who appeared and opposed the confirma-
tion sued out a certiorari to remove the proceedings
to the supreme court. That court quashed the writ on
the ground of laches.*®”

The discretion of the court was exercised in another
case in quashing the writ, which was allowed to review
proceedings of drain commissioners, upon the ground
that the party knew of such proceedings and had taken
a contract to dig the ditch.**

§ 184. Direction of writ.

The writ, where the purpose is to review proceedings
of town or county boards, should be directed to such
board and not to the clerk, and the return should be
made by the board and not by the clerk. In fact it is
held that jurisdiction is not acquired by a writ directed |
to the clerk, and where return is made by him; nor will ;
the voluntary appearance of the board confer jurisdic-
tion.*®

The rule is pronounced that where a writ of certio-
rari is misdirected, to the extent that jurisdiction is-
not acquired, the writ will be quashed even after a hear-
ing upon the merits.”

67 Lantis, Matter of, 9 Mich. cases cited; Davis v. Harrison,

324, 80 Am. Dec. 85. 40 N. J. L. 79.
68 People v. Roldizer, 40 Mich. 70 State v. Town of Manitowoc,
745. 92 Wis. 546, 66 N. W. 702; Me-

69 State ex rel. v. Town Clerk, Namara v. Spees, 25 Wis. 539.
182 Wis. 103, 111 N. W. 1129, and
46
722 CERTIORARL

Such a board has control of its own records though
they are in custody of the clerk. The person or body
whose action is to be reviewed, and in whose hands
the record of such action remains, is the proper party
defendant in certiorari proceedings, and they must
make return to the writ.”

When the purpose is to review the action of a city
council as a body, the writ must be so directed, and not
to the clerk. It is true that in the case where this doc-
trine was stated the appointment of a clerk was with
the council; but this can make no difference in the
doctrine where such clerks are elected. Whether
elected or appointed, in the matter of making and pre-
serving the records of the action of the council, their
relation to the corporation must be the same.”

The Wisconsin court distinguishes between a body
like a common council and temporary boards like
boards of review in respect to the question under dis-
cussion. The latter, it is said, is not a permanent body,
but one which, after performing a specified duty, dis-
solves leaving its records in the control of the town
clerk. The town clerk, therefore, alone has the legal
custody and possession of the records of the board
after it ceases to exist, and can make return of its pro-
ceedings in the matter, and hence is the proper person
to whom the writ should be directed in such cases.”

It was stated by the New York court that a certio-

71 Roberts v. Commissioners,
30 Mich. 181; State v. City of
Fond du Lae, 42 Wis. 287; Peo-
ple v. Highway Commissioners,
30 N. Y. 72.

72 State v. City of Fond du
Lac, 42 Wis. 287.

73 State v. City of Fond du

Lac, 42 Wis. 287; State v. City
of Milwaukee, 86 Wis. 376, 57 N.
W. 45; State ex rel. v. Town
Clerk, 132 Wis. 108, 111 N. W.
1129. A statute of Wisconsin di-
rects that the writ may be di-
rected to the clerk, which was
overlooked by the court.
GENERAL CONSIDERATIONS. 723

rari does not lie to an inferior tribunal except to re-
move proceedings that remain before it.’4

We have seen that in another and later case the same
court held that the power and jurisdiction of a board
of supervisors ceased with the delivery of the tax roll
and warrant to the collector.”

If this is the correct doctrine, then it is that the pro-
ceedings of boards of review and other like bodies
cannot be reviewed upon certiorari after they adjourn;
that they cannot in such case correct the record. How-
ever, we find in other states that the mere fact that
such boards have dissolved does not affect the ques-
tion of the power of the courts to review their proceed-
ings upon certiorari. Were it otherwise, a party would
be absolutely without remedy. Conceding for the ar-
gument that the record or order cannot be corrected
by such body, there is no question but that it can be
reversed, and, where reversed, if the collector still per-
sists in collecting the tax, the taxpayer, in a proceed-
ing to recover what has been collected, may rely upon
the judgment of the court as the basis of his right.’

Boards of canvassers, though they have adjourned,
may be compelled by mandamus to reconvene and per-
form their duties in a lawful manner, and correct mis-
takes of either law or fact;77 and among the courts
which so hold are those of New York and Michigan.”*

Boards possessing such or similar powers, and ofa
like character, are not dissolved or do not cease to ex-

74 People v. Highway Commis- Schubel, 29 Wis. 444, 9 Am. Rep.

sioners, 30 N. Y. 72. 591.
76 People v. Supervisors, 82 N. 71 See Mandamus.
Y. 275. 78 Matter of Stewart, 155 N. Y.

78 Goetzman v. Whitaker, 81 545, 50 N. E. 51; Roemer v.
Iowa, 257, 46 N. W. 1058; State Board of Canvassers, 90 Mich.
y. City of Fond du Lee, 42 Wis. 27, 51 N. W. 267.

287; Milwaukee Iron Co. v.
724 CERTIORARI.

ist by the mere act of adjournment, to the extent, at
least, that their action cannot be the subject of review
or they cannot be summoned to answer process di-
rected to them. There are decisions to the contrary.
(See Mandamus) but the former, in the opinion of the
writer, are best supported by authority and reason.
Where the inferior board has lost control of the record,
the exception stated by the Wisconsin court and others
may apply, in effect that the writ may properly be di-
_rected to the proper custodian. This exception, I ap-
prehend, only applies where by law it is made the duty
on the part of the board or officer to transmit or certify
the record to another board or custody of another,
there to be kept as a record or otherwise.”

A certiorari to correct the assessment roll, by strik-
ing out an illegal assessment, was issued after the as-
sessors had completed the roll and delivered it to the
supervisor of the town. This fact appearing upon the
return of the writ, a supplemental writ was issued to
the supervisor, commanding him. to bring the roll into
the court, which was done, and a hearing was then had
upon the merits. Whether this practice was proper or
authorized was not determined, as no objection was
raised that the writ was not the proper remedy because
of the fact that the roll had passed out of the hands
of the assessor, and it was held that the objection could
not be raised for the first time in the appellate court.®°

It was held, however, by the supreme court of the
state of New York,®! that where the writ is applied
for to review the action of assessors after they have
completed their roll and delivered it to the supervisor,

79 Chick v. Coffey, 75 Cal. 371; 80 People v. McLean, 80 N.Y.
Morris Canal Co. vy. State, 14 N. 254. © a
J. L. 411. 81 People y. Tompkins, 40 Hun,

228.
725

GENERAL CONSIDERATIONS.

the court has no authority to correct errors committed
by the assessors, though the writ is directed to the as-
sessors and supervisors, since the supervisors, to whom
alone the writ is properly directed, have no power un-
der the statute to correct errors complained of which
were committed by the assessors. Subsequently the
two foregoing cases were distinguished from the case
the court had under consideration, and wherein it held
that the writ was properly directed to the assessors to
review their action, and to the comptroller who had
possession of the roll, because of the fact of such pos-
session, on the ground that in such former cases the
writ did not issue under the statute (ch. 269, Laws of
1880), which was the statute under the authority of
which the latter court proceeded.®?

Such statute authorizing the issuing of the writ pro-
vides for a review of the proceedings of the assessors,
and does not contemplate the mere affirmance or re-
versal of the whole assessment; hence it was held im-
material what officer has the actual custody of the as-
sessment roll at the time the writ issues; that the su-
pervisor was not a necessary party.®*

82 People v. Carter, 52 Hun,
458.

83 People v. Smith, 24 Hun, 66;
People v. Carter, 47 Hun, 446.

It was stated in Champion v.
Minnehaha County, 5 Dak. 416,
in denial of a motion to dismiss
the writ on the ground that the
powers and functions of the
board had ceased: “The powers
and duties of the board never
cease so long as there is a board.
The members may change, the
individuality of the board may
change, but the board remains
the same. If it is meant that
the control of the board over

this very particular subject mat-
ter has ceased, the same is true
of every executive and adminis-
trative body where it has per-
formed an executive or adminis-
trative duty, and even of the
judgment of courts after the
term at which the judgment was
rendered has lapsed. - Yet
courts have power to affirm,
modify or reverse . . . the
judgments of inferior courts
over which the original tribunal
has long lost control.

Where such judgment is remit-
ted to the tribunal whose action
is reviewed, the judgment of the
726 CERTIORARI.

Where the particular officer whose action is the sub-
ject of review has ceased to be an officer, some of the
courts hold that the writ cannot be directed to him.84

Where the office, like that of a comptroller, is con-
tinuous, it may be improper to make the individual in-
cumbent, whose act is sought to be reviewed, a party
by name, and the writ should be directed to the present
incumbent who has custody of the records and papers
of the office. |

In order to procure a reversal of an order of com-
missioners of highways ordering the removal of fences
as being an encroachment, and in other like matters, it
is necessary that the order should be brought up and
made a part of the record.*¢

It was stated by the supreme court of Michigan that
a writ of certiorari to review proceedings before a jus-
tice of the peace and a jury, under the statute of that
state relative to encroachment upon highways, must be
directed to the justice, and, if necessary to bring up
‘the final action of the highway comissioners or the
documentary evidence annexed to it, to them also.
That the township clerk was not a member of the board
of commissioners, and a record of their proceedings
made up by him and returned by him where so directed
are without authority of law. A township clerk may
legally certify papers in his custody, and when such
papers become properly a part of a return of a writ
of certiorari, directed to the commissioners of high-

court merely stands in place of v. Brennan, 79 Mich. 362, 44 N.
the original decision, and subse- W. 618. The contrary is held by
quent proceedings had thereon’ others. Harris v. Whitney, 6

will be governed accordingly.” How. Pr. 175; People vy. Hill, 65
84 Peck y. Foote, 4 How. Pr. Barb. 170.

426; Matter of Tiffany, 30 N. Y. 85 Matter of Tiffany, 30 N. Y.

Supp. 486; In re EHvingson, 2 Supp. 486.

N. D. 184, 49 N. W. 733; Bee v. 86 People v. Highway Commis-

Seaman, 36 W. Va. 381; People’ sioners, 30 N. Y. 72.
GENERAL CONSIDERATIONS. 727

ways, the latter may annex such certified copies, and
return them, certifying them under their signatures,
substantialy, ‘‘Our return to the within writ appears
by the schedules hereto annexed, certified by our
clerk. ’’ 87

The rule has heretofore been stated (page 721) to
be that in proceedings against a town or county the
writ should be directed to the board of supervisors and
not to the clerk, and the return should be made by the
supervisors themselves or a majority of them, though
in Michigan and perhaps in some other states it is pro-
vided by statute that the writ may be directed to the
clerk and the return made by him.°’®

Such tribunal is the only party which can file an an-
swer or demurrer to the petition. Such answer or re-
turn, when it states any facts, is in the nature, not of
an allegation of a party, but of an official return, and
conclusive in all matters of fact, and should be signed
by the members of the tribunal and not by an attorney.
But if a question of law only is intended to be raised
by a demurrer to the petition, it may be filed by an at-
torney.®®

The rule applies to proceedings by village boards,
and when the action is brought to review their alleged
illegal acts, the writ should be directed to and served
upon the board, and not upon the clerk. The writ can-

117 Mass. 568. See note to State
ex rel. v. Town Clerk, 132 Wis.
108, 111 N. W. 1129. See, how.

87 Roberts v. Highway Com-
missioners, 30 Mich. 181; Rob-
erts v. Highway Commissioners,

25 Mich. 24.

s8 State v. Town of Manito-
woc, 92 Wis. 546, 66 N. W. 702;
Plymouth v. County Commis-
sioners, 16 Gray, 241; Worcester
& Nashua R. Co. v. Commis-
sioners, 118 Mass. 561; Tewks-
bury v. County Commissioners,

ever, as to proceedings against:
a town, State v. Harrison, 46 N.
J. L. 79, where it is held the
writ should be directed to the
town and not to the clerk.

s9 Worcester & Nashua R. Co.
vy. Commissioners, 118 Mass. 561.
728

CERTIORARI.

not go to a mere ministerial officer save in exceptional
cases, as where the body or board whose acts are sought
to be reviewed is not a continuing one or has ceased to
exist, and such ministerial officer has proper custody,
of the record or proceedings. So in the case of a vil-
lage board, it must appear that such board has ceased
to exist in order to justify the direction of a writ to the

clerk of the board.”

90 State v. McGovern, 100 Wis.
666, 76 N. W. 593. Says New-
man, J., in State v. Town of
Manitowoc, 92 Wis. 546, 66 N. W.
702: “In enacting the ordinance
in question, the county board
was acting in a political and
governmental function, in the
interest of the public, and not in

the interest or for the county in-

its private or corporate capac-
ity. The writ of certiorari, upon
which it should be sought to re-
view its action, should be di-
rected to the officers or board
whose act it was sought to re-
-view, whenever that is a perma-
nent body and has control of its
‘own records. And this is true
even where a clerk has custody
of the records as the mere agent
of the corporation. The writ in
that case should not be directed
to the clerk, but to the board or
body. If misdirected, the writ
must be superseded or quashed.
The court acquires no jurisdic-
tion by it (citing many cases).
The writ in this case was mis-
directed. It should have been
directed to the county board of
supervisors of Manitowoc coun-
ty, and not to the county clerk.
The appearance of the county
clerk in the action, and his at-
tempt to make a return to the

writ, was futile to give jurisdic-
tion of the board of supervisors.
or of the case. The return is a
nullity and confers no jurisdic-
tion, either of the person or of
the subject matter. Until the
proper defendant is before the
court, the court can have no
jurisdiction of the subject mat-
ter. This can only be acquired
by a proper writ and a return
made by the proper officer or
board. The writ in this case
should have been directed to the
board of supervisors, and the
return should have been made
by the supervisors themselves,
or a majority of them. Nor is a
return, signed by an attorney for
the board, sufficient. It is said
to be proper, in some cases in-
volving private rights, to join as
defendants persons having an in-
terest adverse to the relator.
However that may be, and
whether it is applicable to cases
involving only questions of pub-
lic right, it is difficult to see
how either of the towns of New-
ton or Manitowoc county have
any interest, in their private or
corporate capacity, in this mat-
ter. . . . Nor is it perceived
how the attempted appearance
of the board of supervisors,
after judgment, aids the judg-
GENERAL CONSIDERATIONS. - 120

Quite recently it has been stated by the Wisconsin
court that the writ reaches jurisdictional defects only;
that it should go to the body or officer controlling the
official record of the proceeding sought to be reviewed,
and where commissioners have gone out of office, and
have filed as required by law their determination with
the county clerk, the writ should be directed to the
county clerk, who alone could make the return. The
commissioners are not necessary parties.®!

§ 185. The return; conclusive effect of.

A comon-law writ of certiorari calls for the record
of the proceedings challenged. If the return does not
state the whole record, the proper course is to obtain
an amended return, not to impeach it by affidavits or
other proof. When the return is complete, it imparts
absolute verity;®? but it cannot be required to be
amended so as to show that any part of it was untrue.
The record cannot be contradicted in this manner.**

The return to the writ is a response to its commands
and not an answer to the allegations of the petition;
and where addressed to an officer having custody of

'

ment. It was void when ren-
dered. It was void when the
board of supervisors was repre-
sented as appearing. The court
decided nothing and changed
nothing in consequence or on
the strength of that appearance.

This does not question
the effect of an appearance by a
natural person in his own right,
after judgment, in an ordinary
action. This case is not affected
by those cases which hold that
the writ should not be quashed,
nor the action dismissed, after a
hearing upon the merits. Those

are none of them cases of mis-
direction of the writ. They
were all cases where the writ
had been properly issued and re-
turned, but was liable to be
quashed for irregularities.”

91 State ex rel. v. Losby, 115
Wis. 57, 90 N. W. 188.

92 State ex rel. v. Lawler, 103.
Wis. 460, 79 N. W. 777; State
ex rel. v. Oconomowoc, 104 Wis.
622, 80 N. W. 942.

93 State ex rel. v. Oconomowoc,
104 Wis. 623, 80 N. W. 942.

94 State ex rel. v. Lawler, 103
Wis. 460, 79 N. W. 777.
730 CERTIORARI.

the official record, he must respond by the production
of that record and nothing more. By that only is the
proceeding to be tested.%®

That being true, it would seem that the facts stated
in the affidavit or the petition upon which the writ was
granted, cannot be considered in determining the ques-
tion of the jurisdiction of the inferior court or tribunal,
or any other question involved, and such appears to be
the rule in most jurisdictions.*®

While the Wisconsin court had held in the cases
cited above, that neither the allegations of the petition
nor of the writ can serve to supply facts other than
contained in the return merely because they are not
traversed or otherwise met by the return, yet in a
subsequent case it appears that the court held that the
allegations upon which the writ was founded, recited
therein, and not responded to by the return, are deemed
to be true.®7

The return to the writ imparts absolute verity. Ex-
trinsic evidence will not be received to support or over-
throw it.®8

The New York code provides that a certiorari to re-
view must be heard upon the writ and return ‘‘and
the papers upon which the writ was granted.’’ Under
this statute, where the return meets all the allegations

95 State ex rel. v. Losby, 115 Tewksbury v. Commissioners,

Wis. 57, 90 N. W. 188.

96 People ex rel. v. Burton, 65
N. Y. 452; State ex rel. v. Law-
ler, 103 Wis. 460, 79 N. W. 777;
State ex rel. v. Fuldner, 109 Wis.
56, 85 N. W. 118; City of Los
Angeles v. Young, 118 Cal. 295,
50 Pac. 534, 62 Am. St. Rep. 234.

97 State ex rel. v. Thorne, 112
Wis. 81, 87 N. W. 797, 55 L. R.
A. 956.

98 Fore v. Fore, 44 Ala. 478;

117 Mass. 563; Emery v. Brann,
67 Me. 39; Hannibal R. R. Co.
v. State Board, 64 Mo. 294; State
ex rel. v. Thorne, 112 Wis. 81,
87 N. W. 797, 55 L. R. A. 956;
State ex rel. v. Lawler, 103 Wis.
460, 79 N. W. 777; People ex rel.
v. Burton, 65 N. Y. 452; People
ex rel. v. Board Fire Commis-
sioners, 73 N. Y. 437; State ex
rel. v. Oconomowoc, 104 Wis.
622, BD ON: W. 942,
GENERAL CONSIDERATIONS. 731

of fact contained in the writ and the papers upon which
if was granted and traverses them, then the hearing
must be confined to the facts stated in the return. But
where the return admits the facts stated in the writ or
the papers upon which it was granted or is silent as
to them, then such facts become important and must be
considered and have effect upon the hearing. All al-
legations of the petition which are denied expressly
or impliedly cannot be made the basis of judicial ac-
tion, but such allegations as are not denied, even indi-
rectly are to be regarded as true.°®

It was stated that the code thus changed the former
practice limiting the hearing to the return.1°

99 People ex rel. v. Wurster, ex rel. v. Sutphin, 166 N. Y. 163,
149 N. Y. 549, 44 N. B. 298; Peo- 59 N. E. 770.
ple ex rel. vy. Commissioners, 106 100 People ex rel. v. Commis-
N. Y. 64, 12 N. E. 641; People  sioners, 106 N. Y. 64, 12 N. HE.
641.
732. CERTIORARI.

CHAPTER III.

‘ REVIEW OF PROCEEDINGS.

§ 186. In General.
187. Evidence when and to what Extent Reviewable.
188. Discretionary Acts.
189. The Judgment.
In General.
Statutes; Effect of.
Inferior Court without Jurisdiction.
Dismissal of Proceedings. ,
Power to Affirm or Reverse in Whole or in Part.
Conclusive Effect of.
Costs; Question of.
190. Review of the Judgment of the Court of Review by the Ap-
pellate Court.

§ 186. In general.

An important question is, what may the court con-
sider in determining the matter presented by a return
to the writ of certiorari; in other words, the extent of
the review.

It has appeared that upon a writ addressed to courts,
only the question of jurisdiction is involved. The
functions of the writ is much broader when used to cor-
rect errors of tribunals not proceeding according to
the course of the common law, exercising judicial or
quasi judicial powers.

It is said the distinction between the scope of the pro-
ceeding in the two cases proceeds upon the ground that
in proceedings of a purely judicial character, the court
having jurisdiction of the person and the subject mat-
ter, may render a valid judgment, regardless of how.
grievously it may err on questions of law or fact, in
reaching that result.
REVIEW OF PROCEEDINGS. 733

But in the exercise of quasi judicial powers, clear
violations of law in reaching a result, which is within
the power of the officer or body to reach, proceeding in
a legal manner are considered as jurisdictional errors;
the idea being that in reviewing the proceeding of of-
ficers or bodies exercising quasi judicial powers, the
functions of the writ extends to keeping them within
their jurisdiction as well as reviewing matters of orig-
inal jurisdiction?

Whether or not such errors are considered jurisdic-
tional, a statement which may not meet with ap-
proval in all courts, the fact remains that they will be
considered upon certiorari, and present a sufficient
ground for reversal of the proceedings.”

It was stated in a prior case that on certiorari to of-
ficers and tribunals not judicial, the courts will review
and correct substantial errors in the proceedings which
do not go to the jurisdiction of such officers and tri-
bunals.®

Again it was said: When certiorari runs to an officer
{superintendent of public instruction) who has only
quasi judicial power to act in proceedings of a sum-
mary eharacter out of the course of the common law,
the record will be reviewed to ascertain not only
whether he acted within his jurisdiction, but whether
he acted strictly according to law, but the decision upon
the merits or upon mere questions of fact as to which
there was some evidence to support, will not be re-
viewed.*

The difference between jurisdictional error as to a

1State ex rel. v. Losby, 115
Wis. 57, 90 N. W. 188.

2State ex rel. v. Lawler, 103
Wis. 460, 79 N. W. 777; State ex
rel. v. Whitford, 54 Wis. 150, 11
'N. W. 424; State ex rel. v. Chit-

tenden, 127 Wis. 468, 524, 107
N. W. 500.

3 State ex rel. v. Nelson, 57
Wis. 147, 15 N. W. 14.

4State ex rel. v. Whitford, 54
Wis. 150, 11 N. W. 424.
734 CERTIORARI.

court proceeding according to the course of the com-
mon law, and such error as to a mere tribunal exercis-
ing quasi judicial authority, was said to be that ‘‘in
the former, jurisdiction of the party and subject mat-
ter being established, the determination cannot be suc-
cessfully challenged for such error, though the basic
question of fact rest upon insufficient evidence, or have
no foundation whatever therein. The judgment in such
circumstances may be erroneous, but not reversible
upon writ of certiorari for jurisdictional defect. In the
latter a clear violation of law in reaching a result,
within the power of the tribunal to reach, proceeding
properly is jurisdictional error.’’> |

Such error, however, must appear upon the record
or official history of the proceedings in the nature of
a record which the law requires to be kept.°®

Thus in reviewing proceedings taken under a stat-
ute for vacating a highway, the court will examine the
entire proceedings to see if they are regular and in
conformity to the statute.’ ;

And the same in respect to the proceedings of
boards and officers where not strictly judicial.®

Statutes of some of the states prescribe in express
terms the questions that may be reviewed and deter-
mined upon the writ, in some cases being a mere decla-
ration of the common law, and in others perhaps more
extended. It is held that the provisions of the New
York code authorizes inquiry into jurisdiction of the
subject matter, the exercise of authority in relation to

5 State ex rel. v. Chittenden, 6 State ex rel. v. Losby, 115
127 Wis. 468, 524, 107 N. W. 500; Wis. 57, 90 N. W. 188.
State ex rel. v. Whitford, 54 7 State ex rel. v. Goodwin, 24
Wis. 150, 11 N. W. 424; Will- Wis. 286.
iams v. Mitchell, 49 Wis. 284, 5 8Callon v. Sternberg, 38 Wis.
N. W. 798; State ex rel.v.Losby, 539.
115 Wis. 57, 90 N. W. 188.
735

REVIEW OF PROCEEDINGS.

the subject matter, according to law, the violation of
any rule of law to the prejudice of the relator.®

That it is the purpose of the statute to give the su-
preme court authority not only in respect to the law
but also as to the weight of the evidence.!°

Under the California statute, resort to the writ is
confined to cases in which the inferior board or officer
has exceeded its or his jurisdiction, and does not lie
to correct or review mere errors of law. To authorize
the writ the inferior board or officer must have entered
a judgment beyond the jurisdiction conferred by law,
in other words, must have exercised judicial power not’
conferred.1!

§ 187. Evidence; when and to what extent reviewable.

Under the common law strictly speaking, the evi-
dence is not subject to review. In fact the record does
not bring up the evidence, only in some exceptional
cases, in some jurisdictions, where jurisdiction depends
upon the evidence of certain facts. The evidence is
not preserved by bill of exceptions or otherwise.’?

In reviewing the judgments of courts of general ju-
risdiction, proceeding according to the course of the
common law, and those of justices of the peace, the
evidence is not reviewable at all.*®

In reviewing the proceedings of tribunals other than
courts exercising quasi judicial functions, the rule is,
in most jurisdictions, that the evidence may be reviewed

®9People ex rel. v. Hoffman,
166 N. Y. 462, 476, 60 N. EH. 187,
54 L. R. A, 597.

10 People ex rel. v. French,
119 N. Y. 502, 23 N. HE. 1061.

11 Spring Valley W. W. Co. v.
Bryant, 52 Cal. 132.

12People v. Board of Dele-
gates, 14 Cal. 479; Benjamin v.
Benjamin, 5 N. Y. 383.

13 Harris v. Barber, 129 U. S.
366, 32 L. Ed. 697, 9 Sup. Ct.
Rep. 314; State ex rel. v. Chit-
tenden, 127 Wis. 468, 524, 107
N. W. 500.
736 CERTIORARI.

to the extent only of determining whether there is evi-
dence upon which the tribunal could reasonably and
honestly have reached the conclusion which it did. The
evidence cannot be weighed for the purpose of deter-
mining whether the same clearly preponderates against
the decision.!*

The general rule undoubtedly is, except where other-
wise extended or limited, that certiorari will not lie to
review the merits; that an appeal is the proper rem-
edy, where. provided, where such relief is sought, and
where not provided, that discretion conferred is not
subject to control,!® that the court is restricted to a
review of errors of law disclosed upon the face of the
return, in reviewing proceedings of tribunals or boards
not proceeding according to the course of the common
law. The weight of the evidence cannot be consid-
ered.*6

Among the exceptional cases referred to are those
where it is sought by the writ to review the proceed-
ings of boards of review and the like, where such a
board is required by law to determine questions before
them upon the evidence. It is held that in such cases,
the board must decide upon the evidence and according
thereto. That a decision one way where the evidence
is all the other way, or to increase the value of prop-
erty without evidence, or a decision so manifestly
against what is clearly established by evidence as not
to be in any reasonable view, attributable to error of
judgment, is, jurisdictional error, in fact an excess of
jurisdiction. A determination beyond their powers.

14 State ex rel. v. Chittenden, | 1¢Small v. Orne, 79 Me. 78, 8
127 Wis. 468, 524,107 N. W. 500; Atl. 152; People v. Betts, 55 N.
State ex rel. v. Williams, 128 YY. 600; In re Minnetonka Dam,
Wis. 73, 100 N. W. 1052. 83 Minn. 464, 86 N. W. 455;

18 State ex rel. v. Whitford, Jackson v. People, 9 Mich. 111,
54 Wis. 150, 11 N. W. 424. 77 Am. Dec, 491.
737

REVIEW OF PROCEEDINGS.

Where however, the board reaches a conclusion, which
is against the great weight of the evidence, it cannot
be disturbed if there be any reasonable ground for be-
lief that it is the result of honest judgment. In other
words, unless there is a clear abuse of discretion.!7

That the reviewing court will look into the evidence
far enough to see whether in any reasonable view
thereof in the light of correct rules of law, it furnishes:
a substantial basis for the boards action, and such is:
the limit of its function.!8

The general rule undoubtedly is that as the province
of the common-law writ of certiorari is to review a rec-
ord of an inferior court, board or tribunal, and to de-
termine from the record whether such court, board or
tribunal had exceeded its jurisdiction, evidence dehors
the record and contradicting it, is never permitted.
The writ tries nothing but the jurisdiction, and inci-
dentally the regularity of the proceedings upon which
jurisdiction depends. Such evidence may be made a
part of the record, but the inquiry in such cases is lim-
ited to the evidence before the tribunal whose deter-
mination is under review.’®

And where jurisdiction of an inferior tribunal de-
pends upon a fact to be proved before itself, and a
certiorari issues to review the proceedings, the proofs
of such jurisdictional fact should be returned for the
purpose of enabling the higher court to determine
whether the fact was established.”

of Los Angeles v.-

17 State ex rel. v. Williams,
123 Wis. 73; State ex rel v.
Losby, 115 Wis. 57, 90 N. W.
188; Shove v. Manitowoc, 57
Wis. 5, 14 N. W. 829; People ex
rel. v. Knowles, 47 N. Y. 415.

1s State ex rel. v. Williams,
123 Wis. 73, 100 N. W. 1052.

47

19 City
Young, 118 Cal. 295, 50 Pac. 534,
62 Am. St. Rep. 234; Drainage.
Commissioners v. Gaffin, 134 Ill.
330, 25 N. EH. 995.

20 People v. Knowles, 47 N. Y.
415; People v. Goodwin, 5 N. Y.
572.
'738 CERTIORARI,

It must be conceded that the earlier decisions of the
New York courts were much in conflict. They are given
in People v. Board of Police, 39 N. Y. 506: Subse-
quently the rule was settled in that state, with respect
to tribunals other than courts, and stated to be that
questions of fact from conflicting inferences which may
be drawn from facts or matters of judgment or discre-
tion in a case justifying their exercise cannot be re-
viewed. Only errors of law affecting materially the
rights of the parties may be corrected, and the evi-

dence may be examined whether there is competent
proof to justify the adjudication made!

21 People v. Board of Police,
9 N. Y. 408; People v. Board of
Fire Commissioners, 100 N. Y.
$2.

New York. Rule in: Section
2140 of the New York code pro-
vides that “the questions in-
volving the merits to be de-
termined by the court upon the
hearing are the following only:
* * * 4, Whether there was
any competent proof of all the
facts necessary to be proved in
order to authorize the making
of the determination. 65. If
there was such proof, whether
there was, upon all the evidence,
‘such a preponderance of proof
‘against the existence of any of
those facts that the verdict of a
jury affirming the existence
thereof, rendered in an action
in the supreme court triable by
a jury, would be set aside by the
court as against the weight of
evidence.” Section 2134 requires
the clerk with whom a writ of
certiorari is filed, and each per-
gon upon whom a writ of cer-
tiorari is served, “to make a

return with a transcript an-
nexed and certified by him of
the record of proceedings, and
a statement of the other mat-
ters specified in and requested
‘by the writ.” Prior to the enact-
ment of this rule, the courts of
New York were seemingly in
conflict upon the question of the
extent to which the evidence
might be reviewed and consid-
‘ered,—not so much with ref-
erence to the proceedings of
‘courts as with respect to pro-
ceedings of other inferior tri-
bunals exercising judicial pow-
ers—and much of the _ con-
fusion was due to the effort to
justify the correction of errors
of such tribunals by means of
the common-law writ, and in not
making clear the distinction
which they created between the
proceedings of the two classes
of inferior tribunals. People v.
Betts, 55 N. Y. 600.

Thus it was stated by Grover,
J., in People v. Smith, 45 N. Y..
776: “It must now be regarded -
REVIEW OF PROCEEDINGS.

§ 188. Discretionary acts.

739

The principle is well settled that certiorari will not
lie to review the exercise of discretion on the part of

as settled in this state that it is
the duty of the court * * *
to examine the evidence whether
there was any competent proof
of the facts necessary to author-
ize the adjudication made, and
whether in making it any rule
of law affecting the rights of
the parties has been violated.”
There are several cases in that
court where somewhat similar
expressions were used. They are
collated in People v. Betts,
supra, and the court there said
in reference to them: “It is
thus seen that the office of a
common-law writ has been
somewhat enlarged since the de-
cision in the 30th New York
(People v. Commissioners, Dp.
72). But it wilil also be seen
that it is in cases where the
relator has no other available
remedy, and where injustice
would be done if the writ was
not permitted to do its work.
The rule still remains unim-
paired in principle, that, where
there is a remedy by appeal, the
writ will be confined to its orig-
inal and more appropriate office,
which was said to be to bring up
the record of the proceedings of
an inferior court or tribunal to
enable the court of review to
determine whether the former
has proceeded within the juris-
diction, and not to correct mere
errors in its proceedings.” Ina
subsequent case it was stated:
“The statute (section 2140) has
extended the operation of the

writ beyond what it had at com-
mon law. Not only may the
court inquire as to the jurisdic-
tion of the body or the officer
making the determination which
is the subject of review, and
whether it has pursued the mode
required by law, but also
whether any legal rules have
been violated to the prejudice
of the relator, and it may ex-
amine the facts so far as to’
ascertain whether the determin-
ation was supported by evidence
or was against the preponderat-
ing weight of evidence.” People
v. Hildreth, 126 N. Y. 360, 27
N. BE. 558.

Speaking further with ref-
erence to the office of the writ,
where an appeal is also allowed,
it was said: “The question pre-
sented for determination upon
an appeal from an order of com-
missioners and those brought up
by a writ of certiorari are not
the same. There is, in a general
sense, the distinction which
exists between a review by
courts of questions of fact and
law. The statute authorizes an
appeal in order that there may
be a reconsideration by another
tribunal of the merits of the
application for laying out a
highway in the nature of a re-
view of the action of the com-
missioners. The referees may
consider ‘the question of the
necessity of the proposed high-
way, whether it is required by
the public interests and all
740

CERTIORARI.

courts or officers. There are cases where the writ has
been issued, and what are termed discretionary acts

questions bearing upon the ex-
pediency of laying it out, and
they may reverse or affirm the
action of the commissioners as
in their judgment they may de-
termine.” The court reaches the
conclusion that the remedies by
appeal and certiorari are con-
current, and that both may be
prosecuted at the same time.
The section of the code referred
to received construction by the
court of appeals prior to the de-
cision last referred to. People
v. French, 119 N. Y. 502, 23 N.
E. 1061.

Speaking with reference to
what was held in a prior case
(People v. French, 110 N. Y. 494,
18 N. E. 133), it was said: “We
did not determine in that case
that the supreme court upon cer-
tiorari did not have jurisdiction
to review the determination of
the police commissioners upon
the evidence, and it is a mistake
to suppose that if there is any
evidence in the record brought
to the supreme court by cer-
tiorari sustaining the determina-
tion of the commissioners, that
court has no right to interfere
therewith. Such is the rule in
this court, and such was the
rule at common law. But now
by section 2140 of the code, upon
the hearing on the return of a
writ of certiorari, the supreme
court may inquire whether there
ig any competent proof of all
the facts necessary to be proved
in order to authorize the mak-
ing of the determination; and if

there was such proof, whether

. there was, upon all the evidence,

such a preponderance of proof
against the existence of any of
those facts that the verdict of a
jury affirming the existence
thereof, rendered in an action
in the supreme court triable by
a jury, would be set aside by
the court as against the weight
of evidence. Therefore in all
this class of cases it is the duty
of the supreme court not only
to inquire whether there is any
competent proof tending to es-
tablish the guilt of the accused
officer, but it must look into the
evidence, and if it finds that
there is a preponderance of evi-
dence: against the determination
of the commissioners, then it
has the same jurisdiction to re
verse the determination that it
has to set aside the verdict of a
jury as against the weight of
evidence. It is the purpose of
the law to give a review in the
supreme court by certiorari not
only upon the law, but upon the
evidence, to the extent specified
in the statute, and every party
who seeks such a review is en-
titled to the fair and judicious
exercise of that jurisdiction.”
Iowa statute: The Iowa statute
provides that the writ may be
granted not only where there is
an excess of jurisdiction, but
where the tribunal, board or of-
ficer is otherwise acting il-
legally. It was stated with ref-
erence to this statute, that “if a
tribunal, when determining mat-
REVIEW OF PROCEEDINGS.

741

have been reviewed, but in such cases the courts have
proceeded upon the ground that the act was unwar-

ters before it which are within
its jurisdiction, proceeds in a
manner contrary to law, it acts
illegally; but if a discretion is
conferred upon the inferior tri-
bunal, its exercise cannot be il-
legal.” It is plain that the stat-
ute does not contemplate that
the decisions of the inferior tri-
bunals upon the questions of
fact may be reviewed by cer-
tiorari. The distinction between
erroneous proceedings, which
are termed illegalities, and erro-
neous decisions of fact, is ob-
vicus. The code of that state
(sec. 3222) also provides that
“the trial in a proceeding by
certiorari may be on the record,
proceedings and facts certified
by the return to the writ, and
such other testimony, oral or
written, as either party may in-
troduce pertinent to the issue.”
It was held that such provision
was not intended to extend the
remedy so that inquiry may be
made into matters other than
the jurisdiction and legality of
the proceedings of the inferior
court; that it was not the pur-
pose of the statute to change the
office of a certiorari so that it
will operate as an appeal where-
in causes may be tried de novo.
Tiedt v. Carstensen, 61 Iowa,
334, 16 N. W. 214.

The proceeding in question
was brought to review the ac-
tion of a board of supervisors in
laying out a highway. We shall
see that without such a statute,
in cases of bodies other than es-

tablished courts, errors of law
are subject to review by the
writ. The statute merely ex-
tended that rule to inferior
courts. Where, however, the
question presented by the writ
was whether the _ supervisors
were authorized to submit the
question of relocation of a
county seat to a vote of the elec-
tors, and that power depended
upon the number of qualified
signers to a petition, and the
bill of exceptions recited that
the court, although requested so
to do by plaintiffs, did not ex-
amine, or cause to be examined,
the petition or remonstrances, to
ascertain how many names of
persons who signed the remon-
strances were also upon said pe-
tition, and thereby determine
whether the said petition had
the majority, it was said: “The
court seems to have relied sim-
ply upon the statements of the
defendants made to their return,
and to have ignored altogether
the evidence sent up with their
return, whereby the truth or
falsity of their statement might
have been determined. It was
the duty of the court to have ex-
amined the evidence submitted
and determine whether it
showed that the signatures prop-
erly in the petition were a ma-
jority of all the names submit-
ted.” Stone v. Miller, 60 Iowa,
243.

The same question was before
the supreme court of Nevada,
and it was there determined
742

CERTIORARI.

ranted or illegal, or so palpably wrong that it could be
said that the court or officer had not exercised discre-

that whether the action of the
board was based upon strictly
legal and sufficient evidence was
not within their province to in-
quire, State v. Humboldt Coun-
ty, 6 Nev. 100.

Michigan. Rule in: The stat-
utes of Michigan authorize the
removal of proceedings after
judgment by certiorari into the
circuit court or district court.
(How. Stat. sec. 7031.) Other
provisions of the statute specify
the steps that must be taken.
The party applying for the writ
within five days gives notice to
the justice of his intention of
removing the cause by certio-
rari, and within the same time
makes an affidavit setting forth
the substance of the testimony
and proceedings before the jus-
tice, and the grounds upon
which an allegation of error is
. founded; and he must within
thirty days after the rendition
of the judgment present the af-
fidavit to a circuit judge or cir-
cuit court commissioner of any
county in the state, and if he is
satisfied that any error has been
_ committed by the justice or jury
in the proceedings, verdict or
judgment, he shall allow the cer-
tiorari by indorsing his allow-
ance thereon. A bond is re-
quired. The affidavit and writ
is then to be served upon the
justice. Section 7040 requires
the justice to make return in
writing, in which he shall truly
and fully make auswer to all
the facts set forth in the affida-

vit. And section 7044 provides
that the court shall give judg-
ment in the cause as the right
of the matter may appear, with-
out regarding the technical omis-
sions; imperfections or defects
in the proceedings before the
justice which did not affect the
merits. This statute evidently
authorizes a review of the evi-
dence. And if it appears there
was no evidence to sustain. the
judgment, or, what is the same
in effect, the successful party’s
own evidence negatives his right
of action, the judgment will be
reversed. Burnham y. Gilder, 34
Mich. 246.

Where the writ is quashed
after being allowed, upon the
ground that the decision of the
justice was correct in quashing
a writ of replevin for indefinite-
ness in the description of the
property, the appellate court re-
versed the judgment of the jus-
tice and the circuit. court, hold-
ing that the description of the
property was sufficiently speci-
fic. Proper v. Conkling, 67
Mich. 244, 34 N. W. 560.

Tt was stated: by the court
that “no: doubt a better remedy
would have been by special ap-
peal to the circuit court, but the
statute gave the remedy by cer-
tiorari, and the party was en-
titled to it. And the mere fact
that such mode of proceeding
prevents a trial of the original
suit upon the merits is no rea-
son for denying the right to the
remedy. The writ is never a
REVIEW OF PROCEEDINGS.

matter of right, and can only
issue upon satisfying the circuit
judge or court commissioner
that there has been an error
committed affecting the merits,”
Young v. Kelsey, 46 Mich. 414,
9 N. W. 458.

And if the error consist in
the admission of testimony, it
must clearly appear that injury.
resulted to the party against
whom the judgment was ren-
dered. Whaley v. Gale, 48 Mich.
193, 12 N. W. 33.

No errors are considered
which are not made a ground
for the allowance of the writ,
and no errors are assignable in
the circuit court, but the case
must be decided on the return.
People v. Hobson, 48 Mich. 27,
11 N. W. 771.

The office of the writ is. to
review questions of law and not
of fact, and if there is any com-
petent evidence tending to prove
the facts necessary to support
the judgment, the determination
of the commissioner is conclu-
sive. The weight of evidence
will not be considered. Brown
v. Blanchard, 39 Mich. 790;
Schall v. Bly, 48 Mich. 401, 5
N. W. 651; McGraw v. Schwab,
28 Mich. 13.

The common-law writ is in
use in that state, but its scope
is extended beyond what is had
at common law. The court will
examine the rulings of the in-
ferior court and see that injus
tice has not been done by erro-
neous rulings. Palmer v. Peo-
ple, 43: Mich. 414, 5 N. W. 450.

It was said in another case,.

where proceedings of a court
commissioner in dissolving an

743.

attachment were under’ consid-
eration, that the rulings of the
commissioner would not be re-
viewed in that class of cases.
Schall v. Bly, 43 Mich. 401, 5 N.
W. 651.

Such a writ will lie for want
of jurisdiction, if reasonably ap-
plied for, notwithstanding a
remedy by appeal. Dunlap v.
Railroad Co., 46 Mich. 190, 9 N.
W. 249.

New Jersey. Rule in: The
New Jersey statute provides that
in all cases of certiorari,
brought to remove any tax or
assessment, or other order or
proceeding touching any local
or public improvement, it shall
be the duty of the court to de-
termine disputed questions of
fact as well as of law. It was
held that the statute applied to
a proceeding to remove en-
eroachments from a _ highway.
State v. Groendyke, 38 N. J. L.
114, *

Utah. Rule in: The statute of
Utah provides that “the review
upon certiorari cannot be ex-
tended further than to. deter-
mine whether the inferior tri-
punal, board or officer has regu-
larly pursued the authority of
such tribunal, board or officer.
. . . That the court must
hear the parties, or such of them
ag any attend for that. purpose,
and may thereupon give judg-
ment either affirming, annulling.
or modifying the proceedings be-
lew.” The g¢onstruction given
te this statute is, that the court.
may require that the entire pro-
ceedings, including the evidence,
be brought up in the return, and.
it could: look inte the testimeny
744

CERTIORARI.

tion; that the act was arbitrary rather than discre-
tionary. Such cases are rare.??

In those jurisdictions where the writ only issues to
review jurisdictional defects in proceedings by organ-
ized courts, the question of discretion or its abuse does

to determine whether there is
any evidence which will war-
rant, as matter of law, the judg-
ment, decision or order which is
the subject of complaint. Gil-
bert v. Board of Police, 11 Utah,
378, 40 Pac. 264.

It was said that the statute
was practically declaratory of
the common law, but this evi-
dently is a mistake so far as ap-
plied to inferior courts. The
common-law writ does not bring
ap the evidence.

West Virginia. Rule in: The
statute of West Virginia (sec. 3,
‘ch. 110) provides that, “when
the writ lies from the circuit
court to an inferior tribunal, the
inferior tribunal shall certify
the evidence and sign bills of ex-
ception, and that upon the hear-
ing such circuit court shall, in
addition to determining such
questions as might have been de-
termined upon a certiorari, as
the law heretofore was, review
such judgment, order or proceed-
ings of the county court, coun-
cil, justice or other inferior tri-
bunal upon the merits, deter-
mine all questions arising on the
law and evidence and render
such judgment or make such or-
der upon the whole matter as
law and justice may require.”
Under this statute the judg-
ments of justices of the peace
and all inferior tribunals may

be reviewed upon their merits,
as the merits appear from such
a record. Natural Gas Co. v.
Healey, 33 W. Va. 102; Poe v.
Marion Machine Works, 24 W.
Va. 517.

It was held, however, that this
statute did not authorize the
court, after reversing the action
of the inferior tribunal, to retry
the case upon the merits and
weigh the evidence; that the
power was limited to a review
of the case, and to deciding
every point on the law and the
evidence arising on the record.
Alderson v. Commissioners, 32
W. Va. 454,

It is impracticable to embody
the statutes of all the states
where they exist. There are dif-
ferent provisions in some, apply-
ing to different proceedings.
They have been amended from
time to time. The danger of be-
ing incorrect, and of misappli-
cation of decisions to statutes
not in force, is sufficient to in-
duce us to forego the task of
attempting to give the statutory
law in each state. The principal
features of most of such statutes
are similar to some of those
which have been stated.

22 State v. Bassett, 33 N. J. L.
26; Clifford v. Overseers, etc.,
37 N. J. L. 152; State v. Green,
2 Head (Tenn.), 356.
REVIEW.OF PROCEEDINGS. 745

not arise. It is only important where the errors and il-
legalities in the proceedings of inferior tribunals are
subject to review. It is true that in early cases in New
York it was said that ‘‘an improper exercise of discre-
tion, as in refusing a new trial or the postponement
of a cause in a common-law court, is not a ground for
a writ of error; but where palpable injustice has been
done by an inferior jurisdiction in the exercise of a
discretionary power, in opposition to the settled prin-
ciples of law and equity, their proceedings may be cor-
rected either by certiorari or by mandamus. Thus,
where the proceedings before justices of the peace
were reviewed on certiorari in the supreme court, one
of the ordinary grounds for reversing the judgment of
the justice was that he had, in the exercise of his discre-
tion, refused an adjournment when he ought to have
granted it had his discretion been soundly and judici-
ously exercised.’’ 28

The certiorari there referred to must have been a
writ in the nature of a writ of error and not the com-
mon-law writ, or else the court, in stating the principle,
made no distinction between inferior courts and in-
ferior tribunals exercising judicial power. The prin-
ciple so declared is one that is applicable at the present
day to proceedings by such inferior tribunals. The
common-law writ, when addressed to them, is, as we
have seen, in the nature of a writ of error to review
errors of law and illegalities in their proceedings. The
question of the failure to exercise discretion is well il-
lustrated by what was said by the supreme court of
North Carolina, speaking with reference to an amend-
ment of the record: ‘‘But though the propriety of an
amendment of the record and the particulars wherein

23 Brooklyn v. Patchen, 8 vesant, 8 Johns. 426; Beekman
Wend. 47; citing Rose v. Stuy: v. Wright, 11 Johns. 442.
746 CERTIORARI.

it is to be amended are entirely discretionary with the
judge, yet if he refuses to entertain a motion to amend
and to hear the evidence on the ground of want of
power, then he fails to exercise his discretion, and
therein a question of law is made which is reviewable
on appeal when that is allowed; and in state cases,
where no appeal is allowed, it is an error which may
be brought up and reviewed in the exercise of the su-
pervisory power by virtue of ecertiorari.’’ **

Where the rule has been stated to be otherwise, it
will be found upon investigation that in the particular
jurisdiction the scope of the writ has been extended
beyond what it was at common law. Discretion, the
exercise of which will not be controlled by mandamus
or reviewed by certiorari, is conferred upon officers in
so many cases that no attempt will be made to enumer-
ate them. The duties of commissioners or selectmen
with respect to highways clearly illustrates such a dis-
cretion. Whether the public needs are sueh as to re-
quire a road, the route over which it shall be estab-
lished, and similar questions, are, in many cases left
to the judgment and discretion of such officers. Dis-
cretion of such a character must be left somewhere,
and when fairly exercised is not subject to review.
This question is quite fully treated under mandamus.

§ 189. The judgment.—In general.

The judgment rendered by the court of review, where
it is not otherwise provided by statute, is either that
of affirmance or reversal of the proceedings of the in-
ferior tribunal.?®

24State v. Swepson, 83 N. C. 86, 14 N. W. 708; People v. Fer-
584. See also Ketchum v. Su-_ ris, 36 N.Y. 218; Winter v. Fitz-
perior Court, 65 Cal. 494. patrick, 35 Cal. 269; Bandlow v.
25 Luff v. Pope, 7 Hill, 557; Thieme, 58 Wis. 57, 9 N. W. 920.
Whitbeck v. Hudson, 50 Mich.
REVIEW OF PROCEEDINGS. 747

Thus where the supreme court, in reviewing the ac-
tion of referees appointed in highway proceedings,
made an order as. follows: ‘‘Decision of the referees
vacated; order appointing them set aside, the appeal
to stand: to be determined by a new board of referees.
to be appointed by the county judge,’’ it was said by
the court of appeals: ‘‘The certiorari was directed to
the referee, and brought up for review only the pro-
ceedings and determination of those officers, and the
only duty devolving upon the supreme court was to
affirm or reverse their proceedings and decision. This
was the extent of the authority resting in that court.
* * * Tt (the writ) did not. bring up the proceed-
ings prior to their appointment, or present any question
in regard to the regularity or correctness of the order
appointing them, and it must necessarily follow that
it was erroneous in that court to set aside such order
and prescribe future action in the case. As above sug-
gested, the authority of the supreme court was limited
to. a reversal or affirmance of the order and proceed-
ings of the referees.’? Where a justice of the peace
vacated and set aside a judgment rendered before him,
which was an act clearly in excess of his powers upon
certiorari, it was held that the court of review was
limited to affirming, annulling or-modifying the order
thus made. It could not affirm the original judgment.?®

Where a justice lost jurisdiction in an action of re-
plevin by failure immediately on receipt of the ver-
dict to enter an order in his docket requirmg the of-
ficer to deliver the goods and chattels mentioned in the
verdict to the plaintiff and to adjudge that he recover
such damages and costs, such being required by stat-
ute, and upon certiorari the court of review properly
reversed the judgment. of the justice on a day subse-

26 Winter v, Fitzpatrick, 35 Cal. 269.
748 CERTIORARI.

quent, and in addition ordered the property restored
to the defendant, and in case such return could not be
had, then that the defendant have and receive from the
plaintiff their value, it was held this was in excess of
the power of the circuit court. It had no power to do
anything more than to reverse or affirm the judgment
of the justice with costs. That the writ did not bring
up the evidence for review, but only the record, and
that only for the purpose of enabling the circuit court
to determine whether the justice had jurisdiction to
render the judgment complained of.?”

It was held, however, that after a cause has been
heard upon the merits, upon the return of a writ of cer-
tiorari, that an order superseding and setting aside
the writ is irregular and will be reversed, but where
in such case the whole record is before the supreme
court, the cause will be considered on the merits and
the proper judgment directed.?®

The defendant should have moved the court prior
to the coming in of the return and afterwards to quash
and it was too late after submitting to a trial upon the
merits. The court simply state that such is the rule
of that court.

Effect of statutes.

In many states, however, statutes authorize courts
of review to affirm, reverse or modify the judgment of
the inferior court or tribunal, or enter such. judgment
as the court below should have rendered, or enter such
judgment, order or decree in the premises as law and
justice may require. The language is not the same in
the several states where statutes exist modifying the

27 Smith v. Bahr, 62 Wis. 244, 28 State ex rel. v. Milwaukee
22 N. W. 488. See also Stark- County, 58 Wis. 4, 16 N. W. 21.
weather v. Sawyer, 63 Wis. 297,

23 N. W. 297.
REVIEW OF PROCEEDINGS. 749

common law in this respect, nor are the powers thus
extended as full as here stated, in some; yet in all the
power is granted to change or modify the judgment
below. The language stated is that of the Massachu-
setts statute, and it was held in that state that the
statute does not enlarge the authority of the court to
‘examine the matters passed upon below, but merely
enables it, after examining the case according to the
rules of law, to embody the result in a new judgment,
framed so as to secure the rights of all parties, instead
of being limited, as it was before the statutes were
amended in this respect, to quashing or affirming the
judgment below.?°

The Michigan statute is somewhat different. There
the court is authorized to ‘‘give judgment in the cause
as the right of the matter may appear, without regard-
ing technical omissions, imperfections or defects in the
proceedings before the justice which did not affect
the merits; or to affirm or reverse the judgment in
whole or in part.’’ It is held that where the result in
the circuit court is the same as below, the judgment
should be a simple affirmance with or without costs.®°

Yet it is not error for the circuit court to enter a
new judgment against the plaintiff in certiorari and
his sureties for the amount of the judgment and costs
in the justice’s court, with interest thereon up to the
date of the new judgment in the circuit court. The
new judgment is a substitute for the other.*+

In a later case the judgment of the circuit court was
that the judgment of the justice be in all things affirmed
and stand in full force and effect, and then proceeded
to adjudge anew that the defendant in error recover

29 Farmington R. W. P. Co. v. 31 McDermid y. Redpath, 39
Commissioners, 112 Mass. 206. Mich. 372.

30 Dooley v. Hilbert, 47 Mich.
615, 11 N. W. 408.
750 CERTIORARI.

against the plaintiff in error and his surety the amount
of the judgment below and interest, and that he have
execution therefor. It was contended that there were
thus two judgments—one in the justice’s and the other
in the circuit court. It was held, however, that the
whole entry in the circuit court should be taken to-
gether; that the latter judgment was the only one that
could be enforced; that the judgment of the justice
was merged therein.®?

The statute authorizes the court of review to enter
an entirely new judgment, even to the extent of revers-
ing that of the justice, and giving judgment for the
opposite party, which he established as appears from
the record.*8

Yet the right to judgment must appear as matter of

law from the record or by undisputed evidence. The
court of review cannot weigh the evidence and reach
therefrom a different conclusion from that of the jus-
tice.+ .
In an early day, Wisconsin provided for the use of a
statutory writ. It empowered the court on certiorari
to affirm or reverse the judgment in whole or in part,
and to make any such final orders or judgment as
should be proper in furtherance of justice. It was held
that the statute did not authorize a reversal of the
judgment and the entry of a new one; that it did not
confer any new power upon the court, but merely re-
peated in another form, for greater caution, the power
conferred in the previous part of the section.®®

The statute of New York contained language of the
same import, and the conclusion reached by the court
there was the same.*®

82 Ringelberg v. Peterson, 76 85 Dykens v. Munson, 2 Wis.
Mich. 107, 42 N. W. 1080. ‘245,

83 McClatchie v. Durham, 44 86 Sheldon v. Quinline, 5 Hill,
Mich. 435, 7 N. W. 76. 440.

84Overpack v. Ruggles, 27
Mich. 65.
REVIEW OF PROCEEDINGS. 751

Inferior court without jurisdiction.

Where it is determined that the inferior court was
without jurisdiction, then of course a new judgment
or a judgment upon the merits cannot be rendered.
The principle is elementary that if the subordinate
court is without jurisdiction the superior court cannot
gain it by reason of the writ. The very question was
determined by the supreme court of Mississippi.27 The
statute provided that ‘‘when any cause is removed on
certiorari to the circuit court, that court should be con--
fined to the examination of questions of law arising or
appearing on the face of the record and proceedings;
that in case of affirmance of the judgment of the jus-
tice the same judgment shall be given as on appeal, and
that in case of a reversal the circuit court should enter
upon such judgment as the justice ought to have en-
tered, if the same were apparent, or should proceed to
try the cause anew on its merits.’’ It was held that
when the justice of the peace had no jurisdiction of the
ease, the circuit court could not entertain jurisdiction,
and hence could not render a judgment on the merits.
The same conclusion was reached by the supreme court
of Tennessee.?®

Dismissal of proceedings.

Courts frequently have, where it was determined to
affirm the judgment, ordered a dismissal of the pro-
ceedings under the writ. Such practice is improper,
and in some jurisdictions fatal. Such an order is only
proper for defects in the writ or the service or the want
of jurisdiction. A reason given is that on appeal from
a judgment of affirmance the regularity of the proceed-
ings before the justice, so far as they were capable of

387 Morris v. Shyrock, 50 Miss. 38 Dixon vy. Caruthers, 9 Yerg.
§90. 30.
752 CERTIORARI

being inquired into on the writ, could be inquired into
by the appellate court, while on appeal from a judg-
ment of dismissal the only inquiry can be as to the
cause of dismissal, and if it appear there was no cause
the. judgment must be reversed.*°

In another case disposed of at the same term, the
court upon appeal from such a judgment reviewed the
merits and came to the conclusion that the judgment of
the justice should be reversed. It was said as that
form of judgment appears to have been adopted as
proper, where there appeared no reason for reversing
the judgment of the justice, and the merits were fully.
argued, we have considered them.*°

The case of State v. Washoe County, 6 Nev. 104, pre-
sented the same features as that of McNamara v.
Spees, supra, and the Nevada court considered the
judgment of dismissal equivalent to an affirmance of
the judgment of the lower court; and in Burrow v.
Sanders, 57 Miss. 211, the court held, while it deemed
the practice improper, yet as the same result was ob-
tained by dismissing the writ as if the proceedings had
been examined and the judgment affirmed, it would not
disturb the judgment. It would seem that this prac-
tically unimportant question of practice ought not to
occasion conflict of judicial opinion, yet we find the
courts are at variance. Thus, in Florida it was stated
by its court: ‘‘Upon such writ (common-law writ of
certiorari) we neither affirm or reverse a judgment,
nor try the case upon its merits. We must either quash
the proceeding of the judge of the circuit court or quash
the certiorari which brings it here;’’* and such ap-
pears to have been held in Alabama.*? Such also is

39 Morse v. Spees, 25 Wis. 543; 41 Basnet v. Jacksonville, 18
Owens v. State, 27 Wis. 456. Fla. 623.

40 McNamara v. Spees, 25 Wis. 42 McAllilley v. Horton, 75 Ala.
539. ; 491.
REVIEW OF PROCEEDINGS. 753

the practice in Illinois, and apparently in Louisi-
ana.*4

Of course such a judgment is proper where motion
to quash the writ is granted without any review of the
merits ;** and a judgment is proper quashing the pro-
ceedings of the inferior tribunal where it is determined
that its proceeding was without or in excess of its ju-
risdiction.*®

Power to affirm or reverse in whole or in part.

Statutes in some instances provide that the court
may reverse in whole or in part, and quite generally it
is held that where the excess of jurisdiction affects.
only a part of the judgment, which part is severable
and distinct from that within the proper jurisdiction
of the inferior tribunal, then only such excess will be
quashed.*”

In fact, such is the practice at common law; ** but
where the several parts of the proceedings are con-
nected together and depend upon such other, there the
whole must be quashed and not a part.*®

In the case last cited, it was stated by Shaw, C. J.:
“‘Tt appears to be well settled that upon a return of a
writ of certiorari the court will not enter a new judg-
ment where the proceedings are found erroneous, but
if the proceedings are so independent of and discon-

43 Brown v. Robertson, 123 Ill, sioners v. Blue Hill Turnpike
631, 15 N. E. 30; Hamilton v. Co., 5 Mass. 420; Commonwealth:

Harwood, 113 Ill. 154. v. West Boston Bridge Co. 13
44 State v. Judge, 36 La. Ann. Pick. 195; Gray v. Wilcox, 5¢
977. Mich. 58, 22 N. W. 109.
45 People v. Nearing, 27 N. Y. 48 Shafer v. Hogue, 70 Wis.

306; Carpenter’s Case, 14 Pa. St. 392, 35 N. W. 928; Bandlow v.
486; State v. Duluth, 53 Minn. Thieme, 53 Wis. 57, 94 N. W.
238, 60 N. W. 546, 39 Am. St. 920.
Rep. 595. 49 Shafer v. Hogue, 70 Wis.
4¢ Brush vy. Detroit, 32 Mich. 392, 35 N. W. 928; Common-
48; Morse v. Spees, 25 Wis. 548. wealth v. West Boston Bridge
47 Shafer v. Hogue, 70 Wis. Co., 18 Pick, 195.
392, 35 N. W. 928; Comumis-
48

a
754 CERTIORARI.

nected with each other that a part may be quashed and
leave the remainder an entire beneficial and available
judgment for the purposes for which it was intended,
the court may quash that which is erroneous and af-
firm the remainder.’’ This rule was applied where the
plaintiff in an action in an inferior court recovered
judgment for a small sum, which was adjudged to be
a lien upon certain logs (the statute giving a lien in
certain cases). Upon certiorari to the circuit court the
judgment was reversed in toto upon the ground that the
logs were in another county, and not within the juris-
diction of the inferior court rendering the judgment.
Upon an appeal to the supreme court it was held that
the judgment as to the lien should have been quashed
by the circuit court, but as to the personal judgment,
which was clearly correct, it should have been affirmed.
That part of the judgment which gave a lien upon the
logs is distinct and separate from that which gave a
personal judgment; consequently the circuit court
should have quashed that part and affirmed the re-
mainder.*°

Where the judgment was erroneously entered against
a garnishee for an amount of money and also for the
delivery of certain notes, where it appears that he ad-
mitted having the notes but denied having the money,
it was held that the superior court should not have re-
versed the whole judgment, but should have merely set
aside the personal judgment against the garnishee and
have required him to turn over the notes.*!

This feature of the common law or provision of stat-
ute, as the case may be, is entirely distinct from other
statutory provisions which in effect authorize the court
to enter such judgment as the court below should have
rendered, and make such judgment or decree in the

s0Shafer v. Hogue, 70 Wis. | 51 Hallett v. Blain, 58 Ga. 142.
392, 35 N. W. 928.
REVIEW OF PROCEEDINGS. 755

premises as law and justice require. Under such stat-
utory authority the court can render a new judgment
where the one rendered is erroneous, and so appears
from the record and undisputed facts. Care should be
observed in consulting the cases with respect to this
distinction. Where there were two distinct informa-
tions and the justice considered there were two dis-
tinct offenses, and in fact the whole constituted but one
offense, it was held that the proceedings as to the one
must be quashed and as to the other affirmed.*?

Where one convicted of an offense is sentenced for a
term exceeding that authorized by law, the rule stated
has no application. There are no distinct and sepa-
rate parts of the sentence. Where an error in high-
way proceedings relates solely to the question of dam-
ages awarded or the right of an individual thereto, the
proceedings are so far independent of those in rela-
tion to the location and acceptance of the road that the
former may be quashed and the latter affirmed; ** but
where the proceedings are void for want of notice the
entire proceedings will be quashed, and not merely
quashed as to a part of the highway which injuriously
affects the complaining parties and affirmed as to the
remainder.** _

Where county, town and school taxes have been sep-
arately assessed, and the proceedings are illegal only
as to one, the proceedings relating to such assessment
alone may be quashed and the assessment as to the
others affirmed.®®

The rule has also been held to apply to illegal items
included in the tax levy and warrant; such errors are

52 Commonwealth vy. Derby, 13 54 Names v. Commissioners, 30
Mass. 433. : Mich. 490.

53 Minot v. Cumberland Co. 86 Vance v. Little Rock, 30
Commissioners, 28 Me. 121. Ark. 435; State v. Wauife, 23 N.

J. L. 89.
756

CERTIORARI.

independent and unconnected with the other items mak-
ing up the assessment;°* also to correcting illegal as-
sessments in not making the proper deductions from
the capital or capital stock of corporations.°7

It appears from the decisions of the courts that costs
which are allowed in favor of the successful party are
so far independent of the judgment proper that the
part of the judgment for costs may be quashed and
that for damages affirmed.*®

The rule has no application to judgments against
joint tortfeasors or joint trespassers.5®

Conclusive effect of.

Judgments upon the merits in certiorari proceedings
are final and conclusive. Where, however, the proceed-
ings are dismissed for irregularities merely, this may
not preclude another application, nor operate as a
bar.®°

Costs; question of. ;

The question of allowance or disallowance of costs by
the court of review is, like almost every other question
involved in the proceeding by certiorari, the subject of
conflict of judicial opinion. In some of the states the
question is regulated by statute. At common law
costs eo nomine were never given to either party in
any action whatsoever. But although not given ‘by the
name of costs, yet in reality they were always included

56 People v. Westchester Coun-
ty, 57 Barb. 377.

57 People v. Board of Asses-
sors, 39 N. Y. 81; People v. Fer-
guson, 38 N. Y. 89.

58 Hurlburt v. Wilcox, 19 Wis.
419; Nichol v. Patterson, 4 Ohio,
200; Robinson v. Hedges, 3 N. J.
L. 262.

59 Sheldon vy. Quinline, 5 Hill,
441; Richards v. Walton, 12
Johns. 434.

60 State v. Washoe County, 12
Nev. 17; Hendrix v. Kellogg, 32
Ga. 435; People v. Kingston, 101
N. Y. 82, 4 N. E. 348; North
River Meadow Co. vy. Christ
Church, 22 N. J. L. 424,
REVIEW OF PROCEEDINGS. 757

in the quantum of damages in actions where damages
were given, and in such cases were assessed by the
jury.

Statutes in all of the states provide for allowance of
costs in actions at law, and it has been urged that such
statutes were applicable to certiorari. Hence, courts
have been compelled to determine the nature of the pro-
ceeding. It has been determined that certiorari is not
an action at law, and hence the statutes relating to costs
in such actions can have no application.®

The proceedings have been classed as special pro-
ceedings, and hence such costs as by statute were al-
lowed in such proceedings were to be allowed on cer-
tiorari. Such were early decisions in New York based
upon a statute of that state °° (sec. 318 old code).

The court of appeals, however, in subsequent cases
have held that the common-law writ is in no sense a
special proceeding,®‘ and still later it affirmed the doc-
trine expressed in previous cases that costs were not
allowable on a common-law writ, but held that the stat-
utory writ was much broader, where it authorized a
review and correction of the decisions and actions of
inferior tribunals which entitled it to be denominated
a special proceeding. Hence costs might be allowed.™

_ It has been urged that costs were allowable by reason
of the analogy between writs of error and certiorari;
but the answer has been that a writ of error only lies
to a court proceeding according to the course of the

61 Justice Hornblower in Aller 14 How. 527; People v. Van Al-

v. Shurts, 17 N. J. L. 188. styne, 3 Keyes (N. Y.), 35.
62 Stetson v. County Commis- 64 People v. Board of Police, 39
sioners, 72 Me. 17. N. Y. 506; People v. McDonald,
63 See Haviland v. White, 7 69 N. Y. 369.
How. Pr. 154; People v. Flake, 65 People v. Commissioners, 76

N. Y. 64.
758 CERTIORARI.
common law, and certiorari only lies to a tribunal not
proceeding according to the course of the common law.*
By statute in some of the states the allowance of
costs is within the discretion of the court. Thus, the
statute of Maine, chapter 102, section 14, provides ‘‘ that
upon every application for certiorari and on the final
adjudication thereof, the court may award costs against
any party who appears and undertakes to maintain or
object to the proceedings.’’ It was said: ‘‘By this sec-
tion a limit is imposed upon the discretion of the court;
costs cannot be awarded against a party who appears
and does not defend against the proceeding. This is be-
cause a person who has acted in a judicial capacity
ought not to be subjected to costs in cases where his er-
rors are corrected without any opposition on his part.

6s Commonwealth vy. Ellis, 11
Mass. 462.

In many states actions and
special proceedings are defined
by statute. Thus, an action is
declared to be an ordinary pro-

ceeding in a court of justice by .

which a party prosecutes an-
other party for the enforcement
or protection of a right, the re-
dress or prevention of a wrong,
or the punishment of a public
offense. Every other remedy is
a special proceeding. It must
follow that in those states where
such a statute exists, other pro-
visions relating to costs in spe-
cial proceedings are directly ap-
plicable to certiorari. :
‘Says Woodruff, J., in People v.
Board of Police, 39 N. Y. 506:
“It is quite clear that on a com-
mon-law certiorari costs were
not recoverable by either party
against the other. It was fitting
that this should be so, as, in

general, the people were the
plaintiffs in certiorari, and some
tribunal or body exercising pow-
ers judicial or quasi judicial
was defendant. In favor of both
good faith was to be presumed,
and the errors alleged, and, as
the case may be, committed,
were errors in law only. Where
the relator, at whose instance
the writ was sued out, was seek-
ing to maintain some private
right, property or privilege,
there might be reason for pro-
viding that he should be liable
for costs in case of affirmance,
but as'to the defendant there
would still be the same ground
of immunity in case of reversal.
It is not according to our sense
of propriety or expediency that
public officers, boards or judicial
tribunals should act under the
peril of being charged with costs
if they err in their judgment of
the rules of law.”
REVIEW OF PROCEEDINGS. 759

He stands in the position of a respondent in equity
who puts in a disclaimer. In equity, the complainant
having had probable cause to proceed against a re-
spondent who disclaims, neither party recovers costs.%7

There are courts which find authority in the nature
of the proceeding, independent of statutes, to exercise a
discretion in allowing costs in certain cases.*8

Where the right to costs exist either by force of
statute or otherwise, the question is limited to the
amount and the party which is entitled thereto. Stat-
utes in some instances provide that the costs shall be
the same as is allowed upon appeal. The question is
often present where the court has power to render a
new judgment, and it is less favorable to the respondent
than that of the tribunal below as to which party is en-
titled to costs. Usually upon appeal, the respondent,
so long as the judgment is not reversed, recovers costs,
and such by force of the statute would be the result up-
on certiorari.®

So also, where the writ is dismissed, costs will be
awarded against the petitioner.”°

And it is held in some jurisdictions, where the court
was without jurisdiction to issue the writ, that it had no
power to award costs upon dismissal for such reason.”

The appellate court, on appeal from the judgment of
the court of review, it seems, may award costs of ap-
peal in its discretion.”?

67 Stetson v. County Commis- son (Tenn.), 4 Yerg. 186, appar-

sioners, 72 Me. 17. ently contrary.

68 Aller v. Shurts, 17 N. J. L. 70 Dye v. Noel, 85 Ill. 290.
188; State v. Meyer, 40 N. J. L. 71 Deshon v. Boyd, 21 Ark.
252. See, however, Stiers v. 264; Taul v. Collingsworth, 2
Steirs, 20 N. J. L. 52. Yerg. (Tenn.) 579.

69 Chance v. Haley, 6 Ind. 367; 72 Adams v. Abram, 38 Mich.

Norton v. Walker, 19 Tex. 102. 302; People v. Wheeler, 21 N. Y.
See, however, Barnes v. Robin- 82; People v. Van Alstyne, 3
Keyes, 35.
760 CERTIORARI.

The New York court of appeals, however, subsequent-
ly decided, upon direct consideration of the question,
that costs upon appeal from proceedings upon a com-
mon-law writ were not allowable.”8

§ 190. Review of the judgment of the court of review
by the appellate court.

The question of the right to appeal from the judgment
of the reviewing court is another question which is the
occassion for a conflict of judicial opinion. The allow-
ance of the writ being discretionary, this is urged as a
reason against the right of appeal, as appeal does not
lie to review discretionary acts. Yet, as we have seen,
in some jurisdictions the propriety of granting the
writ is determined upon hearing, and, if allowed, then
thereafter the proceedings are of strict right; while in
others the writ is allowed more as a matter of course,
and the discretion is exercised at the hearing upon the
return. The rule seems to be that, when the proceeding
is final and affects a substantial right, the right of ap-
peal exists, such as a Judgment upon the hearing, wheth-
er it be in form that of affirmance or reversal, or dis-
missal of the writ or quashing the proceedings. But
where the court refuses, in the exercise of discretion, to
allow the writ, then such order is not appealable,
unless it may be in a clear case of an abuse of discre-
tion. As it seems that in the latter class of jurisdictions
above mentioned the discretion that may be exercised
extends to the appellate court, no good reason appears
why the right of appeal does not exist even where the
court below has exercised its discretion, not because
the appellate court may exercise its discretion, but on
the ground that there may have been an abuse of discre-
tion, which can be determined in no other way, as well

78 People v. Village of Nelliston, 79 N. Y. 638.
REVIEW OF PROCEEDINGS. 761

as on the ground that such order of refusal does affect.
a substantial right, and for the purposes of appeal is a
final order made in a special proceeding. Of course au-
thorities may be found to the contrary, but there is con-
flict on every proposition ;”* the distinction being made
by some courts that where the writ is dismissed, then
only the regularity of the proceeding is reviewable upon
appeal.75

In New York it was held that an appeal would not lie
from an order denying a motion to quash.Ӣ

Yet it was said that case was not an authority for
the proposition that an order denying the motion to
quash a certiorari irregularly or improperly issued in
a case not reviewable on certiorari is not appealable, as
when the proceedings sought to be reviewed were not of
a judicial character.”

As stated by the New York court of appeals: ‘‘The
writ was applied for under the provisions of the code
of civil procedure, which by express provision makes
its allowance discretionary with the court. Such
an order is not reviewable by this court. If the court
in making the order had refrained from exercising its
discretion in passing upon the question presented, and
had quashed the writ upon the ground of a want of pow-

74See sections 166-177, treat-
ing the question of discretion.
Moede v. Stearns County, 43
Minn, 312, 45 N. W. 485; Knapp
v. Heller, 32 Wis. 467; Shafer v.
Hogue, 70 Wis. 392, 35 N. W.
928; Morse v. Spees, 25 Wis. 543;
Owens v.. State, 27 Wis. 456.

75 Morse v. Spees, 25 Wis. 543.

76 Jones v. People, 79 N. Y. 45.

77 People v. Commissioners, 97
N. Y. 37.

There is a distinction to be ob-
served between the right of ap-

peal and the determination of
questions upon appeal. Thus,
there is a difference between say-
ing that an appeal does not exist.
to review discretionary acts, and
saying that upon appeal discre-
tionary acts will not be re-
viewed. The right to appeal ex-
ists from the character of the
proceedings as affecting a sub-
stantial right. What shall be
considered and determined upon
that appeal is another question.
762 CERTIORARI. |

er to issue it, or had granted it in case not warranted by
law, this court could properly have reviewed the ques-
tions presented by an appeal from such determination.
‘But in a case where that court has exercised its discre-
tion with respect to the allowance or denial of the writ,
and has refused to grant it on the ground that it ought
not, under all the circumstances of the case, to have
been issued, this court has no jurisdiction to review its
determination, and so it has been repeatedly held.’’7®

In a subsequent case”® is was said with respect to the
allowance of a common-law writ of certiorari: ‘‘The
granting or refusal of which by the supreme court has
always been held to be so far discretionary that an
order of the court quashing the writ is not reviewable
here, unless it affirmatively appears that the discretion
of the court was not exercised in granting it.’’

Such was the rule in Alabama,®* but by the statute,
appeals are expressly provided:*! and in Maryland,
where no appeal is provided for, the judgment is final

78 People v. McCarthy, 102 N.
Y. 630, 8 N. E. 85. The court
may not, as a rule of practice,
review’ the exercise of discretion
in inferior courts, but that it is
a question of jurisdiction may
well be doubted. It has jurisdic-
tion to determine whether the
court has exercised its discre-
tion, and a wrong decision of
that question, as that court has
frequently held, does not affect
its jurisdiction. Besides, prece-
dents are numerous in that
court and many others, ‘that an
abuse of discretion is not the
exercise of discretion; that ar-
bitrary action is sometimes an
abuse of discretion, and that the

appellate court, by reason of its
superior powers, if upon no
other ground, will correct such
abuse where it has been exer-
cised.

79 Matter of Corwin, 135 N. Y.
245, 32 N. E. 16.

An act regulating the review
of assessments, etc. (ch. 269,
Laws 1880), is held to be inde-
pendent of the writ of certiorari
recognized by the code, and in
such cases the writ is a matter
of right and the court is with-
out discretion.

soCarter v. Douglas, 2 Ala,
499. \

81 Ex parte Candee, 48 Ala.
386.
REVIEW OF PROCEEDINGS. 763

and conclusive.®? In Florida,®* Missouri,** West Virgin-
ia,8> Wisconsin,®* Michigan,*? Illinois,®* and in most of
the states, the right of appeal is recognized, and in Ten-
nessee,®® and California,®° this right is confirmed by
statute. In Lllinois it is expressly held that the discre-
tion of the court is subject to review,®! and in Virgin-
ja,®? that the refusal to issue the writ, or the propriety
of issuing it may be reviewed in the supreme court of
appeals by writ of error. The judgment of the appel-
late court is ordinarily either that of affirmance or re-
versal.** é

I know of no réason why the appellate court has not
the same power with respect to modification that it has

with respect to other judgments at law.

82 Baltimore, etc., Turn. Co. v.
Northern Cent. R. Co., 15 Md.
193. .

83 Deans v. Wilcoxson, 18 Fla.
531.

94 Hill vy. Young, 3 Mo. 337.

85 Board of Education v. Hop-
kins, 19 W. Va. 84.

s¢éKnapp v. Heller, 32 Wis.
467; Morse v. Spees, 25 Wis. 543.

87 Adams vy. Abram, 38 Mich.
302.

8s Board of Supervisors v. Ma-
goon, 109 Ill. 142.

89 Lawson v. Scott, 1 Yerg. 92.

90 Brewster v. Hartley, 37 Cal.
15, 99 Am. Dec. 237; Winter v.
Fitzpatrick, 35 Cal. 269.

®1 Board of Supervisors v. Ma-
goon, 109 Ill. 142.

92 Board of Education v. Hop-
kins, 19 W. Va. 84.

93 McClatchie v. Durham, 44
Mich. 435, 7 N. W. 76; Young v.
Kelsey, 46 Mich. 414, 9 N. W.
453; Lamar v. Commissioners, 21
Ala. 772; Memphis, etc. R. Co.
vy. Brannum, 96 Ala, 461; Vance
y. Little Rock, 30 Ark. 435.
164 CERTIORARI.

(

CHAPTER IV.
FEDERAL COURTS; JURISDICTION; PROCEEDINGS.

§ 191. When Writ may Issue. (See MANDAMUS.)
192. Writ Addressed to Circuit Court of Appeals.
193. Use of Writ Generally.

194, What may be Considered.
195. The Mandate.
196, Circuit Court of Appeals may Issue.

§ 191. When writ may issue. (Szz Manpamus.)

Section 716, Rev. Stat. of the United States provides:
“<The supreme court and the circuit and district courts
shall have power to issue writs of scire facias. They
shall also have power to issue all writs not specifically
provided for by statute, which may be necessary for the
exercising of their respective jurisdictions and agree-
able to the usages and principles of law.’’

By virtue of such statute the supreme court of the
United States may issue writs of certiorari in all proper
cases.1

Such power is not limited to the provisions of the
court of appeals act.?

Prior to the act of March 3, 1891 (ch. 517, 26 Stat.
826) the writ was ordinarily used in the federal court as
an auxiliary process merely. Yet whenever the cir-
cumstances imperatively demand that form of inter-

1 McClellan v. Carland, 217 U. U.S. 372, 880, 37 L. Ed. 486, 18
S. 268, 54 L. Hd. 762; American Sup. Ct. Rep. 158.
Const. Co. v. Jackson Ry., 148 2McClellan v. Carland, 217
’ U. S. 268.
FEDERAL COURTS; JURISDICTION; PROCEEDINGS. 769

position, the writ may be allowed as at common law to
correct excesses of jurisdiction and in furtherance of
justice.

§ 192. Writ addressed to circuit court of appeals.

The court of appeal act provides: ‘‘And excepting
also that in any such case as hereinbefore made final in
the circuit court of appeals, it shall be competent for the
supreme court to require by certiorari or otherwise any
such case to be certified to the supreme court for its re-
view and determination, with the same power and au-
thority in the case as if it had been carried by appeal
or writ of error to the supreme court.”’

The power of the supreme court in certiorari extends
to every case pending in the circuit courts of appeals
and may be exercised at any time during such pend-
ency, provided the case is one which but for the provi-
sion of the statute (Act March 3, 1891) would be final-
ly determined in that court.*

The power thus given is not affected by the condition
of the case in the court of appeals. It may be exercised
before or after any decision by that court, and ir-
respective of any ruling or decision therein. All that
is essential is that there be a case pending in the circuit
court of appeals, and of those classes of cases in which
the decision of that court is declared a finality.®

The reason underlying this statute is that as the
‘statutes provided for several circuit courts of appeals,
whose determinations of the same question might not
be the same, it is essential there should be power for
final determination.

8 McClellan v. Carland, 217 “Whitney v. Dick, 202 U. S. 132,
U. S. 268, 54 L. Hd. 762. 50 L. Ed. 963, 26 Sup. Ct. Rep.

“Forsyth v. Hammond, 166 U. 584; McClelland v. Carland, 217
8. 506, 514,41 L. Hd.1095,17 Sup. U. S. 268.
Ct. Rep. 665. See also In re 5 Forsyth v. Hammond, 166 U.

Chetwood, 165 U. S. 448, 41 L. S. 506, 518, 41 L. Ed. 1095, 17
Ed. 782, 17 Sup. Ct. Rep. 385; Sup. Ct. Rep. 665.
766 CERTIORARI.

However, it is only questions of gravity and im-
portance that should thus be certified, and it is only
when such questions are involved, that the power of the
supreme court to require a case in which the judgment

and decree of the court of appeals is made final, to be
' certified, can be properly invoked.®

The writ was refused in cases where only a private
interest was involved and no final judgment of the
court of appeals.”

And granted where the question was one affecting the
relation of this country to foreign nations.®

Also where the supreme court of Indiana and a cir-
cuit court of appeals had reached opposite conclusions
as to the respective rights of the parties.®

Also where the question involved the construction of
a prior decree of a United States circuit court, grant-
ing right of use of railroad tracks and terminal facil-
ities in a great city, and where not only the private in-
terests of the railroad companies and of the shippers,
but also the greater interests of the public required,
rights to be settled.!°

And also where circuit courts of appeals in two dif-
ferent districts reached opposite conclusions in respect
to the validity of a patent.

6In re Lau Ow Beu, 141 U. S.
583, 587, 35 L. Hd. 868, 12 Sup.
Ct. Rep. 48; Forsyth v. Ham-
mond, 166 U. S. 506, 514, 41 L.
Ed. 1095, 17 Sup. Ct. Rep. 665;
American Const, Co. v. Jackson-
ville Ry., 148 U. S. 372, 383, 37
L. Ed. 486, 18 Sup. Ct. Rep. 158.

TChicago & N. W. R. Co. v.
Osborne, 146 U. S. 354, 36 L. Ed.
1002, 13 Sup. Ct. Rep. 281; Field
y. United States, 205 U. S. 292,

51 L. Ed. 807, 27 Sup. Ct. Rep.
543.

8The Three Friends, 166 U. S.
1, 41 L, Ed. 897, 17 Sup. Ct. Rep.
495.

9 Forsyth v. Hammond, 166 U.
S. 506, 41 L. Ed. 1095, 17 Sup. Ct.
Rep. 665.

10 St. Louis, K. C. & C. R. R.
Co. v. Wabash R. R. Co., 217 U.
S.°247, 54 L. Hd. 752.

11 Expanded Metal Co. vy. Brad-
ford, 214 U. S. 366.
FEDERAL COURTS; JURISDICTION; PROCEEDINGS. 767

§ 193. Use of writ generally.

The writ, however, cannot be granted under the act
of March 3, 1891, in a criminal case at the instance of
the United States, whatever the supposed importance
of the questions involved, nor under the act of March
2, 1907 (ch. 2564, 34 Stat. 1246) 1?

Nor can a criminal case be brought to the supreme
court on writ of error from the court of appeals of the
district of Columbia.'*

As a general rule in the federal courts, the writ when
sought as between private parties, and on the ground
that the proceedings below are void, will be granted or
denied in the sound discretion of the court.!*

And generally will be refused where there is a plain
and adequate remedy by appeal or otherwise.'®

The foregoing declarations are applicable to cases
other than those before mentioned as being within the
courts of appeal statute.

The federal statute (716 Rev. Stat.) does not grant
power to the federal court to review the proceedings
of miiltary tribunals by certiorari, nor are such tri-
bunals, courts with jurisdiction in law or equity, within
the meaning of the terms, as used in the third article of
the constitution, and the question of the issue of the
writ in the exercise of inherent general power cannot
arise in respect to them.’®

12United States v. Dickson,
2138 U. S. 92, 53 L. Ed. 711;
United States v. Sanges, 144
U. S. 210, 36 L. Ed. 445, 12 Sup.
Ct. Rep. 609.

18Chapman v. United States,
164 U. S. 486, 41 L. Ed. 504, 17
Sup. Ct. Rep. 76; Sinclair v. Dis-
trict of Columbia, 192 U. S. 16,
48 L. Hd. 322, 24 Sup. Ct. Rep.
212; Fields v. United States, 205
U. S. 292, 51 L. Ed. 807, 27 Sup.
Ct. Rep. 543.

14In re Huguley Mfg. Co., 184
U. S. 297, 46 L. Ed. 549, 22 Sup.
Ct. Rep. 455.

15 In re Huguley Mfg. Co., 184
U 8S. 297, 46 L. Ed, 549, 22 Sup.
Ct. Rep. 455; In re Tampa Sub-
urban Ry. Co., 168 U. S. 5838, 42
L. Ed. 589, 18 Sup. Ct. Rep. 177.

16In re Vidal, 179 U. S. 126,
45 L. Ed. 118, 21 Sup. Ct. Rep.
48,
768

CERTIORARI.

§ 194. What may be considered.

On certiorari the court will consider only the record
as certified in return to the writ and the case will be
decided solely as presented by such return.1

Under the provisions of the courts of appeals act of
1891, the entire record returned upon the writ is be-
fore the supreme court, with power to decide the case
as presented to the circuit court of appeals on the writ
of error issued by it.1®

And after the circuit court of appeals has certified
questions. to the supreme court, and the latter has
issued its writ of certiorari requiring the whole record
to be sent up, it devolves upon such court to decide the
whole matter in controversy in the same manner as if
it had been brought there by writ of error or appeal.’®

§ 195. The mandate.

Although ordinarily the mandate of the supreme
court in cases coming to it on certiorari to the circuit
court of appeals, goes directly to the circuit court, yet
where certiorari is granted solely on the ground that
the circuit court of appeals has failed to consider the
case, the judgment will be reversed and the case re-
manded to that court with instructions to hear and de-
cide it.?°

§ 196. Circuit court of appeals may issue.

Section 12 of the court of appeals act, declares that
the circuit court of appeals shall have the powers speci-

17 McClellan v. Garland, 217

U. S. 268, 54 L. Ed. 762.

18 Lucher & Moore Lbr. Co. v.
Knight, 217 U. S. 257, 54 L. Hd.
757, 30 Sup. Ct. Rep. 505.

19 Loewe v. Lawler, 208 U. 8.
274, 52 L. Ed. 488; Delk vy. St.

Louis & S. F. R. Co., 220 U. S.
580, 55 L. Hd. 590; Lucher &
Moore Lbr. Co. v. Knight, 217
U. S. 257, 54 L. Ed. 757, 30 Sup.
Ct. Rep. 505.

20 Lucher & Moore Lbr. Co. v.
Knight, 217 U. S. 257.
FEDERAL COURTS; JURISDICTION; PROCEEDINGS. 769

fied in section 716 of the revised: statutes of the United
States, and hence has the same authority as the su-
preme court to issue writs of scire facias and all other
writs. , .

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