In re Dowd

• Decision Date: 08 December 1904
• Citation: 133 F. 747
• Parties: In re DOWD.
• Court: U.S. District Court — District of Colorado

133 F. 747

In re DOWD.

United States Circuit Court, D. Colorado.

December 8, 1904

Syllabus by the Court

The federal courts and judges have the power under the acts of Congress to discharge prisoners restrained of their liberty in violation of the Constitution of the United States under judgments of the state courts. Rev. St. Secs. 751-755 (U.S Comp. St. 1901, pp. 592, 593).

Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C.C.A. 4.

Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C.C.A. 4. NEITHER WANT OF JURISDICTION NOR BREVITY OF 2mprisonment AUTHORIZES WRIT.

Under these decisions of the Supreme Court, neither the fact that the petition shows that the state court was without any jurisdiction of the proceeding in which its judgment was rendered (New York v. Eno, 15 Sup.Ct. 30, 155 U.S 88, 89, 90, 93, 96, 98, 39 L.Ed. 80), nor the fact that the term of the petitioner's imprisonment will expire before a hearing can be had in the ordinary course of proceedings upon the writ of error or appeal (Markuson v Boucher, 20 Sup.Ct. 76, 175 U.S. 184, 44 L.Ed. 124) ordinarily withdraws a case from the effect of this general rule.

Jurisdiction of federal courts in habeas corpus proceedings, see note to In re Huse, 25 C.C.A. 4. SENTENCE FOR CONTEMPT OF SUPREME COURT OF COLORADO--REVIEW BY WRIT OF ERROR.

The petition for the writ discloses the alleged facts that the prisoner is confined in jail at Denver for the violation of a writ of injunction issued by the Supreme Court of Colorado upon a complaint of the people of that state, on the relation on their Attorney General and others, for the purpose of that state which authorized such a suit; that that court had no jurisdiction of the original suit, or of the proceedings against the prisoner for a violation of the injunction; that his confinement was in violation of the Constitution of the United States; that in the proceedings against him before the Supreme Court of Colorado he set up the right and immunity which he now claims under the Constitution of the United States, and that court decided against that right and immunity; that other citizens of Colorado have been arrested, and still others are to be arrested and tried by the Supreme Court of that state, for similar violations of the injunction; that other citizens have already been tried and sentenced; and that the Supreme Court of Colorado is proceeding in the original suit to supervise the election and to canvass the votes, in alleged violation of the laws of that state.

Held, (1) the petition shows that the judgment of the Supreme Court under which the prisoner is confined is reviewable by the Supreme Court of the United States by writ of error (Tinsley v. Anderson, 18 Sup.Ct.805, 171 U.S. 101, 105, 43 L.Ed. 91); (2) the Supreme Court of the United States has repeatedly decided that, in a case of the character of that presented by this petition, a federal judge should deny the application for the writ; and, (3) if this question were not determined by those decisions, the character of the original suit and of the proceedings under it, the gravity of the questions they present, the fact that decision of the Supreme Court of the United States, which may prevent confusion and conflict of opinion, may finally determine every doubtful legal question, may speedily terminate all controversy and litigation, and may authoritatively direct the action of the Supreme Court of Colorado, is available to the petitioner and to all others in a similar situation, while, even if a circuit judge should grant the writ here sought, should be of the opinion that the petitioner was restrained of his liberty in violation of the Constitution, and should discharge him, that adjudication would only determine that this particular prisoner should be discharged, would leave every other question without authoritative decision, and would introduce a conflict of opinion and tend to increase controversy and litigation-- all these consideration would demonstrate the wisdom and applicability of the general rule here, rather than that this case should constitute an exception to it, and would persuade that the application for the writ should be denied, rather than that it should be granted.

Held, (1) the petition shows that the judgment of the Supreme Court under which the prisoner is confined is reviewable by the Supreme Court of the United States by writ of error (Tinsley v. Anderson, 18 Sup.Ct.805, 171 U.S. 101, 105, 43 L.Ed. 91); (2) the Supreme Court of the United States has repeatedly decided that, in a case of the character of that presented by this petition, a federal judge should deny the application for the writ; and, (3) if this question were not determined by those decisions, the character of the original suit and of the proceedings under it, the gravity of the questions they present, the fact that decision of the Supreme Court of the United States, which may prevent confusion and conflict of opinion, may finally determine every doubtful legal question, may speedily terminate all controversy and litigation, and may authoritatively direct the action of the Supreme Court of Colorado, is available to the petitioner and to all others in a similar situation, while, even if a circuit judge should grant the writ here sought, should be of the opinion that the petitioner was restrained of his liberty in violation of the Constitution, and should discharge him, that adjudication would only determine that this particular prisoner should be discharged, would leave every other question without authoritative decision, and would introduce a conflict of opinion and tend to increase controversy and litigation-- DENIAL OF APPLICATION.

When the petition for a writ of habeas corpus shows that the petitioner is not legally entitled to it, the writ should not be issued, but the application for it should be denied, and the petition should be dismissed. Rev. St. Sec. 755 (U.S. Comp. St. 1901, p. 593).

E. F. Richardson and H. V. Hawkins, for applicant.

N.C. Miller, Atty. Gen., John M. Waldron, H. J. Hersey, and Thomas Ward, Jr., for the People of the State of Colorado.

Before SANBORN, Circuit Judge.

SANBORN Circuit Judge.

Michael Dowd presents an application for a writ of habeas corpus to inquire into the cause of his confinement in jail at Denver, in the state of Colorado, as he avers, in violation of the Constitution of the United States.

The acts of Congress empower the Supreme Court, the Circuit Courts of Appeals, the Circuit and District Courts of the United States, and the several justices and judges thereof, to issue such a writ; but they prohibit its extension to a prisoner in jail, except in certain specified cases, the only one of which applicable here is a case in which the prisoner 'is in custody in violation of the constitution * * * of the United States,' and they provide that 'the court or justice or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. ' Rev. St. Secs. 751, 752, 753, 754, 755 (U.S. Comp. St. 1901, pp. 592, 593). The first question, therefore, which presents itself upon the application for a writ of habeas corpus, is, does the petition itself show that the applicant is not entitled to the writ? And if this question should be answered in the affirmative, the application must be denied. Ex parte Royall, 117 U.S. 241, 251, 252, 6 Sup.Ct. 734, 29 L.Ed. 868; Ex parte Royall, 117 U.S. 241, 251, 252, 6 Sup.Ct. 734, 29 L.Ed. 868; Ex parte Royall, 117 U.S. 241, 251, 252, 6 Sup.Ct. 734, 29 L.Ed. 868; Ex parte Fonda, 117 U.S. 516, 6 Sup.Ct. 848, 29 L.Ed. 994; Ex parte Frederich, 149 U.S. 70, 77, 13 Sup.Ct. 793, 37 L.Ed. 653; Wood v. Brush, 140 U.S. 278, 289, 290, 11 Sup.Ct. 738, 35 L.Ed. 505; Tinsley v. Anderson, 171 U.S. 101, 105, 18 Sup.Ct. 805, 43 L.Ed. 91; Markuson v. Boucher, 175 U.S. 184, 186, 20 Sup.Ct. 76, 44 L.Ed. 124; Storti v. Massachusetts, 183 U.S. 138, 22 Sup.Ct. 72, 46 L.Ed. 120.

The alleged facts disclosed by the petition in this case which are material to the determination of this question are these There was a general election in the city and county of Denver on November 8, 1904, for the election of presidential electors, congressmen of the United States, and state, city, and county officers. On the 5th day of November, 1904, the Supreme Court of the state of Colorado, upon a petition of the people of the state of Colorado, on the relation of N.C. Miller, Attorney General, James H. Peabody, and D. B. Fairley, against the judges of election of the Eighth Precinct of the Seventh Ward of the city of Denver, and others, issued a writ of injunction, directed to the judges of this precinct and the and the other respondents, whereby it commanded them, their servants, agents, employes, and all persons acting or assuming to act under their control, authority, or direction, or in collusion or confederacy with them, to refrain from preventing a free, fair, and lawful election; from excluding or preventing the judge of election appointed by Harry C. Riddle, one of the respondents, from serving as such judge in that precinct; commanded the said judges to appoint as one of the clerks of the election in this precinct the person designated by the judge appointed by Harry C. Riddle; and commanded and forbade numerous other specific acts. The judges of the Eighth Precinct of the Seventh Ward on the morning of the election appointed the petitioner, Dowd, a constable. Riddle requested the judges to appoint one Samuel Lucas as a clerk of election, and the judge of the election in this precinct appointed by Riddle requested the judges in...