Ex parte Hague

• Decision Date: 07 January 1929
• Citation: 144 A. 546
• Parties: Ex parte HAGUE.
• Court: New Jersey Court of Chancery

144 A. 546

Ex parte HAGUE.

Court of Chancery of New Jersey.

Jan. 7, 1929.

[Copyrighted material omitted.]

Application by Frank Hague for writ of habeas corpus. On petition, etc. Order of discharge advised.

Order affirmed 145 A.—.

See, also, 143 A. 836.

Thomas J. Brogan, of Jersey City (Merritt Lane, of Newark, of counsel), for petitioner.

Russell E. Watson, of New Brunswick, for respondent.

FALLON, Vice Chancellor. The petition was presented to me by Frank Hague, a resident of the city of Jersey City, and a citizen of the state of New Jersey, alleging that he had been arrested, and that he was unjustly and unlawfully detained by D. Frank Garrison, sergeant at arms of the Senate of the state of New Jersey, by virtue of an alleged warrant purporting to have been issued under the authority of a concurrent resolution of the Senate and General Assembly of the state of New Jersey. A copy of said resolution, and of the alleged warrant, is annexed to and made part of said petition. The reasons relied upon by the petitioner to manifest that he was unlawfully arrested, and unjustly and unlawfully detained in the custody of said D. Frank Garrison, are numerous, and set out in detail in the aforesaid petition, which concludes by the petitioner praying to be relieved of the unlawful detention complained of, and that a writ of habeas corpus be directed to the said D. Frank Garrison so that the petitioner may be forthwith brought before this court, to do, submit to, and receive, what the court may direct. Upon reading and filing petition, I made and filed an order that a writ of habeas corpus forthwith issue out of and under the seal of this court, according to the prayer of said petition. Such a writ was thereupon issued under the seal of the Court of Chancery, directed to said D. Frank Garrison, commanding him to have the body of said Frank Hague before "our Chancellor (or such Vice-Chancellor as may sit for him), * * * on the 22nd day of November, 1928, * * * to do, submit to, and receive, what shall then and there be considered in that behalf." Pursuant to the command of said writ, said D. Frank Garrison produced the petitioner before me, exhibited the warrant in question, stated that he was then and there unprepared to make a formal return, in writing, to said writ, and requested leave to make a formal return thereto on the following day, which request was granted.

As to Bail.

Counsel for the petitioner thereupon made application to me for the release of the petitioner on bail, pending a hearing under Said writ, which application was opposed by the solicitor for the respondent, who urged that the petitioner was not entitled to be released on bail, and he cited, in support of his objection, In re Thompson, 85 N. J. Eq. 221, 96 A. 102. In overruling said objection, I stated that the cited case was not analogous to the case at bar, particularly in that the cited case was one in which Thompson was held under an extradition warrant issued by the Governor of New York, duly honored by the acting Governor of New Jersey. I ordered that, pending the determination of the proceedings under said writ of habeas corpus, the petitioner be permitted to enter into bond to the Chancellor of the State of New Jersey, with sufficient surety, in the sum of $1,000, to be approved by a special master of this court, or by the court, the said bond to provide that the petitioner shall appear before this court when and as directed, from day to day, and from time to time, and not to depart without leave, and to answer to, and abide by, the order and direction of this court upon the proceedings pending upon said writ. In compliance with said order, a bond, approved by a special master, was duly filed. On the day following, a formal return, in writing, was made by respondent, to said writ, which return was duly filed. Counsel for the petitioner announced at the commencement of the hearing that the application for the writ in the instant case was based on the common law—not under the statute. It is indicated in Re Thompson, supra (at page 234 of 85 N. J. Eq. ) that our Supreme Court has decided that habeas corpus is a common law, and not a statutory writ. The cited case, opinion by our present Chancellor, demonstrates that the writ of habeas corpus ad subjiciendum is a common-law writ confirmed and regulated by statute, which did not create, but came in aid of, the jurisdiction; that the writ issued out of the Court of Chancery, King's Bench, Common Pleas, and Exchequer in England; that in this state the power of the Chancellor to grant a writ of habeas corpus was, by the common law and the Habeas Corpus Act of March 11, 1795, the power to issue the writ out of the Court of Chancery; that the Habeas Corpus Act of March 27, 1874, contains no reference to the Chancellor or the Court of Chancery, but was impotent, in the slightest degree, to curtail or abridge the Chancellor's power with reference to that ancient and efficacious writ, for that jurisdiction, existing at common law, was inherited by our Court of Chancery from its prototype the High Court of Chancery in England, was recognized and confirmed by the Habeas Corpus Act of March 11, 1795, and was vested in, and guaranteed to, our court of chancery by the Constitution of 1844. The authority of a Vice Chancellor to issue a writ of habeas corpus, while not questioned in the case at bar, is clearly demonstrated by Chancellor Walker in the Thompson Case, supra, at pages 248-262 of 85 N. J. Eq. (96 A. 102). And said case, at pages 268, 269 (96 A. 102), clearly indicates the authority of this court to release the petitioner on bail, pending the hearing under the writ of habeas corpus.

The case of Barth v. Clise, 12 Wall. 400, 20 L. Ed. 393 (which was not an extradition case), is cited, wherein it was held: "By the common law, upon the return of a writ of habeas corpus and the production of the body of the party suing it out, the authority under which the original commitment took place is superseded. After that time, and until the case is finally disposed of, the safe-keeping of the prisoner is entirely under the control and direction of the court to which the return is made, The prisoner is detained, not under the original commitment, but under the authority of the writ of habeas corpus. Pending the hearing he may be bailed de die in diem, or be remanded to the jail whence he came, or be committed to any other suitable place of confinement under the control of the court. He may be brought before the court from time to time by its order until it is determined whether he shall be discharged or absolutely remanded." The mere fact, that the process, upon which the respondent relies as authority for the arrest and detention of the petitioner issued, as he claims, from the Senate and General Assembly of the state of New Jersey, does not minimize the authority of this court to inquire on habeas corpus into the lawfulness of such arrest and detention.

When the court issues the writ of habeas corpus to inquire into the cause of an arrest and detention of a citizen of this state, it has the right further to inquire into subject-matters, and determine whether the committing body had jurisdiction or not, otherwise the issuing the writ would be an idle ceremony, and really to no purpose. When the jurisdiction of a tribunal, by whose mandate a citizen is deprived of his liberty, is challenged, the person challenging same may do so by habeas corpus. Ex Parte Larkin, 1 Okl. 53, 25 P. 745, 11 L. R. A. 418; People v. Frost, 135 App. Div. 473, 120 N. Y. S. 491; Ex parte Steiner (C. C. A.) 202 F. 419. In re Gunn, 50 Kan. 155, 32 P. 470, 948, 19 L. R. A. 519, it was held that the court was empowered to inquire on habeas corpus into the lawfulness of imprisonment by an order or resolution of the House of Representatives of that state; that said House was not the final judge of its own powers and privileges 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 the court; that it was especially competent and proper for the court to consider whether the proceedings of said House were in conformity with the Constitution and laws, because, living under a written Constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the Legislature, in the enactment of laws, have been exercised in conformity with the Constitution, and, if they have not been, to treat their acts as null and void. It was also held to be the acknowledged power of the court to declare acts of the Legislature void. The court referred to the Francis Case, 26 Kan. 724, in which it appeared there was nothing upon the face of the act to show but what it was a legal enactment. It was properly signed. It was properly enrolled. It was properly published. But the court went into the House of Representatives and examined its journals, ascertained therefrom that the House was not a constitutional body, and thereupon declared the act void.

Lack of precedents, if such there be, for the release on bail of a person taken in custody on a warrant issued under the alleged authority of a body, such as assumed the right to issue the warrant in the case at bar, may be attributable to the unprecedented claim of the alleged right of said body to effect the arrest of the petitioner whom it contemplates should be kept in custody by the arresting officer for the period of time between the date of the issue of the warrant and the date designated therein for the production of the petitioner before the body which authorized the issue of said warrant (6 days), instead of requiring him to be arraigned forthwith. If the body which caused the issue of the warrant in question was authorized to require the...