Ex parte Shores
| Decision Date | 23 April 1912 |
| Docket Number | 4,146. |
| Citation | 195 F. 627 |
| Parties | Ex parte SHORES, Sheriff. |
| Court | U.S. District Court — Northern District of Iowa |
F. F Faville, U.S. Atty., for the United States.
The United States attorney has filed an application supported by affidavits for an order or rule upon F. M. Shores, as sheriff of Blackhawk county, this state, and keeper of the common jail of that county, to show cause why he should not be punished as for contempt in not detaining in said jail a prisoner convicted, sentenced, and committed thereto by this court for a violation of a law of the United States. The order or rule was granted, and a copy of the application with the accompanying affidavits served upon the sheriff, who will be called the defendant, and he has appeared in response thereto.
The application alleges that one W. W. Fritsche, of Waterloo Blackhawk county, in this District, was convicted by this court upon his plea of guilty to an indictment which charged him with having sold liquor to an Indian of the Tama reservation, in violation of section 2139 of the Revised Statutes of the United States, as amended by Act Jan. 30 1897, c. 109, 29 Stat. 506, and adjudged to pay a fine of $100 and costs, and be imprisoned in the county jail of Blackhawk county for 60 days, and until said fine and costs were paid. Under a warrant in the usual form the marshal delivered Fritsche to the defendant as keeper of said jail and the latter was directed to receive and detain him therein during the term for which he was sentenced. After so receiving him the defendant, instead of confining him in jail as commanded by the warrant, voluntarily and purposely permitted him to go from the jail and return thereto at pleasure, so that he was not in fact imprisoned as required by the sentence and order of imprisonment. The defendant admits in open court that the facts alleged in the application, and shown by the affidavits, are substantially correct, and offers as an excuse for his conduct that he had been in office but a short time when the prisoner Fritsche was delivered to him, that his predecessor in office told him that he, the predecessor, was in the habit of treating United States prisoners committed to that jail in the same general way that Fritsche was treated by him, the defendant, and that other sheriffs and keepers of county jails in this district were in the habit of so treating such prisoners when committed to their custody. The United States attorney admits that some of the keepers of county jails to whose custody United States prisoners have been committed pursuant to the sentence and order of this court have not in the past confined them in the jail, but have permitted them to go therefrom and return at pleasure, as the defendant admits that he did in this instance. He urges, however, that such conduct is a violation of law, and of the warrant of commitment, and in contempt of the authority of this court and asks that it be so adjudged.
The questions presented require a determination of the right of the United States to the use of the several county jails in this state in which to imprison persons convicted and sentenced to imprisonment for violations of the laws of Congress, and the duties of the sheriffs as keepers of such jails in keeping prisoners committed to such jails by the United States courts. The United States do not maintain regular places in the several states in which to confine persons sentenced for other than penitentiary offenses, but use the state jails for that purpose; and, before they established penitentiaries of their own, used the state prisons for the confinement of prisoners convicted in the courts of the United States of penitentiary offenses.
The several states may, no doubt, refuse to allow the use of their jails and prisons for such purpose; and, should they do so, the United States could not lawfully commit persons to such jails, and the jailers would not be required to receive them.
But Congress at its first session, and on September 23, 1789, adopted a resolution requesting the Legislatures of the several states to pass laws, making it the duty of the keepers of their jails to receive and safely keep therein under the same penalties as in the case of state prisoners all prisoners committed under the authority of the United States until they shall be discharged by due course of the laws thereof, the United States, however, to pay for the keeping and support of such prisoners as they shall commit to such jails. 1 Stat. 96. On March 3, 1791, the Congress passed another resolution, which, after referring to the resolution of September 23, 1789, provides that, in case any state shall not comply with said request (the resolution of September 23, 1789), the marshal in such state may be authorized to hire a convenient place to serve as a temporary jail, and to make all necessary provision for the safe-keeping of prisoners committed under the authority of the United States, until permanent provision shall be made by law for that purpose. 1 Stat. 225. The last-named resolution is, in substance, carried into the resolution of March 3, 1821 (3 Stat. 646), and sections 5536-5538 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3719).
Pursuant to the resolution of September 23, 1789, above, several of the states, among them the state of Iowa, authorized by statutes the use of their county jails and state prisons in which to imprison persons committed thereto by the courts of the United States for violations of the laws of Congress. For the earlier of the Iowa statutes upon the question, see sections 3103, 3116, 3119, Code of Iowa 1851; and these sections are in substance carried into the Code of 1897 as sections 5637, 5651, and 5676. It is provided by these sections that the jails in the several counties in this state shall be in charge of the respective sheriffs and used as prisons for the confinement of persons detained in or committed thereto by authority of the courts of the United States, as well as by those of this state, all charges and expenses, however,...
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