Ex parte Willman

• Decision Date: 24 December 1921
• Docket Number: 3082.
• Citation: 277 F. 819
• Parties: Ex parte WILLMAN.
• Court: U.S. District Court — Southern District of Ohio

277 F. 819

Ex parte WILLMAN.

No. 3082.

United States District Court, S.D. Ohio, Western Division.

December 24, 1921

James R. Clark, U.S. Atty., and Thomas H. Morrow, Asst. U.S. Atty both of Cincinnati, Ohio, and Walter E. Kelly, Asst. Atty. of Post Office Department, of Washington, D.C., for the United States.

Saul Zielonka, City Sol., and Joseph H. Woeste and Chauncey D Pichel, Municipal Court Prosecutors, all of Cincinnati, Ohio for city of Cincinnati.

PECK District Judge.

This case is heard upon application for a writ of habeas corpus and upon an agreement that the facts stated may be regarded as the return which would be made should the writ be issued and that the case may be finally disposed of as upon such return.

The petitioner, Willman, is a mail truck chauffeur in the employ of the Post Office Department of the United States government at Cincinnati. He was arrested by the police officers of the city while driving a government truck carrying the mail, at night, from the post office to the terminal of the Baltimore & Ohio Railroad, over Carlisle avenue, the scheduled route, because the truck, although equipped with oil headlight lamps furnished by the Post Office Department, pursuant to a general order of the Postmaster General prescribing that type as the standard for the use of such vehicles in cities throughout the country, was not fitted out with lamps that would show objects 200 feet ahead of the vehicle and to a width of 10 feet on each side of its path, as required by the law of Ohio approved May 14, 1921 (109 Ohio Laws, 220). Being so charged, he was convicted and sentenced by the municipal court of Cincinnati to pay a fine of $10 and the costs of prosecution, and to stand committed to jail until the same were paid. He declined to pay, and was committed, and now, by this petition in habeas corpus, seeks his release, upon the ground that the act for which he has been imprisoned was committed solely and entirely as an employee and agent of the government, in the performance of his duty in the service, in accordance with the instructions of his superior officers, in pursuance of a law of the United States. R.S. Sec. 753 (U.S. Comp. Stat. 1916, Sec. 1281).

The District Court is vested with a discretionary power to determine whether one who complains that he is imprisoned by state authority for an act done pursuant to federal law shall be put to his writ of error to the highest court of the state, or be permitted to proceed here by writ of habeas corpus, and to have summarily determined whether he is restrained of his liberty in violation of the Constitution and laws of the United States. Ex parte Royall, 117 U.S. 241, 6 Sup.Ct. 734, 29 L.Ed. 868. Inasmuch as the question here presented concerns, not only the right of the applicant to his liberty, if his detention be unlawful, but the right of the government to operate its mail trucks with its standard headlight equipment, in this and the other cities of the state of Ohio, and as counsel for the government represent that a large expenditure of money would be required to make such changes as would be necessary to conform with the various local regulations in this state and elsewhere, it is thought that the case is one which should be speedily determined, and therefore the petition is entertained.

It is shown by the agreed statement that the petitioner was acting under orders, and it is fairly to be inferred that he had no choice but to drive the truck with the headlights furnished by the department, or resign. It did not lie within his power to alter the equipment specified by the Postmaster General, had he been of inclination and means to do so. Federal authority within its sphere being paramount, the only question is whether or not the Postmaster General's order prescribing the use of the headlights in controversy was a valid exercise thereof.

It is unnecessary to refer to the constitutional right of Congress to establish post offices and post roads, or to the many incidental powers which result by necessary implication. By the Act of March 1, 1884 (23 Stat. 3 (U.S. Comp. Stat. 1916, Sec. 7457)), all public roads and highways, while kept up and maintained as such, are declared to be post routes, and Carlisle avenue, in the city of Cincinnati, was such by force of this statute (Essex v. New England Telegraph Co., 239 U.S. 313, 321, 36 Sup.Ct. 102, 60 L.Ed. 301).

By section 396 of the Revised Statutes (U.S. Comp. Stat. 1916, Sec. 582), it is made the duty of the Postmaster General, among other things, to establish post offices, to instruct persons in the service with reference to their duties, to control according to law the disposal of the moneys and the expenses, and to superintend generally the business, and execute all laws relating to the postal service. As the result of this enactment he has power to promulgate regulations generally as to the conduct of the department, and such regulations are controlling, have the force of laws, and are judicially noticed. Lewis Pub. Co. v. Morgan, 229 U.S. 288, 306, 33 Sup.Ct. 867, 57 L.Ed. 1190; Caha v. United States, 152 U.S. 213, 14 Sup.Ct. 513, 38 L.Ed. 415; United States v. Warfield, 170 F. 43, 95 C.C.A. 317, 24 L.R.A. (N.S.) 312, 17 Ann.Cas. 1186; Bruce v. United States, 202 F. 98, 120 C.C.A. 370; United States v. Grimaud, 220 U.S. 506, 31 Sup.Ct. 480, 55 L.Ed. 563; McKinley v. United States, 249 U.S. 397, 39 Sup.Ct. 324, 63 L.Ed. 668. As to such regulations as the present one, his discretion is not reviewable. Niel, Moore & Co. v. Ohio, 3 How. 720, 11 L.Ed. 800; Bates & Guild Co. v. Payne, 194 U.S. 106, 24 Sup.Ct. 595, 48 L.Ed. 894.

By the Act of March 1, 1921 (41 Stat. 1152), making appropriations for the Post Office Department for the fiscal year ending June 30, 1922, there was appropriated for vehicle allowance the hiring of drivers, the purchase and maintenance of wagons and automobiles, and the operation of screen wagons (such was this truck), and for city...