Frey ex rel. Frey v. Warden of County Jail of New York

• Citation: 2 N.E. 870,100 N.Y. 20
• Parties: PEOPLE ex rel. FREY v. WARDEN OF COUNTY JAIL OF N. Y.
• Decision Date: 06 October 1885
• Court: New York Court of Appeals

100 N.Y. 20

2 N.E. 870

PEOPLE ex rel. FREY

v.WARDEN OF COUNTY JAIL OF N. Y.¹

Court of Appeals of New York.

Filed October 6, 1885.

Isaac L. Sink, for the People.

Horatio C. King, for the Warden of the County Jail of New York County and others.

RUGER, C. J.

The return of the defendants to the writ of habeas corpus in this case alleged, in substance, that the relator, Morris Frey, was detained in custody by virtue of a warrant issued to enforce the collection of a fine duly imposed by a delinquency court for the non-performance by him of certain military duties enjoined by his superior officers; that said Frey was a duly-enlisted member of Company B, in the Eleventh regiment of the national guard of the state of New York; and though a minor at the time of such enlistment, the same was legal and proper, by reason of the consent of his father thereto, and he thereby became legally subject to the performance of military duty. The relator traversed this return by alleging the invalidity of his enlistment on account of his minority, and for want of the consent of his father thereto, and denied the jurisdiction of the delinquency court in the premises. The traverse of the relator was supported by the affidavit of his father to the effect that he had never consented to the enlistment of his son, and also by his own affidavit that the alleged consent was one signed by himself at the suggestion and in the presence of the enlisting officer, without the knowledge or consent of his father. It was nowhere alleged that the relator had ever performed any military duty, or in any way acknowledged any obligation imposed upon him by the alleged enlistment, and it was proved by the affidavit of the father that immediately upon information coming to him, inferentially by the discovery of his son's uniform, that his son had enlisted, he returned the uniform and repudiated the enlistment. Upon the hearing the trial judge declined to hear any evidence relating to the legality of the relator's enlistment, upon the ground that the determination of the court-martial upon that question was conclusive upon the relator in this proceeding, and remanded the relator to the custody of the defendant. Upon appeal to the general term this order was affirmed, upon the ground that the trial court, under the provisions of the Code relating to proceedings upon habeas corpus, had no authority to review the determination of the court-martial as to the validity of the relator's enlistment, and the relator appeals therefrom to this court.

We think the courts below have erred in their disposition of this proceeding, and that their orders should be reversed. We have failed to find anything in the return to show that the question as to the legality of the relator's enlistment was raised or determined in the delinquency court. It is true that it is recited in the warrant issued by the president of the regimental court-martial that it satisfactorily appeared to said court that said Frey was and is a member of Company B in the Eleventh regiment, and while it is possible that such a warrant might be a protection to an innocent officer attempting to execute the process, it does not furnish evidence in favor of the court issuing it, of the facts therein recited, when its jurisdiction is directly assailed. The Code of Civil Procedure, which is substantially a re-enactment of the Revised Statutes so far as it is material to this case, provides with reference to the proceeding in question as follows:

Sec. 2039. ‘A prisoner produced upon the return of a writ of habeas corpus may, under oath, deny any material allegation of the return, or make any allegation of fact, showing either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. Thereupon the court or judge must proceed in a summary way to hear the evidence produced in support of or against the imprisonment or detention, and to dispose of the prisoner as the justice of the case requires.’

Sec. 2032. ‘The court or judge must forthwith make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired.’

Sub. 2. ‘By virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, * * * or by virtue of an execution or other process issued upon such a judgment, decree, or final order.’

Sec. 2033. ‘If it appears upon the return that the prisoner is in custody by virtue of a mandate in a civil cause, he can be discharged only in one of the following cases:’

Sub. 1. ‘When the jurisdiction of the court which, or of the officer who, issued the mandate has been exceeded either as to matter, place, sum, or person.’

Sec. 2034. ‘But a court or judge, upon the return of a writ issued as prescribed in this article, shall not inquire into the legality or justice of any mandate, judgment, decree, or final order specified in the last section but one, except as therein stated.’

It would seem from these provisions that the competency of the tribunal to render the judgment or decree under which a person is held in custody, and their jurisdiction over him either as to matter, place, sum, or person, is by the strongest implication made the subject of inquiry upon a hearing before a judge or court issuing a writ of habeas corpus, and the court is hereby expressly required, upon the return of such a writ, to institute an inquiry into the cause of detention, and discharge the prisoner when there is a lack of jurisdiction on the...