Hartmann v. Sloan

• Decision Date: 01 November 1938
• Docket Number: No. 6564.,6564.
• Citation: 99 F.2d 942
• Parties: HARTMANN v. SLOAN, U. S. Marshal.
• Court: U.S. Court of Appeals — Third Circuit

99 F.2d 942 (1938)

HARTMANN v. SLOAN, U. S. Marshal.^*

No. 6564.

Circuit Court of Appeals, Third Circuit.

November 1, 1938.

John E. Green, Jr., and A. D. Gray, both of Houston, Tex., and David A. Reed and Reed, Smith, Shaw & McClay, all of Pittsburgh, Pa., for appellant.

John Henry Lewin, Hammond E. Chaffetz, W. B. Watson Snyder, and Grant W. Kelleher, Sp. Assts. to Atty. Gen., Thurman Arnold, Asst. Atty. Gen., and Charles F. Uhl, U. S. Atty., of Pittsburgh, Pa., for appellee.

Before DAVIS, BIGGS, and MARIS, Circuit Judges.

BIGGS, Circuit Judge.

The appellant, a resident of Pittsburgh, Pennsylvania, has appealed from a judgment of the District Court of the United States for the Western District of Pennsylvania, discharging a writ of habeas corpus sued out by him against the appellee, the United States Marshal for the Western District of Pennsylvania, to prevent the appellant's removal to the Western District of Wisconsin for trial upon an indictment charging him and others with a conspiracy to violate the anti-trust laws of the United States. The final judgment of the court below was entered upon September 1, 1937, and by it the appellant was remanded to the custody of the appellee for removal to Wisconsin. Upon the same day an appeal from the judgment was taken to this court. Argument in the case was heard by us upon June 7, 1938. Upon August 30, 1938, the appellee filed a motion to dismiss the appeal upon the grounds indicated hereafter. Argument was had upon this motion upon October 13, 1938.

The habeas corpus proceedings were instituted to test the validity of the warrant for the removal of the appellant to Wisconsin for trial upon the indictment referred to. It is undisputed that this warrant was issued pursuant to the provisions of R.S. § 1014, May 28, 1896, c. 252, Sec. 19, 29 Stat. 184, Mar. 2, 1901, c. 814, 31 Stat. 956, 18 U.S.C.A. § 591. Jurisdiction of this court for the appeal is based therefore upon the provisions of the Act of Congress of February 13, 1925, c. 229, Sec. 6, 43 Stat. 940, 28 U.S.C.A. § 463. The Seventy-Fifth Congress, however, by Public Act No. 772, approved June 29, 1938, amended the provisions of subsection (a) of the Act of February 13, 1925, c. 229, Sec. 6, 43 Stat. 940, 28 U.S. C.A. § 463, so that it now reads as follows, the amended portion of the statute being that following the colon: "In a proceeding in habeas corpus in a district court, or before a district judge or circuit judge, the final order shall be subject to review, on appeal, by the circuit court of appeals of the circuit wherein the proceeding is had: Provided, however, That there shall be no right of appeal from such order in any habeas corpus proceeding to test the validity of a warrant of removal issued pursuant to the provisions of Section 1014 of the Revised Statutes section 591 of Title 18 or the detention pending removal proceedings. * * *" It is manifest therefore that the statute under which the appeal was taken has been amended in such wise as to withdraw the right of appeal to the Circuit Courts of Appeals from persons who seek by habeas corpus proceedings to test the validity of warrants of removal issued pursuant to the provisions of Section 1014 of the Revised Statutes, 18 U.S.C.A. § 591. The appellant concedes and indeed himself points out that the privilege of appealing from a lower court to a higher one is not an inherent right in any case but is a right conferred by statute or by express constitutional grant. He distinguishes, however, between the right of appeal to an appellate court and the right of an appellate court to adjudicate an appeal already taken and contends that under the authorities it is plain that though the right of future appeal has been done away with in cases of habeas corpus proceedings to test the validity of a warrant of removal as of the effective date of the amendment, none the less the jurisdiction of this court remains to adjudicate Hartmann's appeal since it was perfected prior to the amendment.

The appellant relies principally upon three decisions of the Supreme Court. We deem it desirable to discuss these briefly. In Ex parte McCardle, 74 U.S. 506, 7 Wall. 506, 19 L.Ed. 264, McCardle, charged with the publication of libelous and incendiary articles and held for trial before a military commission by military authorities, petitioned the United States Circuit Court for a writ of habeas corpus, alleging that he was unlawfully restrained by military force. The military commander made a return to the petition admitting McCardle's restraint but denying that it was unlawful. McCardle appealed from the order of the circuit court to the Supreme Court of the United States. His appeal was taken pursuant to the provisions of the Act of 1867 (14 Stat. at L. 385). While the appeal was pending Congress passed the Act of March 27, 1868 (15 Stat. at L. 44), which provided that so much of the earlier Act referred to "* * * as authorizes an appeal from the judgment of the circuit court to the Supreme Court of the United States, or the exercise of any such jurisdiction by said Supreme Court on appeals which have been or may hereafter be taken, be, and the same is, hereby repealed." The Supreme Court held that it was deprived of jurisdiction and therefore could not proceed to adjudicate the appeal.

In Baltimore & Potomac R. Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231, the Supreme Court had before it a motion to dismiss a writ of error to the Supreme Court of the District of Columbia in a case involving the sum of $2,250. When the writ of error was allowed R.S. §§ 846 and 847 provided that a final judgment of the Supreme Court of the District of Columbia might be "re-examined and reversed or affirmed" by the Supreme Court of the United States upon writ of error or appeal, but that a cause (with certain exceptions not pertinent here) might not be removed from the Supreme Court of the District of Columbia to the Supreme Court of the United States "* * * unless the matter in dispute in such cause shall be of the value of $1,000 or upward * * *". While the appeal was pending Congress passed the Act of February 25, 1879 (20 Stat. at L. 320), Section 4 of which provided that a final judgment of the Supreme Court of the District "* * * in any case where the matter in dispute * * * exceeds the value of twenty-five hundred dollars, may be reexamined and reversed or affirmed in the supreme court of the United States, upon writ of error or appeal * * *". The Supreme Court in the cited case held that the new act repealed the old and stated that the Act of 1879 was undoubtedly prospective in its operation and did not have the effect of vacating or annulling what had been done under the old law. The opinion of the court makes plain, however, that though the new act did not vacate or annul an appeal or a writ already taken or sued out, it none the less deprived the Supreme Court of the right to hear and determine the appeal. Mr. Justice Waite said page 402, "The appeal or the writ remains in full force, but we dismiss the suit, because our jurisdiction is gone."

It will be seen that neither the McCardle Case nor the Grant Case is determinative of the question here presented since in each case the amendatory Act of Congress by its express terms withdrew the jurisdiction of the Supreme Court to adjudicate pending appeals. The appellant asserts, however, that United States v. Heirs of Boisdoré, 49 U.S. 113, 8 How. 113, 12 L.Ed. 1009, is direct authority for his contention that an act which withdraws only the right of appeal does not affect the jurisdiction of the appellate court with respect to appeals pending at the time of its passage. It thus becomes important to consider the facts of that case in order to determine whether they are in truth analogous to the present situation. The facts were these.

By the Act of May 26, 1824 (4 Stat. at L. 52) Congress authorized land claimants within the State of Missouri to litigate their claims in the District Court in proceedings to be conducted according to the rules of equity. It was provided that the party against whom the decree of the District Court was rendered should be entitled to an appeal to the Supreme Court of the United States within one year from the date of the judgment in the court below. Section 5 of the Act provided "that any claim * * * which shall not be brought by petition before the said courts, within two years from the passing of this act, or which, after being brought before the said courts, shall, on account of the neglect or delay of the claimant, not be prosecuted to a final decision within three years, shall be forever barred." The last section of the Act (14) extended its provisions to the territory of Arkansas. There was no other time limitation contained in the Act. The Act of June 17, 1844 (5 Stat. at L. 676) provided, "That so much of the expired act of the twenty-sixth of May, one thousand eight hundred and twenty-four, entitled `An act to enable claimants to land within the State of Missouri and Territory of Arkansas, to institute proceedings to try the validity of their claims,' as related to the State of Missouri, * * * be, and is hereby, revived and re-enacted, and continued in force for the term of five years, and no longer; and the provisions of that part of the aforesaid act hereby revived and re-enacted shall be, and hereby are, extended * * *" to a portion of the State of...