In re Application of Snell

• Decision Date: 19 September 1883
• Citation: 16 N.W. 692,31 Minn. 110
• Parties: IN RE APPLICATION OF SNELL.
• Court: Minnesota Supreme Court

31 Minn. 110

16 N.W. 692

IN RE APPLICATION OF SNELL.

Supreme Court of Minnesota.

Filed September 19, 1883.

Writ of habeas corpus.

Fayette Marsh and J. C. McClure, for A. Snell.

BERRY, J.

On examination before a justice of the peace upon a charge of larceny from the person, the petitioner was ordered to recognize in the sum of $30 for his appearance at the next general term of the district court of Goodhue county, and upon failure so to do was committed to jail. The testimony of the witnesses upon the examination was reduced to writing, and returned and filed in the district court, pursuant to sections 15 and 25, c. 106, Gen. St. 1878. There, afterwards, upon a habeas corpus, he was brought before one of the district judges for Goodhue county for the purpose of being discharged, or, if not discharged, for a reduction of his bail. Both the discharge and reduction were refused and the petitioner remanded. With reference to the application for a discharge, the district court refused to examine the testimony returned by the justice further than to ascertain if it furnished what the judge styles “colorable authority” for the commitment.

The petitioner thereupon procured from one of the judges of this court a writ of habeas corpus and also a writ of certiorari, the latter directed to the district court. Upon a hearing before this court both writs were sustained, against a motion to quash. The certiorari was sustained, not as an appellate proceeding to review the action of the district court. For that purpose it would be inadmissible, such review being properly, and therefore exclusively, attainable by appeal. State v. Buckham, 29 Minn. 462; [S. C. 13 N. W. REP. 902.] But it was sustained as a proper means for bringing before this court the testimony received by the justice and by him returned to the district court, and there filed in pursuance of the statute. In other words, the writ of certiorari was properly issued as ancillary to the writ of habeas corpus issued from this court in the exercise, not of an appellate, but of an original and constitutional, jurisdiction. Hurd, Habeas Corpus, 353-355, and notes. See, also, with reference to the propriety of issuing the writ of certiorari as ancillary to the writ of habeas corpus, Ex parte Burford, 3 Cranch, 447; Ex parte Bollman, 4 Cranch, 75; Ex parte Yerger, 8 Wall. 85;In re Stupp, 12 Blatchf. 501.

The state moved to quash the writ of habeas corpus issued out of this court upon several grounds. It will not be necessary to take these all up in detail. Many of them may be properly disposed of upon general and common considerations. That this court has jurisdiction of the writ of habeas corpus is conclusively settled by section 2, art. 6, of the constitution of this state, and section 23, c. 80, Gen. St. 1878. The fact (appearing in his petition) that the petitioner had once been brought before the district court upon habeas corpus, and upon a hearing remanded, as before stated, is not a bar to the present proceeding.

Upon the general question involved in this proposition there is some difference of opinion among courts and text writers. But research and reflection have brought us to the conclusion that the sound rule, and that supported by a great weight of long-standing authority, is that the decision upon habeas corpus of one court or officer refusing to discharge a petitioner is not a bar to the issue of another writ upon such petitioner's application upon the same state of facts as at first, to another court or officer, and to a hearing or a discharge thereupon. We cite a few leading authorities: A decision under one writ of habeas corpus, refusing to discharge a prisoner, does not bar the issuing of a second writ by another court or officer. People ex rel. v. Brady, 56 N. Y. 192. This would appear to overrule the intimations of earlier New York authorities. A decision under the writ of a habeas corpus, refusing the discharge of a prisoner, is no bar to the issuing of any number of other successive writs by any court or magistrate having jurisdiction. Ex parte Kaine, 3 Blatchf. 1, per NELSON, J. “I feel no difficulty in delivering the opinion which I entertain, because the prisoner will not be concluded by it, but may, if he be dissatisfied, apply to the other courts of Westminster Hall.” 1 East, 314, per Lord KENYON. “This case has already been before the Queen's Bench on the return of a habeas corpus, and before my lord chief baron, at chambers, on a subsequent application for a similar writ. In both instances the discharge was refused. The defendant, however, has a right to the opinion of every court as to the propriety of his imprisonment.” Ex parte Partington, 13 Mees. & W. 679, per PARKE, B.

In some courts there appears to be a disposition to make the right to a second writ a question of expediency for the court to determine. This occurs to us to be a dangerous notion. The “writ of liberty” is a writ of right. When we consider its origin, its history, and its purposes, the transcendent necessity of its issuance, dependent upon the right of the petitioner and not...