In re Davenport

Citation102 F. 540
CourtUnited States Circuit Court, District of Washington
Decision Date15 June 1900
PartiesIn re DAVENPORT.

Forster & Wakefield, for petitioner.

Mount &amp Merritt, for respondent.

HANFORD District Judge.

By the record in this case it appears that the petitioner, L. M Davenport, is a citizen of the state of Washington, and is the keeper of a restaurant in the city of Spokane. Upon an information accusing him of violating a statute of this state enacted for the protection of wild game, filed in the superior court of the state of Washington for Spokane county a warrant in due form was issued out of said superior court and the petitioner was arrested by the sheriff, and imprisoned awaiting trial. Thereupon he filed his petition in this court invoking the power of this court to release him from imprisonment by a writ of habeas corpus. A writ was issued and served. The sheriff has made a return setting forth the warrant, together with a copy of the information, and an agreed statement of facts upon which the information is founded, in the form of a stipulation signed by attorneys in behalf of the state of Washington and by the defendant's attorneys. The material part of said stipulation is as follows:

'That the said L. M. Davenport is a resident of the city of Spokane, Spokane county, state of Washington, and that he is conducting a restaurant in said city, and that on the 1st day of March, 1900, he had in his possession in said county and state, and offered for sale and sold therein, as a portion of a meal, one quail, and that the said quail was a portion of a box of quail that the said Davenport had purchased in this city of St. Louis, state of Missouri, and caused to be shipped into the state of Washington, and that the said quail, when taken in the state of Missouri, was lawfully taken under the laws of said state.'

The statute upon which the prosecution of the petitioner is founded reads as follows:

'Every person who shall offer for sale or market, or sell or barter, any moose, elk, caribou, killed in this state, antelope, mountain sheep or goat, deer, or the hide or skin of any moose, elk, deer, or caribou, or any grouse, pleasant, ptarmigan, partridge, sage hen, prairie chicken or quail at any time of the year, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished as hereinafter provided. ' Laws Wash. 1899, p. 278, Sec. 3.

The grounds upon which the petitioner asks for the protection of the federal court are that he is being deprived of his liberty without due process of law, in violation of the fifth and fourteenth amendments to the constitution of the United States, because the act for which he is being prosecuted is not criminal, unless the state law above quoted shall be so construed as to make it a misdemeanor for a restaurant keeper in this state to cook and serve to his customers wild game lawfully captured in another state, and lawfully imported into this state, and, if this construed, the act is an attempt to restrain interstate commerce, and for that reason void. It is the petitioner's contention that the statute does not apply to sales of game not killed or taken within this state, or, if the statute is applicable to the case in hand, it is unconstitutional, and in either case he is being imprisoned as if he were a criminal, although the act which is the basis of the charge against him is not malum in se, nor a violation of any valid statute.

At the outset, the respondent questions the propriety of this court taking cognizance of the case. It is insisted that the point to be decided touches the sovereignty of the state; that a statute of the state must be construed, and the supreme court of the state is the tribunal specially authorized to determine finally all disputed questions as to the true interpretation and meaning of the state laws, and as to their application to particular cases; that it is a misuse of the writ of habeas corpus for a federal court, having no appellate or supervisory jurisdiction over proceedings of the state courts, to issue that form of process for the purpose of controlling or defeating prosecutions under the penal laws of the state, and for these reasons the petitioner should be remanded, and left to submit all questions as to his rights under the constitution of the United States to be first determined by the state courts, and to apply to the supreme court of the United States by writ of error for redress in case any right which he claims under the constitution and laws of the United States should be denied to him by the courts of the state. I can readily assent to the several propositions advanced by counsel for the state of Washington in this part of their defense as separate and abstract propositions, but to the aggregation, as a conclusion applicable to this case, I do not assent. It is settled by the decisions of the supreme court that in granting or refusing the writ of habeas corpus, when applied for by persons accused or convicted of crimes under state laws, the circuit and district courts of the United States are required to exercise sound discretion, and these courts are not to assume the burden of deciding whether accused persons are guilty or not guilty of acts which are criminal, nor interfere with the state government in the enforcement of its criminal laws, in any endeavor to control the decision of questions of practice, or as to the validity of statutes alleged to be repugnant to the constitution of the state, and this court has steadfastly refused to consider the petitions of persons convicted of such crimes as murder, rape, and embezzlement. In re Friedrich (C.C.) 51 F. 747; Id., 149 U.S. 70-78, 13 Sup.Ct. 793, 37 L.Ed. 653; In re Moore (C.C.) 81 F. 356; In re Considine (C.C.) 83 F. 157. But there is no moral wrong in the act of which the petitioner in this case is accused, and he is innocent of any offense, unless effect be given to the statue so as to deprive him of the right to import from other states supplies for his restaurant which are not in themselves unwholesome nor deleterious to the health, morals, or manners of the people. As the question of first importance in the case is whether the statute upon which the prosecution is based is repugnant to the constitution of the United States, the case is a proper one for the federal court to deal with in the first instance; for, if the state has assumed to enact a law which violates the supreme law of the land, it is the business of the federal courts within the state to protect individuals from being subjected to prosecutions which amount simply to persecutions, and are violative of the rights guarantied by the national constitution.

It is unreasonable to presume that the legislature of the state of Washington intended to enact a law to prevent the slaughter of game in the state of Missouri, and the title of the statue under consideration shows that its object was to restrain the destruction of wild animals and birds within the state of...

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6 cases
  • Bens v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 30, 1920
    ...114 F. 959; Ex parte Glen (C.C.) 111 F. 257; Ex parte Stricker (C.C.) 109 F. 145; United States v. Fuellhart (C.C.) 106 F. 911; In re Davenport, 102 F. 540; Cohn v. Jones 100 F. 639; In re Fair (C.C.) 100 F. 149; Campbell v. Waite, 88 F. 102, 31 C.C.A. 403; In re Weeks (D.C.) 82 F. 729; Kel......
  • State v. Allen
    • United States
    • Nebraska Supreme Court
    • November 12, 1954
    ...jurisdiction are exemplified in the following cases which are cited for the principle stated therein. In the case of In re Davenport, C.C., 102 F. 540, the petitioner kept a restaurant in the city of Spokane, Washington. He was arrested and imprisoned for having in his possession and offeri......
  • McDonald & Johnson v. Southern Exp. Co.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 30, 1904 the limitations and restrictions that the state may impose on the ownership of fish caught within its borders. In the Case of Davenport (C.C.) 102 F. 540, the petitioner, who a restaurant in the city of Spokane, in the state of Washington, was arrested and imprisoned for having in his po......
  • Wells Fargo & Company Express v. State
    • United States
    • Arkansas Supreme Court
    • June 18, 1906
    ...within this State, but also to game killed in other States and shipped through or out of this State. 134 F. 282; Kirby's Digest, § 3618; 102 F. 540; 86 N.Y.S. 164 N.Y. 100; 92 U.S. 214. Robert L. Rogers, Attorney General, and G. W. Hendricks, for appellee. 1. If the act stated that the offe......
  • Request a trial to view additional results

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