In re Jordan

• Decision Date: 09 February 1892
• Citation: 49 F. 238
• Parties: In re JORDAN.
• Court: U.S. District Court — Southern District of Iowa

49 F. 238

In re JORDAN.

United States District Court, S.D. Iowa, Eastern Division.

February 9, 1892

Liston McMillan, for petitioner.

D. H Emery, for respondents.

WOOLSON J.

Upon January 23, 1892, the application of Kinsley Jordan for writ of habeas corpus was presented to this court. The application, with accompanying exhibits, is voluminous. In substance, it alleges that petitioner is restrained of his liberty by the sheriff of Wapello county, Iowa, who detains petitioner by reason, as claimed, of certain writs of execution or mittimus, issued upon judgments rendered by the district and circuit courts of said Wapello county, a portion whereof were rendered on verdicts of guilty in criminal cases, and the remainder upon findings of said courts that petitioner was guilty of contempts in having violated certain injunctions. All of said judgments are for alleged violations of statutes of Iowa with reference to sale of intoxicating liquor. These judgments, as exhibited, with application, are seven in number, and may be summarized as follows:

In what Sentence Adjudged.

Date. By what Court. Proceedings. Fine. Imprisonment.

Nov 21, '85. Circuit. Contempt. $ 500.

April 3, '86. Circuit. Contempt. $ 500.

Sept 18, '86. District. Criminal. $ 600.

Jan'y 29, '87. District. Contempt. $1,000.

Oct. 8 '87. District. Contempt. $1,000. Six months.

Oct. 8, '87. District. Contempt. $1,000. Six months.

April 28, '88. District. Criminal. $ 500.

All of these judgments provide, in addition, that, if the fine and costs are not sooner paid, the judgment defendant shall be imprisoned in the county jail until the said imprisonment, at $3.33 1/3 per day, shall equal the amount of the fine. And the second sentence, rendered upon October 8, 1887, provides that it shall commence at the expiration of the first sentence of that date. The exhibits show that these injunctions, for whose violations petitioner was sentenced, were entered or issued in at least three, and probably four, different equitable actions under the Iowa statutes. But none of the decrees so rendered or writs issued in these three or four actions are exhibited or referred to, except as said exhibits recite their existence. The illegality of the restraint is alleged in two divisions, the first being, in the phraseology of the application, as follows:

'That all of said judgments were rendered in prosecutions against this defendant for alleged selling or keeping for sale intoxicating liquors, contrary to the laws of Iowa. All of the liquors referred to in the said prosecutions were manufactured outside of said state of Iowa,-- in Illinois, Missouri, and other sister states-- and shipped from those states into the state of Iowa, on the order or petitioner, and were sold by him in the original package in which they were shipped into the state, or by drawing the same from said original package in the act of selling; and they were neither kept for sale nor sold by him in any other way; and he sold none to minors, drunkards, or lunatics; and he only sold them and kept them for sale to responsible adults. Petitioner avers that all of said business was transacted prior to the passage of what it commonly called the 'Wilson Bill' by the U.S. congress, August 8, 1890. Petitioner avers that under the constitution of the United States, (article I, Sec. 8,) which provides that congress shall have power to regulate the interstate commerce, as construed by the federal supreme court in what is commonly known as the Bowman Case, 8 S.Ct. 689, 1062, and the Leisy Case, 10 S.Ct. 681, the state traffic as carried on by your petitioner was lawful, being in harmony with the constitutional provision above quoted, and amply justified thereby; and petitioner avers that, so far as the prohibitory liquor laws of Iowa conflict with petitioner's said business, the same were contrary to the said provision of the federal constitution, and are null and void.'

The second point of illegality alleged in application relates to payment of the United States tax, viz.: That petitioner had, during the periods embraced in said exhibits and acts therein adjudged against him, annually paid to the general government $25 per year as the retail liquor dealer's special tax; and that all the liquors sold by him had paid to the government the per gallon or per barrel tax required by the United States statutes, whereby he was protected from state interference while disposing of said liquors; 'the constitutional definition of the word 'tax' in article 1, Sec. 8, of the federal constitution, making 'taxation' correlative with 'protection,' and involving the duty and necessity of such protection by all the departments of the government receiving the taxes;' and that, therefore, the state prohibitory law, wherein it attempts to prohibit and punish the person selling such taxed liquors, is null and void, because in conflict with the federal constitution. It is also asserted that this application has not heretofore been presented to nor been refused by any court or judge.

Ordinarily, upon presentation of the application, the writ is at once granted, and the legality of the restraint is determined on the return of the restraining officer, or on the hearing. For reasons readily apparent from the foregoing synopsis of the application, I have proceeded with more hesitancy in this case; and because of the hesitation with which judges of the national courts interfere at any time with convictions which have been had before courts of general jurisdiction of the states, I entered a rule citing the sheriff and the county attorney of said Wapello county to appear and show cause, if any they had, why the writ should not issue as prayed. Hearing was duly had before the court, D. H. Emery, Esq., appearing in opposition to the application, and filing his demurrer thereto, as insufficient to authorize the issuance of the writ. And the point now to be decided is, does the application present a case justifying the issuance of the writ of habeas corpus?

The writ of habeas corpus, though a writ of right, will not issue as of course. Section 755, Rev. St., provides that the court to whom the application for a writ is made, shall forthwith award the writ, 'unless it appears from the petition itself that the party is not entitled thereto. ' The courts of the United States have great respect for state authority; and it is only after full and most careful investigation and consideration, although acting within the undoubted scope of its jurisdiction, that a federal court will take from a state officer a person committed to him by a state court, and charged with an offense against state laws, which are attacked as in conflict with the federal constitution. In re Hoover, 30 F. 53, concisely illustrates this point. In that case the writ of habeas corpus from the United States court was sought against the sheriff of the state court by one imprisoned under judgment imposed for violation of a state law, which the application attacked as in violation of the United States constitution; and the federal court declared that 'to enlist the process of this court in his behalf the petitioner must clearly show an irreconcilable antagonism between the state enactment and the constitutional declaration. ' Yet, when such investigation makes plain the fact of restraint in violation of the constitution of the United States or laws enacted thereunder, the federal court will not hesitate to act accordingly.

Should the writ issue herein? With regard to the second point alleged in application as grounds for action herein, I have no hesitancy in deciding. As to the payment of the special tax imposed upon the retail liquor dealer, the statute imposing the tax (section 3253, Rev. St.) itself withholds from petitioner relief herein. The payment of that special tax can in no manner or degree operate as a shield in the violation of the state prohibitory law. The supreme court of the United States have in such numerous decisions recognized the right of each state to determine for itself the question of the regulation or prohibition of sale of intoxicating liquors that it is useless to cite the cases. One element only is withheld from this otherwise absolute right and power of the state in this respect, and that relates to interstate relations; being the first point in application. And without enlargement of argument I hold the second point of application to be insufficient to authorize the issuance of the writ.

As to the first point stated in application, viz., that asserting the attitude of petitioner with regard to 'original packages' of intoxicating liquor, and his right to relief herein. The exhibits attached to application are expressly made a part of the application. These exhibits severally show that the courts which rendered the judgments are of general jurisdiction; that these courts had jurisdiction of the subject-matter before them, viz., the alleged violation by petitioner of the state laws with reference to selling or keeping for sale intoxicating liquor; and that these courts also had in each case (so exhibited) jurisdiction of the person of petitioner. In each of said cases petitioner appeared by counsel, except in the contempt case of January 29, 1887, and in that case the record shows petitioner had been duly served with notice of said proceedings. As this court takes judicial notice of the statutes of Iowa, it is also manifest that these courts had, under said statutes, the authority to render such judgments as those exhibited herein. Thus we have in each case exhibited (1) a court of general jurisdiction, having, under the Iowa statutes, jurisdiction of the subject-matter involved; (2) such court had jurisdiction of the person of the petitioner; (3) ...