King v. McLean Asylum of the Massachusetts General Hospital, 95.

• Decision Date: 04 June 1894
• Docket Number: 95.
• Citation: 64 F. 325
• Parties: KING v. McLEAN ASYLUM OF THE MASSACHUSETTS GENERAL HOSPITAL et al.
• Court: U.S. Court of Appeals — First Circuit

64 F. 325

KING v. McLEAN ASYLUM OF THE MASSACHUSETTS GENERAL HOSPITAL et al.

No. 95.

United States Court of Appeals, First Circuit.

June 4, 1894

Edward Avery, Henry Hyde Smith, and James Tillinghast, for petitioner.

George O. Shattuck, William F. Wharton, and William A. Munroe, for Massachusetts General Hospital, McLean Asylum.

William F. Wharton, for Edward Cowles.

George O. Shattuck, for the Butler Hospital.

George O. Shattuck, Richard L. Sweezy, and William A. Munroe, for George Gordon King.

Before PUTNAM, Circuit Judge, and NELSON and WEBB, District Judges.

PUTNAM Circuit Judge.

This hearing was based on two petitions,-- one filed by the appellant on the 15th day of May, 1894, setting out that since the writ was discharged in the court below, and the petitioner, King, remanded to the custody of the McLean Asylum of the Massachusetts General Hospital, one of the appellees, the petitioner was removed from that asylum and out of the district of Massachusetts, to the Butler Insane Asylum, at Providence, within the district of Rhode Island but within this circuit, and therefore praying for process for contempt, and also praying the protection of the court that the petitioner may be forthwith taken into its custody and that 'he shall be brought and had before this court to be dealt with as to justice and right shall appertain. ' The other petition was filed on the 22d day of May, 1894, by the Massachusetts General Hospital, praying for dismissal of this appeal; but it need not be stated, except as hereinafter referred to.

Ordinarily, the first question for consideration is that of the jurisdiction of this court; but it is more convenient, in the present case, to look at the outset at that of the jurisdiction of the circuit court. This is sought to be maintained on two grounds,-- one, that the petition for the writ of habeas corpus raises a federal question,-- and the other, that it shows diverse citizenship.

Notwithstanding the letter of the act establishing this court, as found in the opening paragraph of the sixth section, apparently deprives this court of jurisdiction over fundamental questions touching the jurisdiction of the circuit courts, yet, in view of the provision found in the first clause of the fifth section for especially certifying questions of that particular class to the supreme court, that court has held that, notwithstanding that clause, we have jurisdiction over such questions, unless the issue has been made in the court below and certified to the supreme court as directed by the statute. We need cite only the latest cases on this point. Carey v. Railway Co., 150 U.S. 170, 14 Sup.Ct. 63, and Maynard v. Hecht, 151 U.S. 324, 14 Sup.Ct. 353. These decisions render it unnecessary that we should consider Manufacturing Co. v. Barber, 9 C.C.A. 79, 60 F. 465, or Sugar-refining Co. v. Johnson, 9 C.C.A. 110, 60 F. 503. We are clear that this rule is not limited by the subsequent clause of the same fifth section, touching cases involving the construction or application of the constitution of the United States, and that we have jurisdiction, on records in the form of that now before us, to pass on the jurisdiction of the circuit courts as much when that jurisdiction is contested on constitutional grounds as when it depends solely on the construction of statutes. In this instance, subsequent enumeration in the statute does not operate as an exclusion. In view of the fact that the jurisdiction of the circuit courts may always be challenged on constitutional grounds, any other interpretation would bring the statute to unfruitful results.

The petition alleges that the petitioner is restrained in violation of the constitution and laws of the United States; but this allegation is only a formal one, covering conclusions of law as well as of fact (Cuddy, Petitioner, 131 U.S. 280, 286, 9 Sup.Ct. 703), so that it is necessary to look elsewhere in the petition for specific allegations raising this issue. There are none. It is not claimed that the petition sets out anything touched by the federal laws; and for the rest, while it alleges an illegal imprisonment, without due process of law, it does not show that such process was refused by the state, which is essential under the fourteenth amendment, or by the United States, which is essential under the fifth amendment. The latest statement of this last rule is in Miller v. Texas, 153 U.S. 535, 14 Sup.Ct. 874. If the facts set out show any illegal detention, it is only in violation of the common law, or of the statutes of Massachusetts. Therefore, the circuit court had no jurisdiction, unless on the ground of diverse citizenship.

The question thus raised, namely, that of the jurisdiction of the circuit courts in matters of habeas corpus merely on the ground of diverse citizenship, has remained undecided by the supreme court for over a century, although Judge Story, at the circuit, took jurisdiction on this ground, apparently without hesitation. U.S. v. Green, 3 Mason, 482, Fed. Cas. No. 15,256. Under these circumstances the question must be regarded as a grave one, and, in the limited time given counsel, they have not had opportunity to discuss it in this case with full apprehension of the original habeas corpus statute, now Rev. St. Sec. 751, nor of the late statutes touching the jurisdiction of the circuit court, nor of the distinction, if any is essential to the proceedings at bar, between cases of mere unlawful detention and those in which the court sits as parens patriae. We therefore direct this question to be reargued, in connection with the argument on the merits of the case.

With reference to the jurisdiction of this court, we are first met by the claim that Eaton, as next friend, could not take this appeal.

We deem it unimportant to inquire whether he was, either expressly or impliedly, superseded as such in the circuit court. This appeal having sole reference to this court, this court will admit its own prochein ami or guardian ad litem, regardless of the circuit court. In favor of liberty, we think we ought to receive the appeal, and admit the prochein ami, until he is especially challenged for some cause, or until we, for some reason satisfactory to ourselves, appoint a guardian ad litem in this court. At present there seems no occasion to make this later appointment. It is intended that all proceedings in the circuit court may be challenged on appeal in habeas corpus cases. In re Neagle, 135 U.S. 1 42, 10 Sup.Ct. 658. And, in favor of liberty, there certainly should be an opportunity to do so. Unless a prochein ami may intervene, as has been done in this case, for the purpose of taking an appeal, this general challenge could not be effected when the proceedings had been dismissed below by a prochein ami or guardian ad litem, with the approval of the court, as under those circumstances the prochein ami or guardian ad litem would not appeal if he could. Circumstances might be such that, if the person in whose behalf proceedings had been commenced had been brought into court on habeas corpus, he might personally intervene by appeal; but, on the other hand, the aid of a prochein ami, in cases of this character, including appeals, is necessary for the protection of those who, on account of the rigorous nature of their detention, or of their mental inability, are incapable of acting for themselves. There is no practice which requires us, at the outset, to inquire whether, under the circumstances of this case, King himself had opportunity, or was capable, of taking an appeal in person; and, in favor of liberty, we ought not to do so, as the record now stands, or at this stage of the cause. Wherever a proceeding is commenced by prochein ami, the presumption that it was properly so commenced stands until rebutted; and what, under that contingency, could be the further progress of the cause, need not now be considered. It is enough to say that while an appeal or a writ of error is, for some purposes, not an original proceeding, each is so far of that nature that the...