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

• Decision Date: 12 October 1894
• Docket Number: 95.
• Citation: 64 F. 331
• Parties: KING v. McLEAN ASYLUM OF THE MASSACHUSETTS GENERAL HOSPITAL et al.
• Court: U.S. Court of Appeals — First Circuit

64 F. 331

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

No. 95.

United States Court of Appeals, First Circuit.

October 12, 1894

Edward Avery for appellant.

Geo. O Shattuck, Wm. A. Munroe, Wm. F. Wharton, and Richard L Sweezy, for appellees.

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

PUTNAM Circuit Judge.

The opinion filed in this case June 4, 1894 (64 F. 325), disposed of the question of the jurisdiction of this court, and also of that of the jurisdiction of the circuit court, so far as the latter relates to any alleged restraint contrary to the constitution or laws of the United States, but left open the question of its jurisdiction, so far as based on the diverse citizenship of the parties to the petition. We must dispose of this, because it is necessary to determine whether we should affirm or reverse, or only direct the circuit court to dismiss.

The allegations in the petition touching the citizenship of the petitioner are not in the usual form, and it may well be questioned whether they are sufficient; yet there is so much doubt touching them that the court does not feel itself called on to dismiss the case on this account of its own motion. If the case before the court was one, admittedly, of such degree of insanity in the petitioner that it was apparent the essential question was of the place and character of his confinement, either for restraint or cure, a very different question would be presented from that which we understand is raised by the record. in that event the circuit court would have been asked to perform the duties ordinarily vesting in a superior court of common law, or in the chancellor, as parens patriae; and under such circumstances it would have had no jurisdiction, as we will explain hereafter. We conclude, however, that the strict issue here is that the petitioner is not of unsound mind, to that extent that he is incapable of self-control or self-care, or needs hospital treatment, and that he is entitled to his liberty on the ground that restraint of him as an insane person anywhere cannot be authorized. We have come to this understanding, although the pleadings are not positive on this point. The precise question of jurisdiction thus raised has not been authoritatively determined. In Re Burrus, 136 U.S. 586, 10 Sup.Ct. 850, the following occurs on pages 595 and 596, 136 U.S.,and at page 850, 10 Sup. Ct.:

'So far as the question whether the custody of a child can be brought into litigation in a circuit court of the United States, even where the citizenship of the opposing parties is such as ordinarily confers jurisdiction on that court, the matter was left undecided in the case of Barry v. Mercein (5 How. 103). Obviously, although the statutes of the United States have since enlarged the jurisdiction of the circuit courts by declaring that they shall have original, concurrent with the courts of the several states, of all civil suits arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority, the difficulty is not removed by this provision, for, as we have already said, the custody and guardianship by the parent of his child does not arise under the constitution, laws, or treaties of the United States, and is not dependent on them. But whether the diverse citizenship of parties contesting this right to the custody of the child could, in the courts of the United States, give jurisdiction to those courts to determine that question, has never been decided by this court, that we are aware of. Nor is it necessary to decide it in this case, for the order for the violation of which the petitioner is imprisoned for contempt is not a judgment of the circuit court of the United States, but a judgment of the district court of the same district.'

In addition are the expressions cited on page 595, 136 U.S.,and page 850, 10 Sup. Ct., from Barry v. Mercein, 5 How. 103, to the effect that the questions involved in writs of habeas corpus are ordinarily incapable of being reduced to any standard of pecuniary value. We are entirely satisfied, however, that none of the statutes relating specifically to the jurisdiction of the circuit courts, and involving money values as a condition of such jurisdiction, including that of March 3, 1875, c. 137 (18 Stat. 470), and that of March 3, 1887, as re-enacted by the act of August 13, 1888, c. 866 (25 Stat. 433), has taken from them jurisdiction of the issue in this case, so far as it can be found, if at all, in any older statute, and that, therefore, we are not required in this case to look for a money value. That such statutes have only a limited range, either in vesting the circuit courts with jurisdiction, or, on the other hand, of divesting them of jurisdiction given them by any authority outside of statutes of that particular class, was settled in Re Hohorst, 150 U.S. 653, 14 Sup.Ct. 221. The proposition is also supported by U.S. v. Mooney, 116 U.S. 104, 6 Sup.Ct. 304. Here it was held that the general terms of the act of March 3, 1875, did not invest the circuit courts with jurisdiction over suits for penalties and forfeitures, which had been before exclusively vested in the district courts. The court said (page 106, 116 U.S.,and page 304, 6 Sup.Ct.):

'To sustain the contention of plaintiffs (that is, the United States), we must by implication, and supersede, all the laws conferring jurisdiction on the circuit courts, and, of itself, to cover and regulate the whole subject. But this construction would lead to consequences which it is clear congress did not contemplate. All the laws in force December 1, 1873, prescribing the jurisdiction of the circuit courts, were reproduced in Rev. St. Sec. 629; and the jurisdiction was stated under twenty distinct heads, eighteen of which had reference to the jurisdiction in civil cases. In sixteen of these eighteen heads the jurisdiction is conferred without reference to the amount in controversy. * * * The act of 1875, it is clear, was not intended to interfere with the prior statutes conferring jurisdiction upon the circuit or district courts in special cases, and over particular subjects. Bank v. Harrison, 3 McCrary, 162, 8 F. 721. Its purpose was to give to the circuit courts a jurisdiction which the federal courts did not then possess, by declaring their jurisdiction in suits of a civil nature at common law or in equity, and not to take away from the circuit or district courts jurisdiction conferred by prior statutes, or to divide the jurisdiction which had for so long a time been vested exclusively in the district courts.'

Section 751 of the Revised Statutes, giving power to issue writs of habeas corpus, stands, so far as the statutes of March 3, 1875, August 13, 1888, and other statutes of that class, are concerned, on the same footing as section 629, referred to in U.S. v. Mooney; so that if section 751, and the original enactment out of which it arose, ever vested in the circuit courts jurisdiction when the issues arose as they arise in the case at bar, that jurisdiction remains unaffected by any other legislation. In re Louisville Underwriters, 134 U.S. 488, 10 Sup.Ct. 587, also tends to confirm our conclusions on this point.

It is claimed by the appellees that this proceeding is not a controversy, in the sense of the constitution, and that it is only an inquisition in behalf of the state. The appellees rely even on the method of entitling the cause, but this palpably goes too far. Cases of habeas corpus in the federal courts may, after the writ issues, be entitled in behalf of the United States, as was done in the first one before the supreme court. U.S. v. Hamilton, 3 Dall. 17. So that, if the entitling was of effect, we would have here a proceeding in behalf of the United States, over which its courts would clearly have jurisdiction. However, this matter of entitling with the name of the sovereign or state, and substantially all that was formerly said touching the prerogative character of certain writs, have long ceased to be of value. Com. v. Dennison, 24 How. 66, 97. It is true that, as claimed by the appellees, Judge Betts, in his opinion in Re Barry, 136 U.S. 597, 42 F. 113, did say, on page 615, 136 U.S.,and page 113, 42 Fed., as follows:

'A procedure by habeas corpus can in no legal sense be regarded as a suit or controversy between parties. It is an inquisition by the government, at the suggestion and instance of an individual, most probably, but still in the name and capacity of the sovereign, to ascertain whether an infant is in this case wrongfully detained, and in a way conducive to its prejudice.' But the latter of his two sentences qualifies the first, and shows that he had in mind the same class of writs which Chief Justice Shaw observed upon, when, in Com. v. Briggs, 16 Pick. 203, he said, on page 205, that 'as a general rule the writ of habeas corpus, and all action upon it, are governed by the judicial discretion of the court, in directing which all the circumstances are to be taken into consideration. ' The writ before Judge Betts, as well as that which Chief Justice Shaw was considering, involved only the question of the custody of a child, with reference to which the court sits parens patriae, and the remarks of these learned judges were appropriate to that subject-matter. We may as well emphasize at this point the distinction between proceedings under the writ, when they truly involve personal liberty, and proceedings like those before Judge Betts and Chief Justice Shaw, touching the custody of a child,-- a distinction which we have already made the basis of our consideration of the issues in this case. The former involve matters of right, but the latter only the

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