Salinger v. Loisel Same v. United States

• Decision Date: 26 May 1924
• Docket Number: 342,Nos. 341,705,s. 341
• Citation: 265 U.S. 224,44 S.Ct. 519,68 L.Ed. 989
• Parties: SALINGER v. LOISEL, United States Marshal (two cases). SAME v. UNITED STATES et al
• Court: U.S. Supreme Court

265 U.S. 224

44 S.Ct. 519

68 L.Ed. 989

SALINGER

v LOISEL, United States Marshal (two cases).

SAME

v. UNITED STATES et al.

Nos. 341, 342, 705.

Argued Jan. 14 and 15, 1924.

Decided May 26, 1924.

Messrs. B. I. Salinger, of Carroll, Iowa, and St. Clair Adams, of New Orleans, La., for Salinger.

Mr. Alfred A. Wheat, of New York City, for Loisel.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

These three cases involve certain phases of a protracted resistance by B. I. Salinger, Jr., to an effort by the United States to have him removed to the district of South Dakota to answer an indictment for a violation there of section 215 of the Criminal Code (Comp. St. § 10385), which makes it a punishable offense to use the mail for the purpose of executing a scheme or artifice to defraud.

The indictment was returned in the District Court for the District of South Dakota when sitting in the Western division, and the offense was charged as committed in the Southern division; but the grand jury which returned the indictment had been impaneled from the body of the district, regardless of the divisions, and instructed to inquire into and make due presentment of offenses committed in any part of the district. After receiving the indictment, the court, at the suggestion of the United States attorney, remitted it to the Southern division for trial and other proceedings. A bench warrant was issued for Salinger's arrest, and he appeared before a commissioner in Iowa and gave bond for his appearance in the Southern division on the first day of the next term. But he failed to appear, and the bond was declared forfeited.

Later, Salinger being in New York City, a proceeding was begun before a commissioner there for his arrest and removal to South Dakota under section 1014 of the Revised Statutes (Comp. St. § 1674). He was arrested, taken before the commissioner, and accorded a hearing. The indictment was produced, he admitted he was the person charged, and on the evidence presented the commissioner found there was probable cause and committed him to await the issue of a warrant of removal. He then sued out a writ of habeas corpus in the District Court for that district; but after a hearing the court discharged the writ, remanded him to the marshal's custody, and issued a warrant for his removal. On his appeal, that decision was reviewed and affirmed by the Circuit Court of Appeals for the Second Circuit. In re Salinger, 288 Fed. 752. He made no attempt to obtain any other or further review. When the mandate of the Circuit Court of Appeals went down, to avoid being removed in the custody of the marshal, he gave a bond for his appearance two weeks hence in South Dakota. Again he failed to appear, and that bond was declared forfeited.

After giving the bond in New York, and before the day stipulated therein for his appearance in South Dakota, Salinger went to New Orleans, appeared with a representative of the surety in that bond before a commissioner there, and was surrendered by the surety's representative to the marshal of that district in the commissioner's presence. Such a surrender in a distant district may not have been in accord with section 1018 of the Revised Statutes (Comp. St. § 1682), and may not have discharged the surety; but nothing turns on that here. The surrender seems to have been made with Salinger's full consent; but, however made, it constituted no obstacle to further proceedings for his removal. The commissioner accordingly directed that he be held in the marshal's custody to await the institution of such a proceeding. He then sued out a writ of habeas corpus in the District Court at New Orleans and was admitted to bail pending a hearing on the writ.

In a few days—during which Salinger failed to appear in South Dakota as stipulated in the bond given in New York—a proceeding for his arrest and removal under section 1014 was begun before the commissioner in New Orleans. He was arrested, taken before the commissioner, and accorded a hearing. The indictment was produced; evidence was presented tending to show he was the person charged, and he gave testimony tending to show he was not in South Dakota at the times he was charged with unlawfully using the mail. On all the evidence the commissioner found the requisite identity and probable cause, and committed him to await the issue of a warrant for his removal. He then sued out another writ of habeas corpus in the District Court, and was admitted to bail pending a hearing on the writ.

On a hearing in the two cases, all the proceedings in South Dakota, New York, the Circuit Court of Appeals for the Second Circuit, and New Orleans, which have been recited herein were produced in evidence, and on consideration thereof the court discharged both writs of habeas corpus, remanded Salinger to the marshal's custody, and issued a warrant for his removal. Direct appeals to this court in two cases were then prayed by Salinger and allowed by the District Court; it being especially directed in both cases that the appeal operate as a supersedeas on Salinger's giving approved bail. The bail was given and approved. These cases are Nos. 341 and 342.

Notwithstanding the supersedeas so effected, Salinger was taken into custody by the marshal under the warrant of removal with a view to executing its command. He then sued out a third writ of habeas corpus in the District Court; his petition therefor being like his earlier petitions, save as in it he additionally complained that his detention under the warrant of removal was in contravention of the supersedeas allowed on the appeals in Nos. 341 and 342. After a hearing the District Court discharged the writ of habeas corpus and remanded him to the marshal's custody for removal under the warrant. An appeal was taken to the Circuit Court of Appeals for the Fifth Circuit, where the decision was affirmed. Salinger v. United States, 295 Fed. 498. The case is here on certiorari (263 U. S. 683, 44 Sup. Ct. 136, 68 L. Ed. ——), and is No. 705. Bail in this case was allowed and given here when certiorari was granted.

In disposing of the additional ground of complaint advanced in No. 705, the Circuit Court of Appeals proceeded on the assumption that there were three distinct warrants of removal, and that one of these was neither involved in the appeals in Nos. 341 and 342 nor covered by the supersedeas. But the assumption was not well founded. There was but one proceeding for removal before the commissioner in New Orleans and it was based on the single indictment in South Dakota. There was also but one commitment for removal in that proceeding. The warrant of removal issued by the District Court was based expressly on that commitment; but for reasons not explained the warrant was issued in triplicate. In substance, form, and date the three papers were identical. Taken either collectively or separately, they embodied a single command, which was that the marshal 'forthwith' remove Salinger to South Dakota and there deliver him to the proper authority to be dealt with under the indictment. To execute the command of one triplicate was to execute that of all. In legal effect, therefore, there was one warrant, not three. One was all that was sought, and no basis was laid for more. The obvious purpose of the supersedeas was to stay the execution of the command for removal pending the appeals to this court in Nos. 341 and 342, and of course that purpose could not be thwarted by merely duplicating or triplicating the warrant embodying the command. It follows that the additional ground of complaint advanced in No. 705 was well taken. But, as that ground could be effective only during the life of the supersedeas in Nos. 341 and 342, it has no bearing on the decision to be given in them on the right to remove.

Before coming to the questions presented in those cases we think the procedure which was followed in them calls for comment. The first case was begun when Salinger was committed by the commissioner to await a proceeding for his removal. Later, when such a proceeding was begun and the commissioner definitely committed him to await the issue of a warrant of removal, that change in the situation should have been shown in the first case by an appropriate amendment or supplement to the petition, instead of being made the basis of a new and separate case. And when, in disregard of the propriety of taking that course the second case was begun, the two should have been consolidated and conducted as one. The parties were the same and the cases presented a single controversy. Maintaining them separately was productive of confusion, and led to two appeals to this court, when, had the right course been taken, one appeal plainly would have sufficed, and would have lessened by one-half the printing and other costs. As it is now, one record is largely a duplication of what appears in the other, and both are exceedingly confusing. The course that was taken should not have been selected, nor should the court have permitted it.

In Nos. 341 and 342 the right to arrest and remove in virtue of the indictment was questioned on the same grounds that were set up in the earlier case in New York, where that right was upheld. Because of this situation, counsel for the appellee invoke the doctrine of res judicata and insist that the decision in the New York case was a final adjudication of the right and is binding on all other courts, including this court. We are unable to go so far. At common law the doctrine of res judicata did not extend to a decision on habeas corpus refusing to discharge the prisoner. The state courts generally have accepted that rule where not modified by statute; the lower federal courts usually have given effect to it; and this court has conformed to it and thereby sanctioned it, although announcing no express decision on the point. The cases of Carter v. McClaughry, 183 U. S. 365, 378, 22 Sup. Ct. 181, 46 L. Ed. 236, and Ex parte...