State ex rel. Arkansas Industrial Co. v. Neel

• Decision Date: 05 March 1887
• Citation: 3 S.W. 631,48 Ark. 283
• Parties: STATE EX REL. ARKANSAS INDUSTRIAL CO. v. NEEL AND OTHERS
• Court: Arkansas Supreme Court

3 S.W. 631

48 Ark. 283

STATE EX REL. ARKANSAS INDUSTRIAL CO. v. NEEL AND OTHERS

Supreme Court of Arkansas

March 5, 1887

CERTIORARI to Pulaski Chancery Court, Hon. D. W. CARROLL Chancellor.

Caruth & Erb and U. M. & G. B. Rose, for petitioner.

Counsel beg leave to refer to the following cases: Goode et al., ex parte, 19 Ark. 410; Ruffen's Case, 21 Grattan, 790; secs 4884 and 4890, Mansf. Dig.; Milligan v. Children's Home, 97 Ind. 355; Rober's case, 15 Ark.; Kittrel ex parte, 20 Ark. 504.

Thomas B. Martin, Met L. Jones and M. L. Bell, for respondents.

The writ of haebeas corpus cannot be used for the purpose attempted in this cause, to settle property rights. While the writ is, ordinarily, one of right, it s not a writ that must be issued of course. Church on Habeas Corpus, 94.

Petitioners remedy is by appeal. 37 Ark. 318; 25 ib., 518; 29 ib., 173.

OPINION

BATTLE, J.

On the 16th of January, 1887, the Arkansas Industrial Company presented a petition to this court, alleging therein, among other things, that on the 10th day of January, 1887, it presented to the Pulaski chancery court its petition, in which it set forth and showed the following facts: That in 1883 the state of Arkansas, for a valuable consideration, made and executed to Townsend & Fitzpatrick a lease of the state penitentiary, together with the custody, use and control of all the convicts therein confined, for a period of ten years. That, for a valuable consideration Townsend & Fitzpatrick subsequently transferred and assigned this lease to relator, and that thereby it became the lessee of the state penitentiary.

That prior to this assignment, on the 22d day of January, 1883, Townsend & Fitzpatrick hired to the defendant, C. M. Neel, for ten years, one hundred of the convicts confined in the state penitentiary, at twelve dollars and fifty cents per capita per month. That this contract with Neel was assigned to it at the time the lease was transferred. That under this contract the defendants unlawfully hold in their possession and control, and detain ninety-five convicts, named in the pettion, who are duly and lawfully sentenced to confinement in the state penitentiary, by courts of competent jurisdiction of the state of Arkansas. The relator is entitled to the custody of these convicts by virtue of its being the lessee of the penitentiary. That relator had demanded the custody and possession of these convicts, and defendants had refused to surrender them; and that it asked the chancery court in that petition for a writ of habeas corpus, directing the defendants to produce the bodies of these convicts, and that they be delivered to relator.

And relator further states in its petition to this court, that defendant filed a response to its petition in the Pulaski chancery court, and that the chancery court, upon a hearing, refused to issue a writ of habeas corpus, and dismissed its petition.

The prayer of the petition filed hero is, that the proceedings of the chancery court be reviewed by this court, and that a writ of habeas corpus be issued as prayed for in its first petiton, and that the convicts named in its petition be delivered to it, and for general relief.

In response to a writ of certiorari the record and proceedings of the chancery court have been certified to this court, from which it appears that the allegation of relator in both petitions, so far as they are stated in this opinion, are true. They are not denied by the defendants. Both parties appear in this court.

Section 4 of article 7 of the constitution of this state, reads as follows: "The Supreme Court, except in cases otherwise provided by this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error, and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and other remedial writs, and to hear and determine the same."

The jurisdiction of the Supreme Court of the United States is similar to that of this court. After saying to what cases and controversies the judicial power of the United States shall be limited, the constitution of the United States defines the jurisdiction of the Supreme Court as follows: "In all cases affecting ambassadors, other public ministers and counsuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make."

In defining the jurisdiction of the district, circuit and supreme courts of the United States congress, by an act of September 24, 1789, enacted, "that all the before-mentioned courts shall have power to issue writs of scire facias, habeas corpus, and all other writs not especially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law, and that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of inquiry into the cause of commitment: provided, that writs of habeas corpus shall in no case extend to prisoners in jail, unless they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."

Under the constitution of the United States, and this act of congress, the Supreme Court of the United States has, in numerous cases, held that it can, in the exercise of its appellate jurisdiction, issue the writ of habeas corpus, and hear and determine the same.

In ex parte Yerger, 75 U.S. 85, 8 Wall. 85, 19 L.Ed. 332, Chief Justice Chase, after an exhaustive review of the decisions upon that subject, announced the conclusion of the court as follows: "We are obliged to hold, therefore, that in all cases where a circuit court of the United States has, in the exercise of its original jurisdiction, caused a prisoner to be brought before it, and has, after inquiring into the cause of the detention, remanded him to the custody from which he was taken, this court, in the exercise of its appellate jurisdiction, may, by the writ of habeas corpus, aided by the writ of certiorari, revise the decision of the circuit court, and if it be found unwarranted by law, release the prisoner from the unlawful restraint to which he has been remanded."

In commenting upon this jurisdiction, in ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717, the Supreme Court of the United States said: "The question is, whether a party imprisoned under a sentence of a United States court, upon conviction of a crime created by and indictable under an unconstitutional act of congress, may be discharged from imprisonment by this court on habeas corpus, although it has no appellate jurisdiction by writ of error over the judgment. It is objected that the case is one of original and not appellate jurisdiction, and, therefore, not within the jurisdiction of this court. But we are clearly of the opinion that it is appellate in its character. It requires us to revise the act of the circuit court in making the warrants of commitment upon the conviction referred to. This, according to all the decisions, is an exercise of appellate power. Ex parte Burford, 7 U.S. 448, 3 Cranch 448, 2 L.Ed. 495; ex parte Bollman, and Swortout, 4 Cranch 75, 101; ex parte Yerger, 75 U.S. 85, 8 Wall. 85, 19 L.Ed. 332.

"That this court is authorized to exercise appellate jurisdiction by habeas corpus directly, is a position sustained by abundant authority. It has general power to issue the writ, subject to the constitutional limitations of its jurisdiction, which are, that it can only exercise original jurisdiction in cases affecting ambassadors, public ministers and consuls, and in cases in which a state is a party; but has appellate jurisdiction in all other cases of federal cognizance, with such exceptions and under such regulations as congress shall make. Having this general power to issue the writ, the court may issue it in the exercise of original jurisdiction where it has original jurisdiction; and may issue it in the exercise of appellate jurisdiction where it has such jurisdiction, which is in all cases not prohibited by law, except those in which it has original jurisdiction only. Ex parte Boleman and Swortout, supra.; ex parte Watkins, 3 Peters 202; ib., 568; ex parte Wells, 59 U.S. 307, 18 HOW 307, 328, 15 L.Ed. 421; Ableman v. Booth, 21 HOW 506*; ex parte Yerger, 75 U.S. 85, 8 Wall. 85, 19 L.Ed. 332." 1. HABEAS CORPUS: Jurisdiction of Supreme Court.

The appellate jurisdiction exercised by the Supreme Court of the United States in the issue of writs of habeas corpus has been expressly conferred upon this court by ...