United States ex rel. Scott v. Burdick

• Decision Date: 31 December 1875
• Citation: 1 Dak. 142,46 N.W. 571
• Parties: United States ex rel. Scott v. Burdick, United States Marshal.
• Court: South Dakota Supreme Court

46 N.W. 571

1 Dak. 142

United States ex rel. Scott

v.Burdick, United States Marshal.¹

Supreme Court of the Territory of Dakota.

Dec. Term, 1875.

Appeal from district court, Yankton county.Shannon & Washabaugh, for relator. Wm. Pound, U. S. Atty., for respondent.

SHANNON, C. J.

On the 10th day of July, 1875, James Scott presented his petition to the above-named court in term-time, praying for a writ of habeas corpus, to be directed to the United States marshal, J. H. Burdick. On the same day the writ was granted, and a hearing took place on the following return of the marshal, to-wit: “I hold the person named within in my custody, by virtue of a warrant of commitment made and issued to me by L. Congleton, a U. S. commissioner in and for the second judicial district of the territory of Dakota, dated July 8, A. D. 1875, a certified copy of said warrant of commitment being herewith attached, marked ‘Exhibit A.’ He is held by me as C. Higgins, alias James Scott, and I have his body here in court, as I am within commanded, [Signed] J. H. Burdick, U. S. Marshal. Yankton, July 10, 1875.” On the same day that court rendered a decision as follows: “Upon the return, as above, of this writ, and after hearing and argument of counsel, and in consideration thereof, it is ordered and adjudged that the said C. Higgins, alias James Scott, be, and he is, remanded into the custody of the U. S. marshal, until he shall enter into proper recognizance in the sum of $200, with at least two good sureties, according to law, for his appearance at the October term, 1875, or until he shall be otherwise discharged according to law.” From the record and facts brought up by this appeal, it further appears that the relator, a white man, was held by the defendant by virtue of said warrant of commitment, on the charge of giving, bartering, and selling spirituous liquors to an Indian, in Yankton, Yankton county, Dakota territory, (within the jurisdiction of the court below,) the said Indian belonging to the Yankton Indian reservation, and being under the jurisdiction or charge of an Indian agent. The complaint was under section 2139 of the Revised Statutes of the United States, and the city of Yankton, in Yankton county, the locus in quo, is not within the Indian country, nor within any reservation. In the court below, as well as in this court, the relator contended that “he is not committed or detained by virtue of any process issued by any court of the United States, or any judge thereof, in a case where such courts or judges have jurisdiction under the laws of the United States, or have acquired such jurisdiction by the commencement of any suit in such court, or by virtue of any final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree;” and, furthermore, that “his said imprisonment is illegal, and the said illegality consists in this, to-wit: That by section 2139, Rev. St. U. S., the United States have no jurisdiction to arrest, confine, detain, or try him for the offense mentioned in the complaint, [and in the commitment,] of selling, giving, and disposing of spirituous liquors to an Indian, at the city of Yankton, D. T., because if said offense was committed at Yankton [the city] it is not in the Indian country, and therefore the United States have no jurisdiction of the said offense.”

On the argument in this court two questions have been presented- First. Is this an appealable case? Secondly. If the relator did give, barter, or sell spirituous liquor to an Indian, under the charge of an Indian agent, but such act occurred, not in the Indian country, but outside thereof, is it a criminal offense, under said section 2139 of the Revised Statutes of the United States? As to the first point, the supreme court and the district courts of this territory possess common law as well as chancery jurisdiction, (section 1868, Rev. St. U. S.;) and the said courts, and the respective judges thereof, may grant writs of habeas corpus in all cases in which the same are grantable by the judges of the United States in the District of Columbia, (section 1912.) In what cases are such writs grantable by the last-named judges? See Act Cong. Feb. 27, 1801, § 3, (2 St. 105;) Act April 29, 1802, § 24, (2 St. 166;) Act March 3, 1863, (12 St. 762;) Kendall v. U. S., 12 Pet. 624;Decatur v. Paulding, 14 Pet. 601; U. S. v. Williams, 4 Cranch, C. C. 376. From this examination it seems that the judges in that district were and are authorized to grant writs of habeas corpus in all cases, and in a similar manner, in which they were grantable by the federal courts and judges, as pointed out in title 13, c. 13, Rev. St. U. S., entitled “Habeas Corpus;” and, moreover, that they were and are empowered to grant them, as well in cases where the petitioner was or is restrained of his liberty for an alleged crime against a law confined in its operation to the District of Columbia as against an act of congress applicable to the whole of the United States. Criminal cases in this territory are of two classes- First, those that arise under the local or territorial laws; secondly, those that arise under the general criminal laws of the United States. It follows, therefore, that the meaning of section 1912 is that the supreme court and the district courts of Dakota, in term-time, and any one of their judges in vacation, may grant writs of habeas corpus in all cases of both the above classes, to-wit: Whether the prisoner is in custody under or by color of the authority of the United States, and is committed for trial before some court thereof; or whether he is restrained of his liberty under or by color of a law enacted by the legislative assembly of the territory, and is held for trial before some court of a county. But, again, the present case is one arising under a general law of the United States; and, by section 1910, Rev. St., the court below has and exercises the same jurisdiction in such a case as is vested in the circuit and district courts of the United States. Consequently,whatever jurisdiction a court of the latter kind has, in any state, in cases arising under the federal laws, the same has been conferred upon our district courts, and with the grant of jurisdiction go all the principles and rules of procedure appertaining or necessary to it. In other words, in all cases arising under the constitution and laws of the United States, each of our three district courts is, as to jurisdiction and procedure, exactly like a federal district court sitting in a state, with this difference, however, that to the above jurisdiction of our district courts is superadded in such cases the jurisdiction of the circuit courts of the United States. And as to such cases, when arising under habeas corpus, see sections 751, 752, and 753 of the Revised Statutes. The following sections, to-wit, 754-761, inclusive, regulate the procedure upon all such writs; and, in so far as these sections do not regulate the procedure, Mr. Abbott, (2 U. S. Pr. 211,) on authority cited, considers that it is governed by the common law of England, as it existed at the time of the adoption of the constitution. Ex parte Kaine, 3 Blatchf. 1; Ex parte Van Aernam, Id. 160. It is observable that, by section 1912, the supreme court and the district courts have concurrent original jurisdiction. The general principle as to the comity of tribunals of concurrent jurisdiction is that, between such courts, the court that first takes possession of the controversy must be allowed to dispose of it finally, without interference or interruption from the co-ordinate court. The comity shown by courts to the proceedings of each other in the application of this rule has, indeed, a foundation of necessity in the nature of judicial power. The power to determine controversies does not admit of adverse determinations of the same controversy by co-ordinate tribunals. The authority of a court to dispose of a given case pending before it must, necessarily, exclude the authority of any other court to determine the same controversy under the same conditions, except in the way of a regular and orderly revisal, after determination has been had. This rule is essential to the administration of justice in all countries where...