United States v. Brown

• Decision Date: 02 June 1922
• Docket Number: 5855.
• Citation: 281 F. 657
• Parties: UNITED STATES ex rel. WEISMAN v. BROWN, Sheriff.
• Court: U.S. Court of Appeals — Eighth Circuit

281 F. 657

UNITED STATES ex rel. WEISMAN v. BROWN, Sheriff.

No. 5855.

United States Court of Appeals, Eighth Circuit.

June 2, 1922

F. W Booth, of Minneapolis, Minn. (E.S. Cary, of Minneapolis Minn., on the brief), for appellant.

Floyd B. Olson, of Minneapolis, Minn., for appellee.

Before SANBORN, STONE, and LEWIS, Circuit Judges.

SANBORN Circuit Judge.

This case presents an appeal from an order of discharge of a writ of habeas corpus, issued on the petition of Mr. Weisman, a motion by the appellee, Earle Brown, the sheriff of Hennepin county, to dismiss the appeal on the ground that this court has no jurisdiction to entertain or hear it, and a motion to vacate an order made by this court while the appeal was pending, which restrained, under section 766 of the Revised Statutes as amended (section 1292, Comp. St.), the county attorney of Hennepin county and the sheriff and the clerk of the district court of Dakota county, Minn., from taking further action or proceedings in the case of State of Minnesota v. Weisman, wherein he was charged by an indictment with keeping a house of ill fame on February 24, 1919, in Minneapolis, Minn. On February 23, 1921, Mr. Weisman filed in the District Court below and presented to the judge of that court his petition for a writ of habeas corpus to relieve him from the restraint of his liberty, as he claimed, in violation of the Constitution of the United States, by his indictment for keeping a house of ill fame on the 24th day of February, 1919, and the pressing of that case to trial, in that he was thereby put twice in jeopardy for the same offense, and was being prosecuted in violation of a promise of immunity from such prosecution made with him by authorized officers of the state, in consideration of disclosures and testimony which he was persuaded to give by the officers of the state before the grand jury regarding the commission of certain crimes, in reliance upon such promise of immunity. There are many other allegations and claims set forth in the petition, but it is unnecessary to a determination of the questions in this court to state or consider them.

Upon the petition of Mr. Weisman, the relator, the judge below issued a writ of habeas corpus to Mr. Brown, the sheriff of Hennepin county, returnable on February 26, 1921. On that day the sheriff appeared by his attorney for the sole purpose of moving for the dismissal of the writ, upon the ground that the court was without jurisdiction to issue or hear the same because the relator was not in the custody of the sheriff, but had been admitted to bail in a criminal case in the district court of Hennepin county, and was at large at the time of the issue of the writ of habeas corpus. The court held that the point was well taken, but that, as it appeared that Weisman could at any time be surrendered to the sheriff, he passed this objection without prejudice. The sheriff filed a return to the writ to the effect that Weisman was not in his custody or control when the writ was issued or thereafter, and after argument the judge ordered:

'That said writ of habeas corpus be discharged, for the reason that in the opinion of the court no special emergency or legal question was involved in said application and return that could not be presented and determined in the Hennepin county district court upon the trial of the case in that court, and that none of the federal constitutional questions were presented upon said hearing that could not be determined by said District Court, or in the due course of the said trial by the United States Supreme Court upon appeal or writ of error.'

In support of the motion to dismiss the appeal from the order discharging the writ, counsel for the sheriff earnestly contends that, as this appeal involves the jurisdiction of the court below and a question of the violation of the Constitution of the United States, and as cases involving these questions are appealable to the Supreme Court (section 238, Judicial Code (Comp. St. Sec. 1215)), that court alone had jurisdiction of the appeal from the order discharging this writ, and consequently this court is without jurisdiction thereof. But the well-settled rule upon this subject is that, if the jurisdiction of the District Court is in issue and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified and take his appeal or writ of error directly to the Supreme Court; that if the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the Circuit Court of Appeals, where, if the question of jurisdiction arises, the Circuit Court of Appeals may certify it. United States v. Jahn, 155 U.S. 109, 114, 15 Sup.Ct. 39, 39 L.Ed. 87.

In the case at bar the jurisdiction of the court below was not decided in favor of the defendant, but the jurisdiction of that court was sustained, and the decision and order were rendered in favor of the defendant on the merits of the case. Therefore the case falls in the second class of cases specified by the rule cited, and this court has jurisdiction of the appeal, and the motion to dismiss it must be denied.

Nor was the court below in error in its conclusion that it had jurisdiction of the proceeding for the writ. There is a fundamental distinction between the facts essential to the jurisdiction of the district court over the subject-matter and the parties, and the facts indispensable to entitle the petitioner to have the court exercise its jurisdiction to grant the relief he seeks. In a civil action a complaint which fails to state facts sufficient to warrant the exercise of its jurisdiction in favor of the plaintiff and the service of a summons to answer it brings the case and party within the jurisdiction of the court to hear and decide: (1) Whether or not it has jurisdiction of the subject-matter and the parties; and (2) whether or not the facts presented by the pleadings and evidence, if any, entitle either of the parties to the relief they respectively seek.

The acts of Congress granted to the District Judge below the power and imposed upon him the duty, upon the presentation of the petition of the relator for the writ of habeas corpus for the purpose of an inquiry into the cause of the alleged restraint of his liberty, to 'forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. ' Revised Statutes, Sec. 755 (Comp. St. Sec. 1283). The filing of the petition, therefore, without more, granted to the District Judge the power and imposed upon him the duty: (1) To decide whether or not it appeared therefrom that the petitioner was not entitled to the writ, and if he decided either correctly or erroneously, for jurisdiction is the power to decide wrongly as well as rightly, that it did not appear from the petition that the relator was not entitled to the writ; (2) to issue the writ and to hear and decide every issue of law and fact conditioning his ultimate adjudication as they should arise in the progress of the case.

Jurisdiction is not confined to cases in which the particular facts constitute a good cause of action, or authorize, or require the court to exercise its jurisdiction to grant relief. It includes every issue, the issue of jurisdiction as well as the issues on the merits within the scope of the general power vested in the court by the law of its organization to deal with the abstract question involved. It empowers the court to determine every issue within the scope of its authority according to its own view of the law, the pleadings and evidence, if any, and every judgment and decision so rendered is final and conclusive upon the parties to it, unless reversed by writ of error or appeal or impeached for fraud. In re First National Bank, 152 F. 64, 69, 81 C.C.A. 260, 11 Ann.Cas. 355; In re Plymouth Cord Co., 135 F. 1000, 1004, 68 C.C.A. 434; Foltz v. St. Louis & San Francisco Railroad Co., 60 F. 316, 318, 8 C.C.A. 635, and cases there cited.

The question whether or not the relator was restrained of his liberty by the sheriff, or was out on bail and not within the custody of the...