United States v. Hammond

• Decision Date: 04 November 1938
• Docket Number: 8607.,No. 8792,8792
• Citation: 99 F.2d 557
• Parties: UNITED STATES ex rel. ANGELICA v. HAMMOND. UNITED STATES ex rel. CARLISLE v. SAME.
• Court: U.S. Court of Appeals — Fifth Circuit

99 F.2d 557 (1938)

UNITED STATES ex rel. ANGELICA v. HAMMOND.

UNITED STATES ex rel. CARLISLE v. SAME.^*

Nos. 8792, 8607.

Circuit Court of Appeals, Fifth Circuit.

November 4, 1938.

No. 8792:

Horace Soule, of Houston, Tex., for appellant.

Douglas W. McGregor, U. S. Atty., and George O'Brien John, Asst. U. S. Atty., both of Houston, Tex., for appellee.

No. 8607:

Jno. E. Green, Jr., Robt. F. Carter, and Archie D. Gray, all of Houston, Tex., for appellant.

Grant W. Kelleher, Sp. Atty., Department of Justice, of Washington, D. C., John Henry Lewin and Hammond E. Chaffetz, Sp. Assts. to Atty. Gen., and Douglas W. McGregor, U. S. Atty., and George O'Brien John, Asst. U. S. Atty., both of Houston, Tex., for appellee.

Before SIBLEY, HUTCHESON, and HOLMES, Circuit Judges.

SIBLEY, Circuit Judge.

These are appeals from judgments in habeas corpus cases to test warrants of removal to other States for trial on federal offenses. The appellee moves to dismiss the appeals on the ground that since they were taken the Act of June 29, 1938, has gone into effect, which he urges prevents consideration of them, there being in the Act no saving of pending cases. The Act amends 28 U.S.C.A. § 463(a) by inserting a proviso so that it shall read thus:

"In a proceeding in habeas corpus in a district court, or before a district judge, or a circuit judge, the final order shall be subject to review, on appeal, by the circuit court of appeals of the circuit wherein the proceeding is had: Provided, however, That there shall be no right of appeal from such order in any habeas corpus proceeding to test the validity of a warrant of removal issued pursuant to the provisions of section 1014 of the Revised Statutes section 591 of Title 18, or the detention pending removal proceedings. * *"

The question is whether the words "There shall be no right of appeal from such order" merely prevents the taking of an appeal after the date of the Act, or whether they also cut off the prosecution of one already taken and its decision by the appellate court. We think the latter is the true intent of Congress. The Committee Reports on the Act show that there had been experience of delay and obstruction of justice through such appeals, and the purpose of the Act was to have the accused after a decision against him on this preliminary matter to have his next hearing in his trial in the court to which removed, with the usual right to appeal there. The title of the Act reads: "An Act To abolish appeals in habeas corpus proceedings brought to test the validity of orders of removal." The language in the body of the Act denies any "right of appeal." We think it clear that the intent is to cut such appeals off entirely, without saving those that are pending. It is usual to add a saving clause if pending cases are to be excepted.¹ There is no good reason why an accused who has just taken an appeal should be favored over another who is about to take one. The words "right of appeal" do not mean simply the right to appeal or to take an appeal, but refer to the whole appellate procedure. When the right of appeal is cut off, a pending appeal dies, just as when a statutory cause of action is cut off by repeal without saving clause a pending action upon it dies. Norris v. Crocker, 13 How. 429, 14 L.Ed. 210; Western Union Telegraph Co. v. Louisville & Nashville R. Co., 258 U.S. 13, 42 S.Ct. 258, 66 L.Ed. 437. The appellants no longer have a standing in court. The appellate court in such a case acts according to the law as it is when judgment is to be rendered, and not as it was when the appeal was taken. 3 Am.Jur. Appeal and Error, § 1157.

The same result is reached if the Act be treated as affecting the jurisdiction of the court. That it was so intended is likely, for it is an amendment of the statute which gives appellate jurisdiction over habeas corpus judgments. A repeal of the law giving the appellate court jurisdiction prevents a judgment though the case has been argued and submitted for decision. Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264. So does an amendment which excludes the pending case. Baltimore & P. Railroad Co. v. Grant, 98 U.S. 398, 25 L. Ed. 231. See, also, Merchants' Insurance Co. v. Ritchie, 5 Wall. 541, 18 L.Ed. 540. There is no vested right in a pending appeal. This Act operates only prospectively, but it is effective to abolish the appeals to which it relates whether already taken and pending at its date or not. The appeals are accordingly dismissed.

HOLMES, Circuit Judge (dissenting).

It is well settled that, when the jurisdiction of a cause depends upon a statute, the absolute repeal of the statute takes away the jurisdiction; but in this case the statute conferring jurisdiction to review, on appeal, all final orders in habeas corpus proceedings was not repealed. It was reenacted in haec verba, except that a proviso was added which must be construed as operating prospectively unless, expressly or by necessary implication, a contrary intention is indicated. No such intention is indicated in the act or by anything said or done in the Congress at the time of its passage.

The act in question is fairly construed to read that the final order in all habeas corpus proceedings shall be subject to review by the circuit courts of appeals: provided, however, that hereafter there shall be no right of appeal in the particular class of cases mentioned. This construction preserves jurisdiction to review cases pending on appeal, but denies to litigants the right of appeal after the date of the act.

That the Congress knew exactly what it was doing is indicated by the report of the committee that its purpose was to plug loopholes for delay in criminal cases. The delay in this case has already occurred. The appeal is pending, our jurisdiction to review it was expressly conferred by reenactment, and a dismissal instead of a decision on the merits will probably cause still further delay. This is also indicated by a comparison of similar legislation. The act under consideration in Baltimore & P. Railroad Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231, restricted the jurisdiction of the court to re-examine, reverse, or affirm any final judgment upon writ of error or appeal, and expressly repealed all prior acts inconsistent therewith. The opinion opens with the statement by the Chief Justice that the single question presented for decision "is whether there is any law now in force which gives us authority to re-examine, reverse, or affirm the judgment in this case." page 400. The court held that the act was prospective in operation, that it did not vacate or annul an appeal already taken, but that it took away the right of the court to hear and determine the cause. The court distinguished between the right of appeal and jurisdiction to consider an appeal. The case at bar is the converse of the Grant Case. There the right of appeal remained, but the jurisdiction was gone; here the jurisdiction remains, but the right of appeal is gone. See, also, U. S. v. Boisdore, 49 U.S. 113, 8 How. 113, 12 L.Ed. 1009, where a motion to dismiss was overruled, and the court's jurisdiction was held to continue in force, unless repealed by Congress, until a final disposition of all appeals regularly brought up from the district court.

In Merchants' Ins. Co. v. Ritchie, 5 Wall. 541, 18 L.Ed. 540, and Ex parte McCardle, 7 Wall. 506, 19 L.Ed. 264, the repealing statute took away the entire appellate jurisdiction in cases of the character mentioned. In the latter instance, the act expressly took away jurisdiction in appeals which had been taken, as well as those which might thereafter be taken. Pending appeals fall when the grant of jurisdiction is repealed. This is obvious, for once jurisdiction is lost, the court can take no further action of any kind, except to dismiss the case. It has lost all power to deal with the appeal. This was clearly stated in Ex parte McCardle, supra, as follows page 514:

"What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle."

In the present case, it is clear that the Act of June 29, 1938 (28 U.S.C.A. § 463), did not repeal the grant of jurisdiction in any respect; it was prospective in operation and did not vacate or annul appeals already taken. It merely provided that, in the future, there should be no right of appeal in such cases. The sole question then, as in Baltimore & P. Railroad Co. v. Grant, supra, is whether there is any law now in force which gives us the right to re-examine, reverse, or affirm the judgment in this case. Eliminating the proviso which, according to the Chief Justice, does not annul appeals already taken, we find our jurisdiction unimpaired by the re-enactment which says that the final order in this case is subject to review, on appeal, by the circuit courts of appeals. Had Congress intended to abolish jurisdiction in pending appeals, it would have been easy to accomplish the purpose, according to the Grant and McCardle Cases, as follows:

"In a proceeding in habeas corpus * * * the final order shall be subject to review on appeal, by the Circuit Court of Appeals * * * except in any habeas corpus proceeding brought in connection with removal proceedings pursuant to section 1014 of the Revised Statutes 18 U.S.C.A. § 591."

By substituting the single word "except" for the words "provided, however, That there shall be no right of appeal from such order," the statute would have dealt with the jurisdiction of this court rather than with the right of a litigant to sue out an appeal. Without limiting or restricting the jurisdiction of this court, the act of 1938 prospectively withdrew the right of...