Wales v. Whitney

• Citation: 114 U.S. 564,29 L.Ed. 277,5 S.Ct. 1050
• Parties: WALES v. WHITNEY, Secretary of the Navy
• Decision Date: 04 May 1885
• Court: United States Supreme Court

114 U.S. 564

5 S.Ct. 1050

29 L.Ed. 277

WALES v. WHITNEY, Secretary of the Navy.

May 4, 1885.

S. Shellabarger,

J. M. Wilson, and F. P. B. Sands, for appellant.

John S. Blair, for appellee.

MILLER, J.

This is an appeal from a judgment of the supreme court of the District of Columbia, which refused to make an order on a writ of habeas corpus relieving appellant from the custody of the appellee, who, it is alleged, held the appellant in restraint of his liberty unlawfully. Upon the decision of the supreme court of the district, adverse to petitioner, an application for an original writ of habeas corpus was made to this court by counsel for appellant, but on a suggestion from the court that an act of congress, at its session just closed, had restored the appellate jurisdiction of this court in habeas corpus cases over decisions of the circuit courts, and that this necessarily included jurisdiction over similar judgments of the supreme court of the District of Columbia, counsel, on due consideration, withdrew their application, and, appealing from the judgment of that court, bring here the record of it for review.

Section 846 of the Revised Statutes of the District of Columbia, which makes the jurisdiction of this court over judgments and decrees of the circuit courts of the United States the measure of its jurisdiction (except as regards the sum in controversy) over judgments and decrees of the supreme court of the district in similar cases, justifies the exercise of our appellate jurisdiction in the present case. The original petition for the writ was addressed to Mr. Justice COX of the supreme court of the district, and alleged that on the second day of March, 1885, the petitioner was arrested and imprisoned, and ever since has so remained in arrest and imprisonment, and restrained of his liberty in the District of Columbia, illegally. The petition sets out an order of the secretary of the navy, under which this restraint is exercised, which order is in the following terms:

'WASHINGTON, February 28, 1885.

'SIR Transmitted herewith you will receive charges, with specifications, preferred against you by the department. A general court-martial has been ordered to convene in rooms numbered 32 and 33, at the navy department, Washington, D. C., at 12 o'clock noon, on Monday, the ninth proximo, at which time and place you will appear and report yourself to Rear Admiral Edward Simpson, United States navy, the presiding officer of the court, for trial. The judge advocate will summon such witnesses as you may require for your defense.

'You are hereby placed under arrest, and you will confine yourself to the limits of the city of Washington.

'Very respectfully,

'WM. E. CHANDLER,

'Medical Director

Secretary of the Navy.

'PHILIP S. WALES,

'U. S. N., Washington, D. C.'

It also makes an exhibit to the petition a copy of the charges and specifications accompanying this order. It is unnecessary to say more of these charges at present, than that they relate to derelictions of duty on the part of the appellant while he was surgeon general of the navy, and as such had charge of the bureau of medicine and surgery in the navy department, which office he held from August 20, 1879, to January 26, 1884. He had therefore ceased to be surgeon general, and was in the exercise of his functions as medical director of the navy when this order was served on him. Judge COX issued the writ directed to William C. Whitney, secretary of the navy, who had become such by succession to Secretary Chandler. To this writ Secretary Whitney made return, stating the ction of Secretary Chandler, and the history of the appellant's connection with the navy since he was appointed medical inspector in June, 1873; the charges preferred against him as chief of the bureau of medicine and surgery, and the order of arrest of Secretary Chandler, and closes his return as follows:

'Your respondent respectfully submits that the said Philip S. Wales is not now, nor was at the time of issuing the annexed writ, in the custody or possession of, or confined or restrained of his liberty by, your respondent, other than as appears by the papers marked A, B, and C, attached hereto and made part of this return, and that the cause of such detention, if any there be, is fully shown in said exhibits.

'And your respondent further answers that neither he, nor any one by his authority, has exercised any physical restraint over the said Philip S. Wales before or since the issue of said writ.

'Your respondent further answers that by virtue of his office as secretary of the navy, the said Philip S. Wales being a medical director in the navy, was, at the time of the issuing of the said writ, and has since continually been, in the power of your respondent, so far as the statutes of the United States and the regulations of the navy, not inconsistent therewith, have vested him with authority over the said Philip S. Wales.

'Your respondent further says that he knows of no obstacle or impediment to prevent the said Philip S. Wales from being present before your honor at the time and place fixed in the said writ; but, in order to comply with the order of your honor, and under and by virtue of his authority as secretary of the navy, he has ordered the said Philip S. Wales to be present at the time and place so fixed. Wherefore the said William C. Whitney, secretary of the navy, has here, before your honorable court, the body of the said Philip S. Wales, together with the said writ, as therein he is commanded.

'W. C. WHITNEY,

'Secretary of the Navy.'

To this return the petitioner, by his counsel, demurred, when, on this demurrer, and after motion of the respondent to discharge the writ, Mr. Justice Cox certified the case into the court in general term. That court, after full hearing and due consideration, made the following order:

'Habeas Corpus. Ex relatione PHILIP S. WALES.—No. 15,780.

'This cause coming on for hearing, and having been argued by counsel and duly considered, it is, this fourteenth day of April, 1885, ordered and adjudged that the petition be dismissed, with costs, the court being of opinion that the relator has not been, nor is he at this present, deprived of his personal liberty by virtue of the orders of the secretary of the navy set out in the petition.

'By the court:

A. WYLIE.

It is from this order that the present appeal is taken.

The only other matter apparent in the record necessary to be stated at this time is that the court-martial referred to in the order of arrest was duly appointed, assembled, and organized, and that appellant appeared before it, and, at his request, it has been adjourned from time to time to await the result of these proceedings in habeas corpus. Two questions have been elaborately argued before us, namely: (1) Does the return of the secretary of the navy to the writ and its accompanying exhibits show such restraint of the liberty of the petitioner by that officer as justifies the use of the writ of habeas corpus? (2) If there is a restraint, which in its character demands the issue of the writ, are the charges for which the petitioner is required to answer before the naval court-martial of the class of which such a court has jurisdiction? The latter is a question of importance and not free from difficulty, since its solution requires the court to decide whether the surgeon general of the navy, as chief of the bureau of medicine and surgery in the department of the navy, under the immediate supervision of the secretary, is liable for any failure to perform is duties as surgeon general, to be tried by a military court, under the articles of war governing the navy, or has a right for such offenses to be tried alone by the civil courts, and according to the law, for offenses not military. Is he, in that character, in the civil or military service of the United States? The difficulty of stating the question shows the embarrassment attending its decision. The other question, however, has precedence, both because it is the one on which the court of the district decided it, and because, if there was no such restraint, whether legal or illegal, as to call for the use of the writ, there is no occasion to inquire into its cause.

It is obvious that petitioner is under no physical restraint. He walks the streets of Washington with no one to hinder his movements, just as he did before the secretary's order was served on him. It is not stated as a fact in the record, but it is a fair inference, from all that is found in it, that, as medical director, he was residing in Washington and performing there the duties of his office. It is beyond dispute that the secretary of the navy had the right to direct him to reside in the city in performance of these duties. If he had been somewhere else the secretary could have ordered him to Washington as medical director, and, in order to leave Washington lawfully, he would have to obtain leave of absence. He must, in such case, remain here until otherwise ordered or permitted. It is not easy to see how he is under any restraint of his personal liberty by the order of arrest which he was not under before. Nor can it be believed that, if this order had made no reference to a trial on charges against him before a court-martial, he would have felt any restraint whatever, though it had directed him to remain in the city until further orders. If the order had directed him so to remain, and act as a member of such court, can any one believe he would have felt himself a prisoner entitled to the benefit of a writ of a writ of habeas corpus?

On the other hand, there is an obvious motive on the part of the petitioner for construing this order as making him a prisoner in the custody of the secretary. That motive is to have himself brought before a civil court, which, on inquiry into the cause of his imprisonment, may decide that the offense with which the secretary charges him is not of a millitary...