Whitney v. George Dick No 494 Whitney v. George Dick No 557, Nos. 494

CourtUnited States Supreme Court
Writing for the CourtBrewer
Citation26 S.Ct. 584,202 U.S. 132,50 L.Ed. 963
Docket Number557,Nos. 494
Decision Date30 April 1906
PartiesE. L. WHITNEY, Warden of the Idaho State Penitentiary, Appt. , v. GEORGE DICK, Appellee , NO 494. E. L. WHITNEY, Warden of the Idaho State Penitentiary, Petitioner , v. GEORGE DICK, Respt . NO 557

202 U.S. 132
26 S.Ct. 584
50 L.Ed. 963
E. L. WHITNEY, Warden of the Idaho State Penitentiary, Appt.,

v.

GEORGE DICK, Appellee, NO 494. E. L. WHITNEY, Warden of the Idaho State Penitentiary, Petitioner, v. GEORGE DICK, Respt. NO 557.

Nos. 494, 557.
Submitted April 3, 1906.
Decided April 30, 1906.

Page 133

On May 16, 1905, the respondent in these two cases was convicted in the district court of the United States for the district of Idaho, northern division, on the charge of unlawfully and feloniously introducing intoxicating liquors into the Nez Perce Indian reservation, and sentenced to pay a fine of $100 and be confined in the penitentiary for the term of one year and ten days. On July 21, 1905, a bill of exceptions was duly prepared and signed. Thereafter, without suing out a writ of error, respondent applied to the circuit court of appeals of the ninth circuit for writs of habeas corpus and of certiorari. It does not affirmatively appear that any writ of habeas corpus was issued, the record in the court of appeals reciting:

'The petition in the above-entitled matter for a writ of habeas corpus and a writ of certiorari having been duly submitted to the court, and the petition for a writ of certiorari therein having been granted, and a writ of certiorari having been issued, directed to the honorable the United States district court for the district of Idaho, and requiring the said district court to certify to this court a transcript of the record and proceedings in the suit therein of the United States v. George Dick, and the return to the said writ of certiorari having been filed, the matter was duly argued and submitted to the court for consideration and decision upon the said return and upon the briefs of counsel for the respective parties.

'On consideration whereof, and the court being of the opinion that the United States district court for the district of

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Idaho did not have jurisdiction of the offense charged in the indictment found against the petitioner in the suit of the United States v. George Dick, it is ordered and adjudged that the petitioner, George Dick, be discharged from imprisonment.'

From this order of discharge, Whitney, as warden of the Idaho state penitentiary (the respondent named in the petition for a habeas corpus), perfected an appeal to this court, and that appeal is case No. 494. Subsequently he applied for a writ of certiorari, to review the decision of the court of appeals, which was allowed, and that is case No. 557. The record in case No. 494 was directed to stand as the return to the writ of certiorari. Both the appeal and the certiorari were taken by the warden, appearing by the United States attorney for the district of Idaho, under the direction of the Attorney General of the United States.

Solicitor General Hoyt for appellant and petitioner.

Mr. Frank E. Fogg for appellee and respondent.

Statement by Mr. Justice Brewer:

Page 135

Mr. Justice Brewer delivered the opinion of the court:

The first question is, of course, one of jurisdiction. Final orders of the circuit court of appeals may of right be brought to this court only where the matter in dispute exceeds in value $1,000. As there is no amount in controversy, the appeal was unauthorized and must be dismissed. Lau Ow Bew v. United States, 144 U. S. 47, 58, 36 L. ed. 340, 344, 12 Sup. Ct. Rep. 517. But by certiorari the judgment of the court of appeals is properly before us. Re Chetwood, 165 U. S. 443, 462, 41 L. ed. 782, 788, 17 Sup.Ct.Rep. 385.

Had the court of appeals jurisdiction to issue separately either a writ of certiorari or one of habeas corpus, or the two jointly? And, first, as to the writ of habeas corpus. Undoubtedly that writ is one of high privilege. We are not confronted with the case of a failure by Congress to make any provision vision for it. Under § 751, Rev. Stat. (U. S. Comp. Stat. 1901, p. 592), the Supreme, circuit, and district courts may issue writs of habeas corpus, and by § 752 (U. S. Comp. Stat. 1901, p. 592), like power is given to the several justices and judges of said courts for the purpose of inquiry into the cause of restraint of liberty. Thus adequate provision has been made for securing to everyone entitled thereto the writ of habeas corpus. So, when Congress passes an act establishing a new court, there is no constraining presumption that it must intend to give to that court jurisdiction in habeas corpus. The court of appeals act (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 488) does not in terms grant authority to issue the writ. It is silent on the subject, and in order to sustain its jurisdiction we must write something into the statute which Congress itself did not put there. In this we are speaking of the writ of habeas corpus as an original

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and independent proceeding, for by § 12 of the act 'the circuit court of appeals shall have the powers specified in § 716 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 580).' Section 716 provides that 'the Supreme Court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.' Cases may arise in which the writ of habeas corpus is necessary to the complete exercise of the appellate jurisdiction vested in the circuit court of appeals. But it is unnecessary to speculate under what circumstances such an exigency may exist, for the writ, asked for here was an independent and original proceeding challenging in toto the validity of a judgment rendered in another court. There was no proceeding of an appellate character pending in the court of appeals, for the complete exercise of jurisdiction in which any auxiliary writ of habeas corpus was requisite. Appellate proceedings are, generally speaking, initiated by appeals and writs of error, and for these the court of appeals act specifically provides. The writ of habeas corpus is not the equivalent of an appeal or writ of error. It is not a proceeding to correct errors which may have occurred in a trial of the case below. It is an attack directly upon the validity of the judgment, and, as has been frequently said, it cannot be transformed into a writ of error. It is doubtless true that if the language of the court of appeals act was fairly susceptible of two constructions, one granting and the other...

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62 practice notes
  • Price v. Johnston, No. 111
    • United States
    • United States Supreme Court
    • May 24, 1948
    ...section, of course, is the pendency of a proceeding of an appellate nature to which the contemplated writ is auxiliary. Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963. The writ cannot be issued by that court as an independent and original proceeding; it can only issue where it ma......
  • Ex parte Craig, 308.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 22, 1922
    ...has held that a Circuit Court of Appeals is not authorized to issue original and independent writs of habeas corpus. Whitney v. Dick, 202 U.S. 132, 137, 26 Sup.Ct. 584, 50 L.Ed. 963. If the Circuit Court of Appeals, as such, is without the power is it possessed by a judge of the court actin......
  • U.S. v. Lipscomb, No. 00-10461.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 12, 2002
    ...235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914). See also Charles Alan Wright, Law of Federal Courts 10 (1983). 69. See Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963 (1906); Travis County v. Kind Iron Bridge & Mfg. Co., 92 F. 690 (5th 70. Gabel v. Lynaugh, 835 F.2d 124, 125 (5......
  • United States v. Barnett, No. 20240.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 9, 1963
    ...have an exclusively appellate jurisdiction. The text then quotes the following from Supreme Court decisions "Whitney v. Dick (1906) 202 U.S. 132, 137 26 S.Ct. 584, 50 L.Ed. 963 * * * `It will be borne in mind that the Circuit Court of Appeals, which is a court created by statute, Kentu......
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62 cases
  • Clayton v. Warlick, No. 7148.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • April 9, 1956
    ...Chetwood, 165 U.S. 443, 462, 17 S.Ct. 385, 392, 41 L.Ed. 782 (citing Tidd\'s Prac. 398, and Bac. Ab., Certiorari); Whitney v. Dick, supra, 202 U.S. 132 139, 140, 26 S.Ct. 584 587, 50 L.Ed. 963; Ex parte Republic of Peru, supra, 318 U.S. 578 583, 63 S.Ct. 793 796, 87 L.Ed. 1014, and cases ci......
  • Price v. Johnston, No. 111
    • United States
    • United States Supreme Court
    • May 24, 1948
    ...section, of course, is the pendency of a proceeding of an appellate nature to which the contemplated writ is auxiliary. Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963. The writ cannot be issued by that court as an independent and original proceeding; it can only issue where it ma......
  • Palmore v. Superior Court of District of Columbia, No. 74-1832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 9, 1975
    ...control over habeas jurisdiction, see, e. g., Craig v. Hecht, 263 U.S. 255, 271-73, 44 S.Ct. 103, 68 L.Ed. 293 (1923); Whitney v. Dick, 202 U.S. 132, 137, 26 S.Ct. 584, 50 L.Ed. 963 (1906), the question of whether Congress would violate the suspension clause by failing to grant power to iss......
  • U.S. v. Lipscomb, No. 00-10461.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 12, 2002
    ...235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129 (1914). See also Charles Alan Wright, Law of Federal Courts 10 (1983). 69. See Whitney v. Dick, 202 U.S. 132, 26 S.Ct. 584, 50 L.Ed. 963 (1906); Travis County v. Kind Iron Bridge & Mfg. Co., 92 F. 690 (5th 70. Gabel v. Lynaugh, 835 F.2d 124, 125 (5th C......
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