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WHITNEY v. DICK. SAME V. SAME

decided: April 30, 1906.

WHITNEY, WARDEN OF THE IDAHO STATE PENITENTIARY
v.
DICK.

SAME
v.
SAME



APPEAL FROM AND CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

Author: Brewer

[ 202 U.S. Page 135]

 MR. JUSTICE BREWER, after making the foregoing statement, 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 one thousand dollars. 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. But by certiorari the judgment of the Court of Appeals is properly before us. In re Chetwood, Petitioner, 165 U.S. 443, 462.

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 for it. Under section 751, Rev. Stat., the Supreme, Circuit and District Courts may issue writs of habeas corpus, and by section 752 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. 826) 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

[ 202 U.S. Page 136]

     and independent proceeding, for by section 12 of the act "The Circuit Court of Appeals shall have the powers specified in section 716 of the Revised Statutes of the United States." 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 hor 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 the 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 omitting to grant power to issue a writ of habeas corpus, the great importance of the writ might justify a construction upholding the grant. This is indicated by the ruling in Ex parte Bollman, 4 Cranch, 75. The fourteenth section of the original judiciary act contained this language: "That all the before-mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary

[ 202 U.S. Page 137]

     for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." And the question presented was whether the grant of power to issue a writ of habeas corpus was an absolute and independent grant or one simply authorizing the issue of the writ when necessary for and in aid of the exercise of a jurisdiction already otherwise obtained, and it was held to be an absolute and independent grant, the conclusion being placed by Chief Justice Marshall, delivering the opinion of the court, partly on the grammatical construction of the section and partly on the significance and importance of the writ itself. But in the Court of Appeals act there is no mention of habeas corpus; no language which can be tortured into a grant of power to issue the writ, except in cases where it may be necessary for the exercise of a jurisdiction already existing.

It will be borne in mind that the Circuit Court of Appeals, which is a court created by statute, Kentucky v. Powers, 201 U.S. 1, 24, is not in terms endowed with any original jurisdiction. It is only a court of appeal. Section 2 of the act says that it "shall be a court of record with appellate jurisdiction, as is hereafter limited and established." Section 6 provides that it "shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the District Court and the existing Circuit Courts in all cases," etc. By section 10 "whenever on appeal or writ of error or otherwise a case coming from a Circuit Court of Appeals shall be reviewed and determined in the Supreme Court the cause shall be remanded by the Supreme Court to the proper District or Circuit Court for further proceedings in pursuance of such determination." Sections 4, 13 and 15 name the courts whose judgments may be reviewed in the Courts of Appeals. Obviously the Courts of Appeals are simply given appellate jurisdiction over certain specified courts.It follows that they are not authorized to issue original and independent writs of habeas corpus.

Have they jurisdiction to issue writs of certiorari? As we have seen, the procedure prescribed by the statute for bringing

[ 202 U.S. Page 138]

     to the Courts of Appeals those final decisions of courts which they are authorized to review is appeal or writ of error, and that in this country is the ordinary method by which review is obtained in an appellate court. Especially is this true of the Federal procedure, the only instance in which certiorari is named as the writ for the removal of cases from a lower to a higher court being in the authority given to this court to bring up cases from the Courts of Appeals by certiorari. Inasmuch as appeal and writ of error are specifically prescribed in the Court of Appeals act as the process to bring up final decisions to that court for review, the authority to issue a certiorari must be found in the grant of power "to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdiction, and agreeable to the usages and principles of law." That certiorari may be used to bring up portions of a record not originally returned to a Court of Appeals is undoubted, for it may be necessary for the complete exercise of its appellate jurisdiction, but not otherwise, for every case of which that court may take jurisdiction can be carried up by appeal or writ of error. Of course, if in the case at bar the writ of habeas corpus was not or could not rightfully be issued, then certiorari cannot be sustained as auxiliary process, but must stand or fall as an independent proceeding.

It may be said that the power of this court to issue original and independent writs of certiorari has been upheld under the authority given by section 716. A reference to some of the decisions may be well. See generally Ex parte Vallandigham, 1 Wall. 243, and cases cited in the ...


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