188
J'EDERAL REPORTER,
vol. 45.
essary to consider or determin'ewhether the amended statute is 01 is not open to' the same objection that is held fatal to the validity of the first It is, however, assigned as a further ground of demurrer that the act of 1890 in fact repeals that of 1888, and that consequently this proceedingmust fall with the repeal of the act upon which it is based. There would be for.ce in the point thus made were it not for the provision of section 13 -of the Revised Statutes of the United States, which enacts that the repeal of a statute shall not have the effecUo release or extinguish any penalty, forfeiture,or liability incurred, unless the repealing act shall; so provide. , -Upon the latter ground 1 the demurrer is overruled, but, upon the other grounds discussed in the opinion, it is sustained
In re
MINEAU.
(O£rcuU Oourt, D. Vermont. February 7,1891.)
, 'Rev. St. U. S. § 758, which declares, that 'Ithe writ of habeas corpus shall in no casll exteud to a prisoner in jail," does not oust the federal courts of jurisdiction to release on habeas CorP1tS, filr the purpose of bringing him before a commissioner for examination, a debtor who is in jail under executions in civil, actions, since such . debt9r is not confinEid at the suit of the state, but of his Il.SAlIE..,..IssUANOE-RELATOR-MARSHAL.'
CORPUS-CONFLIOT OF JURJ.SDIOTION.
,
A'de'puty-marsllal who has a commissioner's warrant for the arrest of such debtor on extradition procllEldings hassufllcient interest in the debtor's liberty to ,autho,rize him to apply for his release from jail on habeas corpus. 'Under the general power given to commissioners by Rev. St. U. S. § 727, to hold persQns for security of the peace and good behavior, 1IJ commissioner may issue a warrant for the arrest of a person oharged with the commissiOn of an extradict-able offense in a foreign oountry. ' COMMISSIONIlRS-WARRANT-ExTRADITION. -
-
8.
UNITED
'- HAME...,PLEADING.
It is not necessary to the validity of such warrant that it should appear affirmatively in the first instance that the proceedings are instituted at the request or by the authority of the foreign government.
At Law. On application for habeas corpus. AlbertP. 0,088, for relator. J. A. Broumand D. J. Foster,_ for oreditors and prisoner. WHEELER, J. The relator, a deputy-marshal, has a commissioner's warrant for the arrest of the prisoner on extradition proceedings for forgery in Canada. The return of the jailer shows that the prisoner was committed to his custody on two executions and two writs of attachment in civil' actions against the body of the prisoner as an absconding debtor. No qnestionis or can be made but that the offense is within the treaty between the United States and Great Britain of 1842 for the surrender of criminals. '
IN RE MINEAU.
189
The first one relied upon is whether the relator has sufficient interest to authorize him to move for this writ, for it will not be issued in favor of every indifferent person. But the relator has the right, and is under the duty, to take the body of the prisoner, and bring him before the commissioner, to be dealt with in the extradition proceedings, if he can. This commitment on these civil processes is in his way. Thereby he has a direct right and full interest to have the body of the prisoner relieved from this detention. Ex parte 100 U. S.339. Further question is made whether a commissioner has suffioient authority to issue a valid warrant in such a casa,as oongress has not expressly for one in respect to arrests· pursuant to this particular treaty. Commissioners have general power to hold persons for seourity of the peace and good behavior. Rev. St. U. S.§ 727. This seems to include power to arrest in order to carry out treaty obligations for such purposes. Whart. Int. Law Dig. § 270b. The right to arrest covers the right to issue a warrant, and the ,praotice of issuing warrants in such cases is covered by the general provisions of the statutes governing proceedings under treaties, and is well settled. In 1e Herrcs, 33 Fed. Rep. 105; Rev. St. §§ 5270, 5271. The complaint on which the warrant was issued was made by a private person, and the proceedings do not yet show that they are instituted at the request or by authority of the Canadian government. That an agent of that government has been appointed to act in obtaining the prisoner to answer for this offense has been shown in this hearing. While the request or authority of that government must appear at· some stage of the extradition proceedings, it need not be shown in the first instance. This agent, or some other, may appear afterwards. The force of the warrant is not yet affected fOf want of it. Id. The custody of the prisoner is wanted for taking him befQre the commissioner, and the right to it, for that is what is now in controversy. It can properly be awarded only so far as the exigencies o( the extradition may require it, subject to return. to the custody of the jailer as to his present commitment if the extradition fails. Another and very important question is whether. this court has jurisdiction this writ in case. The whole right of the relator to the prisoner rests upon the stipulations of the treaty, which derive their whole fQrce from the constitution of the United States. If the prist;lJ;ler is detained from the relator as an officer of the United States carrying out the treaty, the detention is in violation of the treaty. The statutes on this subject provide that "the writ.of habea8 corpU8 shall in no case extend to a prisoner in jail, unless where he is in custody * * * in violation of the oonstitution or of 'a law or treaty of the United States." Rev. St. § 753. The state of Vermont has no interest in the detention of the prisoner. It furnishes the jail as a place of safe-keeping of the debtor .for the creditor. The execution shown in the return commanded keeping of the prisoner until discharged by the creditors, otherwise" byorder of law. This is in accordance with the form prescnbed and with the rights of the creditors. Rev. Laws Vt. § 4550, form 5. They alone had power to put the proceedings in motion, and they have full power
of
or
190
FEDERALREl'QRTER, vol. 45.
.t()discharge theprisl!merJrom thectlstodyof ,His custody is 'wholly Jor the creditorsJ 'and theyalone:nave any interest in it. "No questionwhatevel',between :theUnited Statei:l,or::th:e foreign,(lOun:wyand the state can ;arise upon the writ. 'The controversy is wholly between the United under its treaty' obligations and the c'reditors. IUhe government ofthe United States, has a right, ai:l against the creditorS, to :the body oftha debtor, for"the purpose of carrying out those obligations, the custody of the prisoner should be awarded to the relator 80 far; as .the extradition may require it. Private civil rights to the body of the debtor or defendant io a.civil action are subservient to the right of the governmE'nt to punish for crime. . Bail incivilaotions may have halJeae CO'l'pU8 to bring the body of the principal outoCcustody in criminal proceedings for surrenderjand" after the surrender into custody in the civil proceedings, the prisoner may be taken Quto{,that custody on the criminal process. Bail:of Vergen, 2 1217 j Bond v. Isaac, 1 Burrows, 339j Daniel v. Thompson,15East,78j Bigelow v. Johnson, 16 MaSs. 218j Biggnell v. FOT1'e8t, 2 Johns. 482. In Sharp .v. Sheriff, 7 Term R. 226, .habeas corpU8 was granted to ,bring a prisoner'in custody to be sent on application of the secretary of state to Ireland, charged with crime there, for surrender in discharge of bailj and after surrender the prisoner was committed on the criminal charge. In Bigelow v. Johnson, above cited, PARKER"C. J., said: "A man in prison, although for crime, may be.served with civil process, and be technically arrested. It is true that the proceedings at the suit of the commonwealth may eventually supersede the imprisonment on civil process; and so they rpight if the culprit had been preViously COnfined on ci vii process. The arrest is legal, notwithstanding, and the sUbsequent disposition of the person arrested is by public authority, tor a public purpose, to which private interests must al ways yield. " That arrest in a civil proceeding will not hinder extradition for crime, is laid down in Moore, Extr. § 370. The author as to this says: "The theory is that the public interest in the punishment of crime is paramount in importance to the enforcement of private demands." This treaty is a part of the criminal law of the land. This prisoner is charged with a crime in another country, but. the consideration for surrender is assistance in enforcing the criminal laws of this country. If arrest on civil process would prevent extradition, a safe asylum for'fugitives frotu justice could be easily provided. Careful consideration of the principles involved, however, leads to the conClusion that such is not the case. The relator appears to be entitled to the prisoner for the purpose of subjecting him to the extradition proceedings, but the custody of the jailer should be maintained, except as it maybe displaced by those proceed. .' . ings. , . The custody of the prisoner is awarded to the relator, Thomas Failey, deputy-marshal, for' the extradition' proceedinga, and for return to the jailer if those proceedings fail.
UNITED STATES t1. SABLE.
191
UNITED STATEs
t1.
SULE.
(Oircuit Oourt. D. Rhode IsZand. Jannary 27,1891.) OENSUs-REFUSAL TO ANSWER-MISDEMEANORS-PROPERTY STATISTICS.
25'U. 8. St. at Large, p.765, § 15, proVides that every member of a family above , the age of 20 years who shall'refuse to render to the oensus enumerator a true lIOcount "of every person belonging, to suoh family in the particulars requil'ed by law"shall be guilty of a misdemeanor. HeW, that it is within the offense hereby created to refuse to furnish the particulars required by Rev. St.§ 2206, in regard to a farm belonging to one's wife.
At
indictm!"nt under 25 U. S. St. atLarge,p. 765, § in the following words: "That Oliver P. Sarle, of: WarWick, in saiddi,strict Of Rhode Island, on, to-wit, the ,third day of July,.in the year of our Lord one thQusand eight hundred and ninety, at said Warwick"wit4in said district of Rhode Island. being then anI! there a person m()re yelus of age, ,and then and therJ' belonging. to a to-wit, the family of himself, said Oliver P. siding in a certain eUl\w.eration district and subdivision of the state of Riiode ],sland, created and, establ\sb,ed under the authority of the 'congress oftha United States of America, entitled'An act ,to. provide for taking the elev!,!nth and subsequent censuses, ' approved March 1. A. D. 1889, which said ell).1meration district and subdivision was thElD and there designated as 'En urner": ation 177 A,' and wife of said' ,Oliver P. Sarle being then arid the 0\Vner of a farm situate 'in said enumeration by John 'Wright. then 'and tbere.a of the United States of America,duly employed, appolntpd, com,miSsloned, and' sworn to take the census of said enumeration district, under'the authority and in accordance with the provisions of Said act; to render Ii true account, to the best of hill knOWledge, ola person to of the said wife of said Oliver P. Sarte, .in cer,tain of the particulars then and there required J;ly law, to-wit, in the particulars of his said wife's said farm, and being sO're,; quested, did then and there willfully and maliciously refuse to render such account, and did then and there willfully and maliciously refuse to answer certain questions relating to· saidfarm,tben .and there put to him by said census enumerator. in accordance with the provisions of said act, to·.wjt,a question as to the total number of acresin said farm; a question as to the number of acres in said farm which were tilled; a question as to the number of acres in said farm consisting of· perrnanentmeadow or pasture, cultivated forests, orchar.<fs, vineyards. nurseries, and market gardens; a question as to the estimated value of all the productions of said farm· for the year A. D. 1889; and a question as to the total amount of milk produced on said farm in the year A. D. 1889,-against the peace," etc. a demurrer, and the question argued was whether the inquiries authorized by law, relating to a farm owned by a member of a person'afamily are covered by, thelanguage of the statute, which makes it incumbent upon all persons to 'render an account "of every person belonging to such family in the various particulars required by law;" other words, whether an Mcount of a person's farm is an Count of thafperson in any particular. Dexter B. p,otter, for the defendant.
Law.
ac-