STATES .,. FOWKES.
13
fa{'t8,the waters north of the boundary line establi$.ed by the tI'caty WE're "foreign waters," within the meaning of that term as used in the statute. Section 4370. Decision on the question whether a motion trJ dismiss an appeal can be made after judgment of this court is ref:lel'yed. The motion will be denied.
UNITED STATES v. FOWKES. (Circuit Court of Appeals, Third Circuit. November 10, 1892.)
1.
CIRCUIT COURT OF ApPEALS-JURISDICTION-HADEM CORPUS.
Under Act March S. 1891, §§ 4-6, the circuit courts of appeals have suc· ceeded to the appellate jurisdiction of the circuit courts under Rev. St. § 763. for reviewing habeas corpus proceedings in the district courts. Under Rev. St. 763, the circuit court had appellate jurisdiction to review a decision of the district court, releasing, on habeas corpus. a person arrested in Pennsylvania for viOlation of the intersta.te commerce act, and held for removal to Missouri to answer to an indictment there found. Seavey v, Sey· mour, S Cliff. 439, followed. The signing of a "line voucher" by a freight claim agent at Philadelphia, in the third circuit. relating to the payment of freight in the eighth circuit, if an offense punishable under section 10 of the interstate commerce act. is not begun in one judicial circuit and completed in another. within the meaning of Hev. St. § 731, and is therefore not cognizable in a d.istrict court in the eighth circuit. In re palliser, 10 Sup. Ct. Rep. 1034. 136U. S. 257, and Horner v. U. S., 12 Sup. Ct. Rep. 407, 143 U. S. 207, distinguished. Under Rev. St. 1014, providing for the arrest of offenders, and thelrre· moval to such federal courts as have cognizance of their offenses, a person arrested in Pennsylvania merely on the strength of an indictment found in a federal district court in Missouri for violation of the interstate commerce act can. on application for habeas corpus, and for a warrant of removal to such court. introduce evidence to prove that tbe act alleged as an offense was com· pleted in Pennsylvania, and is therefore not cognizable in the federal court in Missouri. 49 Fed. Rep. 50, affirmed.
2. CIRCUIT COURTS-APPELLATE JURISDICTION-HABEAS CORPUS-OFFENSES UN· DER INTERSTATE COMlfERcE ACT.
B.
INTIDRSTATE COMMERCE ACT-VENUE OF OFFENSES.
4.
CRIMINAL LAW-REMOVAL TO ANOTHER DISTRICT FOR TRI.AL-OFFENSES UNDER INTERSTATE COMMERCE ACT-HABEAS CORPus-EVIDENCE.
Appeal from the District Court of the United States for the East· District of Pennsylvania. l'n Applications by the United States for a warrant of removal of Frank W. Fowkes from the district court for the eastern district of Pennsylvania to the court for the eastern division of the eastern district of Missouri, and by the prisoner for habeas corpus. The district court denied the warrant, and discharged the prisoner. 49 Fed. Rep. 50. The United States appeal. Affirmed. Robert Ralston, Asst. U; S. Atty., and Ellery P. Ingham, U. S. Atty., for the United States. Thomas Hart, Jr., for appellee. :6efore ACHESON and DALLAS, Circuit Judges, and BuFFING· TON, District Judge. DALLAS, Circuit Judge. This was an application made on behalt ()f the United States to the Unjrel1Eiltates district court for the
'M fOr" ra warra;"n:t'· fot' the removal of ;tlie ·'a,ppeUM'to .theeastertlt 'division of the eastern: judicial disti'iet' WI ,!Wsouri:' At $ii.tiuf'titM the appet1ee;whO had been cefu.1hittJed:;· by' 'the' comnliSltioner tt9the of .the marshal, presented his petition to the same donrt for a' Writ .of' haMas corpus, which was allowed, issued, and returned forthwith. Under this writ the relator was, after hearing, discharged, and thereupon this appeal was taken frpU1: .th.a.t ,ordm',as well as in the matter of the application for warrant of removal. The assignments of error rell:tte'to both pto6eedingl;las practically constituting a single matter, and the wholeCl;LSe may be disposed of here, as it was by the district court,withreference,to the habeas.corpus; ·for, of course, appellee was that no wa;rrant f()r hUl fllrtherdetentlon co,uld beenprQperly issued. It IS not necessary'to consider the several assignmentsJn detail. The material points, presented' may be disposed. of by determining the answers be q.uestions tb:e 3;1'counsel have ... First. Has this court JUrISdiction of this appeal? Second: Was there error in the discharge of the appellee, in view of the' facts:and circumstances of this case? 1: The act of congress ofMlireh: 3, 1891, which created the several CI#'I1it courts of 4) that noa,ppeal shall hereafterbeaIlowed .from .any diatPict court to the existiil.g circuit courts, but thltt "all appeals; by writ of error or otherwise, from said district thesuptetp.e court of the cotirts, shalloDly besubiect ,to. United.r;ltaWs ,or in the circUit,:CQp1'tsof appeals, hereby established, as is herein8.fter .provided.!'.,:.8eetion 6 of the same statute provides that· the circuit courts of appeals shall exercise appellate jurisdiction to re'1ew fl.nit14ecisions in tlt,¢di$trict courts, other those provided tor :fifth section, Qtherwise law. The present case is ,not included among those which are provided for by the fifth. secti(>n, and there is provision of affecting the subje(\t. "Hence it is clear that, if aU$ppea,1 in snch a case as this could, before the creation of this court, have been taken to the circuit court fOr this <li1'cuit, the present· case is" now cognizable by this tribunal as the lawful successor of that court with respect to such appellate juris666, 12 Sup. Ct. Rep. 118; diction. McLish v. Roff, 141 U. Lau Ow Hew" 't., U. S., 144 U. S. 47, 56, 12 Sup. Ct. Rep. 517. Entertaining this view of the matter, we have made investigation as to the jurisdiction ot the circuit courts in such cases prior to March, 1891, and find that it existed. Theqnei!ltion presented itself, and was judicially answered in a manner which· accords with ou.r judgment, in t\1e ease of Sea,vey Seymour, 3 See, also, Ex parte Yerger, 8 Wall. 85, and Rev. St. § 763. 2. The appellee was in the custody of an officer of the United States, under color of a law of the United States. His detention was alleged to be justified solely byl section 1014 of the Revised Statutes, which provides for the arrest and imprisonment of offenders only "for any crime or offense against the United States, * * * for trial before such court of the United Stf!.tesas by law has cognizance of the ot'fense."The court alleged to hav'esuchcognizancein this case is a
a
UNITED STATES V; FOWKES.
15
district court of the United States in Missouri. If he had com1nitted a crime against the United States, and if the dil'ltrict court referred to did have cognizance of it, the prisoner was, of course; lawfully held; but, if either of these facts did not exist, then his imprisonment, being without the sanction of the only law of the United States relied upon for its justification, was violative of that law. Seavey v. Seymour, supra. It follows from what has been said that it was the duty of the district court, making "inquiry into the cause of restraint of lib· erty" (Rev. St. § 752) in the case of the relator, who alleged that he was in custody in violation of law, to direct that inquiry to the matters we have alluded to as relevant to the issue joined upon that alleS. 207, 12 Sup. Ct. Rep. 407. Of this gation. Horner v. U. S., 143 there can be no doubt; and, indeed, we do not understand that the learned district attorney has questioned the soundness of this general proposition, thus broadly stated, but that his contention relates only to the character of the inquiry which should be made and the extent to which it should be carried. The position taken on behalf of the United States is that the district court could not look beyond the indictment and the action of the commissioner by whom the relator had been committed; and this position was adhered to throughout the proceedings in that court, notwithstanding the fact that ample opportunity was afforded the appellant to produce evidence to refute that which was presented on behalf of the appellee. We, however, cannot sustain this view Of the law. We dofiot doubt that a district court mlLY, in its discretion, and in a proper case, order a warrant of removal upon the indictment alone; but it would be going much further,and much too·far, as we think, to hold that in all cases, and especially in such a case as this. record discloses, the judge is precluded from hearing any other evidence whatever, and must, upon mere inspection of the indictment, order the removal 'of the accused person to a considerable distance for trial, although evidence be offered which, if received, would conclusively, establish that the court to which it is asked· that he shall be remanded is without jurisdiction to try him. We must not be understood as deciding that upon an applieation for a warrant under section 1014 of the Revised Statutes it is the duty of, or would be proper for, the court to enter upon an inquiry in the nature of a trial to determine the guilt or innocence of the accused. The learned judge of the district court did not do so in this case; but, in the exercise of a sound discretion, and with reference to the special circumstances stated in his opinion, he-properly viewing the functionwhich he was called upon to exercise as a judicial, and not as a merely ministerial, one-simply refused to grant a warrant in despite of proof that a condition prescribed by the statute was nonexistent. It must be assumed that the power to issue a warrant was confided to the judge, instead of to the commissioner, not without reason; and what good reason can be assigned for the interposition of a judge at all if not for the purpose of securing to a person threatened with comp11lsory removal a judicial determination that such deprivation of his liberty will not be permitted "without due process of law?" The course which the learned judge pursued was necessitated by the just application of essential princinles of liberty in the administration
n.
16
I'EI)E:RAL REPORTER.
vol. 58.
supported by the pra.cof the United States in. similar cases; in U. S. Y. Brawner, 7 Fed. Rep. 86;Inre James, 18 Fed 853; U. S. v. Rogers, 23 Fed. Rep. 658; In re Wolf, 27 Fed. Rep. 4;06; In re Terrell, 51 Fed. Rep.. 213. The court, as already remarked,'did not try the case, but the learned jUdge did require that he sho11ldr be ,satisfied, before he would deprive .the relator of his personal liberty,' ltnd order his transfer to a distant state for· trial, that there wasel'idenceonwhich. a, jury might convictin that state. Yet no evidenoo whatever was .offered on behalf of the government, and the only question ,which .remains is to .' t4e circumstances aIleged.and',prowd :by t1:Le:appellee jus.tifted the. requirement that some evidence by the appellant., As was said by the le&I'n.ed jUdge"the After a 'careful examinl'tion;of the record,: we adopt his ,statem@t of them:
Qf tb-iil.6:ta.tlJte,c a.n:dit
nce Qf.otherof the
"The been atrested and bound over to court, charged with the commissionot: crime in Ittate of Missouri·. sued out a writ of habeas corpus, al1d tile at tne saple time fo:;a _ On rett/rnof the wrIt, an mdictmetlt-found hIm WIth VIOlation ohection 10 of the'interstate commerce statute was preseritedin justificatiOn of tbearrest;Rnd deteJltlOn. In aUSW61\his couDseJ represented that theindictlIlentWlUlfound withoutpr,evious hearing, and that no hearing (except in form) has yet tJeilD .allowedllitn ; that' no eVidence can be produced to support the charge; that he has neverljeenwithin'the state of Missouri; that he has no oonnection with any other ,railroad than that of the Philadelphia & Reading Rail· roadCompan,y, and. that bill conneotion witb it, when the indictment was found, and preyiousiy,coQferredon himno auth9rity whatever over the freigbt rates.or charges fot"transportation,and that he never assumed. or attempted to exerCIse such authdI!ify; that he was simply' freight claim agent' of the company, and tl1at his duties as such consillted In passing upon claims. and certifyl,ng his confor compensation !ll;laccount o(erro11eous exactions in excess of the establlshed rales. and for loss of or dam!tge to property received bythe company for transportation. In· view of these representations, the relator was permitted to introduce evidence in support of. tMm. .Tho testimony heard (the truth of which is not Ciluestioned, as I understand) f11l1y supports the representations. over for several weeks to allow the prosecutor to produce evidence in support of the charge. None. however, has been produced."
It was and in view of, these circumstances that the district court here, conceived it to be its duty to inquire for itself, and notwithas to whether the court. in Missouri had -"cognizance of the offense." To this PQint the investigation was diand the result of that investigation the judgment appealed from WItS based. What was the result of that investigation? It w:as that, if "any crime or offense against the United States" had been committed, (which· we need not,. and therefore do not, decide,) it is certain that none could have been committed of which the United .states court in Missouri had cognizance. The accused had never been within that, state; This,fp,ctis unquestioned; but it has been argued that. the offense charged,though begun in the thi.rd circuit, was completed in the eighth circuit, and that, therefore, .under section 731 of the Revised Statutes, it might .be tried in either. In our opinion, 'hdwever, the facts Qf this case do not bring it within the terms or operation C)Hhat sectiQn. The appellee was indicted, under the tenth section of the interstate commerce act, fOfthat he (with certain other persons named) "did
UNITED STATES V. FOWKES.
17
then, at said division of said district, (first count,) unlawfully and fully charge to, and demand of, and collect and receive from, and did then and there unlawfully and willfully cause tq be charged to, and demanded of, and collected and received from, and did then and there unlawfully and willingly permit to be charged to, and demanded of, and collected and received from, the American Brake Company, a cor· poration, less compensation than was then and there specified in the schedule and said joint tariffs of rates and charges, filed as aforesaid, and in force at that time," etc. (Second count:) "Unlawfully, felo· niously, and willfully, directly and indirectly, by a special rebate and drawback, charge to, and demand of, and collect alld receive from, and cause to be charged to, and demanded of, and collected and received from, and willfully permit to be charged to, and demanded of, and collected and received from, the American Brake Company," unlawfully and unjustly discriminating charges. .,The appellee was simply the freight claim agent of the Philadelphia & Reading Railroad Company. As such agent, all that it was competent for him to do in or about the transaction averred to be criminal was the signing of a ''line VOUCher," and the evidence was to the effect that no voiIcher which he had any authority to sign could have opel" ated as an allowance of a claim for rebate from the schedule rate. If it beass,umed, however, that he did sign an instrument which permitted an unlawful act, yet it is beyond question that whatever he did was done i,n Pennsylvania, and that his offense, if any, was both begun and completeil '.aWi:-t state; and that he did not elsewhere, in any manner, (',r,J:ge, collect, or receive, or cause or permit to be charged, dt., nanded, collected, or received, from any person whatever, an unlawful L''''mpensation to:- the carriage or shipment of property, as in the is alleged. '['his case differs materially, as to the facts affecting point under l''lnsideration, from those cited in argumi:mt. In re PdliSer, 136 U. ki.257, 10 Sup. Ct. Rep. 1034, was a case in which offense clui'l'ged was an offer of money, or a tender of a for the :l:'ayment of money, contained in a letter mailed in New York, ai"<l addressed to a postmas· tel' in Connecticut, to ind.,we him to Yiol",te his official duty, and it was held that the offense cu'ltinued to be c....mmitted in Connecticut. The letter, it will be observed,\vQS mailed direct.ly to, and was received by, the postmaster in Connectie:.:1t; and the oBi:, doubt intimated by the supreme court was as to the offense Wl1S at all committed before the unlawful proposal becamL' known to the i'erson to whom it was addressed. Horner v. U. 8., 143 'U. S. 207, 12 St.:!l. Ct. Rep. 407, was decided under a statute making it "n offense to caL'se lottery circulars to be delivered by mail. The delh,-.ry occurred in Ulinois, and the offense was, therefore, held (citing In Palliser) to 'l)e triable there. It is necessary only to compare the t.\cts of these ca;oes with that now before this court in order to perceive the differencQ\ which distinguish them from it. In the present case, utmost that, uZlder the evidence; can be attributed to the appellee, is t,hat he signed at Philadelphia a paper which was not addressed or dell""ered to the pe..·· son whom it is said to have unlawfully favored, but, ll..' pursuance oi which, another .person did, or was authorized to do, a wholly lodev.53F.no.1-2
FEDERAL REPO&!rli:R,
,rot 53. i
thfug, namelYI:to'pay a sum of, money, and at . '. '. . that, under the eircumstanoosof this case, no errQr-w-as committed in requiring other than the indictment itSeti',that the court in Missouri had cognizance of the offense alleged, or in dfgeharging the prisoner,upon the failure of the government to comply 'With that reqUirement. Therefore the judgment is affirmed. lace. STATE OF INDIANA v. TOLLESTON CLUB OF CHICAGO et at. (Circuit Court. 1. 1).
Indiana. November 22,18.92) No. 8,717. BY STATE.
R1!:XOVAL OF CAUSES-DIVERSE
,.' A s1ilt'1:lY a'stl\te in one of Its own courts against a citizen of another state I. to a federal circuit court OD the grollDd ()f diverse citizenparties. .... . ' .'
2. BAxllI:';"REMAND BY COuBTOJ' ITS OWN MOTION· OD
.'I'is the duty ofa federal 'court:to remand. of its own motion. whenever face of the recorda want of jurisdiction, eitheroOhe parties or subject'platter, is affirmatlvll,ly shown. . .
S. FEDERAl> .Cou;a'j.'S-JuR1sni£TIONBY CONSENT.
Neither silence nor pmjitive consent of the parties can confer jurisdiction upon a federal court whel1llueh jurisdiction is denied by statute.
At Law. state of Indiana against the Tolleston Club of Chicago.llod.others,commenced in a state court, and removed to this court by defendant. Remanded, for want of jurisdiction. A. G.Smith,for plaintiff. J. W. Y for defendants.
BAKER; District Judge. This action was brought in the circuit 'court of Lakedmnty; Ind., by the state of Indiana 'ilgainst the Tolleston Club of Ill., and 19 others, to quiet the title to, and recover the pO$session of, numerous parcels of land in said county of Lake, alleged to belong to the state, and which tne defendants were alleged to claim as owners without right, thereby casting a cloud on the title of plaintiff. At the proper time, at the September term of the court for 1891, the Tolleston Club of Chicago presented its veri.tied petition and bond for the removal of the cause of action against it into the United States circuit courtfor the district of Indiana .. The petition set forth as gronnd of removal the diverse citizenship of the plaintiff and said defendant, and alleged that the controversy between the state and itself was a separate and separable controversy, in which the plaintiff and the petitioQer,were alone interested. No motion has been made to remand, and the' question for decision is whether the court of its OWl:) motion ought to remand the cause to the state court. Wherever on the face of the record a clear want of jurisdiction, either of the parties or of the subject-matter, is affirmatively shown, it is the duty of the court to remand of its own motion. Consent of the parties cannot confer jurisdiction, except in cases where the law has au-