19 Pa. Super. 626 | Pa. Super. Ct. | 1902
Opinion by
It is urged that no appeal lies from an order discharging the relator under a writ of habeas corpus. The appellee’s counsel cites in support of this proposition: Russell v. Commonwealth, 1 P. & W. 82, Clark v. Commonwealth, 29 Pa. 129, Commonwealth v. Kryder, 1 Penny. 143, and Commonwealth v. Blatt, 165 Pa. 213. In the first mentioned case it is stated by the reporter that the writ was quashed on the ground that no writ of error will lie to remove a judgment upon a habeas corpus. This was far from deciding that the action of the lower court as disclosed by the record proper is not reviewable in any form of proceeding. In Clark v. Commonwealth, the precise question presented here was not before the court. In Commonwealth v. Kryder the attempt was to obtain a review of a decision of the common pleas based on matters outside the record, and the decision in Commonwealth v. Blatt was put upon the ground
The petition for the writ of habeas corpus alleged that Philip Wade Smith, the son of Homer C. Smith, aged nineteen years, was restrained of his liberty by the commandant in charge of the Marine Barracks at League Island; “ the said Philip Wade Smith having enlisted in the marine service of the government of the United States without the consent of said Homer C. Smith, his father.” The officer in command of the Marine Barracks averred in his return to the writ “ that Philip Wade Smith is so restrained and detained by him lawfully and by virtue of a lawful enlistment by the said Philip Wade Smith into the United States Marine Corps.” He also raised the question of the jurisdiction of the court to grant the prayer of the petitioner.
Although there has been some difference of opinion as to the status of the marine corps, it seems to be now generally held that it is a part of the naval service of the United States: 15 Am. & Eng. Ency. of Law (1st ed.), 467. This was the view taken by Chief Justice Gibson in Commonwealth v. Gamble, 11 S. & R. 92. See also Wilkes v. Dinsman, 7 Howard (U. S.), 89; and the opinion of Judge Brown of the southern district of New York in Doyle’s Case, 18 Fed. Repr. 869, where a minor who had enlisted as a marine was sought to be released on a writ of habeas corpus. While enlistment in the military
The question is whether a state court has jurisdiction upon habeas corpus to inquire into the validity of enlistments into the Marine Corps of the United States and to discharge enlisted men from said service when in the judgment of the court their enlistment had not been made in conformity with the laws of the United States. Prior to the decision of the Supreme Court of the United States in Ableman v. Booth, and United States v. Booth, 21 Howard, 506 (1859), the precedents and decisions of the Pennsylvania courts were to the effect, that the federal courts and the courts of the commonwealth had concurrent jurisdiction in such cases: Commonwealth v. Murray, 4 Binn. 487; Commonwealth v. Barker, 5 Binn,. 423; Commonwealth v. Callan, 6 Binn. 255; Commonwealth v. Camac, 1 S. & R. 87; Commonwealth v. Robinson, 1 S. & R. 353; Commonwealth v. Gamble, 11 S. & R. 93; Commonwealth v. Biddle, 4 Clark, 35. In none of the foregoing cases, however, was the question discussed; possibly, because it was supposed, in view of the enunciations in Olmsted’s Case, Brightly’s Reps. 9 (1809), and Lockington’s Case, Brightly’s Reps. 269 (1813), that the jurisdiction of the state courts was not open to controversy. In the latter case Chief Justice Tilghman said: “ It is to be observed that the authority of the state judges, in cases of habeas corpus, emanates from the several states, and not from the United States. In order to destroy their jurisdiction, therefore, it is necessary to show, not that the United States have given them jurisdiction, but that congress possesses and has exercised the power of taking away that jurisdiction, which the states have vested in their judges.” He further said : “ The inconvenience of clashing opinions between federal and state judges may some times
The next reported case, in order of time, after the case of Commonwealth v. Biddle, supra, is Commonwealth v. Fox, 7 Pa. 336, decided in 1847. In that case the question of the jurisdiction of the state courts to discharge an enlisted soldier was distinctly raised by the counsel for the United States and was decided in the affirmative. It was held further, that the averment in the return that tne soldier “ had deserted and surrendered himself” was immaterial, it not being averred that he was under arrest for the crime of desertion and was to be tried by court-martial. Mr. Justice Coulter who delivered the opinion of the Supreme Court said: “ In Pennsylvania, the jurisdiction of state judges and state courts, has not before been doubted; and from the case of Commonwealth v. Murray, 4 Binn. 487, down to the present term, numerous cases have occurred in which it has been exercised, some of them reported, and many more unreported .... If the laws of the United States authorize the detention of the minor, he must be remanded; but if they do not, he must be discharged.”
No later reported decision of our Supreme Court upon this precise question has come to our notice, but in 1863 it was again raised upon a habeas corpus issued by Chief Justice Lowrie. The case I refer to is Commonwealth v. Wright, 3 Gr. 437. The point actually decided by the chief justice is thus stated in the syllabus: In cases of imprisonment under federal authority, not judicial, the state and federal courts have concurrent jurisdiction. It will be observed that the decision was rendered after the decision of the Supreme Court of the United States in Ableman v. Booth, supra, and while Chief Justice Lowrie did not intimate that that decision could not be cited in the state courts as a binding authority, even though in conflict with their own previous decisions, he held that it was only binding as to the point actually decided, and that it did not control the case before him. Speaking of certain decisions rendered
That case came before the Supreme Court of the United States on writ of error to the Supreme Court of Wisconsin. It appeared that a habeas corpus ivas issued by a court commissioner of one of the counties of Wisconsin to a recruiting officer of the United States to bring before him a person who had enlisted as a soldier in the army of the United States, and whose discharge was sought on the alleged ground that he was a minor under the age of eighteen years at the time of his enlistment, and that he enlisted without the consent of his father; the petition for the writ alleging that the prisoner had enlisted as a soldier and been mustered into the military service of the national government, and was detained by the officer as such soldier. In the return to the writ the additional fact was alleged, that subsequently he deserted the service, and being retaken, was then ^
The order discharging Philip Wade Smith is reversed and set aside.