1 Dakota 142 | Supreme Court Of The Territory Of Dakota | 1875
On the tenth day of July, 1875, James Scott presented his petition to the above named court in term-time, praying for a writ of habeas corpus, to be directed to the
I hold the person named within in my custody, by virtue of a warrant of commitment made and issued to me by L. Congleton, a U. S. commissioner in and for the Second Judicial District of the Territory of Dakota, dated July 8th, A. D 1875, a certified copy of said warrant of commitment being herewith attached, marked: ‘Exhibit ‘A.’ He is held by me as C. Higgins, alias James Scott, and I have his body here in court, as I am within commanded. Signed, J. H. Burdick,
Yankton, July 10, 1875. U. S'. Marshal.
On the same day that court rendered a decision as follows*. “Upon the return, as above, of this writ, and after hearing and argument of counsel, and in consideration thereof, it is ordered and adjudged that the said C. Higgins, alias James Scott be, and he is, remanded into the custody of the U. S. marshal, until he shall enter into proper recognizance in the sum of $200.00, with at least two good sureties, according to law, for his appearance at* the October term, 1875, or until he shall be otherwise discharged according to law.”
Prom the record and facts brought up by this appeal, it further appears that the relator (a white man) was held by the defendant by virtue of said warrant of commitment, on the charge of giving, bartering and selling spirituous liquors to an Indian, in Yankton, Yankton County, Dakota Territory, (within the jurisdiction of the court below) the said Indian belonging to the Yankton Indian reservation, and being under the jurisdiction (or charge) of an Indian agent. The complaint was under section 2139 of the revised statutes of the United States, and the City of Yankton, in Yankton County, the locus in quo, is not within the Indian country, nor within any reservation.
In the court below, as well as in this court, the relator contended that “he is not committed or detained by virtue of “any process issued by any court of the United States, or any “judge thereof, in a case where such courts or judges have “jurisdiction under the laws of the United States, or have acquired such jurisdiction by the commencement of any suit in “such court; or by virtue of any final judgment or decree of “any competent tribunal of civil or criminal jurisdiction, or
On the argument in this court, two-questions have been presented: first, is this an appealable case? Secondly, if the relator did give, barter or sell spirituous liquor to an Indian, under the charge of an Indian agent, but such act occurred not in the Indian country, but outside thereof, is it a criminal offense under the said section 2139 of the revised- statutes of the United States.
As to the first point, the Supreme Court and the District Courts of this Territory possess common law as well as chancery jurisdiction (Sec. 1868, Rev. Stats, of U. S.) and the said courts, and the respective Judges thereof, may grant writs of habeas corpus in all cases in which the same are grantable by the Judges of the United States in the District of Columbia. (Sec. 1912.)
In what cases are such writs grantable by the last named Judges? (See Act of Congress of 27 February, 1801, § 3, 2 stat. 105; Act of 29 April, 1802, §24, 2 stat., 166; Act of 3 March, 1863, 12 stat., 762; Kendall v. U. S., 12 Pet., 624; Decatur v. Paulding, 14 Pet., 601; U. S. v. Williams, 4 Cr. C. C., 376.
From this examination it seems that the Judges in that district were, and are authorized to grant writs of habeas corpus in all cases (and in a similar manner) in which they were grantable by the federal courts and Judges, as pointed out in title XIII, chap. 13, Rev. Stat. of U. S., entitled “Ha-beas Corpus.” And, moreover, that they were and are empowered to grant them, as well in cases where the petitioner was or is restrained of his liberty^-for an alleged crime against
It follows, therefore, that the meaning of section 1912 is: that the Supreme Court and the District Courts of Dakota, in term-time, and any one of their Judges in vacation, may grant writs of habeas corpus in all cases of both the above classes, to-wit: whether the prisoner is m custody, under, or by color of the authority of the United States, and is committed for trial before some court thereof; or whether he is restrained of his liberty under or by color of a law enacted by the Legislative Assembly of the Territory, and is held for trial before some court of a county.
But again, the present case is one arising under a general law of the United States; and by section 1910 (Rev. Stat.) the court below has and exercises the same jui'isdiction in such a case, as is vested in the Circuit and District Courts of the United States. Consequently, whatever jurisdiction a court of the latter kind has, in any state, in cases arising under the federal laws, the same has been conferred upon our District Courts. And. with the grant of jurisdiction, go all the principles and rules of procedure, appertaining or necessary to it.
In other words, in all cases arising under the constitution and laws of the United States, each of our three District Courts is, as to jurisdiction and procedure, exactly like a Federal District Court sitting in a state, with this difference, however: that to the above jurisdiction of our District Courts is super-added in such cases the jurisdiction of the Circuit Courts of the United States.
And as to such cases, when arising under habeas corpus, see sections 751, 752 and 753 of the Revised Statutes. The following sections, to-wit: (754 to 761, inclusive) regulate the procedure upon all such writs; and in so far as these sections do not regulate the procedure, Mr. Abbott, (Vol. 2, U. S. Practice, 211) on authority died, considers that it is governed
Where a court of co-ordinate jurisdiction, therefore, first becomes in possession of a case, it has a-right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversal, is binding in every other court. (Decatur v. Paulding, 14 Pet., 600; 1 Pet., 340; 3 Pet., 203; Ex Parte v. Watkins; Peck v. Jenness, 7 How., 625; 20 How., 596; 19 Wall., 223.)
Although not of much importance now, yet it is curious to observe the tendency of courts in this country to attach to a decision in habeas corpus the legal incidents belonging to
In 1840, in the Supreme Court of the United States, the question whether a writ of error would lie to a decision on a habeas corpus, was discussed in the case of Holmes v. Jennison, 14 Peters, 540. Several Judges expressed their opinions upon this point, and from these it may be collected that five of the Judges concurred in the view that the writ would lie in such a case. Justices Thompson and Barbour expressed no opinion on the point; and Baldwin, J., alone held that the writ would not lie to a decision on habeas corpus. But shortly thereafter, on the 29th of August, 1842, (5 Stat., 539, § 763 Rev. Stat.; Brightly’s Dig. of Laws, vol. 1, 302) Congress enacted that from the final decision of any court, justice or judge, inferior to the Circuit Court, upon an application for a writ of habeas corpus, or upon such writ when issued, an appeal may be taken to the Circuit Court, etc., that act, however, only providing an appeal in a specificcase. (See, also, the Act of Congress of 5th Feb., 1867, § 763 of Rev. Statutes; 14 Stat., 385; in Brightly’s Dig., vol. 2, 213.)
Next in the order of time, came the decision, upon the Statute of 5 February, 1867, to be found in Ex-parte McCardle (at Decr. T., 1867) 6 Wall., 318.
■ Then followed Act of 27 March, 1868, § 1, 15 stat., 44, in 2 Brightly’s Dig., 214, repealing the right of appeal to the Supreme Court of U. S.; and then again came Ex-parte McCardle, in 7 Wall., 506. * * * * Happily, we are not left in doubt as to whether an appeal will lie in the case before us; for'by section 1869 of Revised Statute, writs of error, bills of exception, and appeals shall be allowed, in all cases, from-the final decisions of the District Courts to the Supreme Court, under such regulation as may be prescribed by law; and-by section 1910, writs of error and appeals in all cases, or causes, arising under the constitution and laws of the United States, may be had to the Supreme Court of the Territory, as in other cases. (See 14 Peters, 540.)
We come now to the consideration of the second question presented, to-wit: if the relator did give, barter, or sell spirituous liquor to an Indian, under the charge of an Indian Agent, but such act occurred not in the Indian country, but outside thereof, is it a criminal offense under section 2139 of the Revised Statutes of the United States?
After a careful examination into the sources from which this section was drawn, to-wit: the original acts of Congress of 9 July, 1832, and 15 March, 1864, and the case of United States v. Halliday, in 3 Wallace, 407, as well as from the words of the revised law, we have come to the unanimous conclusion that the exception in the second clause or sentence of this section, to-wit: “except an Indian,” does not end with the punctuation immediately after the above word “ Indian,” but that the exception clearly extends to and embraces “ an Indian in the Indian country ” — as if it stood thus: except an Indian in the Indian country.
The true construction, therefore, of this law, is, that “every person who sells, exchanges, gives, barters, or disposes of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent '* * * shall be punishable by imprisonment for not more than two years, and by a fine of not more than three hundred dollars;” and that the only persons exempted from this punishment are In-, dians themselves, who, in the Indian country, thus sell, give, or dispose of such liquor or wine to any Indian under the charge of any Indian superintendent or agent.
As to the policy or wisdom of this exception, we, of course, have nothing to say; that is beyond our province. But it is proper to observe, in this connection, that this special impunity extended to Indians in the Indian country, seems well to harmonize with the spirit and policy of all the enactments of
Whence it appears that, although an Indian in the Indian country, may commit larceny of the property of another Indian, or may there assault him with intent to kill, or may there even murder him, yet our courts are powerless to punish, because they have no jurisdiction. In accordance, therefore, with such well-settled legislation as to crimes of such magnitude, it might well seem absurd to the law giver to depart from the clear line of policy thus laid down, and to render an Indian in the Indian country punishable for the minor offense described in section 2139.
However this may be, we find that when an Indian in the Indian country, sells, gives, or disposes of any spirituous liquors or wine to another Indian there, who is under the charge of an Indian Agent, he is as exempt from punishment in our courts, as he would be in regard to the other crimes enumerated.
It does not, therefore, avail the appellant to assert that the offense as charged was committed at the City of Yankton, and outside of the Indian country. It is a criminal offense
We can find no error in the proceedings or decision of the court below; and the same are hereby
AFFIRMED.