258 F2d 320 United States Thompson v. Lennox

258 F.2d 320

UNITED STATES ex rel. George E. THOMPSON, Appellant,
v.
William LENNOX, Sheriff of the City of Philadelphia.

No. 12499.

United States Court of Appeals Third Circuit.

Argued May 12, 1958.

Decided July 18, 1958.

Rehearing Denied September 17, 1958.

Appeal from the United States District Court for the Eastern District of Pennsylvania; Francis L. Van Dusen, Judge.

Landon G. Downey, Washington, D. C. (John J. O'Dowd, Washington, D. C., on the brief), for appellant.

David Berger, Philadelphia, Pa. (Thomas A. Masterson, Deputy City Sol., Philadelphia, Pa., on the brief), for appellee.

Walter H. Jones, Hackensack, N. J., David D. Furman, Acting Atty. Gen., of the State of New Jersey, William L. Boyan, Deputy Atty. Gen., of the State of New Jersey, on the brief, for and of Counsel with The Senate of New Jersey, amicis curiæ.

Before KALODNER, STALEY and HASTIE, Circuit Judges.

PER CURIAM.

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1

Two issues are presented by this appeal from the Order of the District Court dismissing petition for a writ of habeas corpus, filed by a resident of New Jersey who is a civilian employee at the Philadelphia Naval Shipyard, following his seizure by the Sheriff of Philadelphia, pursuant to a writ of capias ad respondendum issued by the Municipal Court of Philadelphia, Pennsylvania to recover fines and penalties for failure to file a return and to pay the Philadelphia wage tax.

2

The District Court premised its dismissal of the petition for the writ on these grounds: (1) a federal court should not exercise its discretion to grant a writ of habeas corpus to free a person held in State custody where such person has not exhausted available State court remedies; and (2) Philadelphia has jurisdiction to impose its wage tax on the earnings of a non-resident federal employee at the Philadelphia Naval Shipyard.

3

Due consideration has been given to briefs of the parties and those filed by the State of New Jersey and the Senate of New Jersey as amicus curiae.

4

We are of the view that the District Court did not err and that no useful purpose will be served by elaborating upon its well-reasoned and adequate disposition.

5

The Order of the District Court will be affirmed upon the opinion of Judge Van Dusen, D.C.E.D.Pa.1957, 157 F.Supp. 93. Cf. Kiker v. City of Philadelphia, 1943, 346 Pa. 624, 31 A.2d 289, certiorari denied 320 U.S. 741, 64 S.Ct. 41, 88 L.Ed. 439; City of Philadelphia v. Cline, 1945, 158 Pa.Super. 179, 44 A.2d 610, certiorari denied sub nom. Barnes v. City of Philadelphia, 1946, 328 U.S. 848, 66 S.Ct. 1120, 90 L.Ed. 1621.