mined., Riddlea'bargcr v. McDaniel, ,88 Mo. 138; Henze v. Railroad 0'0., 71 Mo. 636, 644. See, also, Bank v. Steinmitz,65 Cal. 219, 3 Pac. Rep. 808. We hold, therefore, that the bill of exceptions in the present case was properly allowed and filed, and we accordingly overrule the motion to expunge it from the record.
(Clrcuit C01lf't oj AppeaI8, Eighth
Cmourr CoURT OP .A1'PBAL8-HAllBAS CORPIJ8-ExTRATBRRITOBIAL JIJBISDIOTIOlf.
A circuit court of appeals has no jUrisdiction, in the absenC80f a statute express1,J authorizing to award a writ of habeas COT1JU8 to be served outside of the oiroui$ for whioh it SIts, to secure the release of a person there held in custody. The court is not autborizedto award sucb writ on tbe ground that its appellate jUrisdiction is invoked therein to revise the decision of the distriot court of a territory within its oircuit under whose process petitioner was confined; for by section 15, Act Congo March 8, 18111, creating tbe circuit COUrts of appeala, their appellate jurisdiction over territorial courts iB lirn1ted to the supreme courts of tbe territoJU,BISDICTION-TBRRIWRUL DISTRICT CoIJBTS. ,
This is an application for a writ of haben8 corpUs, to release from prisontnent one W. H. Boles, who is now, as it is said, confined in the Ohio state penitentiary at Columbus, Ohio, under a sentence imposed by the district court Of Logan county, territory of Oklahoma, at its adjourned September term, 1890. The petition for the writ charges that the court before whom the petitioner was tried, convicted, and sentenced for horse-stealing had no jurisdiction of the offense for which he was tried, and that the sentence imposed was for that reason void. It also states in detail the several facts that ,are supposed to have rendered the proceedings of the district court utterly nugatory and void, but the view that we take of the case renders it unnecessary to recite such facts. A writ is sought against B. F. Dyer, warden of the state penitentiary. he being the person who now has petitioner in custouy. Ira C. Terry; for petitioner. Get). D. Reynolds, U. S. Dist. Atty · Before CA.LDWELL, HALLETT, and THAYER, Jl.
THAYER, J., (after Btating thefact8 as above.) It will be observed that we are asked to award a writ of habeas corpus to be served at a place outside of the territorial jurisdiction of this court, for the purpose of securing the release of a person who is there confined, and we are of the opinion that we have no authority to award such a writ. It certainly cannot be maintained that this court has power to release persons who are unlawfully restrained of their liberty in any part of the United States under color of process of a federal court, as the supreme court may do, yet such would be the assertion of jurisuiction on oqr part, if we granted
a writ in the present instance. In the absence of any statute expressly authorlzip.g us to issue a writ of habea8 corpus to run and be executed outside of the circuit, our jurisdiction to release from unlawful imprisonment would seem to be .restricted to cases where persons are restrained of' their ,liberty somewhere within the circuit. Ex patte Graham, 3 Wash. C. C. 456. It was suggested at the hearing, as we understood counsel, that a writ might be awarded in this case to be served outside of the circuit, because the jurisdiction invoked is to revise the decision of the district court of the territory, and is therefore in its nature appellate, and because the appellate jurisdiction of tbjs court extends to the territory of Oklahoma by virtue of the fiftep.nth section of the act creating circuit courts ofappeal, and an order made by the supreme court on May 11, 1891, assigning Oklahoma to this circuit. The Yerger Case, 8 Wall. 86, and other kin:dred cases, are cited in support of this contention. It is say that the authorities invoked have no application to the facts of this case. No writ 'of error or appeal can be prosecuted from the SeVc;lrlU of'the territory of Oklahoma to this court. Wehaieno general supervisory control over the of those courts,ahdcongress has not seeri fit, iriexpress terms, to c6nfer on this court; as upon the supreme court, the power to isslie writs of habea8 corpus. Our appellate jurisdiction over territorial courts, except in the Indian Territory,is limited to a "review of thejudgments, orders, and decrees of the supreme courts of the several territories" assigned to the circuit. Vide section 15, 8Upra. It is an appellate jurisdiction formerly exercised by the supreme court of the United States, but whether it is mOTe or less extensive than the jurisdiction formerly exercised by that we do lJ-ot now decide. For present purposes wearily decide that we cannot iss?e the writ in question to be .served in another circuit, merely because the petitioner is there confIned in execution of a sentence imposed by one of the district courts of the territory of Oklahoma. It was contended on the argument of theap,plication that this court could nbt grant the yvrit prayed for, even tb,ough petitioner was unlawl\illy restrained of his liberty within the circuit, because this court has not been authorized to issue writs of habeas corpus. Several well-known Ex parte BoUauthorities are cited in support of this proposition, man, 4 Cranch, 75; Ex parte Parks, 93 U. S. 18; In re Burru8, 136 U. S. 586, 10 Sup. Ct. Rep. 850; but we carefully refrain from expressing any opinion on this important question until a case arises that requires a decision. The writ is denied, and the application therefor dismissed.
EX PARTE CONWAY.
(CWCU'U Court, D. South Carolina. October 27, 1891.)
HABEAS CORPUS-JURISDICTION OIl' CIRCUIT COURTS-rnPRISONIIUINT Il'OR ACT DONB BY FEDERAL AUTHORITy-POST-ROA.DS-ERECTING TELEGRAPH LINES.
Under Act Congo March 1, 1884, (28 U. S. St. at Large. S,) declaring all public highways and roads to be post-roads of the United States, a person engaged in erecting a telegraph line along a public road for a company which has accepted the provisions of Act Congo July 24, 1800, entitled" An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military, and other purposes," and which authorizes the construction of telegraph lines over and along any milltary and post roads of the United States, is acting under authority of an act of congress, and, if arrested by th!l state authorities for obstructing the highway merely because of the prosecution of such work, he will be released on habeas corpus.
On Habea8 Corpua to release R. H. Conway from imprisonment under a warrant issued by a justice of the peace for obstructing a highway. Mordecai & Gadsden, for petitioner. SIMONTON, J. The petitioner is the foreman of the gang engaged in constructing and erecting the lines of the Postal Cable & Telegraph Company. This company, incorporated under the laws of New York, has all the Atlantic states, and the line upon which its line running the petitioner was engaged connects Charleston with Savannah. The Postal Company has accepted the provisions of the act of congress approved July 24,1866. This act, entitled "to aid in the construction of telegraph lines, and to secure the government the use of the same for postal, military, and other purposes," authorized the construction of telegraph lines over and along any of the military and post roads of the United States. By act of 1st March, 1884, (23 U. S. St. at Large, 3,) all public highways and roads are declared post-roads of the United States while they are kept up. The petitioner alleges that while he was engage<i as such foreman in constructing this line through Co11eton county, in South Carolina, over and along the old state road between Charleston and Savannah,-a public road, kept up and worked,-he was arrested, and is now in custody under a warrant issued by H. W. ACKERMAN, a trial justice of said county, upon the charge of obstructing a public road. He alleges that he is acting under and by virtue of the provisions of the act of congress, and claims the protection of this court. The case is cognizable in this court, (Railroad Co. v. M'l.88i8wippi, 102 U. S. 135,) and the court can on this writ inquire into the cause of his \lommitment, and discharge him if he be held in custody in violation of the laws of the United States, (Ex parte Royall, 117 U.S.250, 6 Ct. Rep. 742.) "If he be held in custody in violation of the constitution or a law of the United States, or for an act done or omitted in pursuance of a. law of th(3 United States, he must be discbarged." In re Neagle, 135 U. S. 41, 10 Sup. Ct. Rep. 658. Section 761 of the Revised Statutes of theUnitoo. prescribootbe duties of the court ilpon an application of this character to "proceed in a summary way to determine the facts
of the case by hearing the testimony and arguments, and thereupon to dispose of the party as law and justi<;eJllquire." "Thll singlll question is to be fully tried, not on affidavits, but upon testimony, not ex parte, but after a full hearing on both sides."· Mr,. Choate's argument in Re Neagle. The trial justice who has the petitioner in custody produces as his return the warrant and the prisoner. does not appear, and no one appears for him. Counsel for the petitioner has, under instructions of the court, notified the solicitor of the circuit in which Colleton county is included of this hearing, and the solicitor does not appear. To this extent the court is without assistaocll. I recognize to the' fullest extent the delicacy of the question, and would., not willingly enter into a discussion which wQuldseem .to interfere with. the process of the state court. It is a principle of right and of law, a'nd therefore of necessity, that such interference should be avoided between the courts of the United States and the state courts. G'oveUv.Heyman,11l U. S. 176; 4 Sup. Ct. Rep. 355. But the duty is cast on'this court of examining into the facts of cases like this,-of hearing and deciding them. This has been done. ThE!' testimony of disinterested witnesses has been taken, and compared with the affidavit of the state's witnesses,,;and the conclusion has been reached that cause and ground of the prosecution arise from the construction and erection of this telegraph line 'aud from objections to it. Let thE!' prisoner be discharged.
lJNI1'ED STATES". SANGES
cOurt, N. D.
Geoigta. October 5, 1891.)
Thll amendments tQ theeonstitntlon of the United States. espeCiallr section l·of the fourteenth'amendment, so far as .they relate to,tbe rights of indi-, viduals,. are jotendefl to ,prevent thest.ates and tbe United States. or any persoos actiog undel' t4eir authoritv,' fr9m Interfering wIth existini rigbts, and do oot confer'any new rights;, and hence oDellannot claim that hi& right to testify before a. federal grand iury without interference from private iodividua!sis ooe coofe.rred by theoonstitution of the United States, within the meaoioi ofRet; St: Q'. S. §§ 5508,5509. which presoribe a pUnishment for any persons who oonsJiiire to' injure. oppress, threaten. ,or Intimidate allY citizeo in the free exercise or enJoyment of any right or privilege seCUred to him b1 the of tbe United f:;tat/ls. or becau"e of his. .having so exercised the' same." Expt.llrte Ynrbrough, 110 U.S. 65a, 4 Sup. Ct. Rep. U. S. 76.:58up. Ct-Rep. a5; Lancaster, 44 . , 152; U.,S.,v. Fea. R.ep.,8116,-distioguished. " . , '" . i.SAME-CON$PIRAOY-INDICTMIlNT. . " . ' deolaring that Ilall persons within the jurisdiction of the Rev. St.U. S. Unite4 S,,\,:tes.shall in state and ,erritory to make. and . enforce oontracts, to 8ue;be parties,glve eVidence, and full. and equal'benefit of 'alUaw8 an.d... proceed.iogs for th. Ill. seourity of perso.DS..0..00.. p.roperty as is.en.joyed by white citizens, and shall be subjeot;to like punisbmeot,paillll. penalties,. taxes. 'licenses. aiM exactions of every ,kind, 'and to no other." will not Bupport an indictment-for ai.ootispiraoy by private individuals to injareand oppress.a Citizen for teBtifylp,g, pefp.re a fe4eral grand jury, bp,he absence of allegatiQl\S, suob oitizen. wall. Ii person of color, or that the aota were C911lmitted becausll of his color and pre:vious QOxuiitioJl of.servitude.. . , j T" .,' .
CONSTITUTIONAL LAw-RIGHT TO T1lSTI7Y BEPOBBFBDEBAL GBbrD JURy-CON·· SP1RAOY. '. . .