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error from the highest state court to the Supreme Court of the United States.12

The act of 1867 provides that, upon return of the writ of habeas corpus, 66 the court or justice, or judge, shall 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 justice require." 13

It would not appear to be certainly settled just what is the facts to be determined and just what the action is to be taken by the federal court in all cases where the party suing out the writ claims that the act charged against him in the state court was done under the authority of the United States or in pursuance of a process of its courts. When, by means of the writ, the federal court has brought the accused under its control, is it its duty in all cases to determine whether the accused was an officer of the United States and further whether he had acted in good faith, and within the scope of his federal authority, and therefore entitled to a discharge; and, if not, to impose such penalty as the law and facts require? Or is it the duty of the federal court, where the question is not as to the federal authority which is set up, but whether in fact that authority has been overstepped, and there is conflicting evidence as to this, is it the duty of the federal court to remand the party to the state court for the determination of the question?

12 For later refusals of the federal courts to issue the writ of habeas corpus to persons in the custody of state courts in alleged violation of the Constitution, see Tinsley v. Anderson (171 U. S. 101; 18 Sup. Ct. Rep. 805; 43 L. ed. 91) and United States ex rel. Drury v. Lewis (200 U. S. 1; 26 Sup. Ct. Rep. 229; 50 L. ed. 343). In the first of those cases the Supreme Court reversed the judgment of the lower court, and dismissed the writ of habeas corpus which it had issued, and remanded the accused to the custody of the state authorities. In Ex parte Wood (155 Fed. 190), decided in 1907, habeas corpus was granted by a federal court for the release of one who was charged in a state court with a violation of a state law, the enforcement of which had previously been enjoined by a federal court because unconstitutional.

13 Rev. St., Sec. 761.

The opinions in the Ableman and Tarble cases, and the reasoning of the court in Tennessee v. Davis, would seem to indicate that the former action is the correct one, namely, that the federal court should not remand the accused to the state court, but itself determine the fact whether he has acted in excess of his federal authority. In United States ex rel. Drury v. Lewis,1 however, the court accepted the alternative doctrine, and remanded the accused for trial to the state court, the evidence being conflicting as to whether or not in fact he had exceeded his federal authority.

The court, quoting from Baker v. Grice1 say; "It is an exceedingly delicate jurisdiction given to the federal courts by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the State, and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a State be finally prevented. Cases have occurred of so exceptional a nature that this course has been pursued.' In the case at bar, however, the court find that there were not present the exceptional circumstances justifying this federal intervention, and that the evidence was conflicting as to whether the act charged was done in performance of a federal authority. This being so, the court declare, it is the proper province of the state court and not of the federal tribunal to determine this question.

" 16

The court in this case, in the position which it assumed, cites no prior cases exactly in point. It does indeed refer to earlier adjudications, but none of these had reference to instances in which persons in custody of state authorities sought release upon the claim that the acts charged against them were done in the course of official duty. In each instance the petitioners based their claim to release upon the ground that the imprisonment by the state authorities was in violation of their individual rights under the Constitution, laws or treaties of the United

14 200 U. S. 1; 26 Sup. Ct. Rep. 229; 50 L. ed. 343.

15 169 U. S. 284; 18 Sup. Ct. Rep. 323; 42 L. ed. 748.

16 Citing Re Loney (134 U. S. 372; 10 Sup. Ct. Rep. 384; 33 L. ed. 949); Re Neagle (135 U. S. 1; 10 Sup. Ct. Rep. 658; 34 L. ed. 55).

States. In such cases there was of course no reason based upon federal governmental supremacy and efficiency, why the federal courts should not, in their discretion, leave the petitioners to set up such defense as they might have in the state courts, and on writ of error therefrom to the federal Supreme Court."

17 The law regarding the jurisdiction of the state courts over federal officers is discussed in a valuable article by Mr. James L. Bishop in the Columbia Law Review for May, 1909, entitled "The Jurisdiction of State and Federal Courts over Federal Officers." Mr. Bishop suggests that the maintenance of the freedom of federal authority from state interference, and at the same time the preservation of the proper powers of the state courts could be secured by extending the right of removal of cases from the state to federal courts, now given under Section 643 of the Revised Statutes to federal revenue officers, to all officers acting under authority of the United States; and that the issuance of the writ of habeas corpus by federal courts be limited so as to be merely ancillary to such right of removal.

CHAPTER IX.

THE MAINTENANCE OF FEDERAL SUPREMACY; THE INDEPEND ENCE OF FEDERAL COURTS FROM STATE INTERFERENCE.

§ 72. Independence of Federal Authorities.

A federal court having assumed jurisdiction over a person or piece of property, the state authorities are excluded from any interference therewith or from in any way assuming jurisdiction therein. This principle was violated by the authorities of the State of Wisconsin in the case of Ableman v. Booth' in annulling the proceedings of a commissioner of the United States and discharging a prisoner who had been committed by the commissioner for an offense against a federal law. The Supreme Court of the United States declared the impropriety of these actions in the following language: "The supremacy of the state courts over the courts of the United States, in cases coming under the Constitution and laws of the United States is now for the first time asserted and acted upon in the supreme court of a State." Protesting against this action, the opinion declares: " do not question the authority of state court, or judge, who is authorized by the laws of the State to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding, for what cause and by what authority the prisoner is confined within the territorial limits of the state sovereignty. But, after the return is made, and the state judge or court is judicially apprised that the party is in custody under the authority of the United States, they can proceed no further."

We

That a state court has no power to issue a mandamus or writ of certiorari to a federal officer is not questioned.2

121 How. 506.

2 M'Clung v. Silliman, 6 Wh. 598; 5 L. ed. 340; Kendall v. U. S., 12 Pet. 524; 9 L. ed. 1181; U. S. v. Schurz (102 U. S. 378; 26 L. ed. 167).

3

The inability of the state courts by injunction or otherwise to control proceedings in federal courts is declared in Weber v. Lee Co., United States v. Keokuk,* and Supervisors v. Durant." This inability arises not so much from the supremacy of the federal courts as because the state and federal judicial systems are independent of one another. In Weber v. Lee Co. the court say: "State courts cannot enjoin the process of proceedings in the circuit [federal] courts; not on account of any paramount jurisdiction in the latter, but because they are entirely independent in their sphere of action." The same reason is given in United States v. Keokuk.

§ 73. Injunctions from Federal to State Courts.

It is, however, not quite correct to say that the two judicial systems are entirely independent in their sphere of action." It is true that the state courts are wholly without power in any way to control the operations of the federal courts, but the reverse is not true. As has already appeared, a writ of error lies in certain cases from the federal Supreme Court to the state courts, and, when removal of a case is sought, the federal courts may issue a writ of certiorari to the state court demanding a copy of the record, and the clerk of the state court refusing compliance with this demand becomes, under an act of Congress, liable to fine or imprisonment. Furthermore the federal courts possess the right to protect their own jurisdictional rights or the rights of parties to suits before them by restraining orders forbidding proceedings in the state courts.

It is true that, actuated by a desire to preserve so far as possible the independence of the state judiciaries Congress, by act of 1793, which is still in force, has provided that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such an injunction may be authorized by any law relating to proceedings in bankruptcy." But, in other than cases in bankruptcy,

36 Wall. 210; 18 L. ed. 781.
46 Wall. 514; 18 L. ed. 933.
69 Wall. 415; 19 L. ed. 732.
6 Rev. St., Sec. 720.

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