371. Do.-Ordinarily Expedient That Original Receivers Be Made Ancillary.-Sometimes very serious difficulties result from these varying views of different Courts. For example-In 1893 the Northern Pacific Railroad Company, which then operated a railroad in seven States and eight or nine Federal districts, was put in the hands of receivers on a bill filed in the Circuit Court of the United States for the Eastern District of Wisconsin. The same receivers were appointed in the other districts. Subsequently, however, the Circuit Courts for the Districts of Washington and Idaho revoked these appointments and appointed other persons. This led to so much confusion and trouble that, after various other efforts had been made to restore the control of the prop erties to a single set of hands, all parties agreed to submit the matter to the four justices of the Supreme Court who were assigned to the four circuits in which the receivers had been appointed. Those four judges by agreement sat to hear the case in Washington, outside of any of the circuits, and decided that the Circuit Court for the Eastern District of Wisconsin should be regarded as the Court of primary jurisdiction, and that the receivers appointed by it should be appointed in all the other districts. The Court said:

"We are of opinion that proceedings to foreclose a mortgage placed by a railroad company upon its lines extending through more than one district should, to the end that the mortgaged property may be effectively administered, be commenced in the Circuit Court of the district in which the principal operating offices are situated, and in which there is some material part of the railroad embraced by the mortgage; that such court should be the court of primary jurisdiction and of principal decree, and the administration of the property in the Circuit Courts of the other districts should be ancillary thereto."

Now it so happened that in this case the principal offices of the company were in the District of Minnesota, and there was some question whether it actually operated any railroad in the Eastern District of Wisconsin, for it had leased all

the property it there owned to another company for ninetynine years. The judges, however, concluded, that because in point of fact the primary jurisdiction had been taken by the Court for the Eastern District of Wisconsin and its action in the matter had been acquiesced in for sometime thereafter, it was expedient to regard the Eastern District of Wisconsin as the primary district.1

1 Farmers Loan & Trust Co. vs. Northern Pacific R. R. Co., 72 Fed. 30.

CHAPTER XIII.

HABEAS CORPUS.

372. Power of Federal Courts and Judges to Issue Writ of Habeas Corpus.-Federal Courts and Federal Judges may under some circumstances issue writs of habeas corpus.

It has been stated that the District Court has no power under the first clause of section 24 to issue the writ, because no money or money's worth is in controversy; but by sections 751 and 752 of the Revised Statutes, which were not repealed by the enactment of the Judicial Code, the Supreme Court and the District Courts, and their several Justices and Judges within their respective jurisdictions, have power to grant it for the purpose of inquiring into the cause of restraint of liberty.

373. Federal Court May Issue Writ Only When Petitioner is in Custody Under Color of Federal Authority or in Violation of Federal Right.-The writ, it is provided by section 753, "shall in no case extend to a prisoner in jail unless where he is in custody (1) under or by color of the authority of the United States, or is committed for trial before some Court thereof, or (2) is in custody for an act done or omitted in pursuance of a law of the United States or of an order, process or decree of a Court or judge thereof, or (3) is in custody in violation of the Constitution. or of a law or treaty of the United States, or (4) being a subject or citizen of a foreign State and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection or exemption claimed under the commission or order or sanction of any foreign State or under color thereof, the validity and effect whereof depends upon the law of nations, or (5) unless it is necessary to bring the prisoner into Court to testify."

374. Supreme Court, Except in Connection With Cases in Which it Has Original Jurisdiction, May Issue the Writ Only in the Nature of an Appellate Proceeding. To prevent misapprehension it should be mentioned that the Supreme Court, except in connection with the limited class of cases over which it is given by the Constitution original jurisdiction, may issue the writ only when the questions raised are of an appellate nature.

A certain member of the City Council of Cincinnati who, as such, was by the State law a judge of election. was indicted in the United States Court under the Federal election laws, now repealed, for an offense committed at a congressional election. He was sentenced to be imprisoned for twelve months and to pay a fine of $200 and costs. He applied for a writ of habeas corpus to Mr. JUSTICE STRONG of the Supreme Court, who made the same returnable before him at the Catskill Mountain House, in the State of New York. On the petitioner being brought before him, he made an order transferring the hearing of the cause into the Supreme Court, and fixing such hearing for the second Tuesday of October, 1879. He admitted the prisoner meanwhile to bail. The point was made by the Government that the matter could not be considered by the Supreme Court, as that Court had no original jurisdiction. The Court said:—

"It is clear that the writ, whether acted upon by the Justice who issued it or by this court, would in fact require a revision of the action of the Circuit Court by which the petitioner was committed, and such revision would necessarily be appellate in its character. This appellate character of the proceeding attaches to a large portion of cases on habeas corpus, whether issued by a single Judge or by a Court."***"The Justice who issued it could undoubtedly have disposed of the case himself, though not at the time, within his own circuit. A Justice of this court can exercise the power of issuing the writ of habeas corpus in any part of the United States where he happens to be. But as the case is one of which this court also has jurisdiction, if the Justice who issued the writ found the questions involved to be of great moment and difficulty, and could postpone the

case here for consideration of the whole court without injury to the petitioner, we see no good reason why he should not have taken this course, as he did."

375. Habeas Corpus is a Civil and Not a Criminal Writ.—The writ of habeas corpus is a civil, and not a criminal procedure. The petitioner asserts his civil right of personal liberty against the respondent who is holding him in custody, and the inquiry is into his right to the liberty for which he asks. A person convicted of murder and sentenced to death by the Supreme Court of the District of Columbia applied for a writ of habeas corpus to the Supreme Court of the United States. The latter held that its jurisdiction depended not upon the general statute already mentioned, but upon some legislation local to the District of Columbia, which limited the jurisdiction of the Supreme Court on appeals from the highest Court of the District to civil cases in which the matter in dispute, exclusive of costs, exceeded the sum of $5,000. In order to give the Supreme Court jurisdiction under the statute the matter in dispute had to be money or some right the value of which in money could be calculated or ascertained, and as the matter in dispute had no money value, there was no appeal.1

376. Habeas Corpus May Not Serve Purpose of Writ of Error.-It has been decided over and over again that this writ cannot be used as a writ of error. If the Court or tribunal below had jurisdiction over the subject matter and to enter the special order complained of, then the defendant's remedy, if any, must be sought by appeal or writ of error.1

377. Federal Courts Issue Writ Only When Federal Question is Involved. The Federal Courts, because they are Federal Courts, on petition for the writ of habeas corpus