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FISHER v. BAKER, 203 U.S. 174 (1906)

U.S. Supreme Court

FISHER v. BAKER, 203 U.S. 174 (1906)

203 U.S. 174

FRED C. FISHER and Charles C. Cohn, on Behalf of Felix Barcelon, Plffs. in Err.,
v.
COLONEL DAVID J. BAKER, JR., and Captain John Doe Thompson.
No. 214.

Argued October 9, 10, 1906.
Decided December 3, 1906.

Messrs. Frederic R. Coudert and Howard Thayer Kingsbury for plaintiffs in error.

[203 U.S. 174, 176]   Solicitor General Hoyt for defendants in error.

[203 U.S. 174, 178]  

Mr. Chief Justice Fuller delivered the opinion of the court:

Application for the writ of habeas corpus was made to the supreme court of the Philippine Islands, August 2, 1905, on behalf of one Barcelon, seeking to be discharged from alleged illegal detention in the province of Batangas. An order to show cause was granted, returnable August 4, to which return was made, the cause heard, and the application denied on the ground that the writ of habeas corpus had been suspended, and [203 U.S. 174, 179]   that the action of the Philippine authorities in that regard was not open to judicial review.

Petition for the allowance of a writ of error from this court, dated October 19, and service of copy thereof acknowledged by respondents the same day, was filed January 3, 1906, and the writ of error thereupon allowed and issued on that day.

The second clause of 9 of article 1 of the Constitution of the United States provides: 'The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.'

The 7th paragraph of 5 of the act of Congress of July 1, 1902 (32 Stat. at L. chap. 1369, pp. 691, 692), reads: 'That the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion, insurrection, or invasion, the public safety may require it; in either of which events the same may be suspended by the President, or by the governor, with the approval of the Philippine Commission, where-ever, during such period, the necessity for such suspension shall exist.'

The record discloses that on January 31, 1905, the Philippine Commission adopted the following resolution:

Whereupon, on the same day, the civil governor issued the following proclamation:

But we must take notice of the fact that on October 19, 1905, the civil governor issued a proclamation revoking that of January 31, 1905, as follows:

This proclamation wiped out the basis of the decision sought to be reviewed on the day when the copy of the petition for writ of error was served on opposing counsel, and more than two months before the writ of error was issued. The question ruled by the court below, and solely argued before us, became, in effect, a moot question, not calling for determination here. Mills v. Green, 159 U.S. 651 , 40 L. ed. 293, 16 Sup. Ct. Rep. 132.

But the disposition of this writ of error must be rested on another ground.

The proceeding is in habeas corpus, and is a civil, and not a criminal, proceeding. Cross v. Burke, 146 U.S. 82, 88 , 36 S. L. ed. 896, 898, 13 Sup. Ct. Rep. 22. Section 10 of the Philippine act of July 1, 1902, (32 Stat. at L. chap. 1369, pp. 691, 695, U. S. Comp. Stat. Supp. 1905, p. 154 ), provides:

Final orders of the circuit or district courts of the United States in habeas corpus can only be reviewed by appeal, and not by writ of error. Re Morrissey (Morrissey v. Perry) 137 U.S. 157, 158 , 34 S. L. ed. 644, 645, 11 Sup. Ct. Rep. 57; Rice v. Ames, 180 U.S. 371, 373 , 45 S. L. ed. 577, 581, 21 Sup. Ct. Rep. 406, 407. In the latter case the court said:

Writ of error dismissed.

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