107 So.

689 Page 1
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)

132 District of Columbia

     132k4 k. Application and Operation of Acts of
Supreme Court of Florida, Division A. Congress. Most Cited Cases
PASSETT
v. In making laws for District of Columbia,
CHASE, Sheriff. Congress acts as legislative branch of federal
government.
March 18, 1926.
[2] Criminal Law 110 242(2)
Error to Circuit Court, Dade County; A. J. Rose,
Judge. 110 Criminal Law
     110XII Pretrial Proceedings
Habeas corpus proceeding by Issidore Passett            110k242 Removal of Accused to Other
against Henry R. Chase, Sheriff of Dade County. A County or District for Trial
judgment denied the petitioner's motion for                110k242(2) k. District of Columbia. Most
discharge, and remanded him to custody, and he Cited Cases
brings error.
Federal statute, providing procedure for arrest
Reversed and remanded, with directions. and removal of persons charged with offenses against
laws of United States found in federal district other
West Headnotes than one wherein crime was committed, held
applicable to offenses committed in District of
Columbia. Rev.St.U.S. §§ 1014, 1029 (U.S.Comp.St.
[1] Criminal Law 110 242(2)
§§ 1674, 1695).

110 Criminal Law

[3] Criminal Law 110 241
     110XII Pretrial Proceedings
           110k242 Removal of Accused to Other
County or District for Trial 110 Criminal Law
               110k242(2) k. District of Columbia. Most      110XII Pretrial Proceedings
Cited Cases            110k241 k. Commitment of Accused. Most
Cited Cases

Offenses against laws of United States,

applicable to District of Columbia, and committed Warrant of commitment after indictment should
therein, are crimes against United States, and not state fact of indictment and offense, but it is sufficient
against District. if it recites fact of indictment and describes offense
generally.

[1] District of Columbia 132 4

[3] Criminal Law 110 263

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

107 So. 689 Page 2
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)

110 Criminal Law

110 Criminal Law
     110XIV Arraignment
           110k263 k. Bench Warrant or Other Process
After Indictment. Most Cited Cases
Bench warrant, and warrant of commitment after
indictment, should state fact of indictment and
offense, but it is sufficient if it recites fact of
indictment and describes offense generally.
[4] Criminal Law 110 207(3)
     110XIV Arraignment
           110k263 k. Bench Warrant or Other Process
After Indictment. Most Cited Cases
Bench warrant, issued by Supreme Court of
District of Columbia, and addressed to marshal of
District, confers no authority on marshal of United
States District Court for Southern District of Florida,
or sheriff of any county within such district, to make
arrest thereunder. Jud.Code U.S. § 57; Rev.St.U.S. §§
716, 1014.

[6] Habeas Corpus 197 616

110 Criminal Law
     110XII Pretrial Proceedings
           110k207 Jurisdiction of Preliminary 197 Habeas Corpus
Proceedings      197III Jurisdiction, Proceedings, and Relief
               110k207(3) k. Preliminary Warrant or            197III(B) Jurisdiction and Venue
Other Process. Most Cited Cases                197III(B)1 In General
                     197k612 State Courts; Judges, or
Officers
Federal court in one district has no authority to
                         197k616 k. Persons in Federal
issue writ to marshal or any officer of another federal
Custody. Most Cited Cases
district commanding him to arrest person within
     (Formerly 197k42)
jurisdiction, but outside that of court issuing it. 28
U.S.C.A. §§ 1651, 1655.
State court has no right to entertain or exercise
jurisdiction in habeas corpus in behalf of prisoner
[4] Arrest 35 65
held by federal officer under and by virtue of federal
process and authority or color of it.
35 Arrest
     35II On Criminal Charges
[6] Habeas Corpus 197 616
           35k65 k. Authority Under Warrant. Most
Cited Cases
197 Habeas Corpus
     197III Jurisdiction, Proceedings, and Relief
Warrant of arrest issued in one state may not be
           197III(B) Jurisdiction and Venue
executed in another state. 28 U.S.C.A. §§ 1651,
               197III(B)1 In General
1655; 18 U.S.C.A. § 3041.
                     197k612 State Courts; Judges, or
Officers
[5] Criminal Law 110 263
                         197k616 k. Persons in Federal
Custody. Most Cited Cases

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
     (Formerly 197k42)
State court has jurisdiction in habeas corpus in
cases where person is held in custody by state officer
under color of, but without actual, federal authority.
[7] Habeas Corpus 197 616
197 Habeas Corpus
     197III Jurisdiction, Proceedings, and Relief
           197III(B) Jurisdiction and Venue
               197III(B)1 In General
                     197k612 State Courts; Judges, or
Officers
                         197k616 k. Persons in Federal
Custody. Most Cited Cases
     (Formerly 197k42)
On application to state court for habeas corpus, if
it appears party alleged to be illegally restrained is
held under authority or claim and color of authority
of United States by its officer, writ should be refused.
[7] Habeas Corpus 197 616
197 Habeas Corpus
     197III Jurisdiction, Proceedings, and Relief
           197III(B) Jurisdiction and Venue
               197III(B)1 In General
                     197k612 State Courts; Judges, or
Officers
                         197k616 k. Persons in Federal
Custody. Most Cited Cases
     (Formerly 197k42)
If fact person restrained is held under authority
or claim and color of authority of United States by its
officer does not appear, state judge, on application for
habeas corpus, may inquire into cause of
imprisonment, and it is duty of marshal or federal
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
officer having custody of prisoner to give by proper
return information in this respect.
[8] Habeas Corpus 197 616
197 Habeas Corpus
     197III Jurisdiction, Proceedings, and Relief
           197III(B) Jurisdiction and Venue
               197III(B)1 In General
                     197k612 State Courts; Judges, or
Officers
                         197k616 k. Persons in Federal
Custody. Most Cited Cases
     (Formerly 197k42)
On showing that state officer is holding prisoner
under void federal process, conferring no authority
on him to arrest or hold such person, state court has
duty to order discharge of such person on habeas
corpus, especially where dealing with officer of such
court.
[9] Habeas Corpus 197 612.1
197 Habeas Corpus
     197III Jurisdiction, Proceedings, and Relief
           197III(B) Jurisdiction and Venue
               197III(B)1 In General
                     197k612 State Courts; Judges, or
Officers
                         197k612.1 k. In General. Most Cited
Cases
     (Formerly 197k41)
State tribunals have broad common-law
jurisdiction and powers under writ of habeas corpus
to inquire into all sorts of unlawful detentions within
jurisdiction, excepting as jurisdiction is limited by
national Constitution and laws of Congress pursuant
thereto.
107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
Syllabus by the Court
In making laws for District of Columbia,
Congress acts as legislative branch of federal
government; offenses against laws of United States,
applicable to District of Columbia, and committed
therein, are crimes against United States, and not
against District. In making laws for the District of
Columbia, Congress acts as the legislative branch of
the federal government, so that offenses against the
laws of the United States, applicable to the District of
Columbia, and committed within such district, are
crimes against the United States, and not against the
District.
Federal statute, providing procedure for arrest
and removal of persons charged with offenses against
laws of United States found in federal district other
than one wherein crime was committed, held
applicable to offenses committed in District of
Columbia (Rev. St. U. S. §§ 1014, 1029 [U. S. Comp.
St. §§ 1674, 1695]). Section 1014 of Rev. Stats. U. S.
(U. S. Comp. St. § 1674), provides the procedure for
the arrest on complaint and affidavit, preliminary
hearing, commitment, and removal of persons
charged with offenses against the laws of the United
States who are found in a federal district other than
the district where the crime was committed, which
serves the same purpose for the federal courts as
extradition proceedings where state offenders are
involved, and is applicable to offenses committed in
the District of Columbia.
Bench warrant and warrant of commitment after
indictment should state fact of indictment and
offense, but it is sufficient if it recites fact of
indictment and describes offense generally. A bench
warrant and a warrant of commitment after
indictment should state the fact of indictment and the
offense; it is sufficient, however, if it recites the fact
of indictment and describes the offense generally.
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
Warrant of arrest issued in one state, may not be
executed in another state; federal court in one district
has no authority to issue writ to marshal or any
officer of another federal district commanding him to
arrest person within jurisdiction, but outside that of
court issuing it (Jud. Code U. S. § 57 [U. S. Comp.
St. § 1039]; Rev. St. U. S. §§ 716, 1014 [U. S. Comp.
St. §§ 1239, 1674]). A warrant of arrest, issued in one
state, may not be executed in another state, for it has
no validity beyond the boundaries of the state by
whose authority it was issued. This principle is
applicable to federal courts, and a federal court in one
district has no authority to issue its writ to the
marshal or any officer of another federal district,
commanding him to arrest a person within his
jurisdiction, but outside that of the court issuing it.
Bench warrant, issued by Supreme Court of
District of Columbia, and addressed to marshal of
District, confers no authority on marshal of United
States District Court for Southern District of Florida,
or sheriff of any county within such district, to make
arrest thereunder (Jud. Code U. S. § 57 [U. S. Comp.
St. § 1039]; Rev. St. U. S. §§ 716, 1014 [U. S. Comp.
St. §§ 1239, 1674]). A bench warrant, issued by the
Supreme Court of the District of Columbia, and
addressed to the marshal of such District, confers no
authority upon the marshal of the United States
District Court for the Southern District of Florida, or
the sheriff or any county within such district, making
arrest thereunder.
State court has no right to entertain or exercise
jurisdiction in habeas corpus in behalf of prisoner
held by federal officer under and by virtue of federal
process and authority or color of it. A state court has
no right to entertain or exercise jurisdiction in habeas
corpus in behalf of a prisoner held by a federal officer
under and by virtue of federal process and authority
or the color of it.
107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
On application to state court for habeas corpus,
if it appears party alleged to be illegally restrained is
held under authority or claim and color of authority
of United States by its officer, writ should be refused;
if fact person restrained is held under authority or
claim and color of authority of United States by its
officer does not appear, state judge, on application for
habeas corpus, may inquire into cause of
imprisonment, and it is duty of marshal or federal
officer having custody of prisoner to give by proper
return information in this respect. If, upon application
to a state court for a writ of habeas corpus, it apperas
that the party alleged to be illegally restrained of his
liberty is held under the authority or claim and color
of authority of the United States by an officer of that
government, the writ should be refused. If this fact do
not thus appear, the state judge has the right to
inquire into the cause of imprisonment and ascertain
by what authority the person is held within the limits
of the state, and it is the duty of the marshal or of the
federal officer having the custody of the prisoner to
give, by a proper return, information in this respect.
But, after the state judge has been apprised by the
return that the party is held by an officer of the
United States by the authority, or under color of
authority, of the United States, he can proceed no
further, but must leave the question of the illegality of
the imprisonment for the determination of the courts
or judicial officers of the United States.
State court has jurisdiction in habeas corpus in
cases where person is held in custody by state officer
under color of, but without actual, federal authority;
on showing that state officer is holding prisoner
under void federal process, conferring no authority
on him to arrest or hold such person, state court has
duty to order discharge of such person on habeas
corpus, especially where dealing with officer of such
court. But the state court has jurisdiction in habeas
corpus in cases where the person alleged to be
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
unlawfully restrained of his liberty is held in custody
by a state officer under color of, but without actual,
federal authority; and, where it appears that such is
the case, and that such state officer is restraining such
person under void federal process which confers no
authority upon him to arrest or hold such person in
custody, the state court has the power and
jurisdiction, and it becomes its duty, to order the
discharge of the prisoner from such unlawful
custody; and especially so where, as in this case, the
state court before whom the habeas corpus
proceedings is pending is dealing with an officer of
such court.
State tribunals have broad common-law
jurisdiction and powers under writ of habeas corpus
to inquire into all sorts of unlawful detentions within
jurisdiction, excepting as jurisdiction is limited by
national Constitution and laws of Congress pursuant
thereto. State tribunals are vested with the broad
common-law jurisdiction and powers, under the
ancient writ of habeas corpus, to inquire into all sorts
of unlawful detentions within the territorial limits of
the jurisdiction of such courts, excepting only in so
far as that jurisdiction has been limited, in certain
narrow respects, by the national Constitution and
laws of Congress passed pursuant to its authority.
**691 *524 Bart A. Riley and M. H. Rosenhouse,
both of Miami, for plaintiff in error.
J. B. Johnson, Atty. Gen., and Roy Campbell, Asst.
Atty. Gen., for defendant in error.
BROWN, C. J.
The plaintiff in error was arrested by the sheriff
of Dade county, Fla., and imprisoned in the jail *525
in Miami, Fla., whereupon he sued out a writ of
habeas corpus before a judge of the circuit court. The
return of the sheriff showed that the plaintiff in error
was being held in his custody by virtue of a bench
warrant issued by the Chief Justice of the Supreme
107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
Court of the District of Columbia, attested by the
clerk of said court, and under the seal of the court.
The clerk's name was signed by a rubber stamp. The
warrant did not state any offense but ordered that the
defendant, Issidore Passett, alias Harry Weise, ‘if to
be found in your district,’ be taken and produced
before the criminal court of such district immediately
to answer the United States ‘touching the offense
charged herein.’ Attached to said warrant was a
certified copy of the indictment against Passett
charging him with neglecting, and refusing to provide
for the support and maintenance of Wallace Passett, a
minor child of the age of seven years, in destitute and
necessitous circumstances, ‘contrary to the statute in
such case made and provided and against the peace
and government of the United States.’ This copy of
the indictment was certified by the clerk, and also
bore a certificate by the Chief Justice to the effect
that the attestation of the clerk was in due form; also
a certificate of the clerk that Hon. Walter I. McCoy,
who had signed as Chief Justice, was the Chief
Justice of said court, etc. The petitioner moved that
he be discharged upon several grounds, among them
being that the return showed that there was no
predicate laid for the arrest of the petitioner; that the
warrant was invalid, charged no offense; and that
prosecution was barred by the statute of limitations of
two years. The judge of the circuit court denied the
motion, and remanded the plaintiff in error to the
custody of the sheriff.
[1] In making laws for the District of Columbia,
Congress acts as the legislative branch of the federal
government, so *526 that such laws are laws of the
United States. Cohens v. Virginia, 6 Wheat. 264, 5 L.
Ed. 257; Lyons v. Bank of Discount (C. C.) 154 F.
391; 18 C. J. 1358. Offenses in violation of the laws
of the United States, applicable to the District of
Columbia, and committed within such district, are
crimes against the United States, and not against the
district. Benson v. Henkel, 25 S. Ct. 569, 198 U. S. 1,
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
49 L. Ed. 919; 18 C. J. 1360.
[2] Section 1014 of Rev. Stats. U. S. (U. S.
Comp. St. § 1674) provides a simple and orderly
procedure for the arrest on complaint and affidavit,
preliminary hearing, commitment, and removal of a
person charged with an offense against the laws of
the United States, who is found in a federal district
other than the district where the crime was committed
or the prosecution is pending. This serves the same
purpose for the federal courts as extradition
proceedings where state offenders are involved. This
statute is applicable to offenses committed in the
District of Columbia. United States v. Price (D. C.)
84 F. 636; 16 C. J. 338; 3 U. S. Comp. Stats. 1916, §§
1674 and 1695; In re Price (C. C.) 83 F. 830. The
accused person is entitled to a preliminary
examination to establish his identity and probable
cause for his detention before warrant for his removal
is issued by the district judge, such preliminary
examination usually being held before a United
States commissioner. It is only after a commitment
upon the results of such examination that an order to
remove him to the district in which the trial is to be
held can be made. 16 C. J. 341, and cases cited.
[3] A bench warrant and the warrant of
commitment after indictment should state the fact of
indictment and the offense. It is sufficient, however,
if it recites the fact of indictment and describes the
offense generally. 16 C. J. 386. Whether the defect in
a bench warrant or warrant of commitment, which
fails to state the offense charged, as here, is cured by
attaching thereto a copy of the indictment*527 is a
question which seems not to have been definitely
decided. But it is unnecessary to now consider this
question.
[4] It is plain that this bench warrant and
indictment only authorized an arrest by a United
States marshal or his deputy within the territorial
107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
jurisdiction of the court issuing it, as indicted by its
language; that is, within the District of Columbia. It
is too well settled to require citation of authority that
a warrant of arrest issued in one state may not be
executed in another state, for it has no validity
beyond the boundaries of the state by whose
authority it was issued. This principle is also
applicable to federal warrants. See 2 U. S. Comp.
Stats. § 1239, and cases cited on page 1912; also
volume 1 of same work, pages 1154, 1155, and cases
cited, and modified exception to this rule in **692
section 57 of the Judicial Code, as to suits pertaining
to land located wthin the district. U. S. Comp. Stats.
p. 1165 et seq. This question was decided by the
Court of Appeals of the District of Columbia in the
case of Palmer v. Thompson, 20 App. D. C. 273. The
third headnote in the cited case dealing with this
question reads as follows:
‘In the absence of an act of Congress conferring
the power, a federal court in one district has no
authority to issue its writ to the marshal or any officer
of another federal district, commanding him to arrest
a person within his jurisdection but outside that of the
court issuing the writ; and such power is not
conferred either by section 716, R. S. U. S., giving
judges of federal courts power to issue ‘all writs not
specifically provided for by statute, which may be
necessary for the exercise of their respective
jurisdictions and agreeable to the usages and
principles of law;’ nor by section 1014, R. S. U. S.,
providing for the arrest of any criminal by the courts
and officers of one jurisdiction for the purpose of his
removal to another jurisdiction *528 for trial.'
This was a habeas corpus case appealed from
the Supreme Court of the District of Columbia
discharging Thompson from the custody of the
United States marshal, and the decision of the lower
court was affirmed. In the body of the opinion it is
said:
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
‘But, in the absence of specific statutory
enactment to that effect, it is undoubtedly the general
rule of law that no court has authority or jurisdiction
beyond the territorial limits of the district for which it
has been established, notwithstanding that it may be,
as in the present case, only one of numerous similar
courts of the same sovereignty. No court can by its
writ impose a duty upon an officer outside of those
limits. It may well be that, under exceptional
circumstances, it may direct its own officer for some
specific purpose to go outside of its own territorial
limits; but we cannot understand how it can assume
any authority under the general powers vested in it to
issue its precept to the officer of another jurisdiction,
when it has no power to enforce the performance of
the duty. We do not mean to be understood as saying
that Congress may not grant this authority. On the
contrary, we think that Congress has the power to do
so. But we do not find in the statute law the evidence
that it has done anything of the kind. In our opinion
neither section 1014 nor section 716 of the Revised
Statutes purports to grant any such power. The
provisions of section 1014 are certainly inconsistent
with the theory of such a grant of power; and there is
no good ground to construe the power granted in
section 716, ‘to issue all writs not specifically
provided for by statute, which may be necessary for
the exercise of their respective jurisdictions and
agreeable to the usages and principles of law,’ as
intended to abolish the restrictions inherent in
territorial limitation. The duties of the marshals of the
United States are prescribed by section 787 of the
Revised Statutes, which *529 provides that ‘it shall
be the duty of the marshal of each district to attend
the district and circuit courts when sitting therein, and
to execute throughout the district all lawful precepts
directed to him, and issued under the authority of the
United States.’ Evidently the lawful precepts to be
executed by him are those issued by the courts sitting
in his own district, and not those of the courts of
107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
other districts to which he is not amenable, and which
he cannot attend.'
[5] It therefore appears that the warrant with
indictment attached, issuing from the Supreme Court
of the District of Columbia, not only conferred no
authority upon the sheriff of Dade county, Fla., to
arrest the plaintiff in error, but it conferred no such
authority upon the United States marshal for that
federal district had he attempted to make such arrest
thereunder.
It would appear from the foregoing that the
plaintiff in error was unlawfully restrained of his
liberty, and that he was clearly entitled to be
discharged from custody, provided the said court
before which the habeas corpus proceedings were
brought had jurisdiction to that end.
[6] This raises the very interesting and important
question as to whether the judge of a state court has
jurisdiction to entertain or act upon a writ of habeas
corpus directed to a state officer, and that officer the
sheriff who is an officer of the particular court before
which the writ is pending, when the return of such
officer shows that he is detaining the prisoner in
custody under federal process, or under color of
federal process. After diligent search, we do not find
any case where the identical point presented by the
facts of this case has ever been decided. The general
proposition that a state court has no right to exercise
jurisdiction in habeas corpus in behalf of a prisoner
held by a federal officer under and by virtue of
federal process and *530 authority, or color of it, is
well settled; and it is no doubt this delicate question
of jurisdiction which gave pause to the learned judge
of the court below and caused him to refuse at the
hearing to grant the motion to discharge the prisoner.
The question here presented is not without
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Page 8
difficulty, and, in order to arrive at a solution thereof,
it will be necessary to review some of the leading
authorities bearing upon the general principles
applicable to cases of this nature, which requires a
brief visit, as it were, to one of the great battle fields
of the law in this country. The development of the
law on this subject has been a part of the prodigious
contest which has been waged in the past history of
this Union between the proponents of nationalism
and localism, of federalism and states' rights, of the
liberal constructionists, and the strict constructionists,
of the federal Constitution, and between those great
centripetal and centrifugal forces involved in our
admirable but somewhat complex system of
government. The development of the law on this
subject to its present status has been closely
intermingled with **693 the political, as well as
juridical, history of the American people. The state
courts were divided on the subject, but most of them
held for many years that the state courts had
jurisdiction of habeas corpus proceedings, regardless
of the purported authority under which the petitioner
was held, or whether by a state or federal officer. The
text-writers were also divided on the subject. This is
not the time nor the place for an extended treatise on
the history of this question, but the inquiring student
of the law will find an interesting discussion, with
copious citations of the authorities, in Church on
Habeas Corpus (2d Ed.) published in 1893, §§ 79 to
86, the author denying the jurisdiction of the state
courts; and in Hurd on Habeas Corpus (2d Ed.)
published in 1876, pages *531 154 to 198, in which
the author contends for state court jurisdiction. In the
early days most of the cases seem to have arisen
where state courts on habeas corpus released persons
who had either been conscripted into the armies of
the United States or who had deserted, where they
were under the age of enlistment or otherwise not
liable to conscription. Later on. a great many cases
arose under the federal Fugitive Slave Act, where
persons who were prosecuted in the federal courts for
107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
aiding and abetting the escape of a fugitive slave
were taken from the custody of federal officers and
released by the state court judges in the Northern
States, in some cases for defects in process and in
others because of the alleged unconstitutionality of
the federal act. Not only were the state courts divided
on this subject, but the United States Circuit and
District Courts were likewise divided among
themselves. The state courts of Massachusetts,
Pennsylvania, New Jersey, Ohio, Wisconsin, Virginia,
Iowa, and many others contended strongly for state
jurisdiction. In South Carolina and Alabama state
jurisdiction was disclaimed and in Georgia it was at
first disclaimed and afterwards contended for. In New
York, the question was at first waived; Chief Justice
Kent alone disclaiming state jurisdiction. As above
stated. Iowa disclaimed state jurisdiction, but in the
case of Ex parte Holman, 28 Iowa, 88, 4 Am. Rep.
159, where this question was decided, there appears,
in the dissenting opinion of Beck, J., one of the most
brilliant defenses of state jurisdiction to be found in
all the literatute on this subject. In the case of Ex
parte Kelly, 37 Ala. 474, state jurisdiction was
disclaimed. This involved a question under the
Constitution of the Confederate States, the opinion
being rendered in July, 1861, but in construing the
Confederate Constitution Chief Justice Walker
applied and followed the same principles as those
announced by the Supreme Court of the United *532
States in the case of Ableman v. Booth, 21 How. 506,
16 L. Ed. 169, hereinafter referred to. This doctrine
was adhered to in the case of Ex parte Hill, 38 Ala.
429, wherein it was held that the courts and judicial
officers of the state of Alabama has no jurisdiction on
habeas corpus to discharge from the custody of an
enrolling officer of the Confederate States, on the
ground of physical incapacity for military service,
persons who had been enrolled as conscripts under
the acts of the Confederate Congress. This doctrine
was somewhat modified in the case of Ex parte Hill,
In re Armistead v. Confederate States, 38 Ala. 458,
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 9
Stone, J., writing the majority opinion, and Chief
Justice Walker dissenting and filing a strong and
luminous dissenting opinion. This was a battle of
giants, Walker and Stone, along with Brickell and
McClellan, being, perhaps, the outstanding figures of
the nineteenth century in the long line of great jurists
who have adorned the Supreme Court of Alabama.
The doctrine contended for by Judge Walker seems to
have been adhered to in the later case of Ex parte
Lee, 39 Ala. 457. Among the abler cases contending
against state jurisdiction will be found In re Farrand,
8 Fed. Cas. p. 1070: In re Neagle (C. C.) 39 F. 833, 5
L. R. A. 78; In re Copenhaver, 24 S. W. 161, 118 Mo.
377, 46 Am. St. Rep. 382. Among the strong cases
contending for state jurisdiction will be found State v.
Dimick, 12 N. H. 194. 37 Am. Dec. 197, with
interesting annotations: McConologue's Case, 107
Mass. 154; In re Tarble, 25 Wis. 390, 3 Am. Rep. 85;
and In re Reynolds, 20 Fed. Cas. p. 592.
This question finally reached the Supreme Court
of the United States in the celebrated case of
Ableman v. Booth. 21 How. 506, 16 L. Ed. 169,
decided in 1858. This was a case where booth was
charged, and afterwards convicted, in the District
Court of the United States for the District of
Wisconsin, with having aided and abetted, in said
district, the escape of a fugitive slave. The marshal,
who had *533 Booth in custody under a warrant
issued by the United States District Judge for that
district, was brought before a justice of the Supreme
Court of the state of Wisconsin on a writ of habeas
corpus, charging that Booth was unlawfully
restrained of his liberty by Ableman, the marshal,
under said warrant of commitment, because the
Fugitive Slave Act of Congress was unconstitutional
and void, and that the warrant did not properly
describe the offence created by that act. Booth was
discharged. The marshal appealed. Subsequently,
Booth was indicted by the federal grand jury and
went to trial. He was convicted and sentenced. He
107 So. 689 Page 10
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)

sued out another writ of habeas corpus before the
Supreme Court of Wisconsin, and was discharged on
the ground that the federal act was unconstitutional.
This decision was brought for review before the
Supreme Court of the United States. The opinion in
the case relates to both appeals. **694 It will be
observed that in both instances the prisoner was in
the custody of a United States marshal and under
federal process. In an exceedingly able opinion by
Chief Justice Taney the conclusion was reached that
no state can authorize its judges or courts to exercise
judicial power, by habeas corpus or otherwise, within
the jurisdiction of another and an independent
government and the powers of the general
government and of the state, although both exist and
are exercised within the same territorial limits, are yet
separate and distinct sovereignties, acting separately
and independently of each other, within their
respective spheres; that a state court or judge, who is
authorized by the laws of the state to issue the writ of
habeas corpus, may 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; that the court or
judge has a right to inquire for *534 what cause and
by what authority the prisoner is confined within the
territorial limits of the state sovereignty, and that it is
the duty of the marshal or other person having
custody of the prisoner to make known to the court or
judge, by a proper return, the authority by which he
holds him in custody; that no state judge or court,
after they are judicially informed that the party is
imprisoned under the authority of the United States,
has any right to interfere with him or to require him
to be brought before them. Such is the language of
some of the headnotes, and in the opinion it is said:
‘If the authority of a state, in the form of judicial
process or otherwise, should attempt to control the
marshal or other authorized officer or agent of the
United States, in any respect, in the custody of his
prisoner, it would be his duty to resist it, and to call to
his aid any force that might be necessary to maintain
the authority of law against illegal interference. No
judicial process, whatever form it may assume, can
have any lawful authority outside of the limits of the
jurisdiction of the court or judge by whom it is
issued; and an attempt to enforce it beyond these
boundaries is bothing less than lawless violence.’
[7] The question was again presented to the
Supreme Court of the United States in the case of
United States v. Tarble, 13 Wall. 397, 20 L. Ed. 597,
in which the decision in Ableman v. Booth was
approved and followed. Chief Justice Chase
dissented. The rule, as stated in this case, is as
follows:
‘If upon the application for the writ, it appear
that the party, alleged to be illegally restrained of his
liberty, is held under the authority, or claim and color
of authority, of the United States, by an officer of that
government, the writ should be refused. If this fact do
not thus appear, the state judge has the right to
inquire into the cause of imprisonment, and ascertain
by what authority the person is held within the limits
of the state; and it is *535 the duty of the marshal, or
other officer having the custody of the prisoner, to
give, by a proper return, information in this respect.
But after he is fully apprised by the return that the
party is held by an officer of the United States, under
the authority, or claim and color of the authority of
the United States, he can proceed no further.’ (Italics
ours.)
In other words, although in such a case the
detention is in fact illegal, the state court cannot
determine that question, but must leave the legality of
the imprisonment for the courts or judicial officers of
the United States to settle.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
It will be observed that it has never yet been
held by the Supreme Court of the United States, or
any other federal court so far as the writer has been
able to ascertain, that the state court has no
jurisdiction when the detention is by a state officer
under color of, but without actual, federal authority.
[8] After a review of this question, with copious
citations of authorities, it is said in 29 C. J. 124:
‘When the detention is exercised by state
officers under color of federal authority, state courts
may entertain habeas corpus proceedings'-citing
under this head Com. v. Holloway, 5 Bin. (Pa.) 512;
Ex parte Pool, 2 Va. Cas. (4 Va.) 276.
In this case the return showed that the petitioner
was held in custody by a state officer, to wit, a
sheriff, an officer of the court before which the
habeas corpus proceedings was pending, under a
warrant which was, to all intents and purposes,
utterly null and void as constituting any authority for
such arrest and detention, and that the state officer
had made the arrest and was detaining the prisoner,
not under the authority of the United States, but
contrary to its laws. The warrant in this case could
hardly be said to constitute color of authority While it
would not have authorized the United States marshal
of the district to *536 arrest the petitioner, if the
arrest had been made, and the custody of the
petitioner held, by such officer of the United States,
we do not think the state court should have
entertained or exercised any further jurisdiction, after
ascertaining such fact, except to dismiss the petition
and remand the petitioner to the custody of such
marshal. But surely a state court has jurisdiction to
discharge on habeas corpus a person held in custody
by a state officer who is entirely without any lawful
authority from the federal government to detain him;
and especially so where the court before whom the
habeas corpus proceedings is pending is dealing with
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 11
an officer of that court.
In the case of Robb v. Connolly, 4 S. Ct. 544,
111 U. S. 624, 28 L. Ed. 542, it was contended that an
agent appointed by the state, **695 in which a
fugitive from justice stands charged with crime, to
receive such fugitive from the state by which he is
surrendered was an officer of the United States, and
that a federal court had jurisdiction to release the
prisoner under a writ of habeas corpus. In that case
the meaning of the decision in the case of Ableman v.
Booth, supra, was construed as follows:
‘All that is meant by the language used is, that
the state judge or state court should proceed no
further when it appears, from the application of the
party, or the return made, that the prisoner is held by
an officer of the United States under what, in truth,
purports to be the authority of the United States; that
is, an authority, the validity of which is to be
determined by the Constitution and laws of the
United States. If a party thus held be illegally
imprisoned, it is for the courts or judicial officers of
the United States, and those courts and officers alone,
to grant him release,’ quoting from the former case of
In re Tarble, supra.
It was held in this case that the agent of the
demanding state in an extradition proceeding
although such proceeding was under and by virtue of
an act of Congress,*537 was not an officer of the
United States within the meaning of the cited cases;
quoting from the opinion:
‘He is not appointed by the United States, and
owes no duty to the national government, for a
violation of which he may be punished by its
tribunals or removed from office. His authority, in the
first instance, comes from the state in which the
fugitive stands charged with crime. He is, in every
107 So. 689
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)
substantial sense, her agent, as well in receiving
custody of the fugitive, as in transporting him to the
state under whose commission he is acting.’
In this case Robb sued out writ of habeas corpus
before a state court in California, contending that the
Governor's warrant of extradition was not valid. He
was in the custody of the agent of the demanding
state. The federal Supreme Court held that Robb was
not in the custody of an officer of the United States,
and that, although the extradition proceedings were
had under and by virtue of an act of Congress, the
state court had jurisdiction to inquire into the legality
of his detention. Towards the close of the opinion in
this case occurs the following language:
‘And, since the alleged fugitive was not, at the
time the writ in question issued, in the custody of the
United States, by any of their tribunals or officers, the
court or judge issuing it did not violate any right,
privilege, or immunity secured by the Constitution
and laws of the United States, in requiring the
production of the body of the fugitive upon the
hearing of the return to the writ, to the end that he
might be discharged if, upon hearing, it was adjudged
that his detention was unauthorized by the act of
Congress providing for the arrest and surrender of
fugitives from justice, or by the laws of the state in
which he was found.’
In the case of Kurtz v. Moffitt, 6 S. Ct. 148, 115
U. S. 487, 29 L. Ed. 458, it was held that a state court
has authority of a habeas corpus proceeding in behalf
of a person who has been arrested,*538 either by a
police officer of a state, or a private citizen, without a
warrant, on the charge of being a deserter from the
United States army.
[9] It must be remembered that underlying the
consideration of the question before us is the
© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 12
principle that jurisdiction in habeas corpus is granted
to the federal courts only in certain cases, by virtue of
our federal Constitution and statutes, whereas the
state tribunals are vested with all the broad common-
law power and jurisdiction under this ancient writ to
inquire into all sorts of unlawful detentions,
excepting only in so far as that power and jurisdiction
has been limited in the narrow respect above pointed
out by our national Constitution and laws as
construed by the nation's highest court. Hurd on
Habeas Corpus, 154; Church on Habeas Corpus, 105,
117; 29 C. J. 124.
Prima facie, a state officer is not an officer of
the federal courts, and is possessed of no authority to
serve their process, and when he assumes to arrest
and detain a person for a claimed violation of federal
law, in order to justify his action he must show that
he has been legally vested with the authority of the
United States to perform such act. And whether or
not he is acting under the authority of the United
States, pursuant to its laws, is a question which may
be inquired into by a state court when one of its
officers is presuming to so act. Not only the validity
of the process, but the authority of the state of ficer to
execute it, are vital questions when the right of a state
officer to arrest and restrain a person of his liberty is
brought before a state court under the powerful writ
of habeas corpus. This principle is in entire harmony
with that broad spirit of comity and mutual respect
for the jurisdiction of each for the other which should
obtain in all cases where the respective spheres of
national and state court jurisdiction are either actually
or apparently involved.
*539 We conclude, therefore, that, as the return
showed that the petitioner was held in custody by a
state officer under purported federal warrant which
had no efficacy outside of the District of Columbia,
and was null and void so far as concerned its power
to confer any authority upon such state officer to
107 So. 689 Page 13
91 Fla. 522, 107 So. 689
(Cite as: 91 Fla. 522, 107 So. 689)

arrest or hold the petitioner, the court below had

jurisdiction, and had the power, and it was therefore
its duty, to grant the prayer of the petitioner and to
discharge him from custody.

The final order of the court below is therefore

reversed, and the cause remanded, with **696
directions to enter an order discharging the petitioner,
plaintiff in error here, from custody.

ELLIS and STRUM, JJ., concur.

WHITFIELD, P. J., and TERRELL and BUFORD,
JJ., concur in the opinion.

Fla. 1926
Passett v. Chase
91 Fla. 522, 107 So. 689

END OF DOCUMENT

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

 Date of Printing: Apr 17, 2014

KEYCITE

Passett v. Chase, 91 Fla. 522, 107 So. 689 (Fla., Mar 18, 1926)
History

Direct History

=> 1 Passett v. Chase, 91 Fla. 522, 107 So. 689 (Fla. Mar 18, 1926)

© 2014 Thomson Reuters. All rights reserved.

 Date of Printing: Apr 17, 2014

KEYCITE

Passett v. Chase, 91 Fla. 522, 107 So. 689 (Fla., Mar 18, 1926)

© 2014 Thomson Reuters. All rights reserved.

 Date of Printing: Apr 17, 2014

KEYCITE

Passett v. Chase, 91 Fla. 522, 107 So. 689 (Fla. Mar 18, 1926)
Citing References

Positive Cases (U.S.A.)

   Cited
1 Application of People of State of N.Y., 100 So.2d 149, 155 (Fla. Jan 22, 1958)
2 State ex rel. Deeb v. Fabisinski, 152 So. 207, 210, 111 Fla. 454, 463 (Fla. Jul 18, 1933)
3 Annicaro v. State, 375 So.2d 860, 860 (Fla.App. 4 Dist. Sep 26, 1979) (NO. 78-1840) (in dissent)
HN: 4 (So.)
4 Hernandez v. Sosa, 2012 WL 4148890, *4 (S.D.Fla. Jul 09, 2012) (NO. 11-21479-CIV) " HN: 8
(So.)
5 Kirkes v. Askew, 32 F.Supp. 802, 804 (E.D.Okla. Mar 30, 1940) (NO. 170) HN: 4 (So.)
6 Ex parte Corretjer, 50 D.P.R. 211, 211 (P.R. Jun 18, 1936) (NO. 105)

   Mentioned
7 Davis v. State, 108 So.3d 654, 654 (Fla. Jan 08, 2013) (Table, text in WESTLAW, NO. SC12-1318)
8 Floyd v. Clark, 801 So.2d 325, 326, 27 Fla. L. Weekly D52, D52 (Fla.App. 1 Dist. Dec 19, 2001)
(NO. 1D01-4994) HN: 8 (So.)

Administrative Decisions (U.S.A.)

Comptroller General Decisions

9 COMPTROLLER GENERAL WARREN TO F. A. HICKERNELL, ESQ., U.S. COMMISSIONER,
1942 WL 1247, *7, 22 Comp. Gen. 373, 379, B- 28,057, 28057 (Comp.Gen. Oct 20, 1942) HN: 2
(So.)

Secondary Sources (U.S.A.)

10 Territorial extent of power to arrest under a warrant, 61 A.L.R. 377 (1929) HN: 1,2,4,5,7 (So.)
11 Restatement (Second) of Torts s 129, Place of Arrest (2014)

© 2014 Thomson Reuters. All rights reserved.

 12 CJS Criminal Law s 476, Bench warrant or other process (2014) HN: 3,3 (So.)
13 CJS District of Columbia s 13, Congressional regulations, generally (2014) HN: 1,1,2 (So.)
14 CJS Habeas Corpus s 243, Power; concurrent jurisdiction (2014) HN: 9 (So.)
15 CJS Habeas Corpus s 248, Custody under federal authority (2014) HN: 7,7 (So.)
16 Fla. Jur. 2d Habeas Corpus and Post Conviction Remedies s 96, Power of state court to issue writ for
release of federal prisoner (2014) HN: 6,7,7 (So.)
17 HABEAS CORPUS - JURISDICTION OF STATE COURT TO DISCHARGE PERSON HELD
UNDER FEDERAL AUTHORITY, 40 Harv. L. Rev. 320, 320 (1926)
18 UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHOUT A
STATE HELD UNCONSTITUTIONAL BY STATE COURT, 107 U. Pa. L. Rev. 275, 280 (1958)
HN: 5 (So.)

Court Documents

Appellate Court Documents (U.S.A.)

Appellate Briefs
19 People of the State of New York v. O'Neill, 1958 WL 91647, *91647+ (Appellate Brief) (U.S. Oct
31, 1958) Respondent's Brief (NO. 53) HN: 5,8 (So.)
20 Trent L. COLEMAN, Pro-Se, Plaintiff - Appellant, v. Richard H. GORDON, Et Al, Defendants -
Appellees., 1993 WL 13105377, *13105377+ (Appellate Brief) (5th Cir. Apr 05, 1993) Brief of
Appellant (NO. 93-7086)

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