93 FEp,ERAL

UNITED

ex reI. SCOTT v. McALEESE. April 20, 1899.) No. 34, March Term.

(Circuit Court of Appeals, Third Circuit.

HABEAS COJ:tPUS COlIUTY.

FEDERAL QUESTION -

JURISDICTION

OF

STATE

COURTS-

Where a debtor was arrested on process issuing from a state court on a charge of having violated a penal statute of the state agaillst fraudulent , insolvency, and afterwards, on petition of his creditors in the proper federal court, was adjudged bankrupt, and the state court, on hearing. then committed him for trial, Rnd he thereupon applied to the United States cirCUit court for his release on habeas corpus, on the ground that the state statute was superseded by the bankruptcy law,' held,that the state courts were competent to ,decide the federal question thus raised, and that, no circumstances of special urgency being shown, the federal courts should not assume its determination until the prisoner had exhausted his remedy in the, state courts.

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. . The relator, J. McD. Scott, sued out a writ of habeas corpus in the circuit court, directed to ,John McAleese, as warden of the pl'ison of Allegheny county,: Pa., alleging that he wliS unlawfully restrained of his libevty by the respondent under certain commitments from the court of common of said county. From an order of the circuit court discharging the writ and remanding the prisoner, the latter appeals. J. S. Ferguson, for appellant. W.A. Blakeley and W. A. Way, for appellee. Before ACHESON and DALLAS, Circuit Judges, and McPHERSON, District Judge. MqPIIERSON, District Judge. The defendant is the warden of the :Allegheny county prison, and holds the appellant in custody by virtue of three commitments. One is for contempt of court in refusing to answer certain questions put to the appellant before a referee in bankas this commitmeJ:!.t is formally unobjectionable, and has not been successfully aUllcked upon any ground appearing on the record, it would of itself support a judgment of affirmance. But for reasons that are satisfactory to us, although they need not be set out in this opinion, we have no doubt that commitment for contempt should not be regarded as an existing process, and accordingly we shall treat it as furnishing no ground for the relator's detention. It remains to consider the. other two commitments. Concerning these the, following facts are undisputed: The appellant was a mer, chant in the city of Pittsburg. On October 12, 1898, hema<k.an aSsignment for the benefit of creditors; and shortly afterthe ,Same month, several creditors proceeded against him wards, by petitiOnS for warrants ,of arrest under the Pennsylvania stl}{ute .,f July12, ,1842 (P.L.339). that the relator had violated section 3 of the statute in certain particulars, and accordingly warrants of arrest were duly issued by a judge of the court of com-

UNITED STATES V. M'ALEESE.

657

mon pleas of Allegheny county. During the month of Kovember, and before hearings were had under the warrants, proceedings were begun in the district court of the United States for the Western district of Pennsylvania, charging the relator with involuntary bank· ruptcy, and upon these petitions he was adjudged a bankrupt on December 3d. Afterwards, in January, 1899, hearings were had by the state judge under the warrants of arrest; and, as a result of the action taken thereon (without stopping to detail the proceedings, step by step), the court of common pleas of Allegheny county found, as facts, that "there is just ground to believe that the said J. McD. Scott has concealed money, goods, building materials, plumbing materials, books, and other valuable articles, being part of his estate and effects; and that he has colluded and contrived with other persons for such concealment; and that he has conveyed property to other persolli5 for the use of himself, his family and friends, with the expectation of receiving future benefit to himself of them, and with intent to defraud his creditors." The consequence of this finding was that the court committed the relator for trial upon the charge of fraudulent insolvency. After the hearing, the judge issuing the warrants was also satisfied that the relator had fraudulently contracted certain debts, and had concealed his property wHh intent to defraud his creditors; and upon this ground he sent the defendant to prison under a separate commitment, there to remain "until he shall be discharged by due process of law." These are the two commitments to be considered. They both conform to the Pennsylvania statute, and are formally regular in every respect. The relator asserts, however, that the statutory provisions upon which they rest have been superseded by the bankrupt law of 1898, and that henceforth proceedings to punish fraudulent insolvency cannot be pursued in the Pennsylvania courts. Insisting upon these objections, he sued out the writ of habeas corpus now before us, but failed to convince the court that he should obtain his liberty. The pending appeal is from the order of the circuit court discharging the writ and remanding the prisoner. The relator's objections raise a federal question of which the circuit court had jurisdiction, and which might have been considered by that tribunal if the learned judge had seen proper to entertain it. He may, indeed, have considered and decided it, but, as he filed no opinion, we are unable to determine by what reason he was moved to enter the decision now under review. vVe have before us mereloY his judgment, and, if for any reason we find the judgment to be correct, our duty is to affirm it. We believe it to be correct, upon the suffieient ground that the state eomtl' are competent to deal with the federal question already stated, and that no cireumstances are shown requiring the eourts of the Fnitcd Rtates to take the controversy into their own hands. No doubt, the question is important; for sinee the bankrupt act is not as wide in its seope as tlw Pennsylvania statute of 1842, and the related statut£' of 1836, it is obvious that. if the relator's contention he sound, offenses now condemned, and properly condemned, by the state law, will estapp punishment. Bnt, while the importanee of the qnestion must be coneeded, we are neYertht'less constrained to hold
93 F.-42

658

93

REPORTER.

that the' point should not be determined upon this appeal. The relator's remedy in the state courti!should first be pursued, aud, if he whatever right he may possess under the fedfails to enforce eraJlaw, he may safely rely upon liberation at the hands of the courts of pnited States. The tribunals of Pennsylvania are as much bound, aJ;ld we believe them to beas willing, as are the federal courts, to respect. and enforce a right resting upon a law of the United States; an.d, for the present, we are bound to act upon the presumption that the relator will receive as complete protection at their hands as he would receive at ours. As the facts appear, we must follow the rule of policy that requires thecourm of the United States ordinarily to defer action in a case such as this until the state courts have had an opportunity to hear and decide the federal question. The rule is thus expressed in Ex parte Royall, 117 U. S. 254, '6 Sup. Ct. U2: .
"Where il. person is In custody under process from a state court of original jurisdiction; for an alleged offense against the laws of such state, and It Is claimed that he Is restrained of his lI11erty In violation of the constitution of the United States, the, circuit court has· a. discretion whether It will discharge him upon habeas corpus, In advance of his trial in the court l,n which he rIO indicted; that discretion, however" to be'subordinated to any special circumstances requiring immediate action. When the state court shall have finally acted· upon, the case, the circuit court has still" a discretion ,whether, under the circumstances then existing, the accused, If conVicted, shall, be put to his writ from the highest court of the state" or whether It will proceed by wrlt; of habeas corpus. summarily to determine whether. the, petitioner Is restralned' of his 'liberty in violation of the cOnstitution of. the United States."

And 'pi',wbitten v. court say;

U. S. 241, 16 Sup.

at.

297, the

"In of nrgency, such as thQl>eof prjspners in cU,stodY,·byauthority of astate, for an act don,e, or omitted tope :done, in Pl1rsuance o(·rt law of the United states, ,or of an order or process of Ii court of the Unifed States, or otherwise 'involving the authority and 'oPerations of th'e general' government, or its to 'foreign nations, the courts of the United ,States should Interpose by writ of habeas corpus. ... .. ,'" But, except in !luch peculiar and urgent the United States will not ,discharge .the prisoner by habeas corpus in advance of a filial of ' his casein the courts of the shl.te, and; even 'after 'such final dete1'tl1ination In thoSe cOurts, will generally leave· the' petitioner to' the usnaland orderly course of proceeding by writ of error from this court."

Other,b(ses E'lt parte Fonda, 117 U.S. 516, 6 Sup. Ct. 848; In re Duncalj., 139 U. S. 449, 11 Sup. Ct. 449; New York v. Eno,155 U. S. $9, 15Sup.Ct 30; and Fitts v; McGhee (decided January 3, 1899) 19 Sup. The recent decision in Ohio v. Thomas' (delivered February '27,1899) Id. 453, upholds a recognized exception to the rule. In obedience to these authorities, we are of opinion that the discretion of the circuit court was properly exercised in refusing to dis· charge the relator from custody, and accordingly the order of that court is now affirmed.

IN. RE GIOVANNA.

659

et al. (D1strlct Court, S. D. New York. March 31; 1899.)
1. ALIEl'lS-EXCL'uIHON-UNITED STATES DISTRICT COURT-JURISDICTION TO RE·

In re

movANNA,

UnderAJ;>propriation Act Aug. 18, 1804 (28 Stat. 390, c. 301), providing for the exclusion. of alJens, the United States district court has no jurisdiction to review the action of the secretary of the treasury, confirming the decision o,!' the executive officers exeiu!llng aliens domiciled here, on their return from a temporary visit abroad.
2. SAME-CHILDREN OF ALIENS.

VIEW.

Chi1dren of aliens born in the United States are citizens, and not ll1lens, and hence are not subject to exclusioD" under the Immigration laws,on their return with their alien parents from a temporary visit abroad.

'

Habeas Corpus. Immigrants. John Palmieri, for petitioners. Ullo, Ruebsamen & Higginbotham, for commissioner of immigration. BROWN, District Judge. Upon the return and traverse of the writ of habeas corpus in this case, it appears on the agreed statement of facta that Anzelmo Giovanna and her husband and their two children Emma and salvatore, aged respectively 6 and 8 years, and Providenza Conti, arrived at this port from Italy on February 2, 1899, and after special examination, were determined to be alien immigrants likely to become a public charge, and on that ground were refused permission to land and were detained for the purpose of being sent back to Italy, and on appeal this ruling was affirmed by the secretary of the treasury. It further appears that the parents came to this port about 10 years ago where they then established their home and have been domiciled ever since, but they have never become citizens. The two children above named were born in this country and have always resided here until about two months ago, when in December, 1898, the parents leaving their older children at their home in this port, went to Italy for a temporary purpose, taking with them the two children above named and returning in February last, as above stated. Upon the above statement of facts some doubt may exist whether the decision of the supreme court in the case of Lem Moon Sing v. United States, 158 U. S. 538, 517, 15 Sup. Ct. 967, intended to hold that the exclusion by executive officers alone of aliens domiciled here on their return from a temporary visit abroad should be extended beyond Chinese aliens qnder the provision of the appropriation act of August 18, 1894 (28 Stat. 390, c. 301). The paragraph containing that provision in the appropriation act comes under the heading: "Enforcement of the Chinese Exclusion Act." Neither this heading nor the context is given in the clause relating to the exclusion of aliens in 2 Supp. Rev. St. p. 253; but the heading in the appropriation act may qualify the whole provision. For the purpose of a review, which it is understood will be taken, I shall, however, treat that provision as general and including all aliens without limitation; and the effect of this ruling must be that I have no jurisdiction to review the