30

review the decision below upon the facts as well as the law; but not the power to review the decision of disputed questions of fact by a tribunal or magistrate whose decision is brought before it collaterally.31

Objections to the form of the petition, not made below, cannot be raised by the appellant for the first time upon the appeal.32 No new evidence can be offered upon such an appeal, except such evidence as was offered and excluded in the court below.33 Where the record does not show that the petitioner demanded a trial of the issues raised by his traverse to the return, he cannot object upon appeal because the return was made upon hearsay or contend that he was denied a full hearing.34

Pending an appeal from a final decision declining a writ of habeas corpus, the custody of the prisoner must not be disturbed.35 Pending an appeal from the denial of the writ, there will be no interference by the Federal court with the requirement by the State authorities that a prisoner perform hard labor.36 This rule does not prevent the reprieve, pending an appeal from an order denying the writ, of a prisoner sentenced to capital punishment.37 After a dismissal of the writ and an actual remand of the prisoner to the custody of the State authorities, he cannot be committed to bail by the Federal court.3 The issue of a writ of error by the Supreme Court of the United States for a review of the decision of a State court denying the writ of habeas corpus, upon an application involving Federal questions, admitting the prisoner to bail, does not deprive the State court of jurisdiction to set aside an order made by it, when the writ of error was issued, in a case where no bail has been previously accepted.39 Pending an appeal from a final

30 Re Neagle, 135 U. S. 1, 42, 34 L. ed. 55, 63; Wong Heung v. Elliott, C. C. A., 179 Fed. 110.

31 Benson v. McMahon, 127 U. S. 457, 32 L. ed. 234.

32 U. S. v. Lee Yen Tai, C. C. A., 113 Fed. 465.

33 Seavey v. Seymour, 3 Cliff. 439. 34 Tiberg v. Warren, C. C. A., 192 Fed. 458.

38

35 S. C. Rule 34, 117 U. S. 708, U. S. R. S., § 765. But see King v. McLean Asylum of Mass. Gen. Hospital, C. C. A., 64 Fed. 325.

36 Re McKane, 61 Fed. 28, 205. 37 Rogers v. Peck, 199 U. S. 425, 50 L. ed. 256.

38 Re Bissert, 113 Fed. 12.

39 Ex parte Collins, 151 Fed. 358.

decision discharging the writ after it has been issued, the prisoner must be remanded to the custody from which he was taken, unless for good cause shown he is detained in the custody of the court or judge that granted the writ, or is enlarged upon recognizance.40 It seems that this can be ordered only by the judge who grants the appeal or by the appellate court. It has been held that a single judge of the Circuit Court of Appeals cannot grant a stay after the appeal has been allowed.42 It has been held that the judge who discharges the writ cannot admit the person to bail.43 He will not be admitted to bail unless probable cause for an appeal is shown.44 In a Chinese deportation case a release upon bail pending an appeal will rarely be granted.45 Pending an appeal from the final decision of any court or judge discharging a prisoner upon habeas corpus, he must be enlarged upon recognizance for appearance to answer the judgment of the appellate court, with a surety, unless for special reasons a surety is not required.46 Pending such proceedings and appeal and until final judgment therein, and after final judgment of discharge, any proceeding for any matter so heard and determined, or in process of being heard and determined, taken in any State court or by or under the authority of any State, against the person whose body is the subject of the writ, is null and void. It is more appropriate and orderly for the State court to defer action in such a case until the mandate of the Supreme Court has been issued and filed in the District Court of the United States; but after judgment has been entered in the Supreme Court an order of the State court is not void; although

40 S. C. Rule 34, C. C. A., Rule 33, 17 U. S. 708, U. S. R. S., § 765.

41 U. S. ex rel. Kantor v. Johnson, 251 Fed. 889.

42 Ibid.

43 Re Iasigi, 79 Fed. 755; Ex parte Ronchi, 165 Fed. 558.

44 He will not be admitted to bail unless probable cause for an appeal is shown. Ex parte Green, 165 Fed. 557.

45 In Ex parte Crawford, 165 Fed. 830, the district attorney was ordered to give five days notice of the

entry of the order dismissing the writ, in order that the petitioner might have an opportunity to appeal. Re Chin Own et al. 242 Fed. 996.

46 S. C. Rule 34, 117 U. S. 708; U. S. R. S., § 765. $250 is the reasonable amount of such a recognizance on the part of an immigrant resisting deportation. Ex parte Gregory, 210 Fed. 680.

47 U. S. R. S., § 766. parte Jugiro, 44 Fed. 754.

See Ex

the State court then acts at the risk that its orders may be controlled, and if need be annulled, if the Supreme Court during the term should suspend or set aside its own judgment.48 Security for costs is required upon such an appeal.49 The court cannot apply to the payment of the costs awarded to successful parties upon an appeal, the proceeds of the forfeiture of such a recognizance, or appeal bond given to the United States pending an appeal from an order for the discharge.50

When a judgment has been entered upon the writ discharging a petitioner who was held for foreign extradition the appeal should be taken by the marshal and not by the consul upon whose complaint the extradition proceedings were instituted.51

The next friend of an alleged lunatic was allowed to take an appeal from a judgment remanding him to an insane asylum, and to prosecute the appeal until a guardian was appointed.52

Other proceedings upon such an appeal, including the time when the transcript is to be filed in the appellate court, are regulated by the court or judge hearing the cause.53 The appeal may thus be heard at a term pending when it is taken.54 Even when the case is brought before the Supreme Court, upon a certificate of jurisdiction, all the merits of the original application will be considered.55

The recent act of Congress provides: "That from a final decision by a court of the United States in a proceeding in habeas corpus where the detention complained of is by virtue of process issued out of a State court no appeal to the Supreme Court shall be allowed unless the United States court by which the final decision was rendered or a Justice of the Supreme Court shall be of opinion that there exists probable cause for an appeal, in which event, on allowing the same, the said court or justice shall certify that there is probable cause for such allowance.56

48 Re Jugiro, 140 U. S. 291, 296, 35 L. ed. 510, 512; Lambert v. Barrett, 159 U. S. 660, 40 L. ed. 296. 49 Re Newman, 79 Fed. 615. 50 U. S. v. Alexandroff, 148 Fed. 652.

51 Collins v. Miller, 252 U. S. 363. 52 King v. McLean Asylum of Mass. Gen. Hospital, C. C. A., 64 Fed. 325.

53 U. S. R. S., §§ 765, 768. But see Ex parte Jugiro, 44 Fed. 754, cited supra, § 466.

54 Roberts v. Reilly, 116 U. S. 80, 29 L. ed. 544.

55 Storti v. Massachusetts, 183 U. S. 138, 144, 46 L. ed. 120, 124; holding that U. S. R. S., § 761, applies. 56 Act of March 10, 1908, 35 St. at L. 40.

§ 468. The writ of quo warranto. In general. The writ of quo warranto was originally in the nature of a writ of right for the king against any who claimed or usurped any office, franchise, or liberty, to inquire by what authority the claimant or usurper supported his claim or usurpation, in order to determine the right.1 It lay also in case of non-user or long neglect of a franchise or mis-user or abuse thereof. In such a case the writ commanded the defendant to show by what warrant he exercised such a franchise without a grant or act of forfeiture.2 The writ was in the nature of a writ of right. The judgment thereupon was final and conclusive even against the Crown. This, together with the length, the cumbrousness and technicality of the proceedings upon writs of right, occasioned its disuse and the substitute of an information in the nature of a quo warranto; in which the process is speedier and the judgment said to be not quite so decisive. This was begun by an information filed in the Court of King's Bench by the Attorney General. It was properly and originally a criminal prosecution to punish the usurper by a fine for his misconduct as well as to oust him or seize the franchise for the Crown. The fine was usually nominal. A statute approved by Queen Anne permits an information in nature of quo warranto to be brought with leave of the court at the relation of any person desiring to prosecute the same, who is then styled the relator, against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate.8

5

In the courts of the American Union, the original writ of quo warranto is unknown. Informations in the nature of a quo warranto are usually authorized by statute; but the statute of Anne has rarely, if ever, been adopted. Substantial fines have there been imposed in such proceedings.10

§ 468. 12 Coke Institutes, 282; Finch, 322; Blackstone's Commentaries, III, 262.

2 Blackstone's Commentaries, III, 262.

31 Sib., 86; 2 Show, 47; 12 Mod., 225; 3 Blackstone's Comm., 263. 4 Ibid.

53 Blackstone's Comm., 263.

6 Ibid; Standard Oil Co. v. Missouri, 224 U. S. 282. 7 Ibid.

89 Amme. 20; A. D., 1710.

9 Newman v. U. S. ex rel. Frizzell, 238 U. S. 537, 544; Torbert v. Bennett, 24 Wash. Law Rep. 156.

10 Standard Oil Co. v. Missouri, 224 U. S. 270, 282 ($50,000); State

The Supreme Court of Florida affirmed a judgment of the Circuit Court of that State which sustained an information in the nature of quo warranto and ousted persons claimed to have been elected as presidential electors in that State.11 The electoral commission by majority of one, disregarded the judgment and decision.12

The Supreme Court of South Carolina held that the writ of quo warranto would not lie to determine the title to the office of presidential electors, since they were held to be not officers of the State, although the State had the right to appoint them.13 Both these decisions were made during the contest between Hayes and Tilden for the presidency.

Proceedings in the nature of quo warranto may be instituted in the State courts to determine whether the exercise by national banking associations of functions as trustees, executors, administrators or registrars of stocks and bonds is in contravention of State or local laws.14

A writ of quo warranto in a Territorial court to test the right of the defendant to exercise the functions of a Territorial judge, cannot be brought in the name of the Territory.15 It must be brought in the name of the United States.16

§ 468a. Writs of quo warranto in the District Courts. The better opinion is that the District Courts of the United States have original jurisdiction to grant the writ of quo warranto only when specifically authorized by statute; and that no writ of quo warranto can issue from them to try the title to the office of President of the United States.1

v. Armour Packing Co., 173 Missouri, 356, 393 ($5,000); in both of which the unlawful act were in aid of a monopoly; State ex Inf. v. Delmar Jockey Club, 200 Missouri 34, a forfeiture for criminality in selling pools on horse races.

11 State of Florida ex rel. Wilkinson Call and others V. Pearce Florida.

12 Proceedings of the Electoral Commission, Government Printing Office, 1887, pp. 195, 196.

13 State ex rel. Barker v. Bowen, 8 Rich. (S. C.) 400.

14 Act of Dec., 1913, 38 St. at L. ch. 6, 251, 262; First National Bank v. Union Trust Co., 244 U. S. 416, 427.

15 Territory v. Lockwood, 3 Wall. 236, 18 L. ed. 47.

16 Ibid.

§ 468a. 1 This was the opinion of Hon. David Dudley Field, as expressed before the Electoral Commission:

"Is not the same right implied in the motion which I find to prevail everywhere, that Congress might authorize a writ of quo warranto to