# Kurtz v. Moffitt

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United States Supreme Court
115 U.S. 487
Kurtz v. Moffitt
MOFFITT and another
v.
KURTZ.
In Error to the Circuit Court of the United States for the District of California.
Filed November 23, 1885.
A writ of habeas corpus was issued on April 8, 1885, by and returnable before a judge of the superior court of the city and county of San Francisco in the state of California, addressed to John Moffitt and T. W. Fields, citizens of that state, upon the petition of Stephen Kurtz, a citizen of Pennsylvania, alleging that he was by them unlawfully imprisoned and restrained of his liberty, inasmuch as they had arrested him as a deserter from the army of the United States, and had no warrant or authority to arrest him, and were not officers of the United States. Moffitt and Fields, at the time of entering their appearance in that court, filed a petition to remove the case into the circuit court of the United States, because the parties were citizens of different states, and because the suit involved a question arising under the constitution and laws of the United States, to-wit, the question whether a person who is not an officer of the United States has authority to arrest a deserter from the army of the United States. The court ordered the case to be so removed.
Moffitt and Fields thereupon signed and filed in the circuit court the following return: 'Now come the respondents and make this, their return to the writ of habeas corpus herein, and show that respondent J. Moffitt is a regular police officer of the city and county of San Francisco, and respondent T. W. Fields is a special police officer of said city and county; and being such officers as aforesaid, they arrested the petitioner, Stephen Kurtz, in the city and county of San Francisco, by the authority of the United States, in this, to-wit, that said Stephen Kurtz, under the name of Stephen Noll, on the twenty-ninth day of May, 1876, at Cleveland, in the state of Ohio, enlisted in the army of the United States for the term of five years, and on the seventeenth day of March, 1879, he being a soldier attached to Co. D of the 21st regiment of infantry of the army of the United States, stationed at Vancouver barracks, in the territory of Washington, deserted from the army of the United States; and your respondents hold said petitioner for the purpose of delivering him to the military authorities of the United States to be tried according to the laws of the United States.' The circuit court, upon motion and hearing, made an order remanding the case to the superior court of San Francisco; and Moffitt and Fields sued out a writ of error from this court to reverse that order.
After the case had been so remanded, Kurtz filed in the superior court of San Francisco a suggestion that the return was insufficient, and that he was entitled to be discharged, for the following reasons: 'First. It appears by said return that the defendants were not officers of the United States, but are police officers of the municipality of San Francisco, and as such they have no authority to arrest or detain the plaintiff, and as such officers they have been and are prohibited from arresting or detaining the plaintiff as a deserter from the United States army by a rule of the police department which was in force at the time of the arrest of the plaintiff, and still is in force, which rule was and is as follows: 'Police officers are prohibited from arresting deserters from the United States army or navy without a warrant.' Second. The desertion set up in the return is an offense against the United States, and not against the state of California, of which commonwealth the defendants are officers, and they are therefore incompetent to arrest or detain the plaintiff. Third. The desertion set up in the return is barred by article 103 of section 1342 of the Revised Statutes of the United States.' The superior court, upon a hearing, ordered the writ of habeas corpus to be dismissed and Kurtz remanded to custody, and entered judgment accordingly; and he sued out a writ of error from this court to reverse that judgment, that court being the highest court of the state in which a decision on the merits of the case could be had. See Robb's Case 64 Cal. 431, 433, and 111 U.S. 624, 627; S.C.. 4 Sup. Ct. Rep. 544; Barbier v. Connolly, 113 U.S. 27; S.C.. 5 Sup. Ct. Rep. 357.
W. G. Sieberst, for Kurtz.
S. W. Sanderson, for Moffitt and fields.
[Argument of Counsel from pages 489-494 intentionally omitted]
GRAY, J.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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