Evening star. [volume] (Washington, D.C.) 1854-1972, 1892-03-26

go ~ ASA>NA AuA1eSxx AOS
fHH DISTRICT AND SUPREME COURT.
The Dssisss. Ds.yins Writ q Error IN he
Heath Case.
| THxr OF ZEE OPINION DELIVERED sY CHIEF sus-
rIcE TuIIKR-rHH JUDICIARY ACT OF nAacH
3. 1881, HELD NOT TO M APPLICABLE TO rHl
The action Of the United States Supreme
Court in denying the petition for writ of error
| in the case OF Thomas Il. Heath, convicted Of
manslauRhter In the District of Columbia, has
caused considerable comment, a. it has raised
| some question - 10 the relation between the
District courts aud the Supreme Court Of the
United States. The text Of the opinion Of the
court has been printed.
Thomas HI Heath was convicted Of man
slaughter at . special criminal term Of the
Supreme Court Of the District Of Columbia,
and sentenced to be confined in the penitsn-
tiary at Albany. N. Y. Upon appeal to the
general term Of that court the judgment was
amsmed, whereupon he applied for a writ of
error from the United States Supreme Court
| The petition was originally presented TO the
| ferred to the court IN session for the consider
| alton and determination of the question of
jurisdiction arising thereon. 81. - =
| THE OPINION OF THE COURT. -..-f
| Mr.. Chief Justice Fuller delivered the opinion
Of the court as follows: By section Ave Of the
judiciary act Of March 8, 1891 (2S Stat, $3.50, it
was provided that appeals and writs Of error
might be taken from the district courts or
| from the existing circuit courts directly to
| this court lin cases OF conviction Of a capital
| or otherwise infamous crime" And although
| this case IL not embraced in terms within the
| appellate jurisdiction conferred by the provi-
| sion yet il is commended that it falls within it.
when taken in connection with section 846 OF
| the Revised Statutesof the District Of Columbia
That section is ~ follows: ANY final judgment
order or decree Of the Supreme Court Of the
| District may be re-examinsd and reversed or
affirmed in the Supreme Court OF the United
States, upon writ Of error or appeal in the
| same cases and in like manner as provided by
law in reference to the final Judgments orders
and DEGREES OF the circuit courts OF the United
States"
The argument is. that the phrase .'as pro-
las iA or has been. or may be provided by
law" But when we consider the general rule
that the affirmative description Of the cases in
| which the jurisdiction may be exercised implies
negative on the exercise Of such power in
other cases, it will be seen that to give to this
local legislation extending the appellate juris-
| diction of this court to the District Of Column
bia, the construction commended for SO as to
make 1t include all subsequent legislation
touching our Jurisdiction over circuit courts of
the United States il quite inadmissible.
POWERS CONFERRED ON THE DISTRICT COURT.
Prior acts may be incorporated in a subse-
qusnt one in terms or by relation, and when
this 10 done, the repeal of the former leaves
the latter in force. unless also repealed ex-
oixrN hx,,- a
adoption in locui law of the provisions of q
general law does not carry with it the adoption
OF changes afterward made in the general law.
This was SO ruled in Kendall against the United
States, IL Pet, 524. 625. One of the questions
there was whether the then Circuit Court of
this District had power to issue the writ of
mnndamus to public officer. That court was
established by the act Of Congress of February
~. l8Ol, q Stat, los. (which rovided by section
u: That there shall be a court in said District,
which shall be called the Circuit Court OF the
District Of Columbia, and the said court and
the judges thereof shall have all the powers by
law vested in the circuit courts and the judges
OF the circuit courts Of the United States" At
the time this law went into effect the powers OF
the circuit courts Of the United States were
prescribed by the act of February Is, 1901 e
Stat, S9), which act was repealed by the act Of
March =, 1902, e Stat, 1929 This court held
that the circuit court Of the District possessed
the powers vested under the act of February
~ AooAt AOtWisbStnuoAHS ltS Icp68l, ana
Justice Thompson, delivering the opinion of
the court, said:
~ was not an uncommon course of legisla-
uon In the states, at an early day, to adopt, by
reference, British statutes; and this has been
the course Of legislation by Congress in many
| instances where state practice and state process
mas been adopted. And such adoption has
always been considered as referring to the law
existing at the time Of adoption; and no SUBJ
segment legislation has ever been supposed to
A,a ,,.,h n
enectand operation OF such adoption. No other
rule would furnish any certainty Is TO what
was the law, and would be adopting
prospectiyely, all changes that might
be made in the law. And this
viewed such legislation In the case of Cath
| cart agt Robinson, Peters, $50, the court, in
| speaking Of the adoption OF certain English
statutes, say. by adopting them, they become
our own a. entirely as if they had been enacted
ny the legislature. We are then to construe
this third section Of the act of 9th Of Febru-
| airy, 1901, as if the eleventh section of the act
OF 18th Of February, 1901, had been incor-
porated at full length, and by this section it is
declared that the circuit courts shall
have cognizance Of all cases in law
and laws Of the United States and tresties made.
or which shall be made under their authority.
which are the very words Of the Constitution.
and which Is. OF course, = delegation of the
wuole Juo1cidl power. In cases arising under
the Constitution and laws. &C., which meets
and supplies the precise want OF delegation of
power which prevented the exercise Of iuris-
diction In the cases Of McIntire v. Wood. 7
Crunch, 5O4, and McClung " Silliman. 6 Wheat.
oSS. and must, on the principles which gov.
erned the decision Of the court in those cases.
Dc sumcient to vest the power in the Circuit
Court OF this District"
THE wALEs-wHIrNEy CASES
We do not consider the weight Of this
decision a. authority weakened by ANYTHING
that fell from the court in Wales against Whit
ney. ia U. s., 564 That was an appeal from
the Judgment Of the Supreme Court of the
District denying an application for a writ of
nabeas corpus. Upon the judgment being an
nounced an original application was made to
this court for the writ, but, as stated by Mr..
Jurtics Miller in tho opinion, ION suggestion
from the court that an act of
Congress. at it, session just closed. had
restored the appellate jurisdiction of this court
In nabeas corpus cases over decisions OF the
circuit courts, and that this necessarily in
GUIDED Jurisdiction over similar judgments Of
the supreme Court of the District OF Columbia.
counsel, On due consideration. withdrew their
application" and brought up the record on
appeal; and 1t was added that section 846 of
the Revised Statutes Of the District "justifes
the exercise Of our appellate jurisdiction in
the present case"
The act Of March 8, 1885, amending section
764 Of the Revised Statutes (23 Stat. 4S7:
supp. h. g., 1855 I'd ed \ was refer red In IN the