Year: 1879

OF Judge Miller, in the United States Court
at Denver, on the occasion OF the important
| railroad decision elsewhere referred TO.
After considering the question Of iurisdIc-


ton, Judge Miller said:


| am of opinion that the District Court
| for the Western division was the proper
| place for the case to be removed, and that
| it is properly in that court. Now there re.
IN aims the other troublesome and exciting
| question on which i thought it my duty
| to give an opinion. l think the doctrine


is settled beyond all question; there can


be no controversy and 1t would be useless
| to hear a word of argument about II, that
the hour that this petition for removal and
the bonds were presented to Judge Bowen
that hour all power in the State court over
the case ceased. This is the language oi


the act Of Congress; that Is the purpose oi
| the act of Congress; that is the meaning


which the Supreme Court Of the United


States has affixed to it in fifty cases; that
the moment the act which requires the re-
moval, ia done by the party seeking the re


moval; that moment all power, all author


ity ceases. In the Language of the statute


itself the State court shsll proceed nc
further, they can do no more. Suppose, as
| Mr.. Bass suggests, that this order was
made: that this order was filed; that the


clerk had put his name to the writ which
was yet in the clerks office. Suppose all
that had been done, then it hould cease


right there.


| The htate court should cease right there.
| That writ should never have been issued
| frnm the clerks office-should never have


been delivered to the sheriff; nothing fur


thor should have been done; when it was
done it was void act. 1t conferred no au.


thority on the sheriff or any one else-bui
| | will go further. / will suppose that writ


had been signed, sealed and delivered to the


sheriff There can be no two courts OF


competent authority proceeding to try such
important matters as have taken place, at
| the same time. One or the other court


must be obeyed in this case and will take
the liberty Of sayin. that it is the Federal
court that will be obeyed in the end. The
| evasion of the Federal acts by the State


court, and their unwillingness to yield to
| the Federal jurisdiction were the reasons


why the language has been so precise You
shall proceed no further" We have had


hundreds of instances in which the provis-
| ions of that rule have been exceeded, of





| ways ended, has always been decided, that
from that hour, the hour / speak of, the


proceedings were void. Therefore all the
proceedings under that order of Judge Bo
wen's, however rightful, and ] understand


Judge Hallett to concede tn at the order was
| made, all proceedings under it ended in


that court and should have proceeded in
| this court if they were to be taken at
all. But there is still clear v ew OF this


particular issue that Judge H,llett has just
decided, and that is, that the writ itself,
snpposing it 70 be a valid writ, supposing


this Court hsi never interfered in the mat
tt at all, suprosing Judge Bowen had not


been given full jurisdiction in this case,
think 1t is cle.r that the writ did not au-


thorize what has been done under it. Now


let us illustrate: Writs, whether they come


from the common law courts or whether


they come from this Court, are directed


either to The person who is commanded to


do something or to an officer who is COM


manded 10 do some, ching. When they are


directed to q person commanded 10 do


something or not to do something, the Of


icer has nothing in the world TO do with


whether THAT thing is done or not
done. He has no authority in the premi-


ses. / challenge the production of a case


in which a writ directed TO party TO a


suit has authorized the officer to do any


thing more than serve that writ on the


party. You take your subpoena in chan
cery, which is the beginning of suit in


this court. What does the officer do? Why,
that is a writ directed TO the party, COM
manding him to appear in this Court and
that on a certain day fixed, he answer.
Can the officer do anything with him if he
don't appear and answer? He simply
serves that point by reading it to him, by
giving him notice. III the party don't sp-
pear the Court deals with him directly.
You take the writ of habeas corpus,
to which perhaps more importance
is attached than any other writ,
in the United States, as il ia the writ which
regards the liberty Of the citizen-that is, a
writ directed to a person holding another |
one prisoner, sometimes directed to jailor, |
sometimes directed to sheriff, sometimes
to marshal, or to 1. father holding child, |
or mother holding a child. 1t is always
directed to the party who is charged with
holding come one imprisoned,
and it is served by an officer. The writ is
handed to an officer TO be served. Now
here is a person unlswfully imprisoned /;
here is person who cannot move or stir
foot because somebody has got him under
and it is for the purpose of deliver
ing him from that position. Can the officer
DO it? Wac it ever heard that an officer to
whom that writ came, could go and deliver
The prisoner Nothing Of the kind he goes
and serves it on the jailor, the father or
mother or person charged with unlawfuily
the party. That is all he can
10. He comes on the return day. He
amt even arrest the party holding them in
prison. He gives them a copy of the writ
md the court deals with that party. If
hey don't obey it, writ of attachment ia
erved. If they do ob,y it, they come in
,ut even in that important writ, which is
or the delivery of u person unlawfully i'm !
the sheriff or marshal who takes
he writ of habeas corpus, only does it ior {
he purpose of serving the writ BY giving him |
copy of the original and making q return 9
The writ Of Injunction is of this nature.
The writ of injunction in this Gaze was di- Z
ected to the Atchison, Topeka & Santa Fe I
ompany and its officers; it forbade those 9
fiicers from doing certain things. 1t is e
cry doubtful whether any such writ could q
force them 10 do something-Is a
oncede for the purpose of the present Gaze, Z
nat the writ did command the officers 8
the Atchison, Topeka & Santa Fe COM s
sny. to deliver possession to the officers of o
,e Rio Grande company. Concsde it did. Il
oncede that the sheriff had such q writ I.
hat power in the world had he to take Il
lat writ ard make the delivery by it? All Il
lese sheriffs could have done would be to o.
rye this writ on the officers of the Atchi- q
N, Topeka & Santa Fe railroad; any at y
mpt by them to make actual delivery of Il
,ssession or oust the Atchison and Topeka ct
hcers from possession, was q clear viola. N
On of lev, as much as if he had seized sh
.e of those bys;anders BY the thBoat te
I'd dragged him out of the house. Be. su
use the writ authorized no such act. th
ven If the writ we're valid, they were ut III
rly in excess of their authority when a
ey attempted to oust the Atchieon and


'peka people Of their possession. What II
II be the consequences to these officers of


cir violation of Law what they have done,


q matter for their very grave and seri-


8 consideration l assure them. For this cor
rpose it Is sufficient to say, they had no th'
ch power. The party who makes that tin
ldavit says that because some man, fol
'oee name l forget Who was in posseseion fin