In re Boles , 48 F. 75 ( 1891 )

Thayeb, J.,

(after stating the facts as above.) It will be observed that' we are asked to award a writ of habeas corpus to be served at a place outside of the territorial jurisdiction of this court, for the purpose of securing the release of a person who is there confined, and we are of the opinion that we have no authority to award such a writ. It certainly cannot be maintained that this court has power to release persons who are unlawfully restrained of their liberty in any part of the United States under color of process of a federal court, as the supreme court may do yet such would be the assertion of jurisdiction on our part, if we granted a writ in the present instance. In the absence of any statute expressly authorizing us to issue a writ of habeas corpus to run and be executed outside of the circuit, our jurisdiction to release from unlawful imprisonment would seem to be restricted to cases where persons are restrained of their liberty somewhere within the circuit. Ex parte Graham, 3 Wash. C. C. 456. It was suggested at the hearing, as we understood counsel, that a writ might be awarded in this case to be served outside of the circuit, because the jurisdiction invoked is to revise the decision of the district court of the territory, and is therefore in its nature appellate, and because the appellate jurisdiction of this court extends to the territory of Oklahoma by virtue of the fifteenth section of the act creating circuit courts of appeal, and an order made by the supreme court on May 11, 1891, assigning Oklahoma to this circuit. The Yerger Case, 8 Wall. 86, and other kindred cases, are cited in support of this contention. It is sufficient to say that the authorities invoked have no application to the facts of this case. No writ of error or appeal can be prosecuted from the several district courts of the territory of Oklahoma to this court.We have no general supervisory control over the proceedings of those courts, and congress has not seen fit, in express terms, to confer on this court, as upon the supreme court, the power to issue writs of habeas corpus. Our appellate jurisdiction over territorial courts, except in the Indian Territory, is limited to a “review of the judgments, orders, and decrees of the supreme courts of the several territories” assigned to the circuit. Vide section 15, supra. It is an appellate jurisdiction formerly exercised by the supreme court of the United States, but whether it is more or less extensive than the jurisdiction formerly exercised by that court we do not now decide. For present purposes we only decide that we cannot issue the writ in'question to be served in another circuit, merely because the petitioner is there confined in execution of a sentence imposed by one of the district courts of the territory of Oklahoma. It was contended on the argument of the application that this court could not grant the writ prayed for, even though petitioner was unlawfully restrained of his liberty within the circuit, because this court has not been authorized by statute to issue writs of habeas corpus. Several well-known authorities are cited in support of this proposition, to-wit, Ex parte Bollman, 4 Cranch, 75; Ex parte Parks, 93 U. S. 18; In re Burrus, 136 U. S. 586, 10 Sup. Ct. Rep. 850; but we carefully refrain from expressing any opinion on this important question until a case arises that requires a decision. The writ is denied, and the application therefor dismissed.