IN RE LENNON

MR. CHIEF JUSTICE FULLER delivered the opinion of the court.

We had occasion in Cross v. Burke, 146 U.S. 82, to examine the various statutes in reference to appeals to this court from judgments of Circuit Courts on habeas corpus. The question there was whether this court had jurisdiction to review judgments of the Supreme Court of the District of Columbia on habeas corpus by reason of section 846 of the Revised Statutes of the District, which provided that final judgments, orders, or decrees of the Supreme Court of the District might be reëxamined or reversed or affirmed by this court 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, or decrees of the Circuit Courts of the United States;" and we held that such an appeal would not lie in view of the provisions of the act of Congress of March 3, 1885, entitled "An act regulating appeals from the Supreme Court of the District of Columbia and the Supreme Courts of the several Territories." 23 Stat. 443, c. 355. That act did not apply to criminal cases, but was applicable to all judgments or decrees in suits at law or in equity in which there was a pecuniary matter in dispute, and inhibited any appeal or writ of error therefrom, except as therein stated; and as a proceeding in habeas corpus is a civil and not a criminal proceeding, and the matter in dispute had no money value which could be calculated and ascertained, the conclusion was that we could not entertain jurisdiction. But inasmuch as the final judgments of the Supreme Court of the District-could not be reëxamined here except in the same cases and in like manner as the final judgments of the Circuit Courts of the United States, we added that "it may also be noted that under the Judiciary Act of March 3, 1891, 26 Stat. 826, 828, c. 517, § 5, appeals from decrees of Circuit Courts on habeas corpus can no longer be taken directly to this court in cases like that at bar, but only in the classes mentioned in the fifth section of that act." This observation indicated another ground upon which the case might have been disposed of, and was not made without consideration.

By the fourth section of the Judiciary Act of March 3, 1891, it was provided that "the review, by appeal, by writ of error, or otherwise, from the existing Circuit Courts shall be had only in the Supreme Court of the United States or in the Circuit Courts of Appeals hereby established, according to the provisions of this act regulating the same." Section five defined the cases in which appeals or writs of error might be taken from the Circuit Courts directly to this court; and by the sixth section the Circuit Courts of Appeals were vested with appellate jurisdiction to review final decisions in the Circuit Courts "in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law." Section fourteen expressly repealed all acts and parts of acts relating to appeals or writs of error inconsistent with sections five and six, and we remarked in Lau Ow Bew v. United States, 144 U.S. 47, 56, that the words "unless otherwise provided by law" were manifestly inserted in the sixth section "out of abundant caution, in order that any qualification of the jurisdiction by contemporaneous or subsequent acts should not be construed as taking it away except when expressly so provided. Implied repeals were thereby intended to be guarded against. To hold that the words referred to prior laws would defeat the purpose of the act, and be inconsistent with its context and its repealing clause."

By section 763 of the Revised Statutes it was provided that an appeal to the Circuit Court might be taken from decisions on habeas corpus in the case of any person alleged to be restrained of his liberty in violation of the Constitution or of any law or treaty of the United States, and in the case of the subjects or citizens of foreign States, committed, confined, or in custody as therein set forth; and by section 764, as amended by act of Congress of March 3, 1885, 23 Stat. 437, c. 353, an appeal to this court from the Circuit Court was provided for. Section 765 referred to the terms, regulations, and orders on and under which appeals should be taken, and section 766 prescribed that, pending the proceedings or appeal "in the cases mentioned in the three preceding sections," and until final judgment therein, and after final judgment of discharge, there could be no valid state proceedings in interference with the same matter. By act of Congress of March 3, 1893, 27 Stat. 751, c. 226, section 766 was amended by adding thereto the following words: "Provided, That no such appeal shall be had or allowed after six months from the date of the judgment or order complained of." And it is argued that if sections 763, 764, and 765 had been repealed by the Judiciary Act of March 3, 1891, this amendment would have been meaningless, and that if it had been intended that under that act appeals in habeas corpus were to be taken from the Circuit Court to the Circuit Court of Appeals, the limitation of six months prescribed by the amendment would have been unnecessary because that limitation was already provided for in section 12 of the act; and that, therefore, it must be concluded from the amendment that Congress regarded the sections specially providing for appeals on habeas corpus as unrepealed by the act of March 3, 1891. We do not concur in this view. While the right of appeal from the judgments of Circuit Courts on habeas corpus directly to this court, in all cases, is taken away by the act of March 3, 1891, that right still exists in the cases designated in section 5 of that act, and upon such appeals the amendment may operate.

In Nishimura Ekiu v. United States, 142 U.S. 651, jurisdiction of an appeal on habeas corpus directly from the Circuit Court was taken, as it was in Horner v. United States, (No. 2,) 143 U.S. 570, upon the ground that the constitutionality of a law of the United States was drawn in question; and this would be so in any case that involves, within the intent and meaning of the statute, the construction or application of the Constitution of the United States, or where the constitution or law of a State was claimed to be in contravention of the Constitution, and the disposition of the case turned upon such constitution or law. These would be cases within the classes enumerated in section 5, but the only one of those classes within which it seems to have been contended, when this appeal was taken, that this case fell, is the first class, which is composed of those cases "in which the jurisdiction of the court is in issue; in such case the question of jurisdiction alone shall be certified from the court below to the Supreme Court for decision." And, allowing the appeal to this court on that ground, the Circuit Court certified certain questions to this court "as questions of jurisdiction presented by the petition herein filed." But these questions relate not to the question of the jurisdiction of the Circuit Court in this matter of habeas corpus, but to the jurisdiction of that court in the case of the Toledo, Ann Arbor and North Michigan Railroad Company against the Lake Shore and Michigan Southern Railway Company and others, in which the writ of injunction was issued, and the order fining Lennon for contempt was made.

This is not an application to us to issue the writ of habeas corpus in the exercise of appellate jurisdiction, accompanied by a writ of certiorari to bring up the record and proceedings of the court below, though even then, the writ is not to be used to perform the office of a writ of error or appeal. In re Tyler, Petitioner, 149 U.S. 164. It is a direct appeal from the judgment of the Circuit Court on habeas corpus, in reaching which that court considered the questions certified; but the jurisdiction of the Circuit Court over the petition for habeas corpus was not in issue, and a decision in respect thereof was not rendered against appellant, but, on the contrary, jurisdiction was entertained.

Granted, as contended, that the jurisdiction to discharge the prisoner in this case depended upon a want of jurisdiction to commit him in the other, yet the jurisdiction invoked by the petitioner was the jurisdiction to remand as well as to discharge, or, in other words, the power to hear and to determine whether he was lawfully held in custody or not.

This appeal, therefore, as ruled in Carey v. Texas and Houston Central Railway, ante, 170, and for the reasons therein given, does not come within the first of the classes specified in the fifth section.

Nor can the attempt be successfully made to bring the case within the class of cases in which the construction or application of the Constitution is involved in the sense of the statute, on the contention that the petitioner was deprived of his liberty without due process of law. The petition does not proceed on any such theory, but entirely on the ground of want of jurisdiction in the prior case over the subject-matter and over the person of petitioner, in respect of inquiry into which the jurisdiction of the Circuit Court was sought. If, in the opinion of that court, the restraining order had been absolutely void, or the petitioner were not bound by it, he would have been discharged, not because he would otherwise be deprived of due process, but because of the invalidity of the proceedings for want of jurisdiction. The opinion of the Circuit Court was that jurisdiction in the prior suit and proceedings existed, and the discharge was refused, but an appeal from that judgment directly to this court would not, therefore, lie on the ground that the application of the Constitution was involved as a consequence of an alleged erroneous determination of the questions actually put in issue by the petitioner.

Appeal dismissed.