IN THE DISTRICT COURT OF THE UNITED STATES, WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION.
IN THE MATTER OF THE APPLICATION OF MRS. GLADYS FREDRIKA FUSON, FOR A WRIT OF HABEAS CORPUS.}
NO. 3451. MEMORANDUM DECISION FILED, Nov. 2, 1916
P. H. Wilson, For Petitioner
Alfred H. Lundin, Frank P. Helsell, For Respondent
CUSHMAN, District Judge.
Petitioner, a minor, by her next friend, sues to be discharged by writ of habeas corpus, averring that, on October 20, 1916, she was a resident of Jefferson County, Washington; that on that date she was arrested without warrant or information and removed to King County, Washington, where she is imprisoned without sentence of any competent court; that such imprisonment is contrary to the Constitution of the United States; that she is a married woman; that her husband has sued her for divorce and that she belives she is being held to prevent her making her defense in such suit.
By the return it is shown that on October 24, 1916, a
petition was filed in the Superior Court of the State of Washington
for King County, upon a sworn complaint averring that the petitioner
in the present proceeding was a delinquent child in need
of the care and protection of the court. The return further shows
that, on October 25, 1916, after hearing the evidence upon such
petition, the court found the petitoner in the present cause to
be a delinquent child, living under conditions jeopardizing her
moral welfare; that her father was dead and the whereabouts of
her mother unknown and ordering that she be, and remain a ward of
the court in the custody of the county detention home, subject
to the order of the court. The petition was filed in this court
October 26, 1916 — after the making of the above order.
The validity of the law under which the proceeding in question was held is not attacked. It is Chapter 160, Laws of 1913 (3 Rem. & Bal. Code, Secs.1987-1 to 1987-18). This law was upheld and a married girl under eighteen held to be subject to its provisions, in spite of her marriage, in In re Lundy (82 Wash,. 148).
Upon the hearing the matter mainly complained of was petitioner's arrest in Jefferson County on the oral order of a Judge of the State court of King County and her removal to the latter county,
The petitioner having theretofore been in custody as a ward of the King County court, discharged from such custody and the supervision of the court upon her marriage---she still being under eighteen---it is not altogether certain, after her return to the jurisdiction of the court---even if such return was, as claimed, involuntary on her part, which latter fact is denied--- that that, alone, would deprive the court of jurisdiction to make the order.
The court's process is not confined by county lines and if, after her discharge in full, petitioner again became a delinquent before going from King to Jefferson County, the want of the court's jurisdiction would be so gravely in doubt as to require the denial of the writ in any event.
The petition upon which the order of detention was made avers that the delinquent is a resident of King County. As
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stated above, petitioner avers that, at the time of her arrest she was a resident of Jefferson County, but that would present a question of fact for the State court to determine in passing on its own jurisdiction.
A writ of habeas corpus is not designed to discharge the same functions as a writ of prohibition.
The petition upon which the order of detention was made further avers that, after petitioner deserted her husband, she had, in both King and Jefferson Counties, consorted illicitly with objectionable companions.
Upon the hearing in this court, it was conceded that the order of detention made, and under which petitioner is now held, was of a temporary character--- petitioner having asked for a change of Judge to try the question of her alleged delinquency, which petition for a change of Judge has not yet been acted upon.
Under the foregoing state of the record and conceded facts, the writ must be denied, as, in the orderly administration of justice and in the exercise of the discretion vested in this court in protecting all persons in their rights under the Constitution of the United States, the better practice requires that a petitioner be required to first exhaust all his, or her remedies---at least in cases such as the present---by appeal or writ of error in the ordinary course.
Bailey on Habeas Corpus,
Secs. 22 & 23;
Ex parte Royall, 117
U.S., 241;
In re Lincoln, 202
U.S., 178.
In In re Frederick (149 U.S., 70), it was said:-
"But whether this practice in the State of Washington is warranted; under a correct constitution of said sec. 1429 (2 Hill's Ann. Stats. & Code of Wash.) of the code, or whether, if it is, that section violates the Fourteenth Amendments to the Federal Constitution, in that it operates
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to deprive a defendant whose case is governed by it of his liberty without due process of law, we do not feel called upon to determine in this case, because we are of opinion that, for other reasons, the writ of habeas corpus was properly refused.
"While the writ of habeas corpus is one of the remedies for the enforcement of the right to personal freedom, it will not issue, as a matter of course, and it should be cautiously used by the federal courts in refrence to state prisoners.******
"We adhere to the views expressed in that case (In re Wood 140 U.S., 218, 290). It is certainly the better practice, in cases of this kind, to put the prisoner to his remedy by writ of error from this court, under section 709 of Revised Statutes, than to award him a writ of habeas corpus. For under proceeding by writ of error, the validity of the judgment against him can be called in question, and the federal court left in a position to correct the wrong, if any, done the petitioner, and at the same time leave the state authorities in a position to deal with him thereafter, within the limits of proper authority, instead of discharging him by habeas corpus proceedings, and thereby depriving the State of the opportunity of asserting further jurisdiction over his person in respect to the crime with which he is charged. (at pp. 75, 77, & 78)
The rule is discharged and petitioner remanded to the custody of the county detention home of King County, subject to the order by which she was therein held at the time the first order herein was made.
