The opinion of the court was delivered by: KIRKPATRICK
KIRKPATRICK, Chief Judge.
This writ must be discharged for the reason that we have no jurisdiction.
The United States Code, 28 U.S.C.A. § 2241, gives power to the judges of the District Courts to grant writs of habeas corpus only 'within their respective jurisdictions' and the decision of the Supreme Court of the United States in Ahrens v. Clark, 335 U.S. 188, 68 S. Ct. 1443, 92 L. Ed. 1898, puts it beyond all question that unless the person confined is within the territorial jurisdiction of the District Court at the time the suit is instituted the court has no power to issue the writ.
The statute provides that application for a writ of habeas corpus must be by a written petition sworn to by the person confined or some one acting in his behalf, 28 U.S.C.A. § 2242. Until this is done no suit has been instituted.
In the present case the record shows without dispute that Smith arrived at the Western Penitentiary not earlier than 12:58 p.m. on Saturday, September 24. (All hours mentioned herein are Daylight Saving Time). Since it is 104 miles from the western limit of this judicial district to the Penitentiary, to which he was being transported by automobile, he must have been outside the district at 12:45 at which time the writ was actually issued.
Prior to that time the following had transpired:
At about 9:15 o'clock on the evening of Friday, September 23, counsel for the relator called Judge Welsh at his home by telephone and, after a conversation of 10 or 15 minutes in which counsel outlined his case, the Judge said 'I will issue that writ to stay that execution if you make out a prima facie case tomorrow in conformity with what you say'.
Judge Welsh sat at about 12:00 o'clock on Saturday. At that time the relator must have been already outside the jurisdiction of this court, since he was travelling by automobile and could not have covered the 104 miles of road from the limits of the Eastern District to the Western Penitentiary in 58 minutes. Present were the relator's counsel and the First Assistant District Attorney of Philadelphia County, also the United States Attorney, who had been notified of the proceedings but who took no part in them. No written and verified petition was presented and no witness called. After statements by counsel and a discussion, followed by a slight delay in preparation of the papers, Judge Welsh issued the writ at 12:45.
It seems plain that up to noon on Saturday, and in fact up to the actual issuance of the writ, nothing had occurred which could be any possibility constitute the institution of a suit for habeas corpus. The only contact which the relator's attorney had had with the Court was a telephone conversation with one of the judges, in which he outlined his case. Thus, the matter is not procedural or technical but goes to the jurisdiction of the court and its right to act at all in this case.
Although the Attorney General did not waive the jurisdiction either expressly or impliedly by his presence in court, I question whether it would have made any difference if he had. The Supreme Court decided in Ahrens v. Clark, supra, that the restriction is one which Congress has placed on the power of the District Court to act and may not be waived by the parties. Nor can jurisdiction be conferred retroactively by the fact that the relator has been brought into this District by the state authorities who deemed it more seemly to comply with the writ than to defy it. This was decided by the Circuit Court of Appeals for this circuit in United States ex rel. Belardi v. Day, 3 Cir., 50 F.2d 816.
The writ is discharged and the relator is remanded to custody.
BARD, GANEY and McGRANERY, JJ., ...