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IN RE THOMPSON

December 3, 1957

Application of George E. THOMPSON for Writ of Habeas Corpus


The opinion of the court was delivered by: DUSEN

Petitioner, a civilian employee at the Philadelphia Naval Shipyard (hereinafter called 'Shipyard') and a resident of New Jersey, seeks a writ of habeas corpus to secure his release from the custody of a Philadelphia Deputy Sheriff who seized him at the Shipyard pursuant to a writ of capias ad respondendum issued by the Philadelphia Municipal Court. The capias writ was issued to recover fines and penalties totaling $ 700, *fn1" imposed for failure of petitioner to file a return and pay a tax of 1 1/4% *fn2" on his wages earned at the Shipyard, within Philadelphia, for the seven years 1950 to 1956, inclusive. The writ directs that the Sheriff detain the petitioner so that he will appear in court to answer the demand for payment of the fines and penalties unless the petitioner gives bail or makes deposit. *fn3" The record discloses that the bail fixed in such case varies with the circumstances, but is frequently $ 100 to $ 300 and, on occasions, alleged taxpayers such as petitioner have been released on common bail, 'without putting up any security whatever.' *fn4" There is no allegation in the petition that petitioner is unable to furnish bail, and his alleged fear that he might be unreasonably detained in spite of such bail (Par. 4 of Petition, as amended) is not supported by the fair preponderance of the evidence in this record. *fn5" Furthermore, the petitioner will have an opportunity to arrange for bail prior to the entry of the order of this court, returning him to the custody of the Sheriff of Philadelphia County.

The hearing judge has concluded that the respondent's (City's) Motion to Dismiss must be granted for these reasons:

 1. This court should not exercise its discretion to grant the writ at this time under the circumstances of this case.

 At least as early as 1886, the Supreme Court of the United States has emphasized that a federal court should not exercise its discretion to grant a writ of habeas corpus to free a person held in State custody where such person has not exhausted the remedies available to him in the State courts. See Ex parte Royall, 1886, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868. In that case, the court said, 117 U.S. at pages 250-251, 6 S. Ct. at page 739.

 'But it is not alleged, and it does not appear, in either case, that he is unable to give security for his appearance in the state court, or that reasonable bail is denied him, or that his trial will be unnecessarily delayed. The question as to the constitutionality of the law under which he is indicted must necessarily arise at his trial under the indictment, and it is one upon which, as we have seen, it is competent for the state court to pass. Under such circumstances, does the statute imperatively require the circuit court, by writ of habeas corpus, to wrest the petitioner from the custody of the state officers in advance of his trial in the state court? We are of opinion that while the circuit court has the power to do so, and may discharge the accused in advance of his trial if he is restrained of his liberty in violation of the national constitution, it is not bound in every case to exercise such a power immediately upon application being made for the writ. We cannot suppose that congress intended to compel those courts, by such means, to draw to themselves, in the first instance, the control of all criminal prosecutions commenced in state courts exercising authority within the same territorial limits, where the accused claims that he is held in custody in violation of the constitution of the United States. The injunction to hear the case summarily, and thereupon 'to dispose of the party as law and justice require' does not deprive the court of discretion as to the time and mode in which it will exert the powers conferred upon it. That discretion should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the states, and in recognition of the fact the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution.' *fn6"

 The Court concluded, 117 U.S. at pages 252-253, 6 S. Ct. at page 741:

 'That these salutary principles may have full operation, and in harmony with what we suppose was the intention of congress in the enactments in question, this court holds that where a person is in custody, under process from a state court of original jurisdiction, for an alleged offense against the laws of such state, and it is claimed that he is restrained of his liberty in violation of the constitution of the United States, the circuit court has a discretion whether it will discharge him upon habeas corpus, in advance of his trial in the court in which he is indicted; that discretion, however, to be subordinated to any special circumstances requiring immediate action.' *fn7"

 The principle established in Ex parte Royall, supra, has been consistently followed by the Supreme Court of the United States since that opinion was filed. See Ex parte Hawk, 1944, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572; cf. Stefanelli v. Minard, 1951, 342 U.S. 117, 120, 72 S. Ct. 118, 96 L. Ed. 138. *fn8"

 There is nothing in the legislative history of the 1948 Amendment to the habeas corpus provisions of the United States Code (see 28 U.S.C.A. § 2254) which suggests that Congress intended to require federal courts to issue writs of habeas corpus prior to the exhaustion of State remedies in a case such as this. *fn9" See 'Limiting the Abuse of Habeas Corpus,' by Hon. John J. Parker, 8 F.R.D. 171; Darr v. Burford, 1950, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761.

 The writ of habeas corpus is available to petitioner under the law of Pennsylvania. See 12 P.S. §§ 1871, 1888, 1873, and 1879. Since the Supreme Court of the United States has already declined to review a Pennsylvania appellate court decision which appears to have raised the arguments presented by petitioner, he should be required to clearly present his federal arguments to the State courts and by petition for writ of certiorari to the Supreme Court of the United States before this court should act. In City of Philadelphia v. Cline, 1945, 158 Pa.Super. 179, 44 A.2d 610, certiorari denied sub. nom. Barnes v. City of Philadelphia, 1946, 328 U.S. 848, 66 S. Ct. 1120, 90 L. Ed. 1621, the petitioner was served with a writ of capias ad respondendum and raised in his petition for writ of certiorari the jurisdiction of Philadelphia to impose fines and penalties such as these on civilian employees, residing in New Jersey but working at the Shipyard, *fn10" who had failed to pay the City Wage Tax.

 2. Even if the petition for the writ of habeas corpus is not premature, petitioner is not entitled to the relief sought on this record.

 A. PHILADELPHIA HAS JURISDICTION TO IMPOSE ITS WAGE TAX ON THE EARNINGS OF PETITIONER AT THE SHIPYARD.

 By appropriate legislation, *fn11" Pennsylvania ceded exclusive jurisdiction over the land comprising the Shipyard to the United States of America, provided 'That the cession * * * made shall continue in force so long as the * * * territory shall be used by the government of the United States for the purpose of a navy yard, and no longer: And, provided, also, That all process, civil and criminal, of the Commonwealth ...


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