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IN RE THOMPSON

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


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 of Pennsylvania, shall extend into, and be effectual, within the territory hereby ceded, as if this law had not passed.'

  In the Buck Act (4 U.S.C.A. § 106), Congress provided that:

 'No person shall be relieved from liability for any income tax levied by any State, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, by reason of his residing within a Federal area or receiving income from transactions occurring or services performed in such area; and such State or taxing authority shall have full jurisdiction and power to levy and collect such tax in any Federal area within such State to the same extent and with the same effect as though such area was not a Federal area.' *fn12" (Emphasis supplied.)

 This Act has been construed to authorize a city to impose a tax on civilian employees of the United States Navy for the privilege of working in a naval ordinance plant located in such city. *fn13" See Howard v. Commissioners, 1953, 344 U.S. 624, 73 S. Ct. 465, 97 L. Ed. 617. *fn14" It has been recognized for many years that income of non-resident federal employees earned in a state or subdivision may be taxed by such jurisdiction. Shaffer v. Carter, 1920, 252 U.S. 37, 52, 53, 55, 40 S. Ct. 221, 64 L. Ed. 445; *fn15" Graves v. People of State of New York ex rel. O'Keefe, 1939, 306 U.S. 466, 59 S. Ct. 595, 83 L. Ed. 927.

 B. PHILADELPHIA HAS JURISDICTION TO IMPOSE FINES AND PENALTIES ON PETITIONER FOR FAILURE TO FILE HIS TAX RETURNS AND PAY HIS TAX AT THE OFFICE OF THE DEPARTMENT OF COLLECTIONS IN PHILADELPHIA.

 It is clear that the City has the power to impose the fines and penalties involved here for failure of petitioner to file tax returns and pay the tax. See City of Philadelphia v. Cline, supra, 158 Pa.Super. at page 184, 44 A.2d at page 612, and authorities cited there. The tax ordinance and the regulations issued thereunder specify that the returns shall be filed with, and the tax paid to, the Department of Collections, whose offices are located in City Hall Annex, North Penn Square, Philadelphia, Pa. *fn16" The Supreme Court has stated that 'where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime.' See Johnston v. United States, 1956, 351 U.S. 215, 260, 76 S. Ct. 739, 742, 100 L. Ed. 1097, and cases there cited. *fn17" The writ of capias ad respondendum under which petitioner was taken into custody by the City Deputy Sheriff is not based on any action of petitioner at the Shipyard but the fines and penalties are claimed for his failure to file the returns and pay the tax at City Hall Annex.

 C. THE PHILADELPHIA COURT HAS JURISDICTION TO REQUIRE SERVICE OF THE WRIT OF CAPIAS AD RESPONDENDUM ON PETITIONER WHILE WORKING AT THE SHIPYARD AND TO TAKE HIM INTO CUSTODY IN A REASONABLE MANNER, PENDING HIS FILING REASONABLE BAIL FOR APPEARANCE IN COURT.

 As pointed out under B above, the writ of capias ad respondendum served on petitioner was issued for his failure to file a return and pay a tax at City Hall Annex in Philadelphia, which is not in the Shipyard. The acts of the Pennsylvania legislature ceding the land occupied by the Shipyard to the Federal Government provided that 'all process, civil and criminal, of the Commonwealth of Pennsylvania, shall extend into, and be effectual, within the territory ceded.' *fn18" Such language has been consistently construed to authorize a state to execute civil and criminal process for acts done within the state on the lands ceded to the Federal Government. See Fort Leavenworth R. Co. v. Lowe, 1885, 114 U.S. 525, 534, 5 S. Ct. 995, 29 L. Ed. 264; *fn19" United States v. Unzeuta, 1930, 281 U.S. 138, 142-143, 50 S. Ct. 284, 74 L. Ed. 761; *fn20" Rogers v. Squier, 9 Cir., 1946, 157 F.2d 948, 950; *fn21" In re Ladd, D.C.D.Neb.1896, 74 F. 31, 36-38.

 If the City should attempt to serve 100 such writs at the same time at the Shipyard without working in cooperation with the federal officials in charge, there might be such an interference with federal activities as to require action by a federal court. *fn22" However, there is no evidence of any refusal by the City to cooperate with the federal officials operating the Shipyard in serving writs such as the one involved in this case, and this suit has been instituted as a test case by cooperative action of the responsible officials of the City and the Federal Government. *fn23"

 The undersigned notified counsel by letter of November 29, 1957, a copy of which is attached, of his intention to enter, on December 9, 1957, an order granting respondent's Motion to Dismiss so that petitioner would have an opportunity to arrange for bail or to apply to the State court for a writ of habeas corpus. *fn24"


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