Supreme Court of United States.
*387 Mr. Frederic D. McKenney for the motion.
Mr. Solicitor General opposing.
MR. CHIEF JUSTICE FULLER delivered the opinion of the court.
Application to file this petition was made to the court on March 26, when, under pressure of the mass of business under advisement, we were about to take a recess until April 9, of which recess the bar had been previously advised.
No notice of the application having been given, on suggestion of counsel for the United States, leave was granted, according to the usual course, and in view of the conceded importance of the questions involved, to submit a brief in opposition within a *388 week, and three days were allowed counsel for petitioner to reply. These briefs were subsequently duly filed.
It appears from the petition and accompanying papers that the alleged proceedings against petitioner were stayed at his instance, from December 11 until March 16 to enable him to apply to this court in the premises, but no such application was made. And it further appears that petitioner was not restrained of his liberty until up to March 16, and that such restraint was to continue for thirty days from that date, which would expire April 15.
The petition is not signed or verified by Baez, but on his behalf, and the affidavit does not state that the application is made by authority or at the request of Baez, or any facts showing that he was unable to make it, except the averment by affiant that "this petition is signed and verified by him for and on behalf of the said Ramon Baez for the reason that the petitioner is confined in the island of Porto Rico, and to delay this application by sending the same for the signature and affidavit of the petitioner himself would greatly retard, if not entirely defeat, the relief thereby sought to be obtained." The affidavit was sworn to on the 24th of March in the District of Columbia.
Assuming, however, that the application is made in accordance with the wishes of Baez, we should have been better satisfied if the delay in the presentation of the petition had been accounted for. The fact that on March 24 it was impracticable to send to Porto Rico to petitioner for him to act, does not explain why the assertion of his alleged rights was delayed so long, but rather shows that our interposition would be unavailing, if we took jurisdiction.
Section 756 of the Revised Statutes provides in relation to the writ of habeas corpus: "Any person to whom such writ is directed shall make due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not beyond the distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days." This section was taken almost literally from the Habeas Corpus Act, chap. 2 of the 31st Car. II, which was designed to remedy procrastination *389 and trifling with the writ. Prior to that act the mode of compelling a return was by taking out an alias, and then a pluries writ, and thereafter issuing an attachment. A reasonable time has always been allowed for making the return, and it is not to be presumed that one will not be made. Stockdale v. Hansard, 8 Dowling, 474; Mash's Case, 2 Wm. Bl. 805. And see United States v. Bollman et al., 1 Cr. C.C. 373, where the Circuit Court of the District of Columbia refused to issue an attachment until three days had expired after the service of the writ. Hurd on Hab. Corp. (2d ed.) 236; Church on Hab. Corp. (2d ed.) ยง 126.
In this case, if the writ of habeas corpus had been issued April 9, the next court day after the petition for the writ was presented to this court, the imprisonment of petitioner would have expired six days after the issue of the writ, and fourteen days before the person having him in custody would be required to make his return, and, before the case could be heard upon the writ and return the prisoner would no longer be in custody.
The grave questions of public and constitutional law sought to be brought into judgment by this application would have become merely moot questions so far as the decision thereof could affect any right or interest of the petitioner. And this would be so even if we issued the writ and attempted to deal with the prisoner by a preliminary order. Before he could be communicated with and brought before us he would be freed from restraint. In re Callicott, 8 Blatchford, 89.
As was said in Stockdale's case, we cannot presume that a return would not be made, and even if made at once, as it must be made from Porto Rico, it would nevertheless be too late for any action of ours to be effectual.
True the issue of the writ might be waived by the Government or we could enter a rule and proceed in the absence of the prisoner and at once, by agreement, Medley, Petitioner, 134 U.S. 160; In re Burrus, 136 U.S. 586; but the motion for leave to file has been resisted, and there has been no intimation of a disposition to speed the proceedings. Under these circumstances we cannot shut our eyes to the fact that before definitive action could be had, the application would abate.
*390 It is well settled that this court will not proceed to adjudication where there is no subject-matter on which the judgment of the court can operate. And although this application has not as yet reached that stage, still as it is obvious that before a return to the writ can be made, or any other action can be taken, the restraint of which petitioner complains would have terminated, we are constrained to decline to grant leave to file the petition.
The situation was the same April 9, and these observations are applicable as of that date.
In arriving at this conclusion we are not to be understood as intimating in any degree an opinion on the question of jurisdiction or other questions pressed on our attention.
Leave denied.
