|[GRN 456 August 28, 1901.]
In the matter of the application Of JOHN W. CALLOWAY for a writ of habeas corpus.
1. HABEAS CORPUS; JURISDICTION. - Under General Orders, No. 58, as amended by General Orders, No. 70, the courts of the. Philippine Islands have no authority to release persons imprisoned by military authority.
2. STATUTORY CONSTRUCTION. - Where an act conferring jurisdiction refers for its limitations to a Code not yet in force, the operation of the same is suspended and no jurisdiction may be exercised.
ORIGINAL APPLICATION for a writ of habeas corpus.
In the petition for the writ, presented August 23, 1901, it was alleged that the petitioner, John W. Calloway, was illegally restrained and deprived of his liberty in the Cuartel de España, in the city of Manila, Philippine Islands, by the respondent, Col. Tully McCrea, United States Army; that he was a private citizen of the United States; that he had not been guilty of any violation of the laws of the United States or of the Philippine Islands, and that he was not held by virtue of process of any competent court on a criminal charge. The writ having been issued, the respondent made return in which he stated that he held the petitioner upon authority of Major-General Chaffee, commanding general of the Division of the Philippines, "as a prisoner of war charged with treasonable correspondence with the enemy and under sentence of transportation by authority of the United States, vested in Maj. Gen. Arthur MacArthur, on December 15, 1900, as Military Governor of the Philippines, which sentence said John W. Calloway has violated by returning to the Philippine Islands after his said banishment and deportation."
Eber C. Smith, for petitioner.
Colonel Grosbeck, United States Army, for respondent.
No judge of this Archipelago has at present jurisdiction to issue the writ of habeas corpus unless such jurisdiction has been conferred upon him by some legislative act.
The only law now in force which confers such jurisdiction is General Orders, No. 58, amended by General Orders, No. 70, which latter order expressly denies this Supreme Court and other courts in the Philippine Islands the right to set at liberty any prisoner arrested in pursuance of military orders. Article 17 of "An act providing for the organization of courts in the Philippine Islands" reads as follows:
"The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari, prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in the Code of Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases provided by law."
The Code referred to in this article is not as yet in force, and therefore can not be applied to this case. It would appear from the answer to the writ that the petitioner has been arrested by virtue of military orders, such statement not having been objected to by the counsel for the petitioner. Therefore this court has no power to order the discharge of the petitioner.
The fact that the petitioner had been arrested in compliance with military orders was not set forth in the petition for the issuance of the said writ, and the court deemed it its duty to issue same in first instance.
Wherefore the writ issued August 23, 1901, is hereby repealed.
Arellanno, C. J., Torres, Cooper, Mapa, and Ladd, concur.