
    Ex Parte Barbé.
    Application for a writ of Habeas Corpus,
    No. 17.
    Decided August 29, 1903.
    Habeas Corpus. — Release oe Prisoner Under Section 5296 oe the Revised Statutes oe the United States. — The petitioner was sentenced by the Federal Court to he imprisoned and to pay a fine. After serving the principal penalty and thirty days of the additional imprisonment imposed for failure to pay the fine, and while the Judge of the Federal Court and the United States Commissioner residing in San Juan were absent, the petitioner applied for a writ of habeas corpus, basing said application on section 5296 of tbe Revised Statutes of the United States.  There was a United States Commissioner residing at Mayagüez, but petitioner was unable to pay the necessary expenses in order to appear before him. Held:
    
    (1) That tbe Commissioner must hear the evidence a,nd determine the fact of the prisoner’s poverty, and upon satisfactory proof thereof, must administer the oath required by law and discharge the prisoner from custody.
    (2) That the fact that there is but one Commissioner in the district and that he resides at a distance of about eighty miles from the jail does not alter the requirements of the law.
    (3) That according to section 5296 the prisoner may appear before any Commissioner in the district, and as the district includes the whole island of' Porto Bico, as long as there is one Commissioner in the island, no other-authority should undertake to discharge his duties.
    (4) That when the United States Attorney is absent from the district, and it being optional with him whether or not he will appear and offer evidence» the notification required by law can be dispensed with, for the Commissioner can appoint some other attorney.to represent the government or can proceed to hear the evidence himself.
    (5) That no judge has a right to interfere, on application for habeas corpus, with the proceedings which should be instituted before the United States Commissioner, or to impose an order substituting them.
    The facts are set forth In the opinion.
    The application was presented to Mr. Justice MacLeary, in chambers.
    Mr. Falcon, for petitioner.
    
      Mr. Feuille, Assistant Attorney General, for the People.
    
      
       Revised Statutes of the United States. Section 5296. When a poor convict, sentenced by any court of the United States to be imprisoned and pay a fine, or fine and costs, or to pay a fine, or fine and costs, has been confined in prison thirty days, solely for the non-payment of such fine, or fine and costs, such convict may mate application in writing to any Commissioner of the United States Court in the district where he is imprisoned setting forth his inability to pay such fine, or fine and costs, and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the Commissioner shall proceed to hear and determine the matter. If on examination it shall appear to him that such convict is unable to pay such finé, or fine and costs, and that he has not any property, exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt, the Commissioner shall administer to him the following oath: “I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars, except such as is by law exempt from being taken on civil process for debts by the laws of (naming the State where oath is administered;) and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use and benefit. So help me God”. Upon taking such oath such convict shall be discharged ; and the Commissioner shall give to the keeper of the jail a certificate setting forth the facts.
    
   Me. Justice MacLeaby,

delivered the following opinion:

This is an application for habeas corpus made by Ramón Falcón, Esq., an attorney and counselor-at-law, practicing in the Supreme Court of Porto Rico, in behalf of Luis J. Barbé, a prisoner in the jail at San Juan, serving out two sentences of the District Court of the United States-pronunc-ed against him on the 24th. of April, 1902; the first for six months, and the second for twelve months, together with a fine of fifty dollars imposed at the same time.

The application is made on the ground that the time of the prisoner has expired, he being entitled to five days out of every month for good conduct, which the rules of the prison give, and allowing which would cause his time to expire on the 24th of August current. There is no dispute about these facts, and the only question concerning the liberation of the prisoner is the construction of article 5296 of the Revised Statutes of the United States, which prescribes the method to be pursued by a' poor convict sentenced by any court of the United States to be imprisoned and pay a fine, who has been fined, and imprisoned for thirty days or more for the nonpayment of the fine. He is required “to make application in writing to any Commissioner of the United States Court in the district where he is imprisoned, setting forth his inability to pay such fine or fine and costs and after notice to the District Attorney of the United States who may appear, offer evidence and he heard, the commissioner shall proceed to hear' and determine the matter.” The law further provides that, “If on examination it shall appear to him (the commissioner) that such convict is unable to pay such fine, or fine and costs, and that he has not any property exceeding twenty dollars in value, except such as is by law exempt from being taken on execution for debt the commissioner shall administer to him an oath” the form of which is set out in the statute. The law further states that upon taking such oath the convict shall be discharged, and the commissioner shall give to the warden of the jail a certificate setting forth the facts.

The prisoner to avoid the effect of this law, sets out in his application that the Hon. Judge of the Federal Court is absent in the United States, spending his vacation, and the commissioner resident in San Juan is also absent, and it appears from the evidence that the United States District Attorney and the United States Marshal- are also spending their vacations in the United States; but there appears to he left in the Island of Porto Rico a commissioner residing in the city of Mayagfiez, by the name of William Falbe with whom the prisoner and the warden of the jail have had some correspondence.

On the 25th of August the warden informs the commissioner that “Federal prisoner Luis J. Barbé yesterday completed his sentence including thirty days for fine; was taken to office of United States commissioner but the commissioner is in the States. Advise what action necessary” to which he received the following telegram in reply: “I suppose Luis F. Barbé is a poor convict, if so, proceedings are described in section 1042 Revised Statutes.” Mr. Falbe, the commissioner, evidently overlooked the fact that this section of the Revisen Statutes had been amended and re-anacted by section 5296 hereinbefore referred to. To this, on the next day, the 26th. of August, the warden replied: “Reference poor convict Bar-bé, can you administer oath and order release if brought before you”? to which Mr. Falbe, the commissioner answered: “Don't think I can do it because statutes provide that District Attorney be notified. Advise you to see the Marshal.”

This is all the correspondence which appears from the records to have passed between the warden and the commissioner. No application appears to have been made in proper form, to the commisioner, and he does not appear to have taken any official action in the matter, further than to advise a compliance with the law.

It is-urged in behalf of the prisioner that he is unable to appear before the commisioner, not having the money wherewith to pay his traveling expenses, and there being no law requiring the warden to transfer him to Mayagtiez. If the commissioner has been requested to come to San Juan in order to hear the case there is no evidence of that fact. The law imposes on the commissioner certain judicial powers. He must hear evidence and determine the fact of the prisoners poverty, then having been satisfied on that point, he can administer an oath and release the prisoner. The fact that only one commissioner is in the district, and he resides at a distance of about eighty miles from the jail does not alter the requirements of the law. It is plainly stated in the statutes that he may appear before any commissioner in in the District, and the District in this case consists of the whole Island of Porto Rico. So long as there is a commissioner within the Island and the District, no other authority should undertake to discharge his duties.

It may be urged that he cannot act -on account of the absence of the United States District Attorney, but as the law requires the attorney to be notified and leaves it optional with him whether or not he will appear and offer evidence, it seems to me that in cases where he is absent from the district, and at a distance of more than two thous- and miles beyond its borders, that this notification could be dispensed with, and that the commissioner could appoint some other attorney to represent the interests of the government, or could proceed to take the evidence himself. At any rate, he could on proper inquiry ascertain the facts and determine whether or no.t the convict falls within the class prescribed in the statute, that is to say, whether or not he had any property or money wherewith to satisfy the fine. If the commissioner determines this point in favor of the applicant, he should then administer to him the statutory oath, and order his release.

Whether it is the duty of the commissioner to leave his residence and come to the city in which the jail is situated in order to hear the case, is a matter which he must determine for himself. If the law is so defective as to make it inconvenient or expensive to the convict to comply with its requirements, these defects must be remedied by Congress, and not by the courts.

Talcing all the facts of the case into consideration, and the law which governs them, I am of the opinion that no judge has a right to interfere, on application for habeas corpus, with the proceedings which should be instituted before the commissioner, or to interpose an order substituting them.

For the reasons herein given, although it seems from the facts stated that the prisoner is entitled to his liberty, this application must be denied.  