
    Ex Parte Soldini.
    Application for a writ of Habeas Corpus.
    No. 18.
    Decided November 4, 1903.
    Habeas Corpus. — Eaidure to Show Restraint. — The writ of habeas corpus will not lie where there is no actual confinement; mere moral restraint is. not sufficient.
    Id. — Legad Questions. — The writ of habeas corpus cannot be invoked for the-purposes of testing a legal question.
    Id.; — Procedure.—The petition for a writ of habeas corpus must be signed and sworn to by the person restrained or imprisoned, unless for good cause-duly set forth in the petition.
    The appellant was banished by the Supreme Court of Porto Rico for the period of one year, eight months and twenty-one days to a distance of twenty-five-kilometers from the town of Bayamdn. Appellant applied to the Supreme. Court of Porto Rico for a writ of habeas corpus. .
    
    The Court held:
    (1) That no restraint of liberty was shown to justify the issue of the-writ of habeas corpus.
    
    (2) That the court would not decide, upon an application for a writ of habeas corpus, the validity of the sentence imposing upon him the punishment of banishment, fine and costs.
    The facts are stated in the opinion.
    
      Mr. Manuel F. Rossy, for petitioner.
    
      Mr. del Tora, Fiscal, for the People.
   Mr. Justice MacLeary

delivered the opinion of the court as follows:

This application was made to Associate Justice MacLeary September 29, 1903, by Manuel F. Rossy, Esq., attorney of Dominique Soldini, for a writ of habeas corpus, seeking that the said Soldini be declared free of the punishment of banishment for the period of one year, eight months, and twenty one days to a distance of twenty five kilometers from the town of Bayamón, under which sentence he was laboring.

The history of the case, as detailed in the application for the writ, and in other documents before the court, is as follows: On March, 10, 1902, the applicant directed a letter to Dr. Stahl at Bayamón, which the Doctor considered offensive to his reputation, and he made a penal complaint before the District Court of San Juan, accusing Soldini of having committed the offense of contumely, punished under articles 475, 476 and 477 of the ancient Penal Code of Porto Rico. The District Court of San Juan tried the cause, and on August, 30, 1902, acquitted the defendant of the charge on the grounds set forth in the judgment. Dr. Stahl, as private prosecutor, took an appeal to the Supreme Court of Porto Rico, and on March, 9, 1903, that court, by a majority of three to two, declared that the letter in question was contumelious, and condemned the appellee Dominique Soldini, to the banishment hereinbefore mentioned, and to pay a fine of fifty dollars and all costs of the proceedings.

From this judgment of the Supreme Court the American Justices dissented for reasons set forth by each of them respectively in dissenting opinions filed in the record of the case. This judgment, on June, 5, 1903, was certified by the Secretary to the District Court of San Juan, for observance. It appears from a memorandum unsigned, but contained in the record of the original case, that the Justice of the Peace of Bayamón was notified of the judgment of the Supreme Court, and a telegram followed that Soldini had been cited, in order to carry into effect the said judgment but that he had not appeared; and that the justice of the peace had notice that he was about to embark on the New York steamer, and asking what he should do. Other unsigned memoranda follow, none showing that any order of arrest had ever been issued.

In the application for the writ of habeas corpus it is not stated that Soldini was in confinement, or in any way restrained of his liberty, further than that the judgment of banishment had been rendered against him. However, in order to give him the full benefit of his application, the writ was issued by the Associate Justice of this Court, directed to the Chief of the Insular Police of the Island of Porto Rico, Colonel Terence Hamill, and was made returnable before the Supreme Court of Porto Rico on October 5 at ten o’clock a. m., that being the ¿first day of the next term thereafter. The prisoner Soldini, having appeared was remanded to the custody of the marshal, and afterwards gave 'bond in the - sum of one thousand dollars for his appearance from day to • day until discharged. The case was postponed from time to time on account of the sickness of one of the Justices, and finally, on October, 20, 1903, the case was heard by a full court and judgment reserved until the present day. The Chief of Police made a return declaring that neither he nor any officer under his orders, connected with the Insular Police, had in custody or detained Dominique Soldini, but as is shown by certain telegrams produced, the applicant was notified, by the Justice of the Peace of Bayamón, of the banishment to which he appears to have been condemned by the court. The telegrams referred to are attached to the return and made a part of the same. It was stated in evidence before the court, on the hearing that Soldini resided in the Municipality of Bayamón, at a distance of four kilometers from the plaza of that town, and consequently, that his home was within the territorial circle from which he was banished.

In accordance with the writ of habeas corpus he voluntarily appeared before the Justice of this court, unattended by any officer, and all the facts go to show that he was under no other restraint, confinement or imprisonment than the reasonable apprehension of arrest, should he violate the judgment of the court by which he was banished from the territory included within the radius of twenty-five kilometers from the town of Bayamón.

The first question to be considered in determining this case, is whether or not the applicant is in a situation to sue out the writ of habeas corpus. It is unnecessary to go into the history of this great writ, one of the bulwarks of English and American liberty, further than to define what are its objects. It has been said by the Supreme Court of the United States that its object is to free the applicant from illegal restraint or imprisonment; not to punish the respondent, or to afford the injured party redress for his illegal detention. See Wales v. Whitney, 114 U. S. 564; and to the same effect the Commonwealth v. Chandler, 11 Mass. 83; and Ex Parte Coupland, 26 Tex. 386. See also Church on Habeas Corpus, section 87, where many other cases are cited.

The case of Wales is nearly parallel to the case at bar, the only material difference being that it is the converse thereof. Dr. Wales was a medical director in the Navy, and was, by order of the Secretary of'the Navy, placed under arrest and confined to the limits of the city oí Washington, pending proceedings before a court martial. He applied for a writ of habeas corpus to the Supreme Court of the District of Columbia, then the court of last resort in that federal district, alleging the facts in the case. That court denied his application and dismissed the writ; and he took an appeal from this judgment to the Supreme Court of the United States which high tribunal, on full consideration of the facts, stated the question at issue to be :

“ Does the return of the Secretary of the Navy to the writ and its accompanying exhibits show such restraint of the liberty of the petitioner by that officer, as justifies the use of the writ of habeas corpus ? ” Wales v. Whitney 114 U. S. 568 and 569.

Subsequently, in the opinion, this question is answered in the negative, on the ground that it is obvious that the petitioner was under no physical restraint, and that his motive in applying for the writ was merely to have himself brought before á civil court, which, on inquiry into the cause of his imprisonment might decide that the crime with which the secretary charged him was not of a military character, and riot one of which a naval court martial could entertain jurisdiction, and by releasing him from 'the restraint of the order of arrest, thus incidentally release him from the power of that court. The Supreme Court of the United States goes on to say:

“The Civil Courts can relieve a pérson from imprisonment under order of such court only by writ of habeas corpncSj and then only when it is made apparent that it proceeds without jurisdiction. If there is no restraint there is no right in the civil court to interfere. Its power then extends no further than to release the prisoner. It cannot remit a fine, or restore to an office, or reverse the judgment of the military court. Whatever effect the decision of the court may have been on the proceedings, orders, or judgments of the military court, is incidental to the order releasing the prisoner. Of course if there is no prisoner to release, if there is no custody to be discharged, if there is no such restraint as requires relief, then the civil court has no power to interfere with the military court, Or other tribunal over which it has by law no appellate jurisdiction.”
“ The writ of habeas corpus is not a writ of error, though in some cases in which the court issuing it has appellate power over the court by whose order the petitioner is held in custody, it may be used with the writ of certiorari for that purpose. In such case, however, as the one before us it is not a writ of error. Its purpose is to enquire, first, if thé petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. If there is such restraint, the court can then enquire into the cause of it, and if the alleged cause be unlawful it must then discharge the prisoner.”
“Something more than moral restraint is necessary to make a case for writ of habeas corpus. There must be actual confinement or the present means of enforcing it.”

The court cited several cases by State 'Courts bearing upon the same subject; among them Bodge’s case in 6 Martin, La. 569; Respublica v. Arnold, 3 Yates, 263: and several English cases; and further proceeds to say:

“ All these provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.”
“In case of a person who is' going at large, with no one controlling or watching him, or detaining him, his body cannot be produced by the person to whom the writ is directed, unless by consent of the alleged prisoner, or by his capture and forcible traduction into the presence of the court.” Wales v. Whitney, 114 U. S. 570 et seq.

The court then proceeds to affirm the judgment of the Supreme Court of the District of Columbia dismissing the writ of habeas corpus and points out the remedy which counsel have for the relief of the prisoner. And in this case, as in the case of Wales, the applicant Soldini is not without his remedy. ' He may, if he chooses, disregard the ■ judgment of the court, banishing him from Bayamón, and from the territory within a radius of twenty-five kilometers therefrom, and suffer arrest and detention under the judgment, and when he is imprisoned or restrained of his liberty, may make application for the writ and contest the legality of the judgment. The method of procedure is plainly pointed out in the Code of Criminal Procedure of Porto Rico, under sections 469 to 600 inclusive. The similarity between the cases of Wales and Soldini is very striking. The former was forbidden to pass out of certain limits, and the latter was forbidden to pass within a fixed boundary. Neither was under any imprisonment or physical restraint. Each had before him the fear of arrest and imprisonment, should he cross a certain line; each had the power to do so, if he chose to take the consequences. Each complained of an injustice being done him, the former by an order of the Secretary of the Navy, the latter by a judgment of a court. Each sought to test a legal question by the writ of habeas corpus, which was never designed for such a purpose, and, with the limitations thrown around it by the statutes and the decisions of the courts it cannot be invoked for any such purpose. Each has mistaken his remedy whatever may be his rights.

The Dodge case is quite similar to both of these. He was committed to jail on civil process, and gave bond that he would pay the debt, should he leave the State of Louisiana. On this he was liberated and sued out a writ of habeas corpus. The court held that he could not be relieved of the moral restraint, which was the only force which impeded his movements. Dodge, ex parte, 6 Martin’s Louisiana Rep. 509. See also 15 Am. & Eng. Enc. of Law, p. 159 and cases there cited.

Inasmuch as the applicant in this case is neither imprisoned nor restrained of his liberty, either illegally or legally, but comes before this court voluntarily, merely seeking a decision as to the validity of a former sentence imposing upon him the punishment of banishment, fine and costs, and because such a proceeding, with such an end in view, is not within the scope of the writ of habeas corpus, the application in this case must he denied, and the prisoner permitted to return to the place from whence he came, discharged of all libiality upon his bond heretofore filed, • which should be declared satisfied.

It is observed that in this case the application for the writ of habeas corpus is made by Manuel F. Rossy Esq., as attorney for Dominique Soldini, and signed and sworn to by him. This is an improper practice. The petition or application should in all cases be signed and sworn to by the person .held in custody or imprisoned, or under restraint unless there is some good reason why this cannot be done, and in such case the reason should be clearly stated in the application. (See Church on Habeas Corpus 89 and cases there cited.) The costs of this proceeding should be taxed against the appellant.  