In re O'Connor

New York Supreme Court

In re O'Connor

48 Barb. 258, 1867 N.Y. App. Div. LEXIS 26

CourtNew York Supreme Court

DecidedJanuary 7, 1867

StatusPublished

Cited by3 cases

This text of 48 Barb. 258 (In re O'Connor) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re O'Connor, 48 Barb. 258, 1867 N.Y. App. Div. LEXIS 26 (N.Y. Super. Ct. 1867).

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Opinions

Ingraham, J.

In this case, while I am of opinion that the judges of the state .courts might have exercised jurisdiction, prior to the passage of the acts of 1862 and 1864, I am not clear that the right to exercise that power remains. Ho doubt congress might pass an act prohibiting the state judges from interfering with enlistments in the army or navy. If they possess that power, the inquiry arises, whether the provisions of those statutes do not virtually prohibit it. They provide for a mode of discharge by the secretary of war, and they annex terms and conditions in which such discharges can be granted. These provisions may be construed as having provided a mode by which persons improperly enlisted can be discharged, and as having forbidden other modes of obtaining their discharges.

I am inclined, also, to yield to the opinions of the judges of the United States court in this district, on this question, as the petitioner may apply to any of those judges,- on habeas corpus, for relief.

At any rate it is unnecessary to send the case -back to the judge who allowed the writ. All the evidence was taken between the parties, and if the general term are of the opinion that the recruit should be discharged, they can now order it. The judge below passed upon the evidence and denied the application. The general term can only reverse his deci-i sion, and make the order he should have made, if he was in error.

Motion to discharge the prisoner should be denied.

Clerke, J.

I agree with Judge Ingraham, in thinking that the federal government has by recent legislation assumed such jurisdiction, in cases of this kind, as to make it necessarily exclusive. This I think it has a constitutional right to do, under the power given to it “ to raise and support armies.” (Const, of U. 8. § 8, subd. 11.) Besides, this is a “ controversy” to which the United States is a party ; as much so [261]*261as to an action in which a collector of a port is a party ostensibly, but the United States actually.

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Ingraham, J.

In this case, while I am of opinion that the judges of the state .courts might have exercised jurisdiction, prior to the passage of the acts of 1862 and 1864, I am not clear that the right to exercise that power remains. Ho doubt congress might pass an act prohibiting the state judges from interfering with enlistments in the army or navy. If they possess that power, the inquiry arises, whether the provisions of those statutes do not virtually prohibit it. They provide for a mode of discharge by the secretary of war, and they annex terms and conditions in which such discharges can be granted. These provisions may be construed as having provided a mode by which persons improperly enlisted can be discharged, and as having forbidden other modes of obtaining their discharges.

I am inclined, also, to yield to the opinions of the judges of the United States court in this district, on this question, as the petitioner may apply to any of those judges,- on habeas corpus, for relief.

At any rate it is unnecessary to send the case -back to the judge who allowed the writ. All the evidence was taken between the parties, and if the general term are of the opinion that the recruit should be discharged, they can now order it. The judge below passed upon the evidence and denied the application. The general term can only reverse his deci-i sion, and make the order he should have made, if he was in error.

Motion to discharge the prisoner should be denied.

Clerke, J.

I agree with Judge Ingraham, in thinking that the federal government has by recent legislation assumed such jurisdiction, in cases of this kind, as to make it necessarily exclusive. This I think it has a constitutional right to do, under the power given to it “ to raise and support armies.” (Const, of U. 8. § 8, subd. 11.) Besides, this is a “ controversy” to which the United States is a party ; as much so [261]*261as to an action in which a collector of a port is a party ostensibly, but the United States actually.

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Bluebook (online)

48 Barb. 258, 1867 N.Y. App. Div. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-oconnor-nysupct-1867.

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