CHILDERS

v.

MCCLAUGHRY, WARDEN OF THE UNITED STATES PENITENTIARY AT LEAVENWORTH

Mu. Chief Justice Fullek,

after making the foregoing statement, delivered the opinion of the court.

The jurisdiction of the District Court was not in issue, nor, properly speaking, was the construction or application of the Constitution involved in this case. The real question before the District Court was whether the United States court for the Northern District of the Indian Territory had jurisdiction of the offense for which Childers was undergoing punishment, in view of the provisions of the Oklahoma enabling act. The allegation in the petition that Childers has been deprived of his liberty without due process of law was based entirely upon the alleged • ’ant of jurisdiction in the United States court of the, Indian Territory to'try him for the offense. The question before the. lower court was simply one of statutory construction, and not of the unconstitutionality of the statute in question.

In the case of In re Lennon, 150 U. S. 393, 400, Lennon had been committed for contempt by the Circuit Court for the Northern District of Ohio, and thereupon applied to the same court for a writ of habeas corpus, the petition alleging, as in this case, that he was restrained of his liberty in violation of the Constitution, and that the Circuit Court had no jurisdiction to commit him. The', writ was refused, and a direct appeal was taken to this court. After pointing out that the jurisdiction of the Circuit Court to issue a writ of habeas corpus was not in issue, but that jurisdiction was entertained, this court said:

“Nor can the attempt be successfully made to bring the case within the class of cases in which the construction or application of the Constitution is involved in the sense of the statute, on the contention that the petitioner was deprived-of his liberty without due process of law. The petition does not proceed on any such theory, but entirely on the ground of want of jurisdiction in the prior case over the subject-matter ánd over the person of petitioner, in respect of inquiry into which the jurisdiction of the Circuit Court was sought. If, in the opinion of that court, the restraining order had been absolutely void, or the petitioner were not bound by it, he would have; been discharged, not because he would otherwise be deprived of due process, but because of the invalidity of the proceedings for want of jurisdiction. The opinion of the Circuit Court was that jurisdiction in the prior suit and proceedings existed, and the discharge was refused, but an appeal from that judgment directly to this court would not, therefore, lie on the ground that the application of the Constitution was involved as a' consequence of an alleged erroneous determination of the questions actually put in issue by the petitioner."

Carey v. Houston & Central Rwy., 150 U. S. 170; Same v. Same, 161 U. S. 115, 126; Cosmopolitan Mining Co. v. Walsh, 193 U. S. 460, 470; Empire State-Idaho Mining Co. v. Hanley, 205 U. S. 225, 232.

Appeal dismissed.