John C. Edgar was adjudged guilty of contempt by the superior court of San Diego county, and was punished therefor by a fine of two hundred dollars, with the alternative of imprisonment. This hearing is under his application for a writ of habeas corpus.
The facts giving rise to the alleged contempt are the following: One Joseph Japhet Ebanks was convicted of murder in the first degree before the superior court of San Diego county, and, upon appeal to this court, the judgment of conviction and the order denying him a new trial were affirmed. Thereafter Ebanks was brought before the superior court of San Diego county, which pronounced its order, fixing the day of execution on the eighth day of October, 1897, within the walls .of the state prison at San Quentin. Pursuant to this order Ebanks was delivered to the custody of the warden of that institution. Upon the day fixed for his execution Ebanks made application to the district court of the United States in and for the northern district of California, praying for a writ of habeas corpus, alleging that he was restrained of his liberty by W. E. Hale) warden of said prison, in violation of his rights under the constitution of the United States, and setting up certain facts in support of this allegation. The district court denied his petition, whereupon' he appealed from the order so denying his application, to the supreme court of the United States, and therewith petitioned said district court that his appeal be allowed, and that a transcript of the records, proceedings, and papers upon which said order was made be transmitted to the supreme court of the United States. The district court made its order allowing the appeal. Certified copies of all the papers in the matter of the application and of the appeal were served upon petitioner, John *125C. Edgar, as acting warden of the state prison at San Quentin, the warden at that time being absent from the state of Califonnia. These papers were served upon Edgar before the execution and before the expiration of the time limited for the execution.
The acting warden was thus placed in a most trying and difficult position. He was called upon to decide at his peril whether or not Ebanks’ appeal to the supreme court of the United States operated to stay his hand as an executive officer of the state of California. If the appeal did operate as a stay, and he decided that it did not, and proceeded with the execution, he would be guilty of unlawfully taking the life of a human being. If, upon the other hand, the appeal did not operate as a stay, and he decided that it did so operate, he stood liable to be punished fox-contempt for violation of the order of the superior court of the state. In this clash of judicial authorities there was no court to which he could look for direction. It was incumbent upon him to make his own choice, unaided by the decision of any judicial tribunal. He concluded that the appeal of Ebanks operated to stay the hand of the state authorities, and therefore declined to execute the death warrant, whereupon he was cited before the superior coxxrt of San Diego county, and, upon a presentation of these facts, none of which is disputed, was adjudged guilty of contempt and punished therefor, as above set out.
The reasoning by which the superior court reached its conclusion in the matter may be thus summarized: The courts of the United States are courts of limited jurisdiction. The presumptions in any given case are not in favor, but against, their jurisdiction. In a petition for habeas corpus to a circuit or district court, whereby it is sought to arrest the hands of the state authorities, upon the ground that the defendant is restrained of his liberty in violation of the constitution or laws of the United States, there must appear upon the face of the petition averments of substantia] facts presenting a federal question. The mere naked averment of a conclusion of law that a defendant is so illegally restrained is not sufficient to confer jurisdiction. "Where jurisdiction has not been conferred by a sufficient petition, an appeal by the petitioner from an order remanding him after hearing,. or from an order refusing his application for a *126writ (as in the present case), will not operate upon the state courts and authorities to stay proceedings.
The soundness of the court’s reasoning in these particulars we need not here pause to consider.
It further decided, after elaborate discussion and consideration, that the petition of Ebanks to the district court did not set forth facts raising or presenting a federal question, and therefore concluded that the federal courts never obtained jurisdiction, and that the hands of the state authorities were never stayed. In consonance with this conclusion it adjudged the petitioner to be guilty of contempt.
It has been declared unnecessary to consider the trial court’s reasoning to the effect that in cases such as this, if the petition does not present a federal question, the state authorities are at liberty to act despite the petitioner’s appeal. This is so for the very obvious consideration that, if it shall appear that a federal question was presented in the Ebanks petition, the reasoning has no application to the case at bar, for it is admitted by all concerned that if a federal question be presented in such a case, and an appeal be taken from the order of the district court, either remanding the petitioner or refusing him a writ, then, by operation of section 766 of the Revised Statutes of the United States, all further proceedings in the matter against the petitioner in the state courts, or by the state authorities, until the determination of his appeal, are null and void.
In the present unhappy condition of the United States laws governing rights of appeal in habeas corpus cases, and controlling state authorities while such appeals are pending, many vexatious questions will certainly arise. It must needs be most embarrassing for state courts to determine for themselves whether or not a federal question is presented in such a case in advance of a decision by the United States supreme court, whose judgment is always the controlling arbitrament in the matter. In this instance, however, little difficulty need be experienced. The allegations of the petition of Ebanks distinctly presented the proposition that he had been put upon trial under information, and not under indictment, and that for this reason his conviction and detention were in violation of the United States constitution. That this averment presented a federal question *127there can be no doubt, and it is none the less a federal question because in former eases it had been decided contrary to his contention, for the proposition was distinctly treated and passed upon by the United States supreme court in Hurtado v. California, 110 U. S. 516, and in later cases, as a federal question. It being a federal question, the fact that it had been decided upon one man’s appeal contrary to his contention does not debar another man from raising and presenting it as a federal question before the same tribunal in his own appeal. Where a federal question is presented, it is the appeal, and not the merit of the appeal, which operates as a stay. Thus, in our own state, an appeal from the judgment in capital cases operates to stay the execution until its determination. TTo matter how frivolous might be the proposition presented upon appeal, nor how many times it had been decided by the appellate tribunal contrary to this particular appellant’s contention, no one would question but that his appeal operated to stay the judgment of execution.
Moreover, it appears that the district court, while denying Ebanks’ application for a writ of habeas corpus, granted him leave to appeal. It is inconceivable that leave to appeal would have been granted if, in the view of that court, a federal question had not been presented. It was the equivalent of a declaration by the judge that he decided the federal question as he was bound to do, in consonance with the decision of his superior tribunal in the Hurtado case, but that, notwithstanding, since this federal question had been presented to him, the applicant had the right still further to present it in his own case and on his own behalf to the supreme court of the United States, regardless of its decisions upon the same question in the appeals of other men.
Having thus reached the conclusion that a federal question was presented upon the Ebanks petition to the district court, his appeal to the supreme court of the United States unquestionably operated as a stay (In re Jugiro, 140 U. S. 291), and the acting warden was not in contempt of the authority of the state courts in deferring the execution.
Wherefore, let the prisoner be discharged.
Beatty, C. J., Harrison, J., McFarland, J., and Temple, J., concurred.