�Ex Parte Harding
�No. ___ Original
�Submitted December 12, 1910
�Decided February 20, 1911
�
219
U.S. 363
Syllabus
The general rule that a court, having jurisdiction over the
subject matter and the parties, is competent to decide questions
arising as to its jurisdiction and that its decisions on such
questions are not open to collateral attack applied in this case,
and mandamus refused to compel the circuit court to remand a case
in which it decided that it had jurisdiction on the issues of
citizenship and separable controversy.
There is nothing peculiar in an order of the circuit court
refusing to remand which differentiates it from any other order or
judgment of a federal court concerning its jurisdiction.
In this case, the exceptional rule that mandamus will lie to the
circuit court to correct an abuse of judicial discretion in
retaining a case over which it has not jurisdiction does not
apply.
Page 219 U. S. 364
It is the duty of this Court to reconcile decisions and, in
order to enforce the correct doctrine, to determine which rest upon
the right principle and to overrule or qualify those conflicting
therewith.
Conflicting decisions regarding issuing mandamus to the circuit
court to correct its decisions in regard to jurisdiction over cases
removed from the state court reviewed and harmonized.
In this case,
Ex Parte Hoard, 105 U.
S. 578, and cases following it applied as expressing the
general principle involved;
Virginia v. Rives,
100 U. S. 313, and
cases following it distinguished as applicable only to exceptional
instances not involved in this case;
Ex Parte Wisner,
203 U. S. 449;
In re Moore, 209 U. S. 490, and
In re Winn, 213 U. S. 458,
disapproved in part and qualified.
The facts are stated in the opinion.
Page 219 U. S. 366
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
By a motion for leave to file a petition for mandamus, George F.
Harding seeks the reversal of the action of the Circuit Court of
the United States for the Northern District of Illinois, eastern
division, in taking jurisdiction over a cause as the result of a
refusal to grant a request of Harding to remand the case to a state
court. The facts shown on the face of the motion papers are
these:
On October 19, 1907, George F. Harding, the petitioner, alleging
himself to be a resident of the State of California, sued in an
Illinois state court various corporations alleged to be created by
and citizens of the State of New Jersey, and fourteen individuals
whose citizenship and residence were not given. The suit was
brought by Harding as a stockholder in the Corn Products Company,
one of the defendants, and the object of the suit was to annul an
alleged
Page 219 U. S. 367
unlawful merger of that company, and for relief in respect of an
asserted misappropriation of its assets. On November 6, 1907, the
Corn Products Company applied to remove to the Circuit Court of the
United States for the Northern District of Illinois, eastern
division, on the ground that there was a separable controversy
between it and Harding. By separate petitions, all the other
defendants united in the prayer for removal. The state court not
having acted on the petition for removal, the judge of the United
States court, upon the application of the Corn Products Company,
ordered the transcript of record from the state court to be filed
and the case to be docketed. This being done, the Corn Products
Company filed what was styled an amendment and supplement to the
petition for removal, stating the residence and citizenship of the
individuals named as defendants in the original bill, four of them
being averred to be residents of Chicago, Illinois, one of Pekin,
Illinois, and the others citizens and residents of states other
than Illinois.
In December, 1907, Harding moved to remand to the state court,
in substance upon the ground that there was no separable
controversy, and that the requisite diversity of citizenship was
not shown by the petition for removal, and especially directed
attention to the fact that, at the time of the commencement of the
suit in the state court, he, Harding, was not a resident of the
district, and that none of the corporate defendants were such
residents.
Prior to the bringing of the Harding suit, a suit had been
brought in an Illinois state court by the Chicago Real Estate &
Trust Company, an Illinois corporation and a stockholder in the
Corn Products Company, upon substantially the same grounds as those
subsequently alleged in the Harding suit, against the principal
corporations and individuals who were thereafter made defendants in
the Harding suit. This cause had been removed by the Corn Products
Company into the Circuit Court of the United
Page 219 U. S. 368
States for the Northern District of Illinois, Eastern Division,
and on its removal at the instance of the Corn Products Company,
the court had restrained the real estate company, its officers,
agents, attorneys, etc., from further prosecuting the cause in the
state court. Immediately after the bringing of the Harding suit in
the state court, the Corn Products Company applied to the circuit
court in the real estate company suit to restrain Harding from
prosecuting his suit on the ground that the bringing of the same
was a violation of the previous restraining order. The court issued
a temporary restraining order. Thereafter, as we have said, the
Harding suit was removed on the application of the Corn Products
Company to the circuit court of the United States, and the motion
to which we have referred was made by Harding to remand. That
motion to remand, however, in consequence of the restraining order,
which had been made permanent, was not heard until the summer of
1909, after the restraining order above referred to had been
dissolved by the circuit court of appeals. 168 F. 658. Before the
motion to remand, however, was passed upon, the circuit court
granted permission to the Corn Products Company to amend its
removal petition by alleging that at the time of the commencement
by Harding of his suit, and continuously thereafter, he was a
citizen of Illinois and a resident of Chicago, in that state. To
this Harding objected on the ground that the court was without
power to allow an amendment, and that its jurisdiction was to be
tested by the averments of the original removal petition. The
permitted amendments having been filed, the motion to remand was
denied. Harding thereupon, reiterating his objection to the
allowance of the amendment and to the jurisdiction of the court to
do other than remand the cause, traversed the averment in the
amended removal petition as to his Illinois citizenship and
residence, and specially prayed
"that there may be a speedy hearing and a decision of such issue
of citizenship
Page 219 U. S. 369
and a remand of this cause to the state court by the order of
this Court. . . ."
The request for hearing was granted. A large amount of evidence
was introduced on such hearing, which extended over a period of
more than fifteen months, and the taxable costs, it is said, "ran
up into several thousands of dollars." Finally, on October 25,
1910, the issue was decided against Harding. 182 F. 421. The court,
finding from the proof that Harding was, as alleged in the amended
petition, a citizen and resident of the State of Illinois,
expressly refused the prayer for removal, made by Harding in his
answer to the amended petition; in other words, the court
reaffirmed and reiterated its previous action in refusing to remand
the cause. Whether these facts give such color of right to the
contention that we have jurisdiction to review the action of the
trial court by the writ of mandamus as to lead us to be of opinion
that further argument at bar is necessary, and therefore a rule to
show cause should issue, is then the question for decision.
The doctrine that a court which has general jurisdiction over
the subject matter and the parties to a cause is competent to
decide questions arising as to its jurisdiction, and therefore that
such decisions are not open to collateral attack, has been so often
expounded (
see Dowell v. Applegate, 152 U.
S. 327,
152 U. S. 337,
and cases cited), and has been so recently applied (
Hine v.
Morse, 218 U. S. 493),
that it may be taken as elementary, and requiring no further
reference to authority. Nor is there any substantial foundation for
the contention that this elementary doctrine has no application to
decisions of courts of the United States, refusing to remand causes
to state courts, since there is nothing peculiar in an order
refusing to remand which differentiates it from any other order or
judgment of a court of the United States concerning its
jurisdiction. The importance of the subject which is involved in
the contrary assertion, the apparent conflict between certain
Page 219 U. S. 370
decided cases dealing with the right to review by mandamus
orders of circuit courts refusing to remand, and a long and settled
line of other cases relating to the same subject, the confusion and
misapprehension which must result unless the conflict is reconciled
or abated, and the duty to remove obscurity, as far as it may be
done, concerning the review of questions of jurisdiction, all lead
us to give the subject a more extended examination than it would
otherwise be entitled to receive.
In
Ex Parte Hoard, 105 U. S. 578, the
Court was called upon to consider whether the judgment of a circuit
court of the United States, declining to remand a civil cause to a
state court from which it had been removed was reviewable by the
extraordinary process of mandamus. In refusing to exert
jurisdiction by mandamus and considering the inherent nature of the
powers of a circuit court, it was declared that "jurisdiction has
been given to the circuit court to determine whether the cause is
one that ought to be remanded," and it was also observed that "no
case can be found in which a mandamus has been used to compel a
court to remand a cause after it has once refused a motion to that
effect." Calling attention to the fact that the act of 1875, in §
5, expressly gave an appeal to or a writ of error from this Court
for the review of orders of circuit courts remanding causes,
without regard to the amount involved, the Court said:
"The same remedy has not been given if the cause is retained. It
rests with Congress to determine whether a cause shall be reviewed
or not. If no power of review is given, the judgment of the court
having jurisdiction to decide is final."
In
In re James Pollitz, 206 U.
S. 323, the facts were these: Pollitz, a citizen of the
State of New York, sued in the supreme court of that state the
Wabash Railroad Company, a consolidated corporation existing under
the laws of the States of Ohio, Michigan, Illinois, and Missouri,
and a citizen of the State of Ohio, and various other
defendants,
Page 219 U. S. 371
chiefly citizens and residents of the State of New York. The
Wabash Company removed the cause to the circuit court of the United
States on the ground of a separable controversy. A motion of
Pollitz to remand was denied. The controversy was decided by this
Court on the hearing of a rule, which was granted on the
application of Pollitz for a writ of mandamus to direct the
remanding of the cause. The Court, after stating (p.
206 U. S. 331)
the general rule that
"mandamus cannot be issued to compel the court below to decide a
matter before it in a particular way, or to review its judicial
action had in the exercise of legitimate jurisdiction, nor can the
writ be used to perform the office of an appeal or writ of
error,"
refused to take jurisdiction and review the action of the court
below, and therefore declined to issue the writ.
Ex Parte Nebraska, 209 U. S. 436,
presented the following facts: in a suit against a railway company
commenced in a court of the State of Nebraska, the state, its
attorney general, the railway commission, and the members of the
commission individually were plaintiffs. The defendant railway
removed the cause to the United States court upon the ground that
the state was not a proper or necessary party to the suit, and that
the controversy was wholly between citizens of different states. A
motion to remand having been denied by the circuit court, this
Court issued a rule by show cause why a mandamus should not be
allowed, ordering the remanding of the cause. Upon the hearing on
the return to this rule, the Court declined to take jurisdiction
and review the action of the trial court. It was said that the
circuit court had jurisdiction to pass upon the questions raised by
the motion to remand, and if error was committed in the exercise of
its judicial discretion, "the remedy is not by writ of mandamus,
which cannot be used to perform the office of an appeal or writ of
error." After declaring that "the applicable principles have been
laid down in innumerable cases," the Court cited
Page 219 U. S. 372
Ex Parte
Bradley, 7 Wall. 364;
Ex Parte Loring,
94 U. S. 418;
In re Rice, 155 U. S. 396;
In re Atlantic City Railroad, 164 U.
S. 633. The case of Pollitz was also cited and
reviewed.
In
Ex Parte Gruetter, 217 U. S. 586, the
doctrine of
In re Pollitz and
Ex Parte Nebraska
was reaffirmed. The case was this: an action commenced by Gruetter
in a state court was removed into a circuit court of the United
States, and Gruetter moved to remand. One ground of the motion was
that the case was not removable because it was not an action of a
civil nature, but was one to recover penalties. It was also urged
that the petition and record did not show that the suit was sought
to be removed to the circuit court of the United States for the
district in which either the plaintiff or the defendant resided. On
return to a rule to show cause why a mandamus should not be
granted, the Court declined to take jurisdiction of the case,
saying (p.
217 U. S.
588):
"There was no controversy as to there being diversity of
citizenship. The defendant was a corporation of Kentucky, and
plaintiff was a citizen of Tennessee. Inasmuch as we are of opinion
that the circuit court of the United States had jurisdiction to
determine the questions presented, we hold that mandamus will not
lie. The final order of the circuit court cannot be reviewed on
this writ.
In re Pollitz, 206 U. S.
323."
It is patent from the review of the decided cases just made that
the contention that the order of the court below, refusing to
remand the cause, is susceptible of being here reviewed by the
extraordinary process of a writ of mandamus -- in other words, that
that writ may be used to subserve the purpose of a writ of error or
an appeal -- is so completely foreclosed as not to be open to
contention unless it be that other cases which are relied upon as
sustaining our jurisdiction to issue the writ of mandamus have
either overruled the line of cases to which we have referred, or
have
Page 219 U. S. 373
so qualified them as to cause them to be here inapplicable. We
therefore come to consider the cases upon which petitioner relies
to ascertain whether they sustain either of these views. The cases
are
Ex Parte Wisner, 203 U. S. 449;
In re Moore, 209 U. S. 490, and
In re Winn, 213 U. S. 458.
But, to an elucidation of these cases, it is necessary that the
briefest possible recurrence be had to two leading cases which long
preceded them,
viz., Virginia v. Rives, 100 U.
S. 313, and
Virginia v. Paul, 148 U.
S. 107.
In
Virginia v. Rives, a prosecution of persons accused
of murder was removed from a state court to a circuit court of the
United States. The latter court, moreover, under a writ of
habeas corpus cum causa, took the prisoners from the
custody of the state authorities. The case in this Court arose upon
an application by the Commonwealth of Virginia for a rule to show
cause why the prisoners should not be returned to the state court
for trial. On hearing, this Court took jurisdiction over the cause,
issued the writ of mandamus, and directed the return of the
accused. Speaking of the functions of the writ of mandamus, the
Court said (p.
100 U. S.
323):
"It does not lie to control judicial discretion, except when
that discretion has been abused, but it is a remedy when the case
is outside of the exercise of this discretion and outside the
jurisdiction of the court or officer to which or to whom the writ
is addressed."
It is obvious from the opinion of the Court and the concurring
opinion that jurisdiction over the cause was taken because of the
extraordinary abuse of discretion disclosed by the power attempted
to be exerted, the confusion and disregard of constitutional
limitations which the asserted power implied, and because, under
the law as it then stood, no power would otherwise have existed to
correct the wrongful assumption of jurisdiction by the circuit
court.
In
Virginia v. Paul, 148 U. S. 107, a
person in the custody of the state authorities, charged with
murder, was released under a writ of habeas corpus issued by a
district
Page 219 U. S. 374
judge. Subsequently the circuit court of the United States took,
by way of removal, jurisdiction over the prosecution. The
Commonwealth of Virginia applied to this Court for a mandamus to
remand the prosecution and to restore the accused to the custody of
the state authorities. The Court, reaffirming the doctrine of
Virginia v. Rives, pointed out that to wrongfully divest
the state of its right to prosecute in its own courts for crimes
committed against its authority was a gross abuse of discretion
which, if not corrected by mandamus, could not be done in any other
form. A mandamus to remand was issued. The Court, however, declined
to review the order discharging on habeas corpus, on the ground
that, on the face of the application for habeas corpus, issue had
been presented which the judge had a right to decide, and, if error
was committed, there was a remedy by appeal.
In
Ex Parte Wisner, 203 U. S. 449,
mandamus was sought to compel a circuit court of the United States
to remand a civil cause to the state court from which it had been
removed, and which the circuit court had refused to remand. The
case was one where, although there was diversity of citizenship,
neither of the parties resided in the particular district to which
the suit had been removed. This Court took jurisdiction. Reviewing
the action of the court below, it was observed that the absence of
residence within the district of either of the parties demonstrated
the absolute want of authority of the circuit court over the cause,
and that, even if the objection was susceptible of being waived, a
waiver by both parties was essential, and the record did not
disclose that there had been such waiver. Considering the right to
revise by mandamus the action of the circuit court in refusing to
remand, no reference whatever was made to the existence of
statutory remedies to correct the error found to have been
committed, and no authority was cited, it being simply
observed:
"Our conclusion is that the case should have been remanded,
and,
Page 219 U. S. 375
as the circuit court had no jurisdiction to proceed, that
mandamus is the proper remedy."
In re Moore, 209 U. S. 490, was
also a case of removal, where there was diversity of citizenship,
but neither of the parties resided in the particular district. The
circuit court had refused to remand. Taking jurisdiction to review
such action, an application for a writ of mandamus, this Court held
that, as there was diversity of citizenship, there was general
jurisdiction in the circuit court, and that the objection that
neither party resided within the district was a matter susceptible
of being waived by the parties, and that such waiver had taken
place. The observations in
Ex Parte Wisner to the contrary
were expressly disapproved. The action of the circuit court in
refusing to remand was consequently approved. No discussion was had
or authority referred to upon the question of the right to review
by mandamus the action of the circuit court, the right to exert
such authority having in effect been assumed as the result of the
decision in the
Wisner case.
In
In re Winn, 213 U. S. 458, an
action commenced in a state court had been removed into a circuit
court of the United States not upon diversity of citizenship, but
upon the ground that the case stated was one arising under the laws
of the United States. The circuit court denied a motion to remand.
Upon application for mandamus, this Court took jurisdiction to
review such action and directed that the case be remanded upon the
ground that the cause of action, when rightly construed, did not
arise under any provision of the Constitution or under any law of
the United States. Referring to some of the previous cases and
manifestly noting an apparent conflict between them, it was said
that this Court had declined to exert jurisdiction by mandamus in
Ex Parte Nebraska and
In re Pollitz because those
cases but exemplified the exercise of judicial discretion by the
circuit court as to a matter within
Page 219 U. S. 376
its jurisdiction, while the case in hand presented a question of
a want of jurisdiction in the circuit court, clearly apparent on
the face of the record, and therefore that court, when it decided
that the cause of action alleged arose under a law of the United
States, could not possibly have exercised a discretion to decide a
matter which was within its jurisdiction.
Virginia v.
Rives and
Virginia v. Paul were approvingly cited,
and it was said that, in case of a refusal to remand, "although the
aggrieved party may also be entitled to a writ of error or appeal,"
mandamus may be resorted to. On this subject it was further
observed:
"Mandamus, it is true, never lies where the party praying for it
has another adequate remedy, . . . but where, without any right, a
court of the United States has wrested from a state court the
control of a suit pending in it, an appeal or writ of error at the
end of long proceedings, which must go for naught, is not an
adequate remedy."
Comprehensively considering the two lines of cases, one
beginning with
Ex Parte Hoard, 105 U.
S. 578, and ending with
Ex Parte Gruetter,
217 U. S. 586, and
the other beginning with
Virginia v. Rives, 100 U.
S. 313, and ending with
In re Winn,
213 U. S. 458, it
is to be conceded that they are apparently in conflict, both as to
the assertion of power which one line upholds to review by mandamus
the action of the United States circuit court in refusing to remand
and the nonexistence of such power which the other line of cases
expounds, and also as to much of the reasoning in the opinions in
some of the cases. Thus, the ruling in
Ex Parte Hoard that
where, in a civil case, statutory remedies by error or appeal are
provided for the ultimate review of errors committed by a court in
determining its jurisdiction, such statutory provisions are, in
their nature, exclusive, and therefore deprive of the right to
resort to the remedy by mandamus, is directly in conflict with the
jurisdiction which was exercised in
Ex Parte Wisner, In re
Moore, and
In re Winn, as those cases were civil
cases, and the right
Page 219 U. S. 377
to review the error, if any, committed by the circuit court in
refusing to remand, was regulated by statute. So, also, the
statement, by way of reasoning, in the opinion in
In re
Winn, to the effect that, in case of a refusal to remand, "the
remedy by mandamus is available, although the aggrieved party may
also be entitled to a writ of error or appeal," is in direct
conflict with the reasoning upon which the decision in
Ex Parte
Hoard was based. The conflict just stated becomes more
manifest when the ruling in
Virginia v. Paul is
considered, since, in that case, the Court declined by mandamus to
review the action of the court below in taking one accused of crime
by a writ of habeas corpus from the custody of the state
authorities, on the ground that,
prima facie, there was
jurisdiction to issue the writ of habeas corpus, and a remedy by
appeal existed to review the action of the circuit court. Moreover,
the decision in
In re Pollitz that there was not power to
review the action of the court below in refusing to remand, because
the circuit court, in passing upon the question as to whether, on
the face of the papers, a separable controversy was alleged,
decided a matter within its jurisdiction, and which involved the
exercise of judicial discretion, cannot be harmonized with the
rulings in
Ex Parte Wisner and
In re Moore that
the action of a circuit court in refusing to remand could be
reviewed by mandamus because the Court, in deciding whether the
parties had waived the right to be sued in a particular district,
had not been called upon to decide a matter within its
jurisdiction, involving the exercise of judicial discretion. This
conflict becomes more obvious when the rulings in
In re
Winn and
Ex Parte Gruetter are contrasted, the one
deciding that the action of the circuit court in refusing to remand
because, from an analysis of the pleadings, it was found that a
claim of federal right was presented, was reviewable by mandamus,
since it was plain as a matter of law that the court erred, and
therefore its decision involved no element of judicial discretion,
and
Page 219 U. S. 378
the other deciding that the denial by a circuit court of a
motion to remand based upon the ground, among others, that, on the
face of the papers, the suit was not removable because it was not
of a civil nature, but was for a penalty, was not reviewable by
mandamus because the decision of such a question was within the
jurisdiction of the circuit court, and therefore involved the
exercise of judicial discretion.
We must, then, either reconcile the cases, or, if this cannot be
done, determine which line rests upon the right principle, and
having so determined, overrule or qualify the others, and apply and
enforce the correct doctrine. This is the case, since to do
otherwise would serve only to add to the seeming confusion and
increase the uncertainty in the future as to a question which it is
our plain duty to make free from uncertainty. Coming to the origin
of the two lines of cases, it is manifest that it was not conceived
that there was conflict between them, since
Virginia v.
Rives and
Ex Parte Hoard were practically
contemporaneously decided, and were treated, the one as relating to
an exceptional condition -- that is, an effort to remove a criminal
prosecution which, if wrong was committed, no power otherwise to
redress than by mandamus existed -- and the other but involved the
application of the well settled rule as to civil cases, concerning
which the right to review by error or appeal was generally
regulated by statute. Following down the two lines of cases, it is
equally manifest that it was never conceived that they conflicted
with each other, because some of the cases were also practically
contemporaneously decided without the suggestion that one was in
conflict with the other -- indeed, the decisions in
In re
Moore and
Ex Parte Nebraska were announced on the
same day. When the cases are closely analyzed, we think the cause
of the conflict between them becomes at once apparent. As we have
previously pointed out, no authority was referred to in
Ex part
Wisner sustaining the taking in that case of
Page 219 U. S. 379
jurisdiction to review by mandamus the ruling of the circuit
court, although, in the course of the opinion, the statement was
made with emphasis that the face of the record disclosed an entire
absence of jurisdiction in the court below. In the opinion,
however, in
In re Pollitz, the
Wisner case was
referred to, and in pointing out why it was not apposite and
controlling, it was observed that that case (the
Wisner)
presented a total absence of jurisdiction, involving no element of
discretion, and
Virginia v. Rives was cited, manifestly as
indicating the basic authority on which the jurisdiction to review
by mandamus had been exerted in the
Wisner case. Again, in
In re Winn, it is to be observed that not only was
Virginia v. Rives cited, but the cases of
Virginia v.
Paul and
Kentucky v. Powers, 201 U. S.
1 (the last of which also concerned a criminal
prosecution in which the doctrine of
Virginia v. Rives had
been applied), were also cited, evidently for the purpose of
pointing out the source from whence came the doctrine of the right
to review by mandamus under the facts presented. Bearing these
matters in mind, it plainly results that the conflict presented has
arisen not because of the announcement in any of the cases of any
mistaken doctrine as to jurisdiction or of any wrongful decision of
any of the cases on the merits, but has simply been occasioned,
beginning with
Ex Parte Wisner, from applying the
exceptional rule announced in
Virginia v. Rives to cases
not governed by such exceptional rule, but which fell under the
general principle laid down in
Ex Parte Hoard and the line
of cases which have followed it. Under these circumstances, it
becomes our plain duty, while not questioning the general doctrine
announced in any of the cases, yet to disapprove and qualify
Ex
Parte Wisner, In re Moore, and
In re Winn to the
extent that those cases applied the exceptional rule of
Virginia v. Rives, and thereby obscured the broad
distinction between the general doctrine announced in
Ex Parte
Hoard and the cases which have followed it, and the
Page 219 U. S. 380
exception established by
Virginia v. Rives and the
cases which have properly applied the doctrine of that case. Our
duty to take this course arises not only because of the
misconception which must otherwise continue to exist, but also
because it is to be observed that material portions of the Act of
1875, which were made the basis of the ruling in
Ex Parte
Hoard, are yet in force, and because the cogency of the
considerations arising from this fact are greatly increased by the
duty to give effect to the provisions of the Judiciary Act of 1891
concerning the review of final orders and judgments or decrees of
the circuit courts of the United States.
As, then, our conclusion is that the case under consideration is
not controlled by the ruling in
Ex Parte Wisner or kindred
cases, but is governed by the general rule expressed in
Ex
Parte Hoard, and followed in
In re Pollitz and
Ex
Parte Nebraska, and, lastly, applied in
Ex Parte
Gruetter, it clearly results that the application for leave is
without merit, and
Leave to file is denied.