Prohibition is an extraordinary writ which will issue against a
court which is acting clearly without any jurisdiction whatever,
and where there is no other remedy; but where there is another
legal remedy, by appeal or otherwise, or where the question of
jurisdiction is doubtful or depends on matters outside the record,
the granting or refusal of the writ is discretionary.
In re
Rice, 155 U. S. 396.
Mandamus cannot perform the office of an appeal or writ of error,
and is only granted as a general rule where there is no other
adequate remedy.
Re Atlantic City R. Co., 164 U.
S. 633.
Page 220 U. S. 192
Where, in an action to enjoin state officer from enforcing a
state statute against articles in interstate commerce, the
interlocutory injunction can be corrected in the Circuit Court of
Appeals, and there is a direct appeal on the question of
jurisdiction to this Court after final decree, an adequate remedy
is provided and the writ of prohibition could only be granted on
the ground of absolute right and this Court in this case decline to
allow it to issue.
There is an identity of the principles which govern mandamus and
prohibition, and the latter writ is also refused in this case, as
there is a remedy by review in this Court after final judgment.
Ex Parte Nebraska, 209 U. S. 436.
The facts are stated in the opinion.
Page 220 U. S. 198
MR. CHIEF JUSTICE WHITE delivered the opinion of the court.
On March 24, 1908, the Legislature of Oklahoma enacted a
statute, known as the Billups Bill, providing for a state agency
for the dispensing of liquors under certain circumstances, but not
for use as a beverage, and prohibiting generally the manufacture,
sale, bartering, giving away or otherwise furnishing liquor within
the state. Session Laws Oklahoma, 1907-1908, ch. 69, p. 605; §§
4180
et seq. Comp.Laws of 1909. Sections 5 and 6 of Art. 3
of the statute, §§ 4184 and 4185 Comp.Laws of 1909, provide in
substance that any judge of a district or county court or justice
of the peace, upon a showing of probable cause, may issue search
and seizure warrants directed to any officer of the county to seize
liquors under the circumstances therein mentioned, and provide for
a hearing as to whether such liquors are being unlawfully held,
etc. The statute also makes provision for the forfeiture of liquors
and other personal property employed in unlawfully trafficking in
liquors.
Page 220 U. S. 199
The State of Oklahoma, through its governor, is here complaining
that
"The Circuit Court of the United States for the Eastern District
of Oklahoma and Ralph E. Campbell, the District Judge of said
District, sitting as Judge of said Circuit Court, have, in direct
violation of the Eleventh Amendment to the Constitution of the
United States and contrary to and in direct violation of § 720 of
the Revised Statutes of the United States, assumed
jurisdiction"
in nine suits in equity brought in said court, and the number of
each case and the parties thereto are stated. The particular
proceedings had in each case are not set out, but it is, in
substance, alleged that in each the relief sought was the enjoining
of the prosecution of search and seizure proceedings instituted
under the statute above referred to in the courts of Oklahoma and
the enjoining of the state
"from prosecuting any action in its said courts, under and
pursuant to said §§ 4184 and 4185,
supra, of petitioner's
said laws, against any intoxicating liquors, in all cases where it
may become necessary to try and determine any one or more"
of the issues set out in the margin.
*
Page 220 U. S. 200
It is averred that the relief sought in the said equity suits
has been granted and the state and its officials are wrongfully
prevented from enforcing the statute, "and that the Oklahoma has
suffered and is suffering great and irreparable injury, from which
said petitioner has no adequate remedy at law," and
"that said acts of said respondents constitute and are an
unlawful and unwarranted interference with petitioner, the
Oklahoma, in the exercise of its governmental functions and
sovereign powers in connection with the enforcement of petitioner's
said prohibition laws. . . ."
In substance, it was prayed in the petition that the further
prosecution of the suits and the enforcement of the various
restraining orders and temporary injunctions entered therein should
be prohibited, as well as any further interference with the
prosecution in the state courts of search and seizure process under
the law in question.
As a return to a rule to show cause, respondent judge has filed
an answer, containing copies of the file papers in the equity suits
referred to in the petition. The following facts are taken from the
showing thus made:
Prior to the fall of 1908, under the assumed authority of search
warrants issued for alleged violations of the foregoing statute,
numerous consignments from other states than Oklahoma to residents
of Oklahoma of liquor had been taken from the cars or depots at
stations within the State of Oklahoma of the Missouri, Kansas and
Texas Railway Company, while such property was in the custody of
the company, before the completion of the interstate transportation
by delivery to the consignees. Alleging diversity of citizenship,
and a continuous violation of
Page 220 U. S. 201
rights protected by the Constitution of the United States, the
unlawfulness of these seizures and the irreparable character of the
injury done and likely to be occasioned by further threatened
seizures, the railway company commenced, on September 9, 1908, the
first of the equity suits referred to in the petition. Twelve
persons were made defendants, as having been concerned either in
the obtaining of the various search warrants and their service, or
because in possession of property seized, or on account of advising
and encouraging the commission of the alleged trespasses. A decree
for the restoration of eighteen specified consignments, alleged to
have been unlawfully seized, was prayed, as also an injunction
against future seizures. A temporary restraining order was granted;
and, ultimately, a stipulation was entered into for the return of
the property seized, and for its redelivery to the defendants on
the payment to them of its value in the event the litigation should
terminate adversely to the railway company. On September 16, 1908,
the temporary restraining order was, by agreement of the parties,
continued in force until a time to be fixed by consent for the
hearing of an application for a temporary injunction. No further
proceedings were had in the case.
Four of the equity suits referred to in the petition -- three
filed December 17, 1909, and one on January 18, 1910 -- were
afterwards commenced in the same court by the railway company. The
defendants were several individuals alleged to have actively
participated in the seizure at various stations on the line of the
company's road, like in character to the seizure complained of in
the prior suit. Such seizures were averred to have been made under
the assumed authority of the prohibition statute heretofore
referred to. In one of the suits so commenced on December 17, 1909,
a stipulation was filed to the effect that the seizures complained
of had been made by the defendants acting as constables and under
the authority of a
Page 220 U. S. 202
search warrant, a copy of which was attached. In each of the
four cases, after hearing counsel for the respective parties, a
temporary restraining order was granted, prohibiting future
interference with interstate shipments before delivery to
consignees, and ordering the restoration of the property alleged to
have been seized, except that in one case, a portion of the seized
property was ordered to be safely and securely kept by the
defendants until the further order of the court. In each of the
cases, following the allowance of a temporary injunction, a
demurrer to the bill was filed alleging in substance that the court
was without jurisdiction to hear and determine the controversy
"and that the relief prayed for is sought in direct violation of
the Seventh and Eleventh Amendments of the Constitution of the
United States, and in direct violation of § 720 of the Revised
Statutes of the United States,"
and that the bill of complaint "is wholly without equity." These
demurrers have not been passed upon.
In the interval between the commencement of the first and the
last of the suits just referred to, four dealers in liquors and
consignors of shipments which had been taken from the custody of
the railway company while in course of interstate transportation to
consignees in Oklahoma, under the assumed authority of the statute
in question, also commenced the other suits in equity referred to
in the petition. The defendants in these suits, designated by their
official titles, were the state dispensary agent and the sheriff,
constables, or other officials who had participated in the seizures
complained of in the various bills of complaint, as also the person
who held possession of the property. The prayer of each bill was
for the allowance of temporary and perpetual injunctions
restraining future seizures of liquors shipped by the complainant
and consigned to
bona fide consignees in Oklahoma by
railroad until the interstate transportation had terminated by
delivery of the property to the consignees. A temporary
Page 220 U. S. 203
restraining order was issued in each case. Thereafter, in all of
these cases, a demurrer was filed to each bill upon the grounds
which were made the basis of the demurrers filed in the cases
commenced by the railway company, and upon the following additional
ground:
"That it appears from said complainants' bill of complaint that
their business operations, which they seek to have protected by
decree of this Honorable Court, are carried on and conducted in
direct violation of the penal laws of the United States of America,
to-wit, in violation of §§ 238, 239 and 240 of an Act of Congress
of March 4, 1909. 35 Stat. 1136-7."
The temporary injunctions issued in the suits brought by the
railway company were substantially alike, and restrained the
defendants and each of them, their agents and employees,
"from entering the cars, depots or other premises of the
complainant, Missouri, Kansas and Texas Railway Company, and from
taking therefrom intoxicating liquors shipped from points outside
of the Oklahoma to points and consigned to persons within the
Eastern District of the Oklahoma, and that said defendants, and
each of them, their agents and employees be restrained from in
anywise interfering with complainant in its handling and delivery
of such interstate shipments of intoxicating liquors and from
inciting, aiding, abetting or advising other persons so to do."
The defendants were also enjoined from taking any steps looking
to the forfeiture of the seized property.
The temporary injunctions issued in the suits brought by the
foreign liquor houses were also substantially alike and in each the
defendants, their agents, etc., were
"enjoined and restrained until further order of this Court from
seizing or causing to be seized, either directly or indirectly, or
ordering or directing any person to seize any intoxicating liquors
shipped by the complainant Thixton from the Kentucky to actual
bona fide consignees within
Page 220 U. S. 204
the Eastern District of the Oklahoma while the same is in the
possession of the common carrier, and before the same have been
delivered, either actually or constructively, to such
consignees."
In two of the cases commenced by shippers, however, the
following proviso was inserted in the injunction order:
"Provided, however, that this order shall not apply to any
liquors shipped in violation of Sec. 3449 of the Revised Statutes
of the United States, or to liquors shipped in violation of
Sections 238, 239 and 240, of the Act of Congress of March 4, 1909,
35 Stat. 1136-7, or to any such liquors which are adulterated or
misbranded within the meaning of the Act of Congress of June 30,
1906, ch. 3915, 34 Stat. 768, commonly known as the Pure Food and
Drug Act, or to any such liquors shipped in violation of any other
Act of Congress."
In one of the shippers' cases, the injunction order also
contained a provision prohibiting action by the defendants looking
to the forfeiture of any of the liquors referred to in the
complaint as having been seized by such defendants.
This application for a writ of prohibition was made practically
contemporaneous with the filing of the various demurrers above
referred to. In substance, the reasons which caused the respondent
judge to assume jurisdiction over the causes and to award the
relief against the defendants therein, of which the state now
complains, are not only stated in the return, but are expounded in
an opinion delivered in one of the cases which is made a part of
the return. These reasons are, in substance, made manifest by two
excerpts, one from the opinion referred to and the other from the
return itself, as follows:
"Under the facts as stipulated in this case, the shipments
seized were still in the hands of the carrier, were interstate
commerce, and had not become subject to the laws of the state. If
it be contended that, in enacting the
Page 220 U. S. 205
search and seizure laws referred to, the legislature intended
that they should apply to such interstate commerce, then the answer
is that, to that extent, the law is invalid, because it is made to
apply to a subject within the exclusive jurisdiction of Congress.
If, on the other hand, it is contended that such was not the
intention of the legislature, then the state courts are exceeding
the law in issuing such search and seizure warrants. They are, in
my judgment, no protection to the officer who seeks by them to
justify his acts thereunder, and to enjoin him from executing them
is not a violation of § 720 of the Revised Statutes. The authority
of the state does not attach to shipments of the character involved
in this case until the delivery to the consignee."
"
* * * *"
"If these seizures are permitted, complainants will either have
to abandon their property so seized or defend a multiplicity of
suits, the number of which will be determined only by the zeal of
the enforcement officers in their interference with interstate
commerce. As the record now stands, the complainants, of course,
must eventually win in such suits, for upon a showing to the state
court that the property seized was still interstate commerce,
undelivered to the consignee, it would have to be ordered returned
to the complainants. It is not conceived, however, that such a
course presents that adequate legal remedy which precludes the
action of a court of equity. Nor is it conceived that in granting
the temporary injunctions complained of, respondent is violating
the 11th Amendment to the Constitution, or § 720 of the Revised
Statutes of the United States, because the injunction may prevent
one or more of the defendants from thereafter causing such warrants
of search and seizure to issue, or from executing such warrants
after issuance."
It is elaborately argued by counsel for the state, first,
Page 220 U. S. 206
that the injunction suits complained of were, in effect,
directed against the state, and therefore were barred by the
Eleventh Amendment; second, that the proceedings prosecuted under
§§ 4184 and 4185 of the 1909 Compiled Laws of Oklahoma are actions
in rem, brought under a valid state law, in courts of
competent jurisdiction, and therefore the injunctions restraining
the enforcement of the search warrants were, in substance and
effect, injunctions staying proceedings in the courts of the state,
in violation of § 720 of the Revised Statutes. And as supporting
this last contention, it is argued
"the effect of the injunctions here complained of is to prevent
and prohibit the 'judicial power' of the State of Oklahoma being
invoked, even by the state itself, for the purpose of judicially
determining the status of any particular quantity of intoxicating
liquor found within its borders, insofar as questions touching its
status as interstate commerce are concerned."
Counsel who oppose the allowance of the writ urge numerous
reasons why the application should be denied, in part as follows:
relief, it is claimed, should be refused because it is sought to
review in one action the proceedings in different causes involving
different parties and issues. Attention is called to the fact that,
in the first of the suits commenced by the railway company, no
jurisdictional objection was raised. It is argued that the bills of
complaint filed in the various suits commenced by the railway
company do not show on their face that the suits were against state
officers or that injunctions were sought to stay proceedings in the
state courts, and that, in any event, the primary purpose of the
bills was to restrain future seizures of interstate shipments
before delivery to the consignees. As to the suits brought by the
four liquor houses, it is urged that § 720 of the Revised Statutes
was not violated, as the relief granted was only against future
seizures and the suits were against state officials to prevent
Page 220 U. S. 207
them from enforcing against the plaintiffs a state statute,
which, whether valid or not on its face, was invalid as to
plaintiffs under the state of facts set forth in the bills on which
the circuit court acted. It is additionally urged that the granting
of the writ would enable local officers to interfere with the
operation of the revenue laws and other laws of the United States,
as the State of Oklahoma claims the right upon any hearing which
may be had in respect to the validity of seizures of the character
of those under consideration to determine whether the particular
shipments were made in violation of any statute of the United
States, and although for such violations the property would be
subject to be forfeited to the United States, yet if it is found by
the state court that the property had been shipped in violation of
a law of the United States, the goods would be adjudged not to have
been legitimate subjects of interstate commerce, and would be
forfeited to the state. Further, it is urged that continuous
seizures of liquors in transit by state authorities for the purpose
of ascertaining whether they are or may be obnoxious to the police
laws of the state is, in itself, an unconstitutional burden placed
upon interstate commerce, and decisions of this Court are cited as
supporting the proposition. In addition, it is insisted that the
law in question has been construed by the Supreme Court of Oklahoma
not to be applicable to interstate shipments of intoxicating
liquors until their arrival at destination and delivery to the
consignees, and because of such construction, it is urged, it
clearly results that
"any officer or person seeking to seize or cause to be seized
intoxicating liquors under the provisions of said act, before their
arrival at destination and delivery to consignee, acts entirely
outside of and beyond the scope of said law and is a naked
trespasser, and may be enjoined."
But we do not think we are called upon to test the accuracy of
these, as well as other, conflicting contentions,
Page 220 U. S. 208
because we are of the opinion that, consistently with the
orderly course of judicial proceeding, we may not pass upon them,
since we cannot do so without disregarding the plain statutory
provisions providing means for reviewing the action of the court
which is complained of and which, if availed of, would afford
complete and adequate remedy.
The principle under which the power to issue the extraordinary
writ of prohibition may be exerted was thus stated in
In re
Huguley Mfg. Co., 184 U. S. 297,
184 U. S.
301:
"It is firmly established that, where it appears that a court
whose action is sought to be prohibited has clearly no jurisdiction
of the cause originally, a party who has objected to the
jurisdiction at the outset and has no other remedy is entitled to a
writ of prohibition as a matter of right. But where there is
another legal remedy by appeal or otherwise, or where the question
of the jurisdiction of the court is doubtful, or depends on facts
which are not made matter of record, the granting or refusal of the
writ is discretionary.
In re Rice, 155 U. S.
396. And that the writ of mandamus cannot be used to
perform the office of an appeal or writ of error, and is only
granted as a general rule where there is no other adequate remedy.
In re Atlantic City Railroad Company, 164 U. S.
633."
It will become apparent from even a merely superficial analysis
that, consistently with the doctrine just referred to, the facts
which we have stated afford no basis for the allowance of the writ
of prohibition as prayed. This is obvious because, first, an
adequate remedy was provided by law in each case, even before final
judgment, for reviewing and correcting in the circuit court of
appeals any error committed by the court below in awarding
interlocutory relief by injunction; second, because after final
decree, if the cases so ultimated, adequate remedy existed at the
election of the defendants to come directly to this Court upon the
question alone of the jurisdiction of the
Page 220 U. S. 209
court below as a federal court over the respective causes;
third, because even if these remedies were not resorted to and the
cases had gone to final decrees against the defendants and they had
chosen to appeal the whole case to the circuit court of appeals,
and that court had decided against them, there would be either a
right in this Court to review by appeal, or discretionary power, if
it was deemed that the questions involved warranted such action, to
bring the whole case up for review by the writ of certiorari.
Bearing these considerations in mind, it results that relief by the
extraordinary remedy of prohibition, if here granted, could not
possibly rest upon the ground that there was otherwise no adequate
means of relief, but would have to be placed upon the assumption
that there was a right to the writ, even although the party
invoking it had declined to avail himself of the otherwise complete
and adequate measures of relief which would have been afforded by
following the orderly and regular course of judicial
proceeding.
In view of the identity of the principles which govern the right
to invoke the extraordinary remedy of mandamus to correct an
unlawful assumption of jurisdiction, and those which control the
power to issue the writ of prohibition for the same purpose, it was
perhaps unnecessary to consider the subject from an original point
of view, since the matter is settled by authority. Quite recently,
in
Ex Parte Harding, 219 U. S. 363, the
whole subject was reviewed, and it was held that discretion to
issue the writ of mandamus would not be exerted to review a
question of jurisdiction where there was otherwise adequate remedy
provided by statute for the review of errors in that respect
asserted to have been committed by a trial court. Besides, a
previous decision which was reviewed and reaffirmed in the
Harding case so completely controls the issue here
presented as to leave no room for contention on the subject. The
case is
Ex Parte
Nebraska, 209
Page 220 U. S. 210
U.S. 436. That case was this. The State of Nebraska was one of
the plaintiffs in a cause removed from a state court into a Circuit
Court of the United States on the ground that there was a separable
controversy between the other plaintiffs in the cause and the
defendant. The Circuit Court having denied a motion to remand, the
State of Nebraska applied to this Court for a writ of mandamus to
compel the remanding of the cause, averring that it was plain from
the record that it was the real and in substance the only party
plaintiff in the removed cause. The application for the writ,
however, was denied upon the ground that the order overruling the
motion to remand was subject after final judgment to be reviewed by
appeal, and therefore was not properly reviewable by the writ of
mandamus.
Rule discharged and prohibition denied.
*
"(
a) The issue as to whether or not the particular
intoxicating liquor in question was at the time of its seizure, a
bona fide shipment made to a person within petitioner's
borders from a place outside of petitioner's borders, which said
shipment had not been delivered by the interstate carrier under the
contract of interstate shipment to the consignee at the place of
destination."
"(
b) The issue as to whether or not the particular
intoxicating liquor in question had been shipped from a point
outside of petitioner's borders to a place within petitioner's
borders in violation of § 3449 of the Revised Statutes of the
United States."
"(
c) The issue as to whether or not the particular
intoxicating liquor in question had been shipped from a place
outside of petitioner's borders to a place within petitioner's
borders in violation of any one or more of §§ 238, 239, and 240 of
the Act of Congress of March 4, 1909 (35 Stat. 1136-7)."
"(
d) The issue as to whether or not the particular
intoxicating liquor in question, although shipped from a place
outside of petitioner's borders to a place within petitioner's
borders and in the possession of the interstate carrier,
undelivered under the contract of interstate shipment at the time
the seizure was made, is 'adulterated' or 'misbranded' within the
meaning of the Act of Congress of June 30, 1906, chapter 3915, 34
Stat. 768, commonly known as the Pure Food and Drug Act."