In a case ultimately within its reviewing power, this Court has
jurisdiction to require by mandamus the filing of the record in the
circuit court of appeals.
Where the refusal to file was in accordance with orders of the
court of appeals, relied on in the clerk's answer,
held
that, while properly the relief should have been directed to the
court, under the peculiar circumstances, the irregularity might be
treated as formal and the authority to make the orders be
determined with the clerk alone as technical respondent.
The provision in the Act of June 12, 1917, c. 27, 40 Stat. 157,
that
"courts of the United States shall be open to seamen without
furnishing bonds or prepayment of or making deposit to secure fees
or costs, for the purpose of entering and prosecuting suit,"
etc., does not apply to appellate proceedings.
Rule discharged.
The case is stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
In the trial court, the petitioners, six in number, Arabian
seamen and members of the crew of a British ship, as libelants
sought to enforce the payment of one-half their wages in reliance
upon the provisions of § 4530, Revised Statutes, as amended by § 4
of the Act of March 4, 1915, c. 153,
Page 247 U. S. 28
38 Stat. 1165. In granting an appeal from a decree dismissing
their claim, the court, in view either of the provisions of the Act
of Congress of July 1, 1916, c. 209, 39 Stat. 313, or those of the
Act of June 12, 1917, c. 27, 40 Stat. 157, or both, directed that
the appellants be permitted to perfect their appeal without
costs.
In the circuit court of appeals, the clerk declined to file the
record without the deposit to secure costs required by the rules.
The court was asked to direct the clerk to do otherwise, but, for
reasons stated in a brief memorandum, it refused to do so. Assuming
that this action was based solely on the view that the Act of 1916
had ceased to be operative by limitation of time, relying upon the
Act of 1917, the request for direction to the clerk to file the
record without costs or security for the same was again made to the
court and refused upon the ground of want of merit in the
application -- that is, upon the conclusion that the act of
Congress relied upon did not relieve seamen from costs in appellate
courts. Leave to present a petition for mandamus against the clerk
to compel him to file the record without costs was then here
granted, and the matter is before us on the submission of the rule
to show cause consequent upon such permission and the answer of the
clerk to the rule setting out the action of the court, in which
answer reliance is placed upon the orders of the court which are
appended and the two opinions expressed by the court on the
subject.
The existence of ultimate discretionary power here to review the
cause on its merits and the deterrent influence which the refusal
to file must have upon the practical exertion of that power in a
case properly made gives the authority to consider the subject
which the rule presents.
* But that does not
without more dispel the seeming confusion
Page 247 U. S. 29
resulting from the fact that the remedy prayed is directed not
to the court below, but to its clerk, and hence, in form, the
relief sought is a mandamus to direct the clerk to disobey the
order of the court, leaving the order unreviewed and unreversed.
The incongruity is obvious, and we cannot as a general rule
sanction it. Looking, however, through form to the essence of
things, as no mere independent action of the clerk as clerk is
involved, but the authority exerted by the court in directing the
action of the clerk complained of is the subject matter at issue
and is the only justification relied upon by the clerk in the
answer to the rule, we are of the opinion that, in the exercise of
a sound discretion, we may treat the case from that point of view
-- that is to say, under the circumstances, consider the authority
to have made the order with the clerk alone as a technical party to
the proceeding.
The contention that the court mistakenly refused to permit the
appellate proceedings to be conducted without payment of costs is
based upon a provision in the Appropriation Act of June 12, 1917,
as follows:
"
Provided, that courts of the United States shall be
open to seamen, without furnishing bonds or prepayment of or making
deposit to secure fees or costs, for the purpose of entering and
prosecuting suit or suits in their own name and for their own
benefit for wages or salvage and to enforce laws made for their
health and safety."
The provision does not in express words relate to appellate
proceedings, and the whole argument advanced to sustain the theory
that it includes such proceedings rests upon the conception that,
because the provision was intended to benefit seamen by giving them
access to the courts without cost, therefore, by necessary
implication, the statute should be construed as all-embracing --
that is, as giving the right to carry on appellate proceedings free
from costs. But this simply assumes the proposition contended for,
and, after all, comes but to the contention
Page 247 U. S. 30
that, because the statute gives the right which is asserted,
therefore the statute should be construed as conferring it, and its
enjoyment consequently sustained. The error results from
disregarding the broad distinction which exists between the right
to be heard in courts of justice, on the one hand, and the
necessity for the grant of authority, on the other, to review the
results of such hearing by proceedings in error or appeal.
Reetz v. Michigan, 188 U. S. 505,
188 U. S.
507-508;
United States v. Heinze, 218 U.
S. 532,
218 U. S.
545-546;
Lott v. Pittman, 243 U.
S. 588,
243 U. S. 591.
This obvious distinction between the two, we are of opinion, in the
absence of a clear and express legislative direction to the
contrary, excludes the possibility of giving the statute the
all-embracing construction sought to be applied to it. And the
correctness of this opinion is, we think, conclusively illustrated
by a consideration of prior statutes dealing with a somewhat
cognate subject and the decisions concerning the same. Act July 20,
1892, c. 209, 27 Stat. 252; Act June 25, 1910, c. 435, 36 Stat.
866;
Bradford v. Southern Railway Co., 195 U.
S. 243;
Kinney v. Plymouth Rock Squab Co.,
236 U. S. 43. In
other words, under the Act of 1892, conferring a right to prosecute
in forma pauperis suits in courts of the United States,
which was certainly as broad in its language as the one now under
consideration, it was decided in the
Bradford case that
the right did not embrace appellate proceedings. And when,
following that decision, the statute was amended by the Act of 1910
so as to cause it in express terms to be applicable to appellate
proceedings, the right was subjected to accompanying restrictions
and safeguards which as held in the
Kinney case made the
new right not absolute, but dependent not only upon the limitations
which were otherwise put in the statute, but also upon the exercise
of a sound discretion by the appellate court. The statute before
us, as we have seen, which was enacted in 1917 after the decision
in the
Bradford case, contains none of the express
Page 247 U. S. 31
provisions as to appellate proceedings inserted in the Act of
1910. Thus, if resort is to be had to legislative history and the
implication of legislative intent as a means of reading into the
statute that which it does not contain, a contrary result must
necessarily follow, since the conclusion from considering that
subject must be that the Act of 1917, enacted after the
Bradford case, in not expressing the right to be exempt
from costs in appellate proceedings, was intended to conform and
give effect to the rule announced in the
Bradford
case.
Rule discharged.
*
Ex parte
Crane, 5 Pet.190,
30 U. S.
193-194;
Chateaugay Iron Co., Petitioner,
128 U. S. 544;
Hollon Parker, Petitioner, 131 U.
S. 221,
131 U. S.
225-226;
In Re Hohorst, 150 U.
S. 653;
In re Grossmayer, 177 U. S.
48,
177 U. S.
49-50.
MR. JUSTICE BRANDEIS, dissenting.
I am unable to concur in the decision of the Court. Congress
declared without qualification "[t]hat courts of the United States
shall be open to seamen . . . for purpose of entering and
prosecuting suit . . . without . . . making deposit to secure fees
or costs." There being no qualification, the words, "courts of the
United States" mean all the courts in which seamen may have
occasion to enter and prosecute suits. Seamen have occasion to
enter and prosecute such suits in appellate courts. Consequently
they should be permitted to do so "without making deposit to secure
fees or costs."
MR. JUSTICE CLARKE joins in this dissent.