Under Jud.Code, § 250, judgments of the Court of Appeals of the
District of Columbia in criminal cases, and judgments which are not
final, are not reviewable by writ of error upon the ground that the
jurisdiction of the trial court is in issue, or upon the ground
that the construction of a law of the United States was brought in
question by the defendant.
The jurisdiction of the Supreme Court of the District of
Columbia to supervise the criminal proceedings of inferior
tribunals by removal and review through certiorari is analogous to
that of the Court of King's Bench, and the nature and functions of
the writ in such cases are to be tested by common law
principles.
At common law, when a cause before judgment was removed by
certiorari in order that justice might be done by quashing the
indictment or information or proceeding to trial, or otherwise, as
the circumstances might require, the nature of the cause was not
changed by the removal, and a judgment quashing the writ was
followed by a
procedendo as a matter of course.
The Supreme Court of the District, having by certiorari removed
for consideration a criminal case from the local police court upon
a petition alleging want of jurisdiction and insufficiency of the
information, afterwards entered judgment that the writ be quashed,
the
Page 247 U. S. 296
petition dismissed, and the record "remanded" to the police
court "whence it came." This judgment having been appealed to and
affirmed by the Court of Appeals,
held: (1) that the
judgment was in a case arising under the criminal law, (2) that it
was not final, and (3) that, for these reasons, a writ of error
under Jud.Code § 250 would not lie.
Writ of error to review 43 App.D.C. 44 dismissed.
The case is stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
On April 17, 1914, an information in behalf of the United States
was filed by the United States Attorney in the Police court of the
District of Columbia against the plaintiff in error (who will be
called the petitioner) charging violations of the Food and Drugs
Act of June 30, 1906, c. 3915, 34 Stat. 768. Having first objected
to the jurisdiction of the police court by motion to quash, by
demurrer, and by special plea in bar, all of which were overruled
by that court, petitioner was arraigned upon the information and
pleaded not guilty, after which, and before trial on the merits, he
filed in the Supreme Court of the District a petition praying that
a writ of certiorari might issue from that court to the present
defendant in error as judge of the police court to bring up the
record and proceedings, upon the grounds (1) that the police court
was without jurisdiction to try petitioner upon the information
Page 247 U. S. 297
for several reasons specified, and (2) that the information did
not sufficiently inform petitioner of the nature and cause of the
accusation against him, and his trial thereon would deprive him of
his constitutional right in that behalf. The writ of certiorari was
issued as prayed, return was made setting forth the information and
a memorandum of the proceedings thereon, and afterwards a motion
was made in the Supreme Court by the United States Attorney, in the
name of the respondent, to quash the writ because the police court
had jurisdiction and had assumed jurisdiction of the cause of
action involved in the information. Upon consideration, the Supreme
Court granted this motion, petitioner appealed to the Court of
Appeals of the District, that court affirmed the judgment of the
Supreme Court (43 App.D.C. 44), and to review the judgment of
affirmance the present writ of error was sued out.
At the threshold, we are confronted with the question whether we
have jurisdiction to proceed under the latter writ. If we have, it
must arise under § 250, Judicial Code (Act March 3, 1911, c. 231,
36 Stat. 1087, 1159), which, so far as need be quoted, runs as
follows:
"Any final judgment or decree of the Court of Appeals of the
District of Columbia may be reexamined and affirmed, reversed, or
modified by the Supreme Court of the United States, upon writ of
error or appeal, in the following cases,"
specifying, among others, "cases in which the jurisdiction of
the trial court is in issue," and "cases in which the construction
of any law of the United States is drawn in question by the
defendant," and then proceeding:
"Except as provided in the next succeeding section, the
judgments and decrees of said Court of Appeals shall be final in
all cases arising under the patent laws, the copyright laws, the
revenue laws, the criminal laws, and in admiralty cases."
The succeeding section confers upon this Court the discretionary
power to review, by certiorari
Page 247 U. S. 298
or otherwise, judgments and decrees of the Court of Appeals
otherwise made final by § 250.
Our jurisdiction is invoked upon the ground that the police
court has not jurisdiction to try the information, and that the
construction of the Food and Drugs Act, a law of the United States,
is drawn in question by plaintiff in error, who was defendant
below. The motion to dismiss is based upon the two-fold ground that
the case is one arising under the criminal laws and that the
judgment of the Court of Appeals is not a final judgment within the
meaning of the opening words of § 250. If the case is one so
arising, or if the judgment is not final, the fact that the
jurisdiction of the police court, or the construction of a law of
the United States, is in question will not give us jurisdiction.
Chott v. Ewing, 237 U. S. 197,
237 U. S. 201;
see McLish v. Roff, 141 U. S. 661. It
is conceded by petitioner that the information in the police court
presents a case arising under the criminal laws within the meaning
of the section, and that this has not proceeded to final judgment,
the response to the motion to dismiss being that the proceeding by
certiorari in the Supreme Court of the District was a separate and
independent proceeding not arising under the criminal laws, and
that this has been finally concluded by the affirmance in the Court
of Appeals of the judgment of the Supreme Court, leaving nothing to
be done except the issuing of execution for costs.
Whether it was a separate and independent proceeding must be
determined by a consideration of the nature and office of the writ
of certiorari as employed in this case and its relation to the
criminal proceeding.
The only provision of the District of Columbia Code respecting
this form of writ is in § 68 (Act March 3, 1901, c. 854, 31 Stat.
1189, 1200), which provides:
"The said Supreme Court may, in its appropriate special terms,
issue writs of quo warranto, mandamus, prohibition, scire facias,
certiorari, injunction, prohibitory and mandatory,
Page 247 U. S. 299
ne exeat, and all other writs known in common law and equity
practice that may be necessary to the effective exercise of its
jurisdiction."
Act March 3, 1901, c. 854, 31 Stat. 1189, 1200.
Certiorari always has been recognized in the District as a
appropriate process for reviewing the proceedings of a subordinate
tribunal when it has proceeded, or is proceeding, to judgment
without lawful jurisdiction.
Kennedy v. Gorman, 4 Cranch
C.C. 347, Fed.Cas. No. 7702;
Bates v. District of
Columbia, 1 MacArthur 433, 449. And the power to employ the
writ inheres in the Supreme Court of the District as possessing a
general common law jurisdiction and supervisory control over
inferior tribunals, analogous to that of the King's Bench.
United States v. West, 34 App.D.C. 12, 17. The Court of
Appeals, in a recent case, declared:
"There is no statute prescribing the function of, or regulating
the procedure by, certiorari in the District of Columbia; hence we
must look therefor to the common law. The writ lies to inferior
courts and to special tribunals exercising judicial or
quasi-judicial functions to bring their proceedings into
the superior court, where they may be reviewed and quashed if it be
made plainly to appear that such inferior court or special tribunal
had no jurisdiction of the subject matter, or had exceeded its
jurisdiction, or had deprived a party of a right or imposed a
burden upon him or his property, without due process of law."
Degge v. Hitchcock, 35 App.D.C. 218, 226,
aff'd., 229 U. S. 229 U.S.
162,
229 U. S.
170.
At the common law, certiorari was one of the prerogative or
discretionary writs by which the Court of King's Bench exercised
its supervisory authority over inferior tribunals, and it was
employed in three classes of cases, among others --
viz.:
(1) to bring up an indictment or presentment before trial in order
to pass upon its validity, to take cognizance of special matters,
bearing upon it, or to assure an impartial trial; if the accused
was in custody,
Page 247 U. S. 300
it was usual to employ a habeas corpus as a companion writ; (2)
as a
quasi-writ of error to review judgments of inferior
courts of civil or of criminal jurisdiction, especially those
proceeding otherwise than according to the course of the common law
and therefore not subject to review by the ordinary writ of error,
and (3) as an auxiliary writ, in aid of a writ of error, to bring
up out-branches of the record or other matters omitted from the
return.
The first of these functions is the one that now concerns us.
Blackstone refers to it in these terms:
"Thus much for process to bring in the offender after indictment
found, during which stage of the prosecution it is that writs of
certiorari facias are usually had, though they may be had
at any time before trial, to certify and remove the indictment,
with all the proceedings thereon, from any inferior court of
criminal jurisdiction into the Court of King's Bench, which is the
sovereign ordinary court of justice in causes criminal. And this is
frequently done for one of these four purposes -- either (1) to
consider and determine the validity of appeals or indictments and
the proceedings thereon and to quash or confirm them as there is
cause, or (2) where it is surmised that a partial or insufficient
trial will probably be had in the court below, the indictment is
removed, in order to have the prisoner or defendant tried at the
bar of the Court of King's Bench, or before the justices of
nisi prius; or (3) it is so removed in order to plead the
king's pardon there, or (4) to issue process of outlawry against
the offender in those counties or places where the process of the
inferior judges will not reach him. Such writ of certiorari, when
issued and delivered to the inferior court for removing any record
or other proceeding, as well upon indictment as otherwise,
supersedes the jurisdiction of such inferior court and makes all
subsequent proceedings therein entirely erroneous and illegal
unless the Court of King's Bench remands the record to
Page 247 U. S. 301
the court below, to be there tried and determined."
4 Black.Com. 320, 321. To the same effect is 2 Hale, P.C. 210,
where the learned commentator further says:
"If there be an indictment to be removed and the party be in
custody, it is usual to have an habeas corpus to remove the
prisoner, and a certiorari to remove the record, for as the
certiorari alone removes not the body, so the habeas corpus alone
removes not the record itself, but only the prisoner, with the
cause of his commitment,"
etc.
See also Fitz.Nat.Brev. 245; Bacon's Abr. tit.
Certiorari (A);
Harris v. Barber, 129 U.
S. 366,
129 U. S. 369.
*
The function of the writ of certiorari, when thus issued prior
to judgment, being simply to remove the record and proceedings into
the superior court to the end that justice may there be done by
quashing the indictment or information, by proceeding to trial upon
it, or otherwise as the circumstances of the case may require, it
is obvious that it merely brings into play a supervisory
jurisdiction, without changing the nature of the case that is to be
heard and determined; that a decision by the
Page 247 U. S. 302
reviewing court adverse to the accused upon any preliminary
matter, and without trial upon the merits, followed by a remittitur
to the court below, necessitates further proceedings before that
court from the point at which they were interrupted by the
allowance of the writ, and that a judgment quashing the writ of
certiorari simply removes the obstacle that the writ interposed in
the way of further proceedings in the court of first instance, so
that a
procedendo follows as a matter of course. And so
are the authorities.
"If an indictment be removed after issue joined and remanded,
the inferior court shall proceed as if no certiorari had been
granted. . . . (It is true, that, while it continues on the file,
the court cannot award a
procedendo. But it may be taken
off the file, if it have issued
improvide, and when that
is done, a
procedendo will be granted.)"
Bac.Abr. Tit. Certiorari (K), citing
Rex v. Wakefield,
1 Burr. 485, 488;
Rex v. Clace, 4 Burr. 2456, 2459;
Rex v. Micklethwayte, 4 Burr. 2522.
And see
Com.Dig., Tit. Certiorari (G), citing
Anonymous, 1 Salk.
144, to the effect that, if a certiorari be granted to remove an
indictment and the cause suggested should afterwards appear false,
a
procedendo should be awarded.
See also Kennedy v.
Gorman, 4 Cranch C.C. 347, 348, Fed.Cas. No. 7702.
The record in the present case shows that, from beginning to
end, it was recognized that the writ of certiorari was a mere
method of removing the information and the proceedings thereon from
the police court into the Supreme Court for purposes of review,
that it was not a new or independent cause, but a mere step in the
pending criminal case, so that, when the Supreme Court reached the
conclusion that the writ ought to be quashed, the result was merely
to remove this obstacle in the way of the exercise by the police
court of its jurisdiction, and that the record ought to be remanded
for further proceedings in that court. The prayer of the petitioner
was
"that
Page 247 U. S. 303
the writ of certiorari may issue from this court to the
respondent commanding him to certify to this court the record and
proceedings in the said cause so as aforesaid instituted and
pending against the petitioner,
to the end that the same may be
considered by this court, and that there may be done
in
behalf thereof what of law and right ought to be done in the
premises."
The writ issued in pursuance of this petition and addressed to
the judge of the police court, after reciting that there was "now
pending before you a suit between the United States and the
above-named petitioner, William A. Hartranft," commanded the judge
to send to the Supreme Court
"the record and proceedings in the said cause,
so that the
said Supreme Court may act therein as of right and according
to the laws and customs of the United States should be done."
And the judgment of the Supreme Court was that the writ of
certiorari be quashed, and the petition dismissed, and that the
record be "
remanded to the police court of the District of
Columbia, whence it came." Clearly, this was an implied
mandate for further proceedings in the police court. The judgment
for costs was but incidental.
The contention that the certiorari case in the Supreme Court was
independent of the proceeding in the police court because the two
cases bore different titles is without weight. The writ ran from
the President of the United States to the judge by name, not in his
personal, but in his official, capacity, as being in contemplation
of law the custodian of the record (
see State v. Howell,
24 N.J.L. 519;
Kirkpatrick v. Commissioners, 42 N.J.L.
510;
Hutchinson v. Rowan, 57 N.J.L. 530), but the
substance of it was a command that the record of the cause pending
in the police court be removed into the Supreme Court for its
consideration, and the execution of the writ did not change the
nature of the cause, but merely transferred it to a different
court.
There is a singular and fatal inconsistency between the
Page 247 U. S. 304
grounds on which plaintiff in error invokes our jurisdiction and
the ground on which he endeavors to maintain it. He comes saying,
in order to bring himself within § 250, Judicial Code, that in this
case (a) the jurisdiction of the trial court is in issue, and (b)
the construction of a law of the United States was drawn in
question by himself as defendant. But, in resisting the objection
that the case is one arising under the criminal laws and the
judgment is not final, he is obliged to take refuge in the theory
that the certiorari proceeding was separate and independent from
the police court proceeding. This, if granted, would leave him
without a footing here, because, in the certiorari proceeding, the
Supreme Court was the "trial court," and its jurisdiction was not
and is not in issue, and in that proceeding, he was prosecutor or
plaintiff, not defendant, and it does not appear that the
construction of any law of the United States was there drawn in
question by defendant in error, who was defendant if the proceeding
was an independent one. There is no escape from the dilemma.
From what has been said, it results that the decision of the
Supreme Court was a decision in a case arising under the criminal
laws; and, since it required further proceedings in the police
court before the merits of the case could be determined, it was not
a final judgment within the meaning of the opening words of § 250,
Judicial Code. By § 226 of the District of Columbia Code, the Court
of Appeals may review interlocutory orders of the Supreme Court, as
well as final judgments, but it is unnecessary to say that, if the
judgment reviewed was interlocutory, so is the judgment affirming
it. Were we to review and affirm the latter judgment, a trial upon
the merits in the police court would still be necessary. The
bearing of this is manifest.
Macfarland v. Brown,
187 U. S. 239,
187 U. S. 246.
Two cases very much in point are to be found in the reports of
New Jersey; both being decisions of the court
Page 247 U. S. 305
of last resort. To show their pertinency, it should be premised
that, in that state, the jurisdiction and practice of the supreme
court are modeled after those of the King's Bench, and there is a
review of its decisions by the Court of Errors and Appeals (as in
the House of Lords), but only after final judgment. The practice of
employing the writ of certiorari for the removal of an indictment
or presentment before trial from the court of first instance into
the supreme court has been recognized from the beginning, and
regulated by statutes not departing essentially from the common law
practice. Act Feb. 6, 1799; Paterson's Laws, p. 350; Rev.Stats.
1847, p. 983; Gen.Stat. 1895, p. 367; P.L.1903, p. 343; 1
Comp.Stat. (1910) p. 402. Upon the removal of an indictment into
the supreme court by this process, if that court determines that
the indictment is not sufficient in law, the person indicted is
discharged; but if it is found sufficient, the court may, in its
discretion, retain it to be carried down for trial before the
proper Circuit Court, or may order it returned to the court from
which it was removed, there to be proceeded with in the same manner
as if the writ had not been allowed. It is a common practice to use
this writ in order to obtain the judgment of the Supreme Court upon
the validity of an indictment before trial.
State v.
Sailer, 16 N.J.L. 357;
State v. Powder Mfg. Co., 50
N.J.L. 75;
State v. New Jersey Jockey Club, 52 N.J.L. 493;
State v. Nugent, 77 N.J.L. 157;
State v. Kelsey,
80 N.J.L. 641. Such being the practice, in
Parks v. State,
62 N.J.L. 664, the return to a writ of error issued out of the
Court of Errors and Appeals to the Supreme Court disclosed that the
latter court, by certiorari to the sessions, had removed an
indictment and entertained and denied a motion to quash it, and
ordered the record to be remitted to the sessions to be proceeded
in according to law. A motion having been made to dismiss the writ
of error, the court, speaking by
Page 247 U. S. 306
Chief Justice Magie, said:
"When the Supreme Court, by virtue of its superintending power
over inferior courts, brings by certiorari into it the proceedings
of an inferior court upon an indictment, it has the option, at its
discretion, to retain the cause and proceed to a final disposition
of the issues presented or to remit the proceedings to the inferior
court. Gen.Stat. 368. Had the supreme court retained the cause now
before us, it is obvious that no final judgment could have been
reached until the accused had been convicted and sentenced or
acquitted and discharged by that court. It is equally plain that,
after the exercise of its option of remitting the proceedings to
the sessions, no final judgment in the cause could have been
reached until a similar result had been reached in that court. A
certiorari in such cases is not the institution of a new suit, nor
does it bring in question any final judgment. The result is that
this writ was prematurely issued, and must be dismissed."
To the same effect is
State v. Kelsey, 82 N.J.L.
542.
For both reasons, that the case is one arising under the
criminal laws and that the judgment is not final, we have no
jurisdiction under § 250, Judicial Code, and the writ of error must
be and is
Dismissed.
MR. JUSTICE McREYNOLDS took no part in the consideration or
decision of this case.
* The use of the writ of certiorari, in conjunction with that of
habeas corpus, has been a familiar part of the appellate procedure
of this Court from an early period, under § 14 of the Judiciary Act
of 1789, c. 20, 1 Stat. 73, 81; § 716 Rev.Stats.; § 262, Judicial
Code.
Ex parte
Burford, 3 Cranch 448;
Ex parte
Bollman & Swartwout, 4 Cranch 75,
8 U. S. 101;
Ex parte
Yerger, 8 Wall. 85,
75 U. S. 103;
Ex parte
Lange, 18 Wall. 63,
85 U. S. 166;
Hyde v. Shine, 199 U. S. 62,
199 U. S. 85. It
is obvious that this use of the certiorari is available before
conviction in a proper case.
An analogous use of the writ, before judgment in the court to
which it is addressed, arises under § 239 or § 251, Judicial Code,
36 Stat. 1157, 1159, where, upon questions of law's being certified
to us in any case pending in a circuit Court of Appeals or in the
Court of Appeals of the District of Columbia, this Court may
require that the whole record and cause be sent up to it, and
thereupon decide the whole matter in controversy as if it had been
brought here by writ of error or appeal. In such a case, the record
is brought here by writ of certiorari, with the effect of
submitting the cause to this Court for decision instead of to the
Court of Appeals.