1. This Court has full power in its discretion to issue the writ
of mandamus to a federal district court, although the case be one
in respect of which direct appellate jurisdiction is vested in the
circuit court of appeals, this Court having ultimate discretionary
jurisdiction by certiorari, but such power will be exercised only
where a question of public importance is involved, or where the
question is of such a nature that it is peculiarly appropriate that
such action by this Court should be taken. Pp. 287 U. S. 245
287 U. S.
2. Application by the Government for a mandamus to require a
federal district court to issue a bench warrant upon an indictment
regularly found and fair on its face held
appellate jurisdiction of this Court. P. 287 U. S.
3. A district court, when asked by the Government to issue a
bench warrant upon an indictment fair on its face and returned to
it by its duly constituted grand jury, has no discretion to refuse.
P. 287 U. S.
4. In the court to which the indictment is returned, the finding
of an indictment, fair upon its face, by a properly constituted
grand jury conclusively determines the existence of probable cause
for the purpose of holding the accused to answer. P. 287 U. S.
Petition for a writ of mandamus requiring a District Court and
its judge to set aside an order denying an application for a bench
warrant. An opinion of the court below is reported sub nom.
United States v. Wingert,
55 F.2d 960. The hearing in this
Court was upon the petition and the return to an order to show
Page 287 U. S. 244
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
This is an application for a writ of mandamus requiring the
federal District Judge sitting in the United States District Court
for the Eastern District of Pennsylvania
Page 287 U. S. 245
and the court itself to set aside an order denying a petition of
the United States attorney for the issue of a bench warrant for the
arrest of Joseph V. Wingert (see United States v. Wingert,
55 F.2d 960), and directing that such bench warrant be issued. The
case is here for decision upon the return of the court and judge to
a rule to show cause why the application for the writ should not be
granted. The facts follow.
On March 10, 1932, a grand jury for the district, duly
impaneled, returned an indictment against Wingert, charging him
with violating certain provisions of the banking laws of the United
States. No question is raised as to the regularity of the
proceedings before the grand jury, or as to the sufficiency of the
indictment. On March 22, the United States attorney presented to
the court a written petition praying that a bench warrant issue for
Wingert's arrest. The District Court, with nothing before it, so
far as the record discloses, but the petition and the indictment,
denied the petition and refused to issue the warrant. The sole
ground alleged in the return for such denial is that the matter was
within the judicial discretion of the court, and therefore not
subject to mandamus proceedings.
1. It first is necessary to determine whether, under these
facts, we have jurisdiction to issue the writ. Section 716,
Rev.Stats. (§ 262 of the Judicial Code, U.S.C. Title 28, § 377),
provides that this Court and other federal courts
"shall have power to issue all writs not specifically provided
for by statute, which may be necessary for the exercise of their
respective jurisdictions, and agreeable to the usages and
principles of law."
As early as 1831 it was settled that this Court had power to
issue a mandamus directed to a federal Circuit Court commanding
that court to sign a bill of exceptions, such action being in the
nature of appellate jurisdiction. In re
5 Pet.190, 30 U. S. 193
In Marbury v.
1 Cranch 137, 5 U. S. 175
Page 287 U. S. 246
that to warrant the issue of a mandamus by this Court, in cases
where original jurisdiction had not been conferred by the
Constitution (See Kentucky v.
24 How. 66, 65 U. S. 9
must be shown to be an exercise of appellate jurisdiction, or to be
necessary to enable the court to exercise its appellate
jurisdiction. McClellan v. Carland, 217 U.
, 217 U. S. 280
laid down the general rule applicable both to this Court and to the
Circuit Courts of Appeals, that the power to issue the writ under
R.S. § 716 is not limited to cases where its issue is required in
aid of a jurisdiction already obtained, but that,
"where a case is within the appellate jurisdiction of the higher
court, a writ of mandamus may issue in aid of the appellate
jurisdiction which might otherwise be defeated by the unauthorized
action of the court below."
See also Delaware, L. & W. R. Co. v. Rellstab,
276 U. S. 1
276 U. S. 5
In re Babcock,
26 F.2d 153, 155; Barber Asphalt Paving
Co. v. Morris,
132 F. 945, 952-956.
Perhaps it would be enough to satisfy the test afforded by these
decisions to point to the limited authority of this Court under c.
2564, 34 Stat. 1246, U.S.C. Title 18, § 682 (U.S.C. title 28, §
345) to exercise direct appellate jurisdiction to review a decision
of the District Court in the possible event that some action of
that court might give rise to a right of review at the instance of
the government. We prefer, however, to put our determination upon
the broader ground that, even if the appellate jurisdiction of this
Court could not in any view be immediately and directly invoked,
the issue of the writ may rest upon the ultimate power which we
have to review the case itself by certiorari to the Circuit Court
of Appeals in which such immediate and direct appellate
jurisdiction is lodged.
It is true this Court has held that it was without authority to
issue a writ of mandamus to the Supreme Court of the District of
Columbia, because, since the creation of the Court of Appeals of
the District of Columbia, this
Page 287 U. S. 247
Court could not review the judgments and decrees of the Supreme
Court of the District directly by appeal or writ of error. In
re Massachusetts, 197 U. S. 482
And see also Ex parte Glaser, 198 U.
. Assuming that an application of those decisions
to the present case would necessitate a denial of the writ, later
cases clearly indicate that the rule as thus limited to longer
obtains. In McClellan v. Garland, supra,
217 U.S. p.
217 U. S. 279
this Court significantly suggested that it should be slow to reach
a conclusion which would have the result of depriving the court of
the power to issue the writ in proper cases to review the action of
the federal courts inferior in jurisdiction to itself. And in
Ex parte Abdu, 247 U. S. 27
247 U. S. 28
Mr. Chief Justice White, speaking for the Court, said:
"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."
This statement, it is true, related to the refusal of a circuit
court of appeals to direct its clerk to file the record in an
appeal from a district court, but it was followed broadly in
Los Angeles Brush Mfg. Corp. v. James, 272 U.
. In that case, an application for mandamus was
made to this Court to compel a district court to hear a patent
case, instead of referring it to a master, in alleged violation of
Equity Rules 46, 59. This Court, after pointing out that the
hearing of the cause in review would normally be had in the circuit
court of appeals, and could come here only in due course by
certiorari, and saying that it was unnecessary to decide whether
the writ would issue direct to the district court in matters as to
which the circuit court of appeals would or should ordinarily have
power to issue a mandamus to the same end in aid of its appellate
jurisdiction, continued (p. 272 U. S.
Page 287 U. S. 248
"However that may be, we think it clear that, where the subject
concerns the enforcement of the equity rules which by law it is the
duty of this Court to formulate and put in force, and in a case in
which this Court has the ultimate discretion to review the case on
its merits, it may use its power of mandamus and deal directly with
the district court in requiring it to conform to them. Ex parte
Abdu, 247 U. S. 27
, 247 U. S.
; Ex parte Crane,
30 U. S. 192
-194. This is not
to say that, in every case where the equity rules are the subject
of interpretation and enforcement in the district court, such
questions may as, of course, be brought here and considered in a
direct proceeding in mandamus. The question of thus using the writ
of mandamus would be a matter of discretion in this Court, and it
would decline to exercise its power where the issue might more
properly come up by mandamus in an intermediate appellate court or
in regular proceedings on review. If it clearly appeared, however,
that a practice had been adopted by district judges as to the order
or procedure in hearing causes at variance with the equity rules,
our writ might well issue directly to such judges."
In other, and readily distinguishable, cases where the direct
appellate jurisdiction was vested in the circuit court of appeals,
this Court, in the exercise of its discretion, has declined to
issue the writ and relegated the applicant to his remedy in that
court. Ex parte Apex Electric Mfg. Co.,
274 U.S. 725;
Ex parte Daugherty,
282 U.S. 809; Ex parte
Krentler-Arnold Hinge Last Co.,
286 U.S. 533.
The rule deducible from the later decisions, and which we now
affirm, is that this Court has full power in its discretion to
issue the writ of mandamus to a federal district court, although
the case be one in respect of which direct appellate jurisdiction
is vested in the circuit court of appeals -- this court having
ultimate discretionary jurisdiction by certiorari -- but that such
power will be exercised only where a question of public importance
is involved, or
Page 287 U. S. 249
where the question is of such a nature that it is peculiarly
appropriate that such action by this Court should be taken. In
other words, application for the writ ordinarily must be made to
the intermediate appellate court, and made to this Court as the
court of ultimate review only in such exceptional cases. That the
present case falls within the latter description seems clear. The
effect of the refusal of the district court to issue a warrant upon
an indictment fair upon its face and properly found and returned is
equivalent to a denial of the absolute right of the government, as
matters stand, to put the accused on trial, since that cannot be
done in his absence. The mere statement discloses the gravity and
public importance of the question. It is obvious that, if a like
attitude should be taken by district courts generally, serious
interference with the prosecution of persons indicted for criminal
offenses might result. Undoubtedly, upon the theory presented by
the government, mandamus is the appropriate remedy, and the writ
may well issue from this Court in order to expedite the settlement
of the important question involved, and, incidentally, in
furtherance of the general policy of a prompt trial and disposition
of criminal cases. Accordingly, we pass to a consideration of the
2. The theory of the court below is that its denial of the
petition of the government for a bench warrant was an exercise of
its judicial discretion, and therefore not reviewable by mandamus.
This view of the matter cannot be sustained. The question whether
there was probable cause for putting the accused on trial was for
the grand jury to determine, and, the indictment being fair on its
face, the court to which it was returned, upon the application of
the United States Attorney, should have issued the warrant as a
matter of course. Cases are cited said to be to the contrary, but
they are not in point. They are either cases where the warrant was
sought from a magistrate upon complaint in the absence of an
Page 287 U. S. 250
was sought under the removal statute, R.S. § 1014, U.S.C. Title
18, § 591. Obviously, the first named cases are without
application. In cases arising under the removal statute, the
indictment is produced and considered not as a basic pleading, but
merely as evidence establishing or tending to establish the
commission of the offense and which may or may not settle the
question of probable cause. In the trial court to which the
indictment has been returned, it is "the very foundation of the
charge." Benson v. Henkel, 198 U. S.
, 198 U. S. 12
Morse v. United States, 267 U. S. 80
267 U. S. 83
Fetters v. United States, 283 U.
, 283 U. S.
It reasonably cannot be doubted that, in the court to which the
indictment is returned, the finding of an indictment, fair upon its
face, by a properly constituted grand jury conclusively determines
the existence of probable cause for the purpose of holding the
accused to answer. Compare McGrain v. Daugherty,
273 U. S. 135
273 U. S.
-158; Hale v. Henkel, 201 U. S.
, 201 U. S. 60
The refusal of the trial court to issue a warrant of arrest under
such circumstances is, in reality and effect, a refusal to permit
the case to come to a hearing upon either questions of law or of
fact, and falls little short of a refusal to permit the enforcement
of the law. The authority conferred upon the trial judge to issue a
warrant of arrest upon an indictment does not, under the
circumstances here disclosed, carry with it the power to decline to
do so under the guise of judicial discretion; or, as this Court
suggested in Ex parte United States, 242 U. S.
, 242 U. S. 42
the power to enforce does not inherently beget a discretion
permanently to refuse to enforce. In United States v.
Thompson, 251 U. S. 407
order of a federal district court quashing an indictment on the
ground that the charge, having been submitted to a previous grand
jury, had been resubmitted to a later one without leave of court
first obtained was set aside. This Court there said that the power
and duty of the grand jury to investigate is original
Page 287 U. S. 251
and complete, and may be exercised upon its own motion and upon
such knowledge as it may derive from any source which it may deem
proper, and is not exhausted or limited by adverse action taken by
a previous grand jury, and that a United States district attorney
may present, without leave of court, charges which a previous grand
jury has ignored. The necessary effect of the district court's
order, it was said (pp. 251 U. S.
"was to bar the absolute right of the United States to prosecute
by subjecting the exercise of that right not only as to this
indictment, but as to all subsequent ones for the same offenses, to
a limitation resulting from the exercise of the judicial
and to bar the lawful authority of the United States Attorney
and of the grand jury "by the application of unauthorized judicial
discretion." These observations are pertinent here.
Rule made absolute.