A writ of mandamus does not lie to the United States circuit
court of appeals to review, or to the circuit court of the United
States to disregard, a decree of the circuit court of appeals, made
on appeal from an interlocutory order of the circuit court, and
alleged to be in excess of its powers on such an appeal, but which
might be made on appeal from the final decree, when rendered.
Under the Act of March 3, 1891, c. 517, § 6, this Court has
power, in a case made final in the circuit court of appeals,
although no question of law has been certified by that court to
this, to issue a writ of certiorari to review a decree of that
court on appeal from an interlocutory order of the circuit court,
but will not exercise this power unless it is necessary to prevent
extraordinary inconvenience and embarrassment in the conduct of the
cause.
This court will not issue a writ of certiorari to review a
decree of the circuit court of appeals by which, on appeal from an
interlocutory order of the circuit court granting an injunction,
appointing a receiver of a railway company, and authorizing him to
issue receiver's notes, the injunction has not only been modified,
but the order has been reversed in other respects.
A decree of the circuit court of appeals by which, on appeal
from an interlocutory order of the circuit court vacating an order
appointing a receiver, the order appealed from has been reversed,
the receivership restored and the case remanded to the circuit
court to determine who should be receiver, will not be reviewed by
this Court by writ of certiorari, either because no appeal lies
from such an interlocutory order or because the order appointing
the receiver was made by a circuit judge when outside of his
circuit.
A circuit judge having taken part in a decree of the circuit
court of appeals on an appeal from an interlocutory order setting
aside a previous order of his in the case, this Court granted a
rule to show cause why a writ of certiorari should not issue to the
circuit court of appeals to bring up and quash its decree because
he was prohibited by the Act of March 3, 1891, c. 517, § 3, from
sitting at the hearing.
Page 148 U. S. 373
These were two petitions to this Court, each praying in the
alternative for a writ of mandamus or a writ of certiorari to the
United States Circuit Court of Appeals for the Fifth Circuit.
In the first case (No. 14), it appeared that the following
proceedings were had in the Circuit Court of the United States for
the Northern District of Florida.
On July 6, 1892, the American Construction Company, a
corporation of Illinois and a stockholder in the Jacksonville,
Tampa and Key West Railway Company, a corporation of Florida,
engaged in operating a railroad in that state, filed a bill in
equity in behalf of itself and of such other stockholders as might
come in against the railway company and against its president and
directors, citizens of other states, alleging that they had made a
contract in its behalf which was illegal and void, and unjust to
its stockholders, and had declined to have an account taken, and
praying for an account, a receiver, and an injunction.
On the filing of the bill, Judge Swayne, the district judge,
made a restraining order by which, until the plaintiff's motion for
an injunction and for the appointment of a receiver could be heard
and determined, the railway company and its officers and agents
were enjoined and restrained from remitting, sending, or removing
any of its income, tolls, and revenues from the jurisdiction of the
court and from selling, disposing of, hypothecating, or pledging
any of its bonds of a certain issue at less than their par
value.
On August 4, 1892, Judge Swayne, after a hearing of the parties,
made an order appointing Mason Young receiver of all the property
of the railway company, enjoining the railway company, its officers
and agents, and all persons in possession of its property, from
interfering with the possession, control, management, and operation
of the property, and from obstructing the exercise of the
receiver's rights and powers, or the performance of his duties, and
continuing the restraining order of July 6 until the further order
of the court.
On August 5, Judge Swayne, on a petition of the receiver, and
after hearing him and the parties, made an order authorizing
Page 148 U. S. 374
him to pay certain interest and obligations of the railway
company out of the income and money coming into his hands as
receiver, or, if those should be insufficient for that purpose, to
issue receiver's notes in payment of such interest and obligations,
or at his discretion to borrow money on such receiver's notes for
that purpose, the amount of such notes outstanding at one time not
to exceed $125,000.
On August 27, the railway company prayed and was allowed an
appeal from the orders of August 4 and August 5 to the United
States Circuit Court of Appeals for the Fifth Circuit, and gave
bond to prosecute the appeal.
On November 18, the construction company moved the circuit court
of appeals to dismiss the appeal because that court had no
jurisdiction to review the action of the circuit court in making
those orders or either of them.
On January 16, 1893, the circuit court of appeals, held by
Circuit Judges Pardee and McCormick and District Judge Locke,
denied the motion to dismiss the appeal and entered a decree
reversing and setting aside the orders appealed from except as to
the injunction, modifying the injunction so as to permit the
railway company to send away money for the payment of its bonds
which had been regularly sold, and for the purchase of necessary
equipment and supplies, and to restrain it from disposing of at
less than their par value, such only of the bonds of the issue
mentioned as remained the property of the company, and instructing
the circuit court to modify accordingly the restraining order of
July 6th, continued by the order of August 4th, and to vacate the
order of August 4, appointing a receiver, to discharge the
receiver, and to restore the property of the company to its
officers.
On January 23, the construction company filed a petition for a
rehearing upon the grounds, among others, that the circuit court of
appeals had no jurisdiction to review an order appointing a
receiver and that its decree did not allow the receiver time to
settle his accounts nor provide for the payment of his notes in the
hands of
bona fide holders for value.
On January 30, the circuit court of appeals denied a rehearing
and sent down a mandate in accordance with its
Page 148 U. S. 375
decree, and on February 1, the mandate was filed in the circuit
court.
On February 2, the construction company moved this Court for
leave to file a petition for a writ of mandamus to the circuit
court of appeals to dismiss so much of the appeal of the railway
company as undertook to bring before that court the action of the
circuit court in appointing a receiver and in authorizing him to
borrow money upon receiver's notes, or, in the alternative, for a
writ of certiorari to the circuit court of appeals to bring up its
decree for review by this Court.
In the second case, No. 15, besides the facts above stated, the
following facts appeared:
On July 23, 1892, the Pennsylvania Company for Insurance of
Lives and for Granting Annuities, a corporation of Pennsylvania, as
trustee under a mortgage of the property of the railway company to
secure the payment of its bonds of the issue aforesaid, presented
to Judge Pardee a bill in equity, addressed to the same circuit
court, against the railway company, praying for a foreclosure of
the mortgage, for the appointment of a receiver, and for an
injunction.
On the same day, upon this bill, and with the consent of the
railway company, Judge Pardee signed an order appointing Robert B.
Cable receiver of all its property, and declaring that the
appointment was provisional, to the extent that any one having an
interest in the property of the railway company might show cause
within thirty days why the appointment should not be confirmed, and
that the appointment should not
"affect or forestall any action the court or any of its judges
may hereafter see proper to take on any bill heretofore filed in
this Court against said railroad company, wherein a receivership
has also been prayed for."
This bill and order were directed by Judge Pardee to be filed of
July 23, 1892, and were filed by the clerk as of that day.
On July 29, the construction company filed in the circuit court
a petition of intervention, setting forth the previous proceedings
in the first case and praying that the order appointing Cable
receiver might be set aside and vacated.
Page 148 U. S. 376
On August 4, on this petition, Judge Swayne, holding the circuit
court, made an order setting aside and vacating the order
appointing Cable receiver and staying all further proceedings in
the cause until the further order of the court.
On August 23, the Pennsylvania Company prayed and was allowed an
appeal from that order of Judge Swayne to the United States Circuit
Court of Appeals for the Fifth Circuit, and gave bond to prosecute
its appeal.
On November 18, the construction company moved to dismiss this
appeal because the circuit court of appeal had no jurisdiction of
an appeal from that order and because it appeared by the pleadings
and papers on file that the suit was a collusive one between the
appellant and the railway company.
On January 16, 1893, the circuit court of appeals, held by
Circuit Judges Pardee and McCormick and District Judge Locke,
denied the motion to dismiss the appeal and entered a decree by
which that order was reversed, "the stay of proceedings dissolved,
the receivership restored," and the cause remanded to the circuit
court with instructions to proceed therein in accordance with the
opinion rendered by the circuit court of appeals, by which it
was
"left with the circuit court to determine what person is the
proper one to execute the office of receiver in this case, and to
continue Receiver Cable, or to appoint a more suitable person in
his place, as the relations of the parties and the character and
condition of the property may, in the judgment of that court,
require."
On January 23, the construction company filed a petition for a
rehearing, upon the following grounds:
1st. That the order appealed from was purely in the discretion
of the circuit court, and not subject to appeal.
2d. That the order of July 23, 1892, appointing Cable receiver
was a nullity because made by Judge Pardee in the State of Ohio,
outside of his circuit, and while the circuit court was in session
in the district where the suit was pending.
3d. That, this order being a nullity, there was no receivership
to be restored, and that the circuit court of appeals had no power
or jurisdiction to vacate the order of the circuit court
appointing, or refusing to appoint, a receiver.
Page 148 U. S. 377
4th. That if the order of July 23, 1892, was valid, the circuit
judge who made it could not sit in the circuit court of appeals at
the hearing of the cause, and was expressly prohibited from so
doing by the following provision in the act creating that
court:
"Provided that no justice or judge before whom a cause or
question may have been tried or heard in the district court or
existing circuit court shall sit on the trial or hearing of such
cause or question in the circuit court of appeals."
Act of March 3, 1891, c. 517, § 3, 26 Stat. 827.
5th. That it should be left open to the circuit court to inquire
whether the suit was collusive, and thereupon either to appoint a
receiver or to dismiss the bill.
On January 30, the circuit court of appeals denied a rehearing,
and sent down a mandate in accordance with its decree, and on
February 1, this mandate was filed in the circuit court.
On February 2, the construction company moved this Court for
leave to file a petition for a writ of mandamus to the circuit
court of appeals to dismiss so much of the appeal of the
Pennsylvania Company as undertook to bring before that court the
action of the circuit court in vacating and setting aside the order
for the appointment of a receiver, or, in the alternative, for a
writ of certiorari to the circuit court of appeals to bring up its
decree for review by this Court.
This Court gave leave to file both petitions of the American
Construction Company, stayed proceedings under the mandates of the
circuit court of appeals, and ordered notice to the railway company
and to the Pennsylvania Company of a renewal of the motions for
writs of mandamus or writs of certiorari, returnable March 6.
The petitioner gave notice to those companies that on that day
it would move accordingly for writs of mandamus or certiorari to
the circuit court of appeals, as prayed for in the petitions, and
would also, in the alternative, move for a writ of mandamus to the
circuit court to disregard the mandates of the circuit court of
appeals, except so far as they affirmed, modified, or reversed the
injunction orders of the circuit court,
Page 148 U. S. 378
and especially to disregard the parts of those mandates which
undertook to modify or reverse any order appointing, or refusing to
appoint, a receiver.
At the time so appointed the parties appeared, and the motions
were argued.
MR. JUSTICE GRAY, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By the Constitution of the United States, in cases to which the
judicial power of the United States extends, and of which original
jurisdiction is not conferred on this Court, "the Supreme Court
shall have appellate jurisdiction, with such exceptions and under
such regulations as the Congress shall make." Constitution, Article
III, Section 2. This Court, therefore, as it has always held, can
exercise no appellate jurisdiction, except in the cases, and in the
manner and form, defined and prescribed by Congress.
Wiscart v.
Dauchy, 3 Dall. 321, 327 [argument of counsel --
omitted];
Durousseau v. United
States, 6 Cranch 307,
10 U. S. 314;
Barry v.
Mercein, 5 How. 103,
46 U. S. 119;
United States v. Young, 94 U. S. 258; The
Francis Wright,
105 U. S. 381;
Bank v. Peters,
144 U. S. 570,
144 U. S.
572.
Under the Judiciary Act of 1789 and other acts embodied in the
Revised Statutes, the appellate jurisdiction of this Court from the
circuit court of the United States was limited to final judgments
at law and final decrees in equity or admiralty. Acts of September
24, 1789, c. 20, §§ 13, 22, 1 Stat. 81, 84; March 3, 1803, c. 40, 2
Stat. 244; Rev.Stat. §§ 691, 692. No appeal, therefore, lay to this
Court from an order of the circuit court granting or refusing an
injunction or appointing
Page 148 U. S. 379
or declining to appoint a receiver
pendente lite, or
other interlocutory order, until after final decree.
Hentig v.
Page, 102 U. S. 219;
Keystone Co. v. Martin, 132 U. S. 91;
Lodge v. Twell, 135 U. S. 232.
By the same statutes, this Court is empowered to issue writs of
mandamus "in cases warranted by the principles and usages of law,
to any courts appointed under the authority of the United States."
Act of September 24, 1789, c. 20, § 14, 1 Stat. 81; Rev.Stat. §
688.
But a writ of mandamus cannot be used to perform the office of
an appeal or writ of error to review the judicial action of an
inferior court.
Ex Parte
Whitney, 13 Pet. 404;
Ex Parte Schwab,
98 U. S. 240;
Ex Parte Perry, 102 U. S. 183;
Ex Parte Morgan, 114 U. S. 174. It
does not, therefore, lie to review a final judgment or decree of
the circuit court, sustaining a plea to the jurisdiction, even if
no appeal or writ of error is given by law.
Ex Parte
Newman, 14 Wall. 152;
Ex Parte Baltimore &
Ohio Railroad, 108 U. S. 566;
In re Burdett, 127 U. S. 771;
In re Pennsylvania Co., 137 U. S. 451,
137 U. S.
453.
Least of all can a writ of mandamus be granted to review a
ruling or interlocutory order made in the progress of a cause, for,
as observed by Chief Justice Marshall, to do this "would be a plain
evasion of the provision of the act of Congress that final
judgments only should be brought before this Court for
reexamination," would "introduce the supervising power of this
Court into a cause while depending in an inferior court, and
prematurely to decide it," would allow an appeal or writ of error
upon the same question to be "repeated, to the great oppression of
the parties," and "would subvert our whole system of
jurisprudence."
Bank of Columbia v.
Sweeny, 1 Pet. 567,
26 U. S. 569;
Life & Fire Ins. Co. v.
Adams, 9 Pet. 573,
34 U. S.
602.
This Court and the circuit and district courts of the United
States have also been empowered by Congress
"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."
Act of September 24, 1789, c. 20, § 14, 1 Stat. 81; Rev.Stat. §
716.
Page 148 U. S. 380
Under this provision, the Court might doubtless issue writs of
certiorari in proper cases. But the writ of certiorari has not been
issued as freely by this Court as by the court of Queen's Bench in
England.
Ex Parte
Vallandingham, 1 Wall. 243,
68 U. S. 249.
It was never issued to bring up from an inferior court of the
United States for trial a case within the exclusive jurisdiction of
a higher court.
Fowler v.
Lindsey, 3 Dall. 411,
3 U. S. 413;
Patterson v. United
States, 2 Wheat. 221,
15 U. S.
225-226;
Ex Parte Hitz, 111 U.
S. 766. It was used by this Court as an auxiliary
process only, to supply imperfections in the record of a case
already before it, and not, like a writ of error, to review the
judgment of an inferior court.
Barton v.
Petit, 7 Cranch 288;
Ex Parte
Gordon, 1 Black 503;
United
States v. Adams, 9 Wall. 661;
United States v.
Young, 94 U. S. 258;
Luxton v. North River Bridge Co, 147 U.
S. 337,
147 U. S.
341.
There is therefore no ground for issuing either a writ of
mandamus or a writ of certiorari, as prayed for in these petitions,
unless it be found in the Act of March 3, 1891, c. 517,
entitled
"An act to establish circuit courts of appeals and to define and
regulate in certain cases the jurisdiction of the courts of the
United States, and for other purposes."
26 Stat. 826.
By section 4 of this act
"The review, by appeal, by writ of error, or otherwise, from the
existing circuit courts shall be had only in the Supreme Court of
the United States or in the circuit courts of appeals hereby
established, according to the provisions of this act regulating the
same,"
and by section 14,
"All acts and parts of acts relating to appeals or writs of
error inconsistent with the provisions for review by appeals or
writs of error in the preceding sections five and six of this act
are hereby repealed."
By section 5, appeals or writs of error may be taken from the
circuit court directly to this Court in cases in which the
jurisdiction of the court below is in issue (the question of
jurisdiction alone being brought up), in prize causes, in cases of
convictions of capital or otherwise infamous crimes, and in cases
involving the construction or application of the Constitution of
the United States or the constitutionality of a law
Page 148 U. S. 381
of the United States or the validity or construction of a
treaty, or where the Constitution or law of a state is claimed to
be in contravention of the Constitution of the United States.
By section 6, the appellate jurisdiction from final decisions of
the circuit court in all cases other than those provided for in
section 6 is conferred upon the circuit court of appeals, "unless
otherwise provided by law," and its judgments or decrees "shall be
final" in all cases in which the jurisdiction depends entirely on
the citizenship of the parties, as well as in cases arising under
the patent laws, the revenue laws, or the criminal laws, and in
admiralty cases.
By the same section, however, the circuit court of appeals, "in
any such subject within its appellate jurisdiction," may at any
time certify to this Court questions or propositions of law, and
this Court may thereupon either instruct it on such questions or
may require the whole case to be sent up for decision, and any case
"made final in the circuit court of appeals" may be required by
this Court, by certiorari or otherwise, to be certified "for its
review and determination, with the same power and authority in the
case" as if it had been brought up by appeal or writ of error.
By a further provision in the same section which has no special
bearing on these cases, an appeal or writ of error or review by
this Court is given as of right in all cases not made final in the
circuit court of appeals wherein the matter in controversy exceeds
$1,000.
The only provision in the act, authorizing appeals from
interlocutory orders or decrees of the circuit courts, is in
section 7, which provides that where, upon a hearing in equity,
"an injunction shall be granted or continued by an interlocutory
order or decree, in a cause in which an appeal from a final decree
may be taken under the provisions of this act to the circuit court
of appeals, an appeal may be taken from such interlocutory order or
decree granting or continuing such injunction to the circuit court
of appeals, . . . and the proceedings in other respects in the
court below shall not be stayed unless otherwise ordered by that
court during the pendency of such appeal. "
Page 148 U. S. 382
By section 12, the circuit court of appeals has the powers
specified in section 716 of the Revised Statutes -- that is to say,
to issue all writs not specifically provided for by statute which
may be necessary for the exercise of its jurisdiction and agreeable
to the usages and principles of law.
The effect of these provisions is that in any case in which the
jurisdiction of the circuit court depends entirely on the
citizenship of the parties -- as is the cases now before us -- and
in which the jurisdiction of that court is not in issue, the appeal
given from its judgments and decrees, whether final or
interlocutory, lies to the circuit court of appeals only, and the
judgments of the latter court are final, unless either that court
certifies questions or propositions of law to this Court, or else
this Court, by certiorari or otherwise, orders the whole case to be
sent up for its review and determination.
The primary object of this act, well known as a matter of public
history, manifest on the face of the act, and judicially declared
in the leading cases under it, was to relieve this Court of the
overburden of cases and controversies arising from the rapid growth
of the country and the steady increase of litigation, and, for the
accomplishment of this object, to transfer a large part of its
appellate jurisdiction to the circuit courts of appeals thereby
established in each judicial circuit, and to distribute between
this Court and those, according to the scheme of the act, the
entire appellate jurisdiction from the circuit and district courts
of the United States.
McLish v. Roff, 141 U.
S. 661,
141 U. S. 666;
Lau Ow Bew's Case, 141 U. S. 583 and
144 U.S.
144 U. S. 47.
The act has uniformly been so construed and applied by this
Court as to promote its general purpose of lessening the burden of
litigation in this Court, transferring the appellate jurisdiction
in large classes of cases to the circuit court of appeals, and
making the judgments of that court final, except in extraordinary
cases.
It has accordingly been adjudged that a writ of error or appeal
directly to this Court under section 5, in a case concerning the
jurisdiction of the circuit court, does not lie until after final
judgment, and cannot therefore be taken from an order
Page 148 U. S. 383
of the circuit court remanding a case to a state court, there
being, as said by Mr. Justice Lamar, speaking for this Court,
"no provision in the act which can be construed into so radical
a change in all the existing statutes and settled rules of practice
and procedure of federal courts as to extend the jurisdiction of
the supreme court to the review of jurisdictional cases in advance
of the final judgments upon them."
McLish v. Roff, above cited;
Chicago &c.
Railway v. Roberts, 141 U. S. 690.
It has also been determined that in the grant of the appellate
jurisdiction to the circuit court of appeals by section 6 in all
cases other than those in which this Court has direct appellate
jurisdiction under section 5, the exception "unless otherwise
provided by law" looks only to provisions of the same act, or to
contemporaneous or subsequent acts expressly providing otherwise,
and does not include provisions of earlier statutes.
Lau Ow Bew
v. United States, 144 U. S. 47,
144 U. S. 57;
Hubbard v. Soby, 146 U. S. 56.
In the same spirit the authority conferred on this Court by the
very provision on which the petitioners mainly rely, by which it is
enacted that
"in any such case as is hereinbefore made final in the circuit
court of appeals, it shall be competent for the supreme court to
require, by certiorari or otherwise, any such case to be certified
to the supreme court for its review and determination, with the
same power and authority in the case as if it had been carried by
appeal or writ of error to the supreme court,"
has been held to be a branch of its jurisdiction which should be
exercised sparingly and with great caution, and only in cases of
peculiar gravity and general importance, or in order to secure
uniformity of decision.
Lau Ow Bew's Case, 141 U.
S. 583, 144 U.S.
144 U. S. 47;
In re Woods, 143 U. S. 202.
Accordingly, while there have been many applications to this Court
for writs of certiorari to the circuit court of appeals under this
provision, two only have been granted -- the one in
Lau Ow
Bew's Case, above cited, which involved a grave question of
public international law, affecting the relations between the
United States and a foreign country; the other in
Fabre,
Petitioner, No. 1237 of the present term,
Page 148 U. S. 384
an admiralty case, which presented an important question as to
the rules of navigation, and in which the decree of the Circuit
Court of Appeals for the Second Circuit reversed a decree of the
district judge, and was dissented from by one of the three circuit
judges, and in each of those cases the circuit court of appeals had
declined to certify the question to this Court.
There are much stronger reasons against the interposition of
this Court to review a decree made by the circuit court of appeals
on appeal from an interlocutory order than in the case of a final
decree. Before the act of 1891, as has been seen, no interlocutory
order was subject to appeal, except as involved in an appeal from a
final decree. The only appeal from an interlocutory order under the
act of 1891 is that allowed by section 7 to the circuit court of
appeals, the same court to which an appeal lies from the final
decree. The question whether a decree is an interlocutory or a
final one is often nice and difficult, as appears by the cases
collected in
Keystone Co. v. Martin, 132 U. S.
91, and in
McGourkey v. Toledo & Ohio Central
Railway, 146 U. S. 536.
Whether an interlocutory order may be separately reviewed by the
appellate court in the progress of the suit, or only after and
together with the final decree, is matter of procedure, rather than
of substantial right, and many orders made in the progress of a
suit become quite unimportant by reason of the final result, or of
intervening matters. Clearly therefore this Court should not issue
a writ of certiorari to review a decree of the circuit court of
appeals on appeal from an interlocutory order, unless it is
necessary to prevent extraordinary inconvenience and embarrassment
in the conduct of the cause.
In such an exceptional case the power and the duty of this Court
to require, by certiorari or otherwise, the case to be sent up for
review and determination, cannot well be denied, as will appear if
the provision now in question is considered in connection with the
preceding provisions for the interposition of this Court in cases
brought before the circuit court of appeals. In the first place,
the circuit court of appeals is authorized, "in every such subject
within its appellate jurisdiction,"
Page 148 U. S. 385
and "at any time," to certify to this Court "any questions or
propositions of law" concerning which it desires the instruction of
this Court for its proper decision. In the next place, this Court,
at whatever stage of the case such questions or propositions are
certified to it, may either give its instruction thereon or may
require the whole record and cause to be sent up for its
consideration and decision. Then follows the provision in question,
conferring upon this Court authority, "in any such case as is
hereinbefore made final in the circuit court of appeals," to
require, by certiorari or otherwise, the case to be certified to
this Court for its review and determination. There is nothing in
the act to preclude this Court from ordering the whole case to be
sent up when no distinct questions of law have been certified to it
by the circuit court of appeals at as early a stage as when such
questions have been so certified. The only restriction upon the
exercise of the power of this Court, independently of any action of
the circuit court of appeals, in this regard, is to cases "made
final in the circuit court of appeals" -- that is to say, to cases
in which the statute makes the judgment of that court final, not to
cases in which that court has rendered a final judgment. Doubtless
this power would seldom be exercised before final judgment in the
circuit court of appeals, and very rarely indeed before the case
was ready for decision upon the merits in that court. But the
question at what stage of the proceedings, and under what
circumstances, the case should be required by certiorari or
otherwise to be sent up for review is left to the discretion of
this Court as the exigencies of each case may require.
In the first of the cases now before us, the appeal was clearly
well taken from the order of the circuit court, so far at least, as
the injunction was concerned. If the circuit court of appeals, on
the hearing of that appeal, erred in going beyond a modification of
the injunction, and in setting aside so much of the orders appealed
from as appointed a receiver and permitted him to issue receiver's
notes, the error was one in the judicial determination of a case
within the jurisdiction of that court, and neither so important in
its immediate effect
Page 148 U. S. 386
nor so far-reaching in its consequences, as to warrant this
Court in undertaking to control the cause at this stage of the
proceedings.
In the first case, therefore, the writ of certiorari prayed for
is denied, because no reason is shown for issuing it, under the
circumstances of the case.
Nor do those circumstances make a case for issuing a writ of
mandamus, either to the circuit court of appeals or to the circuit
court. The decisions of this Court upon applications for writs of
mandamus since the act of 1891 affirm the principles established in
the earlier decisions, before cited.
In re Morrison,
147 U. S. 14,
147 U. S. 26;
In re Hawkins, 147 U. S. 486;
In re Haberman Mfg. Co., 147 U. S. 525;
Virginia v. Paul, 148 U. S. 107.
In the first case, therefore, the writs of mandamus, as well as
the writ of certiorari, must be denied.
The second case is governed by the same considerations as the
first, except in the following respects:
1st. It is contended that the order of Judge Swayne, setting
aside and vacating the order of Judge Pardee appointing Cable
receiver, was not such an interlocutory order as an appeal lies
from to the circuit court of appeals under section 7 of the act of
1891. 26 Stat. 828. But, if that order could not be the subject of
a separate appeal, it might clearly, so far as material, be brought
before the circuit court of appeals on appeal from the final
decree, when rendered. If that court decided erroneously in
determining the matter on an interlocutory appeal, that affords no
ground for the extraordinary interposition of this Court by
certiorari or mandamus.
2d. It is contended that the original order of Judge Pardee was
a nullity, because made by him outside of his circuit, and while
the circuit court was in session in the district where the suit was
pending. But that fact does not appear of record, and if it were
proved, the question whether Judge Pardee's order was invalid for
that reason (though in itself a question of interest and
importance) does not appear to have a material bearing in any
aspect of the case, for whether that order, or the subsequent
decree of the circuit
Page 148 U. S. 387
court of appeals, was valid or invalid, the question who should
be appointed receiver remained within the jurisdiction of the
circuit court.
3d. The more important suggestion is that the decree of the
circuit court of appeals is void, because Judge Pardee took part in
the hearing and decision in that court, though disqualified from so
doing by section 3 of the Judiciary Act of 1891, which provides
that "no justice or judge, before whom a cause or question may have
been tried or heard" in the circuit court, "shall sit on the trial
or hearing of such cause or question in the circuit court of
appeals." 26 Stat. 827. The question whether this provision
prohibited Judge Pardee from sitting in an appeal which was not
from his own order, but from an order setting aside his order, is a
novel and important one deeply affecting the administration of
justice in the circuit court of appeals. If the statute made him
incompetent to sit at the hearing, the decree in which he took part
was unlawful, and perhaps absolutely void, and should certainly be
set aside or quashed by any court having authority to review it by
appeal, error, or certiorari.
United States v. Lancaster,
5 Wheat. 434;
United States v. Emholt, 105 U.
S. 414;
Queen v. Justices of Hertfordshire, 6
Q.B. 753;
Oakley v. Aspinwall, 3 N.Y. 547;
Tolland v.
Commissioners, 13 Gray 12.
The writ of certiorari authorized by the act of 1891, and prayed
for in this case, being in the nature of a writ of error to bring
up for review the decree of the circuit court of appeals, the
question whether the writ should be granted rests in the discretion
of this Court; but when the writ has been granted, and the record
certified in obedience to it, the questions arising upon that
record must be determined according to fixed rules of law.
Harris v. Barber, 129 U. S. 366,
129 U. S.
369.
For the reasons above stated, this Court is of opinion that the
writ of certiorari prayed for in the second case should not be
granted unless Judge Pardee was disqualified by the act of 1891 to
sit at the hearing in the circuit court of appeals, but that if he
was so disqualified, the writ should be granted
Page 148 U. S. 388
for the purpose of bringing up and quashing the decree of that
court; that there should therefore be a rule to show cause why a
writ of certiorari should not issue on this ground and for this
purpose only, and that the question whether the decree of the
circuit court of appeals was void by reason of Judge Pardee's
having taken part in it, can more fitly be determined on further
argument upon the return of that court to the rule to show cause.
Ex Parte
Dugan, 2 Wall. 134.
If the decree of the circuit court of appeals is void because
one of the judges who took part in the decision was forbidden by
law to sit at the hearing, a writ of certiorari to that court to
bring up and quash its decree is manifestly a more decorous, as
well as a more appropriate, form of proceeding than a writ of
mandamus to the circuit court to disregard the mandate of the
appellate court.
The following orders therefore will be entered in these two
cases:
In No. 14, writs of mandamus and certiorari denied, and
petition dismissed.
In No. 15, writs of mandamus denied, and rule granted to
show cause why a writ of certiorari should not issue to bring up
and quash the decree of the circuit court of appeals.
THE CHIEF JUSTICE was not present at the argument of these
cases, and took no part in their decision.
