l. The Circuit Court of Appeals is empowered by § 262 of the
Judicial Code to issue all writs, not specifically provided for by
statute, which may be necessary for the exercise of its
jurisdiction, agreeably to the usages and principles of law. P.
319 U. S.
24.
2. As the jurisdiction of the Circuit Court of Appeals is
exclusively appellate, its authority to issue writs of mandamus is
restricted to those cases in which the writ is in aid of that
jurisdiction. P.
319 U. S.
25.
3. The authority of the Circuit Court of Appeals to issue writs
of mandamus is not confined to the issuance of writs in aid of a
jurisdiction already acquired by appeal, but extends to those cases
which are within its appellate jurisdiction although no appeal has
been perfected. P.
319 U. S.
25.
4. The common law writs, like equitable remedies, may be granted
or withheld in the sound discretion of the court. P.
319 U. S.
25.
5. In the circumstances of this case, issuance by the Circuit
Court of Appeals of a writ of mandamus, directing the District
Court to reinstate the defendants' pleas in abatement to an
indictment for violation of the Sherman Act and to set for trial
the issues raised by the pleas and replications, was inappropriate.
P.
319 U. S.
25.
The District Court's order striking the pleas in abatement was
an exercise of its jurisdiction, and involved no abuse of judicial
power; the legislation and policy of Congress by which an appellate
review of such orders may be had only on review of a final judgment
of conviction are not to be circumvented by resort to mandamus.
6. Where the appeal statutes establish the conditions of
appellate review, an appellate court cannot rightly exercise its
discretion to
Page 319 U. S. 22
issue a writ the only effect of which would be to avoid those
conditions and thwart the Congressional policy against piecemeal
appeals in criminal cases. P.
319 U. S.
30.
130 F.2d 843 reversed.
Certiorari, 318 U.S. 747, to review a judgment of the Circuit
Court of Appeals directing the issuance of a writ of mandamus to
the District Judge and the District Court.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
The question for decision is whether the Circuit Court of
Appeals below rightly issued its writ of mandamus to the district
court to correct that court's alleged error in striking
respondents' pleas in abatement to a criminal indictment.
An indictment returned in June, 1941, by the grand jury sitting
in the district court for Southern California, charged respondents
and others with conspiracy to fix the price of evaporated milk sold
in interstate commerce in violation of §§ 1 and 3 of the Sherman
Act, 15 U.S.C. §§ 1, 3. The indictment recited that the grand jury
which returned it had been impaneled at the November, 1940, term of
court; that it had "begun but not finished during said November
1940 Term of said Court, an investigation of the matters charged in
this indictment;" and that, by order of the court, the grand jury
had continued to sit
Page 319 U. S. 23
during the March, 1941, term "for the sole purpose of finishing
investigations begun but not completed during said November
Term."
In September, 1941, respondents filed pleas in abatement, asking
that the indictment be quashed for want of jurisdiction of the
court, on averments that the minutes of the grand jury for its
meeting of February 28, 1941, disclosed that no investigation of
any matter mentioned in the indictment had been "begun" by the
grand jury within the meaning of § 284 of the Judicial Code, 28
U.S.C. § 421, [
Footnote 1]
during the November, 1940, term of court, which expired March 2,
1941. [
Footnote 2]
The Government filed replications denying generally all the
allegations of the pleas, and the issues thus raised
Page 319 U. S. 24
were set for trial before a jury. Thereafter, leave was granted
to the Government to withdraw its replications and to file
demurrers to the pleas, and motions to strike them because
insufficient in law, because they failed to state specific facts
with sufficient certainty, and because they alleged facts which
could not be within the pleaders' knowledge. After argument, the
district court sustained the demurrers and granted the motions.
Respondents thereupon instituted the present proceeding by their
petition to the Circuit Court of Appeals for the Ninth Circuit,
praying that a writ of mandamus issue directing petitioners -- the
Honorable Michael J. Roche, district judge, and the district court
-- to reinstate the pleas in abatement and the Government's
replications and to set the issues raised by the pleas and
replications for jury trial.
On the petition for the writ and the Government's return, the
court of appeals ordered the writ to issue. 126 F.2d 467. Upon
rehearing before the full court sitting en banc, the court held
that it had jurisdiction to issue the writ; that the district court
had erred in striking the pleas in abatement; that the case was an
appropriate one for intervention by mandamus, and that the writ
should issue directing petitioners to reinstate the pleas in
abatement and the replications, and to try the issues of fact thus
raised. 130 F.2d 843. The court of appeals seems to have regarded
the district court's order striking the pleas in abatement as in
effect a refusal to act upon the pleas, 130 F.2d 845. We granted
certiorari, 318 U.S. 747, on a petition which set up that the
circuit court of appeals erred in directing that mandamus issue,
and in holding that the district court erred in striking the pleas
in abatement.
Petitioners concede that the circuit court of appeals, like this
Court, may, as provided by § 262 of the Judicial Code, 28 U.S.C. §
377,
"issue all writs not specifically provided for by statute, which
may be necessary for the
Page 319 U. S. 25
exercise of their respective jurisdictions, and agreeable to the
usages and principles of law."
McClellan v. Carland, 217 U. S. 268,
217 U. S. 279;
Adams v. United States ex rel. McCann, 317 U.
S. 269,
317 U. S.
272-273. They argue that as the district court's order
striking the pleas in abatement was an exercise of its
jurisdiction, its action is reviewable only on appeal and not by
mandamus, and that, since, by Congressional enactment and policy,
appellate review of the district court's order may be had only on
review of a final judgment of conviction, that legislation and
policy are not to be circumvented by resort to mandamus.
We are of opinion that, in the circumstances of this case, these
are valid objections to the exercise by the circuit court of
appeals of its discretionary power to issue the writ.
As the jurisdiction of the circuit court of appeals is
exclusively appellate, its authority to issue writs of mandamus is
restricted by statute to those cases in which the writ is in aid of
that jurisdiction. Its authority is not confined to the issuance of
writs in aid of a jurisdiction already acquired by appeal, but
extends to those cases which are within its appellate jurisdiction
although no appeal has been perfected. Otherwise, the appellate
jurisdiction could be defeated and the purpose of the statute
authorizing the writ thwarted by unauthorized action of the
district court obstructing the appeal.
Ex parte
Bradstreet, 7 Pet. 634;
Insurance
Company v. Comstock, 16 Wall. 258,
83 U. S. 270;
McClellan v. Carland, supra, 217 U. S. 280;
Ex parte United States, 287 U. S. 241,
287 U. S. 246;
cf. Ex parte Siebold, 100 U. S. 371,
100 U. S.
374-375;
Ex parte Peru, 318 U.
S. 578, and cases cited.
The common law writs, like equitable remedies, may be granted or
withheld in the sound discretion of the court.
Ex parte
Republic of Peru, supra, p.
318 U. S. 584,
and cases cited;
Whitney v. Dick, 202 U.
S. 132,
202 U. S. 136,
202 U. S. 140.
Hence, the question presented on this record is not whether the
court below had
Page 319 U. S. 26
power to grant the writ, but whether, in the light of all the
circumstances, the case was an appropriate one for the exercise of
that power. In determining what is appropriate, we look to those
principles which should guide judicial discretion in the use of an
extraordinary remedy, rather than to formal rules rigorously
controlling judicial action. Considerations of importance to our
answer here are that the trial court, in striking the pleas in
abatement, acted within its jurisdiction as a district court; that
no action or omission on its part has thwarted or tends to thwart
appellate review of the ruling, and that, while a function of
mandamus in aid of appellate jurisdiction is to remove obstacles to
appeal, it may not appropriately be used merely as a substitute for
the appeal procedure prescribed by the statute.
The traditional use of the writ in aid of appellate
jurisdiction, both at common law and in the federal courts, has
been to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority
when it is its duty to do so.
Ex parte Peru, supra, p.
318 U. S. 584,
and cases cited;
Ex parte
Newman, 14 Wall. 152,
81 U. S.
165-166,
81 U. S. 169;
Ex parte
Sawyer, 21 Wall. 235,
88 U. S. 238;
Interstate Commerce Commission v. United States ex rel.
Campbell, 289 U. S. 385,
289 U. S. 394.
Even in such cases, appellate courts are reluctant to interfere
with the decision of a lower court on jurisdictional questions
which it was competent to decide and which are reviewable in the
regular course of appeal.
Ex parte Harding, 219 U.
S. 363,
219 U. S. 369;
cf. Stoll v. Gottlieb, 305 U. S. 165;
Treinies v. Sunshine Mining Co., 308 U. S.
66.
But the present case involves no question of the jurisdiction of
the district court. Its jurisdiction of the persons of the
defendants, and of the subject matter charged by the indictment, is
not questioned. This is not a case like
Ex parte Bain,
121 U. S. 1, where
the petitioner had been convicted on an indictment which, because
it had
Page 319 U. S. 27
been amended after it was returned by the grand jury, was
thought to be "no indictment of a grand jury." Here, the indictment
was returned by the requisite number of duly qualified grand
jurors, acting under order of the court continuing the grand jury
in session. The objection that the subject matter of the indictment
was not one which the jury had been or could be continued to hear
was, at most, an irregularity which, if the proper subject of a
plea in abatement, did not affect the jurisdiction of the court.
Cf. Breese v. United States, 226 U. S.
1,
226 U. S. 10-11;
Kaizo v. Henry, 211 U. S. 146,
211 U. S. 149;
Matter of Moran, 203 U. S. 96,
203 U. S. 104;
Harlan v. McGourin, 218 U. S. 442,
218 U. S. 451;
Ex parte Ward, 173 U. S. 452,
173 U. S.
454.
Nor does this case involve a refusal by the district court to
adjudicate issues properly presented to it, such as justified the
issuance of the writ in
McClellan v. Carland, supra.
Compare Ex parte United States, supra. In sustaining the
Government's demurrers to the pleas and its motions to strike, the
district court did not, as the court below seemed to think, refuse
to act on the pleas. Instead, it held that they were insufficient
in law to abate the criminal prosecution. In thus ruling on
questions of law decisive of the issue presented by the pleas and
replications, the district court acted within its jurisdiction as a
federal court to decide issues properly brought before it. Its
decision, even if erroneous -- a question on which we do not pass
-- involved no abuse of judicial power, and any error which it may
have committed is reviewable by the circuit court of appeals upon
appeal appropriately taken from a final judgment and by this Court
by writ of certiorari. [
Footnote
3]
Ordinarily, mandamus may not be resorted to as a mode of review
where a statutory method of appeal has been
Page 319 U. S. 28
prescribed or to review an appealable decision of record.
Ex
parte Morgan, 114 U. S. 174,
114 U. S. 175;
In re Atlantic City R.
Page 319 U. S. 29
Co., 164 U. S. 633,
164 U. S. 635;
Ex parte Roe, 234 U. S. 70,
234 U. S. 73;
Ex parte Park Square Automobile Station, 244 U.
S. 412,
244 U. S. 414;
Ex parte Riddle, 255 U. S. 450,
255 U. S. 451.
Circuit courts of appeals, with exceptions not now material, have
jurisdiction
Page 319 U. S. 30
to review only final decisions of district courts, 28 U.S.C. §
225(a). [
Footnote 4]
Respondents stress the inconvenience of requiring them to undergo a
trial in advance of an appellate determination of the challenge now
made to the validity of the indictment. We may assume, as they
allege, that that trial may be of several months' duration and may
be correspondingly costly and inconvenient. But that inconvenience
is one which we must take it Congress contemplated in providing
that only final judgments should be reviewable. Where the appeal
statutes establish the conditions of appellate review, an appellate
court cannot rightly exercise its discretion to issue a writ whose
only effect would be to avoid those conditions and thwart the
Congressional policy against piecemeal appeals in criminal cases.
Cobbledick v. United States, 309 U.
S. 323. As was pointed out by Chief Justice Marshall, to
grant the writ in such a case would be a "plain evasion" of the
Congressional enactment that only final judgments be brought up for
appellate review.
"The effect, therefore, of this mode of interposition would be
to retard decisions upon questions which were not final in the
court below, so that the same cause might come before this Court
many times before there would be a final judgment."
Bank of Columbia v.
Sweeny, 1 Pet. 567,
26 U. S. 569.
See also Life & Fire Insurance Co.
v. Adams, 9 Pet. 573,
34 U. S. 602;
Ex parte Hoard, 105 U. S. 578,
105 U. S.
579-580;
American Construction Co. v. Jacksonville,
T. & K.W. Ry. Co., 148 U. S. 372,
148 U. S.
379.
For that reason, this Court has consistently refused to sustain
the use of mandamus as a means of reviewing the action of a
district court in denying a motion to remand a cause to the state
court from which it had been removed.
Ex parte Hoard, supra; Ex
parte Harding,
Page 319 U. S. 31
supra; Ex parte Roe, supra; Ex parte Park Square Automobile
Station, supra. [
Footnote
5] And, for the same reason, it has held in other cases that
the writ will not issue to review an order overruling a plea to the
jurisdiction,
In re Atlantic City R. Co., supra; Ex parte
Chicago, R.I. & P. Ry. Co., 255 U.
S. 273,
255 U. S. 280;
cf. In re New York & Porto Rico S.S. Co., 155 U.
S. 523,
155 U. S. 531,
or denying a nonsuit,
Ex parte Loring, 94 U. S.
418, despite the inconvenience to petitioner of being
forced to proceed to trial in advance of a review of the court's
action.
Ex parte
Whitney, 13 Pet. 404,
38 U. S. 408;
Ex parte Perry, 102 U. S. 183,
102 U. S. 186.
Here, the inconvenience to the litigants results alone from the
circumstance that Congress has provided for review of the district
court's order only on review of the final judgment, and not from an
abuse of judicial power, or refusal to exercise it, which it is the
function of mandamus to correct. Hence, there are in this case no
special circumstances which would justify the issuance of the writ,
such as the persistent disregard of the Rules of Civil Procedure,
prescribed by this court, found in
McCullough v. Cosgrave,
309 U.S. 634 (
see Los Angeles Brush Corp. v. James,
272 U. S. 701,
272 U. S.
706); or the refusal to perform a plain ministerial
duty, involved in
Ex parte United States, supra; or the
considerations of comity between state and federal courts, thought
to be controlling in
Maryland v. Soper (No. 1),
270 U. S. 9,
270 U. S. 29.
Page 319 U. S. 32
The decisions of this Court on which respondents especially rely
are not applicable here. In
Ex parte Simons, 247 U.
S. 231, the writ directed the district court to set
aside its order transferring to the equity docket a case plainly
triable at law by jury. The district court's order was regarded by
this Court "as having repudiated jurisdiction" of the suit. In
Ex parte Peterson, 253 U. S. 300, in
which the writ was sought similarly to compel the district court to
set aside its order referring the cause to an auditor, the
application was denied because the order was held not to preclude a
jury trial. And in
Ex parte Skinner & Eddy Corp.,
265 U. S. 86, the
writ prohibited the Court of Claims from exercising jurisdiction,
contrary to statute, over a suit which it had previously dismissed.
There, its assumption of jurisdiction would have deprived the
litigants of trial by jury in a state court where an action against
an agency of the United States involving the same issue was
pending. Thus, in the two cases in which the writ was granted, it
was issued in aid of the appellate jurisdiction of this Court to
compel an inferior court to relinquish a jurisdiction which it
could not lawfully exercise or to exercise a jurisdiction which it
had unlawfully repudiated.
Cf. Ex parte Peru, supra. In
the present case, the district court has acted within its
jurisdiction and has rendered a decision which, even if erroneous,
involved no abuse of judicial power. In issuing the writ, the court
of appeals below has done no more than substitute mandamus for an
appeal contrary to the statutes and the policy of Congress, which
has restricted that court's appellate review to final judgments of
the district court.
Reversed.
MR. JUSTICE MURPHY took no part in the consideration or decision
of this case.
[
Footnote 1]
That section provides in part:
"A district judge may, upon request of the district attorney or
of the grand jury or on his own motion, by order authorize any
grand jury to continue to sit during the term succeeding the term
at which such request is made, solely to finish investigations
begun but not finished by such grand jury, but no grand jury shall
be permitted to sit in all during more than eighteen months. . .
."
[
Footnote 2]
The grand jury minutes for February 28, 1941, stated:
"Special meeting of the Federal Grand Jury held this day,
Foreman Mrs. Hattie H. Sloss, presiding. Minutes of previous
meeting read and approved as corrected. (See below.) Special
Assistant to the Attorney General Charles C. Pearce and Special
Assistant Charles S. Burdell continued the presentation of the
peach industry for violation of the Sherman Anti-Trust Act. There
being no further business, the meeting adjourned."
Then, below, the following appears:
"The following industries were also named by witnesses and
investigation begun. Plywood; Wines and Grape Industry; Wholesale
and Retail Groceries; Canned and Evaporated Milk; Canned Fruit and
Vegetables; Sardine Industry; all Food Industries were suggested
for investigation, and investigation of Sugar Beet Industry was
begun. Other industries named as subject to investigation are
Salmon Industry, Canned Pineapple, Walnuts and Almonds, Tomatoes,
Dried fruits, and a certain Labor Union with headquarters or
located in Oakland. Asparagus and Cherries."
[
Footnote 3]
In the court below, petitioners urged that the decision of the
district court in striking the pleas in abatement could not have
been reviewed by the circuit court of appeals after final judgment
by reason of R.S. § 1011, which has been carried over in substance
into 28 U.S.C. § 879. R.S. § 1011 provides:
"There shall be no reversal in the Supreme Court or in a circuit
court of appeals upon a writ of error, for error in ruling any plea
in abatement, other than a plea to the jurisdiction of the court,
or for any error in fact."
This provision was taken from § 22 of the Judiciary Act of 1789,
1 Stat. 73, 84, a section which was in terms applicable only to
civil cases. Neither the Judiciary Act of 1789 nor the Revised
Statutes made any provision for review of federal criminal cases on
writ of error, although R.S. §§ 651 and 697 provided for
certification to the Supreme Court of questions arising in criminal
cases. Review on writ of error of criminal cases in the federal
courts was first established by the Act of Mar. 3, 1879, 20 Stat.
354, authorizing review of district court decisions by circuit
courts. By § 6 of the Act of February 6, 1889, 25 Stat. 655, 656,
the Supreme Court was given appellate review of capital cases on
writ of error, and §§ 5 and 6 of the Judiciary Act of 1891, 26
Stat. 826, 827, 828, abolished the appellate powers of the circuit
courts, enlarged the appellate criminal jurisdiction of the Supreme
Court and authorized review of criminal cases tried in the circuit
and district courts by the circuit courts of appeals on writ of
error.
None of these acts contains any provision making applicable to
criminal cases reviewed on writ of error the limitations which § 22
of the Judiciary Act of 1789 imposed on such review of civil cases.
Although R.S. § 1011 is phrased in terms of general applicability,
it was held in
Buck Stove Co. v. Vickers, 226 U.
S. 205,
226 U. S. 213,
that the rearrangement and rewording in the Revised Statutes of §
22 of the Judiciary Act of 1789 was not intended to change the
meaning of that section, and that, since § 22 had applied only to
cases from federal courts, R.S. § 1011 did not prevent
consideration of a ruling on a plea in abatement in a case on writ
of error from a state court. We think that similar reasoning
applies here to preclude the section's application to criminal
cases, to which in its original form it did not apply.
In a large number of criminal cases, this Court and the circuit
courts of appeals have reviewed on the merits decisions overruling
or refusing to entertain pleas in abatement, although without
reference to R.S. § 1011.
Agnew v. United States,
165 U. S. 36,
165 U. S. 43-45;
Bram v. United States, 168 U. S. 532,
168 U. S.
566-568;
Crowley v. United States, 194 U.
S. 461,
194 U. S.
468-474;
Holt v. United States, 218 U.
S. 245,
218 U. S.
247-248;
Hyde v. United States, 225 U.
S. 347,
225 U. S.
372-374;
e.g., Dunn v. United States, 238 F.
508;
Breese v. United States, 143 F. 250, 252, 253;
Mulloney v. United States, 79 F.2d 566, 572-580;
Hillman v. United States, 192 F. 264, 269-270;
Lowdon
v. United States, 149 F. 673. A few circuit courts of appeals
have said that the section prevented appellate consideration of a
decision overruling a plea in abatement to an indictment, although
also holding that the pleas were properly overruled.
Mounday v.
United States, 225 F. 965, 967;
Luxenberg v. United
States, 45 F.2d 497, 498;
Biemer v. United States, 54
F.2d 1045;
United States v. Molasky, 118 F.2d 128, 133.
And the section has on occasion been cited as precluding appellate
review of the weight and sufficiency of the evidence in criminal
cases -- a proposition which hardly needs its support.
Miles v.
United States, 103 U. S. 304,
103 U. S. 313;
e.g., Jaramillo v. United States, 76 F.2d 700;
Rosenberg v. United States, 15 F.2d 179, 181;
Jezewski
v. United States, 13 F.2d 599, 602;
Stoecko v. United
States, 1 F.2d 612, 613;
Kinser v. United States, 231
F. 856, 861. The fact that the great majority of appellate
decisions, including all in this Court, have considered pleas in
abatement on the merits, establishes a practice, beginning soon
after the first authorization of criminal appellate review, which
is persuasive of the statutory intent.
Our conclusion that R.S. § 1011 is inapplicable to criminal
cases is reinforced by a consideration of the kinds of objections
which in a criminal case may properly be the subjects of a plea in
abatement. Although frequently described as a dilatory plea which
should be strictly construed,
United States v. Greene, 113
F. 683, 688, 689, such a plea is an appropriate means of raising
objections to an indictment which may involve serious and
prejudicial infringements of procedural rights, such as an
objection to the qualifications of grand jurors.
Crowley v.
United States, supra, (
compare the Act of April 30,
1934, 48 Stat. 648, 649, 18 U.S.C. 554a); to the method of
selection of the grand jury,
Agnew v. United States,
supra, (
cf. Glasser v. United States, 315 U. S.
60,
315 U. S. 85);
or to its composition,
see Carter v. Texas, 177 U.
S. 442,
177 U. S.
447.
[
Footnote 4]
By the Act of May 9, 1942, Pub.L. No. 543, 77th Cong., 2d Sess.,
the Government is given a right of appeal from a decision or
judgment sustaining a plea in abatement to an indictment or
information or any count thereof.
[
Footnote 5]
Mandamus has frequently been used to compel the remand to a
state court of a criminal case improperly removed under §§ 31-33 of
the Judicial Code, 28 U.S.C. §§ 74-76.
Maryland v. Soper (No.
1), 270 U. S. 9, and
cases cited;
Colorado v. Symes, 286 U.
S. 510. But removal of such cases involves an
extraordinary interference with a state's administration of
criminal justice such as to justify an exceptional use of the writ.
Moreover, in those cases, there was no provision for appeal by the
state from an acquittal,
Maryland v. Soper, supra,
270 U. S. 30;
cf. United States v. Sanges, 144 U.
S. 310.
And see Kepner v. United States,
195 U. S. 100,
with which compare Palko v. Connecticut, 302 U.
S. 319,
302 U. S.
322-323.