David Lamar v. United States

• Decision Date: 01 May 1916
• Docket Number: No. 895,895
• Citation: 60 L.Ed. 912,241 U.S. 103,36 S.Ct. 535
• Parties: DAVID LAMAR v. UNITED STATES
• Court: U.S. Supreme Court

241 U.S. 103

36 S.Ct. 535

60 L.Ed. 912

DAVID LAMAR

v UNITED STATES.

No. 895.

Argued April 4, 1916.

Decided May 1, 1916.

Messrs. A. Leo Everett, Francis L. Kohlman, and H. B. Walmsley for petitioner.

[Argument of Counsel from pages 104-105 intentionally omitted] Solicitor General Divis and Robert Szold for respondent.

Mr. Chief Justice White delivered the opinion of the court:

Charged in the trial court (southern district of New York) by an indictment containing two counts, with violating § 32 of the Penal Code [35 Stat. at L. 1095, chap. 321, Comp. Stat. 1913, § 10,196], the petitioner was convicted and on December 3d, 1914, sentenced to two years' imprisonment in the penitentiary. The trial was presided over by the district judge of the western district of Michigan, assigned to duty in the district conformable to the provisions of § 18 of the Judicial Code [36 Stat. at L. 1089, chap. 231], as amended by the act of Congress of October 3, 1913 (chap. 18, 38 Stat. at L. 203, Comp. Stat. 1913, § 985). To the conviction and sentence in January following error was directly prosecuted from this court, the assignments of error assuming that there was involved not only a question of the jurisdiction of the court as a Federal court, but also constitutional questions. For the purpose of the writ one of the district judges of the southern district of New York gave a certificate as to the existence and character of the question of jurisdiction, evidently with the intention of conforming to § 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, § 1215].

After the record on this writ had been filed in this court, a writ of error to the conviction was prosecuted in May, 1915, from the court below. In September following that court, acting on a motion to dismiss such writ of error on the ground that its prosecution was inconsistent with the writ sued out from this court, entered an order providing for dismissal unless the plaintiff in error within ten days elected which of the two writs of error he would rely upon, and subsequently, before the expiration of the time stated, the court declined to comply with the request of the plaintiff in error that the questions at issue be certified to this court. On October 29, 1915, the election required of the plaintiff in error not having been made, the writ of error was dismissed.

On January 31st, 1916, the writ of error prosecuted from this court came under consideration as the result of a motion to dismiss, and finding that there was no question concerning the jurisdiction of the trial court within the intendment of the statute and no constitutional question, the writ was dismissed for want of jurisdiction. 240 U. S. 60, 60 L. ed. ——, 36 Sup. Ct. Rep. 255. Thereupon the plaintiff in error in the court below asked that the cause be reinstated and heard, and, upon the refusal of the request, an application was made to this court for leave to file a petition for mandamus to compel such action, and, if not, for the allowance of a certiorari, and although the former application was denied, the case is here because of the allowance of the latter remedy.

Primarily the question is, was it the duty of the court below to exercise jurisdiction? As under the statute it is indisputable that there was jurisdiction and the duty to exert it unless the conditions existed which authorized a direct writ of error from this court, it follows that the dismissal by this court of the direct writ for want of jurisdiction affirmatively determined that there was jurisdiction in the court below, and error was committed in not exerting it unless by some neglect to avail of proper procedure, or because of some line of inconsistent conduct, the right to invoke the jurisdiction of the court below was lost. As we have seen, the assumed existence of the latter cause was the basis of the refusal to exercise jurisdiction; that is the inconsistency which it was assumed resulted from prosecuting the direct writ of error from this court and subsequently suing out the writ of error from the court below, from which it was deduced that there was a duty to elect between the two as a prerequisite to the right to ask at the hands of the court below the exertion of the jurisdictional authority cast upon it by law. But if the exercise of the assumed duty of election which was imposed had resulted in the abandonment of the writ from the court below, there would have been nothing left upon which the jurisdiction of that court could have been exerted, and it is hence apparent that in substance the order was but a direction that the plaintiff in error abandon the direct writ prosecuted from this court as a prerequisite to his right to invoke the action of the court upon the writ pending before it. But, aside from the demonstration of error which arises from the mere statement of this inevitable result of the order made by the court below, it is equally clear that such order rested upon a misconception arising from treating as one, things which are distinct; that is, the existence of authority to compel the abandonment of one of two valid and available remedies because of their inconsistency, leaving therefore the one not abandoned in force, and the want of power to compel an election of one of two remedies where the exertion of judicial power alone could determine which of the two was available, and where therefore the exercise of the election ordered in the nature of things involved the power to destroy all relief, and thus frustrate the right of review conferred by the statute by one or the other of the remedies. As, in view of this distinction, it clearly results that the determination of the plaintiff in error to abandon, under the order of the court, one or the other of the two writs of error, could not have validated the writ not abandoned if it was not authorized by law, it must follow that the election to which the order of the court submitted the plaintiff in error was not real, and therefore afforded no basis for the refusal of the court to determine the validity of the writ of error pending before it and to decide the case if it deemed it had jurisdiction. Indeed, if it be conceded that the situation arising from the pendency of the two writs created doubt, that concession would not change the result, since we are of opinion that the power to have certified to this court the jurisdictional or other questions as to which the doubt existed was the remedy created by the statute to meet such a situation, and to obviate the possibility of denying to the plaintiff in error the right to a review which again it must be borne in mind the statute gave under one or the other of the two writs.

Correcting the error committed by the court below by its order of dismissal, the case on its merits is within our competency to decide as the result of the operation of the certiorari. As, however, it is clear that the questions on the merits, as demonstrated by the previous judgment of dismissal of the direct writ of error, are of a character which, under the statute, if they had been disposed of by the court below in the discharge of its duty, would have been finally determined, and as it is equally apparent that none of the questions except the one of jurisdiction, that is, the duty of the court below to have decided the cause, are within the exceptional considerations by which certiorari is allowed, it follows that, in order to give effect to the statute, our duty would be, as a general rule, having corrected the error resulting from the dismissal, and having afforded a remedy for the failure of the court below to exercise jurisdiction, to go no farther and remand the case so that the questions at issue might be finally disposed of. Lutcher & M. Lumber Co. v. Knight, 217 U. S. 257, 54 L. ed. 757, 30 Sup. Ct. Rep. 505. But while not in any degree departing from the general rule, we think it is inapplicable here because of the serious doubt which may have been engendered by the certificate as to the jurisdictional question given by the district judge although it is now established that there was no foundation whatever for allowing it, and because of the resulting complexity of the question as to whether the jurisdiction of this court had not attached to the subject-matter and excluded the advisability if not the power on the part of the court below to certify to this court the question of which writ of error was paramount, when of necessity a certificate involving the solution of that question had already been made by the district judge. We therefore dispose of the merits, restating the case so far as may be essential.

The section of the Penal Code charged to have been violated punishes anyone who, 'with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any Department, or any officer of the government thereof, and shall take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any Deparment, or any officer of the government thereof any money, paper, document, or other valuable thing,' etc. The indictment charged that at a stated time the petitioner 'unlawfully, knowingly and feloniously did falsely assume and pretend to be an officer of the Government of the United States, to wit, a member of the House of Representatives of the Congress of the United States of America, that is to say, A. Mitchell Palmer, a member of Congress representing the twenty-sixth district of the state of Pennsylvania, with the intent, then and there, to defraud Lewis Cass Ledyard,' and other persons who were named and others to the grand jury unknown, 'and the said defendant, then and there, with the intent and purpose aforesaid, did take upon himself to act as such member of Congress; against the peace,' etc., etc.

We consider the...