Evaporated Milk Ass'n v. Roche, 10034.

• Decision Date: 12 September 1942
• Docket Number: No. 10034.,10034.
• Citation: 130 F.2d 843
• Parties: EVAPORATED MILK ASS'N et al. v. ROCHE, District Judge, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

130 F.2d 843 (1942)

EVAPORATED MILK ASS'N et al. v. ROCHE, District Judge, et al.

No. 10034.

Circuit Court of Appeals, Ninth Circuit.

September 12, 1942.

Pillsbury, Madison & Sutro, Marshall P. Madison, Francis R. Kirkham, Morrison, Hohfeld, Foerster, Shuman & Clark, Herbert W. Clark, Dunne & Dunne, Arthur B. Dunne, Webb, Webb & Olds, U. S. Webb, Walter K. Olds, Brobeck, Phleger & Harrison, Maurice E. Harrison, Lee M. Olds, and E. R. Hoerchner, all of San Francisco, Cal., Willis I. Morrison and J. Wesley Cupp, both of Los Angeles, Cal., Joseph A. Murphy, of Oakland, Cal., Nat Brown, of Stockton, Cal., W. E. Foley and James W. Foley, both of San Jose, and Patrick A. Geraghty, of Seattle, Wash., for petitioners.

Thurman Arnold, Asst. Atty. Gen., of Washington, D. C., Frank J. Hennessy, U. S. Atty., of San Francisco, Cal., Tom C. Clark and Wallace Howland, Sp. Assts. to Atty. Gen., Fred S. Gilbert, Jr., and Pierce W. Bradley, both of San Francisco, Cal., and Leonard A. Marcussen, of Seattle, Wash., for respondents.

Before WILBUR, GARRECHT, DENMAN, MATHEWS, HANEY, STEPHENS, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

The petitioners, having been indicted by a grand jury for a violation of the Sherman Anti-Trust Law, 15 U.S.C.A. § 1 et seq., pleaded in abatement that the grand jury returning the indictment was drawn in the term previous to that in which they returned the indictment, and that the hearing before the grand jury upon which the indictment was based was not begun until after the expiration of the term in which the jury was impaneled.

The trial court struck out the pleas in abatement and was about to proceed with the trial of the case under plea of not guilty, when the petitioners applied to this court for a writ of mandamus to compel the trial court to hear the issues raised by their pleas in abatement. This court promptly granted a writ. The respondent filed a petition for rehearing, which was granted and ordered heard before the seven Circuit Judges of this circuit sitting en banc.

The law provides that this court can issue a writ of mandamus to the District Court only when such writ is in aid of its appellate jurisdiction. 28 U.S.C.A. § 377. The respondent insists that inasmuch as the statute expressly provides that there is no right of appeal from a decision of the trial court on a plea of abatement other than to the jurisdiction of the court, 28 U.S.C.A. § 879, the writ applied for in this case cannot be in aid of this court's appellate jurisdiction.¹ On the other hand, petitioners contend that the plea attacks the power of a grand jury to return an indictment and therefore was jurisdictional within the meaning of 28 U.S.C.A. § 879, supra. They further contend that 28 U.S.C.A. § 879, being derived from the Judiciary Act of 1789, (§ 22, c. 20, 1 Stat. 73, 84) does not apply to criminal cases as the original statute was concerned solely with civil actions. We find it unnecessary to discuss these questions because Congress, on the 9th day of May, 1942, amended the law concerning criminal appeals by providing that the United States has a right of appeal from a decision of the trial court in a criminal case on a plea in abatement. Public Laws 543, 77th Congress, ch. 295, 2d session. 18 U.S.C.A. § 682. This court is thereby given appellate jurisdiction over a decision of the trial court in the event that the decision is unfavorable to the government. The trial court, by striking out the pleas in abatement, makes it impossible for the decision of the trial court on the issues raised by the pleas to reach this court. The fact that the statute only permits an appeal from a judgment adverse to the government does not circumscribe our power to control the conduct of the trial court, for it may be when properly determined the decision of the trial court would be adverse to the government. The effect of the decision of the trial judge striking out the pleas is to prevent the entry of an appealable judgment.

It is contended by the respondent that the order of the trial court striking out the pleas of the petitioners was in effect an adjudication that the pleas did not state facts sufficient to show that the proceeding should abate. Consequently, it is urged that the trial court having decided the matter, its decision should not be controlled or interfered with by mandamus. The fact that the court exercised its judgment in determining that it had nothing before it is not decisive as to our power, because if the trial court erroneously refuses to proceed to trial of the issues of fact and render a decision, this court by mandamus can compel a trial to determine the issue, although in doing so it overrides the decision of the trial judge that he will not do so. The respondent's contention can be best answered in the language of the Circuit Court of Appeals for the Eighth Circuit in Barber Asphalt Pav. Co. v. Morris, 132 F. 945, 956, 67 L.R.A. 761, as follows:

"Finally, it is insisted that the writ of mandamus should not issue in this case because that writ may not be used to compel a subordinate court to reverse or revise its decision of a question properly submitted for its consideration in the progress of a case before it, or to direct it how to decide or by what rules to proceed. * * * It is undoubtedly the general rule that a court has no power by writ of mandamus to compel a subordinate judicial officer to reverse a conclusion already reached, to correct an erroneous decision, or to direct him in what particular way he shall proceed or shall decide a specified question. But it is equally a part of this general rule that the court always has the power by means of such a writ to compel such an officer to proceed to try and decide a controversy within his jurisdiction, or to perform any other plain duty imposed by law. * * * The power to compel such an officer to proceed to the trial and determination of a case which it is his duty to hear and decide necessarily includes within it the power to compel him to reverse and set aside any erroneous decision he may have made to the effect that he will not proceed to such a trial and judgment."

This decision is in line with decisions of the Supreme Court.

In a recent case, Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 130, 77 L.Ed. 283, the Supreme Court issued a writ of mandamus to compel the trial court to issue a warrant upon an indictment notwithstanding the contention that the trial judge had exercised his discretion in refusing the warrant. In determining its jurisdiction to entertain the application the Supreme Court approved the rule in McClellan v. Carland, 217 U.S. 268, 280, 30 S. Ct. 501, 54 L.Ed. 762, laying down a general rule applicable alike to the Supreme Court and the Circuit Court of Appeals, namely: "That the power to issue the writ under R.S. § 716 28 U.S.C.A. § 377 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,'" citing, among other cases, Barber Asphalt Pav. Co. v. Morris, 132 F. 945, 67 L.R.A. 761, supra.

The respondent claims the decision of the Supreme Court in Ex parte United States, supra, is not authoritative because the action of the trial court there involved was ministerial and not judicial, and that the Supreme Court had jurisdiction to entertain a petition for mandamus under 28 U.S. C.A. § 342, Judicial Code, § 234. It is sufficient answer to respondent's contention to say that the court did not predicate its action upon § 342, supra, but upon 28 U.S. C.A. § 377, which applies alike to this court and the Supreme Court. Neither did it predicate its action upon the theory that the action of the trial judge in issuing or refusing to issue a warrant was ministerial. The court referred to United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333, which was a direct appeal from an order quashing a grand jury indictment, as pertinent to the refusal of a judge to issue a warrant upon some ground satisfactory to himself, but clearly erroneous.

We expressly refrain from deciding whether or not the question raised by the petitioners is one of jurisdiction (see Ex parte Bain, 121 U.S. 1, 13, 7 S.Ct. 781, 30 L.Ed. 849), because it is unnecessary to pass upon that question in order to reach a conclusion herein.

It follows that we have jurisdiction to issue a writ of mandamus if we are of opinion that the District Court erred in striking out the petitioners' pleas. The pleas allege in terms that the investigation by the grand jury of the offenses charged against petitioners was not begun during the term in which they were impaneled. It is also alleged that no investigation of these matters had been begun before February 26th, and that therefore the order of the District Court which authorized the grand jury to continue a consideration of the investigations already begun, referred in terms to the date when the order was petitioned for, that is, February 26th. It is conceded that if these facts are true the grand jury had no power to consider the matter or to return the indictment.² It is claimed by the respondent, however, that in order to present a proper plea the petitioners could not rely upon the general allegation that no investigation had begun prior to the expiration of the term in which the jury was impaneled, because the proceedings of the grand jury are secret and it must be assumed that unless otherwise alleged the defendant had no information on which to base the general allegation. Assuming without deciding that this is true, a careful consideration of the allegations in the pleas indicates that the petitioners had good ground for their allegation. We do not intend to set up these allegations in detail, but they are based upon the...