Ex parte In the Matter of the United States, Petitioner. riginal

Decision Date06 January 1913
Docket NumberO,No. 10,10
Citation33 S.Ct. 170,57 L.Ed. 281,226 U.S. 420
CourtU.S. Supreme Court

Attorney General Wickersham and Mr. edward c. Crow for petitioner.

Mr. H. S. Priest for respondent.

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

The matter before us concerns the execution of the decree in United States v. Terminal R. Asso. 224 U. S. 383, 56 L. ed. 810, 32 Sup. Ct. Rep. 507. That case, which involved violations of the Sherman anti-trust act [26 Stat. at L. 209, chap. 647, U. S. Comp. Stat. 1901, p. 3200], was commenced in the circuit court of the United States for the eastern district of Missouri, was there decided by four circuit judges in consequence of the filing by the Attorney General of the United States of the certificate provided for by the act of 1903, commonly known as the expedition act (chap. 544, 32 Stat. at L. 823, U. S. Comp. Stat. Supp. 1911, p. 1383). While the case was here pending, the Judicial Code of March 3, 1911 [36 Stat. at L. 1087, chap. 231, U. S. Comp. Stat. Supp. 1911, p. 128], was adopted, and hence our mandate was directed to the district court of the United States for the eastern district of Missouri, the successor of the circuit court.

Upon the filing of the mandate in that court, the judge of the district court being disqualfied, District Judge trieber, of the district court of Arkansas, was assigned to sit in the cause. Disagreement between the parties having arisen as to what plan of reorganization should be adopted to carry out the mandate of this court, and the court below having expressed its intention to adopt by a final decree a plan to which the government did not assent, objection was made by the United States to proceeding further, upon the ground thus stated by the court below in its opinion:

'As a certificate under the expedition act was filed when the action was originally instituted, the decree on the mandate could not be entered by a single judge, but only by at least three circuit judges, in conformity with the expedition act above referred to.'

The suggestion having been overruled by a formal order, and fruitless effort having been made to induce action by the senior circuit judge, who was also the senior circuit judge who had participated in the original decision of the cause, the interposition of this court by the proceeding before us was invoked. The judge below, evidently only desirous of being informed as to his duty, after leave to file the application for prohibition was here granted, has submitted the issue on the opinion of the court below and upon printed argument for both parties, as if on a return to a rule to show cause why the writ should not issue.

In refusing to apply the expedition act the court below, 'assuming, without deciding, that the Judicial Code does not repeal the expedition act,' based its refusal upon the ground that the proceeding to enforce the mandate of this court was not within the intendment of the expedition act, because not a matter requiring the hearing contemplated by that act. This view was maintained by conclusions as to the general nature of the duty to give effect to a decree already rendered, and by considerations based upon the opinion that the decree of this court was so specific as to leave no room for discussion, and therefore to afford no occasion for organizing a tribunal constituted in accordance with the requirements of the expedition act. In the printed argument, however, upon which the matter has been here submitted, the action of the court is sought to be sustained upon a much broader ground; viz., that as, by the Judicial Code, the circuit courts were abolished, it has become no longer possible to organize a court in accordance with the expedition act, because that act by implication has been repealed by the Judicial Code. Thus, after commenting upon the provisions of the Judicial Code, it is said:

'The Judicial Code (§ 1, chap. 1) provides for a district judge for each district court.

'There is no provision for the exercise of any judicial authority by any circuit judge, except by special appointment, pursuant to the provision of § 18, chap. 1, of the Code. He then derives his power from such appointment, and from no other source. As circuit judges they have no authority in the enforcement of the jurisdiction of the district courts.

'After devolving upon the district courts the jurisdiction formerly possessed by the abolished circuit courts, the code (chap. 6) creates a circuit court of appeals, and provides (§ 117):

"There shall be in each circuit a court of appeals which shall consist of three judges, . . . which shall be a court of record with appellante jurisdiction as...

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26 cases
  • United States v. International Harvester Co.
    • United States
    • U.S. District Court — District of Minnesota
    • August 12, 1914
    ... ... notwithstanding the abolishment of the Circuit Court. Ex ... parte United States, 226 U.S. 420, 33 Sup.Ct. 170, 57 L.Ed ... The ... elaborate, covering more than 130 pages of printed matter, ... and as no questions have been raised as to the sufficiency of ... ...
  • Brown Shoe Co v. United States
    • United States
    • U.S. Supreme Court
    • June 25, 1962
    ...§ 1292, 28 U.S.C.A. § 1292; Fed.Rules Civ.Proc. rule 54(b), 28 U.S.C.A.; 28 U.S.C. § 1651, 28 U.S.C.A. § 1651; Ex parte United States, 226 U.S. 420, 33 S.Ct. 170, 57 L.Ed. 281; United States v. United States District Court, 334 U.S. 258, 68 S.Ct. 1035, 92 L.Ed. 1351; Beacon Theatres, Inc. v......
  • Ex parte Bakelite Corporation. riginal
    • United States
    • U.S. Supreme Court
    • May 20, 1929
    ...292, 311, 322, 11 L. Ed. 603; Ex parte Joins, 191 U. S. 93, 102, 24 S. Ct. 27, 48 L. Ed. 110, and cases cited; Ex parte United States, 226 U. S. 420, 33 S. Ct. 170, 57 L. Ed. 281. 3 Ex parte City Bank of New Orleans, 3 How. 292, 311, 322, 11 L. Ed. 603; Smith v. Whitney, 116 U. S. 167, 175,......
  • General Electric Credit Corp. v. James Talcott, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • February 23, 1966
    ...S.Ct. 434, 439, 27 L.Ed. 251 (1882). There can be no such repeal unless the implication is "irresistible". Ex parte United States, 226 U.S. 420, 424, 33 S.Ct. 170, 57 L.Ed. 281 (1913); or unless the allegedly repealing statute is "so clearly repugnant as to imply a negative." Beals v. Hale,......
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1 books & journal articles
  • Essential facilities.
    • United States
    • Stanford Law Review Vol. 51 No. 5, May 1999
    • May 1, 1999
    ...Terminal R.R. Ass'n, 224 U.S. 383, 410 (1912). (46.) Id. at 409. (47.) See id. at 412. (48.) The three cases are: Exparte United States, 226 U.S. 420 (1913); Terminal R.R. Ass'n v. United States, 236 U.S. 194 (1915); and Terminal R.R. Ass'n v. United States, 266 U.S. 17 (49.) Ex parte Unite......

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