Ex parte United States, No. 19

CourtUnited States Supreme Court
Writing for the CourtSUTHERLAND
Citation53 S.Ct. 129,77 L.Ed. 283,287 U.S. 241
Docket NumberNo. 19
Decision Date05 December 1932
PartiesEx parte UNITED STATES

287 U.S. 241
53 S.Ct. 129
77 L.Ed. 283
Ex parte UNITED STATES.
No. 19.

Argued on Return to Rule to Show Cause Nov. 7, 1932.

Decided Dec. 5, 1932.

The Attorney General and Mr. Thomas D.

Thacher, Sol. Gen., of Washington, D.C., for the United States.

[Argument of Counsel from pages 241-243 intentionally omitted]

Page 243

Mr. Francis Biddle, of Philadelphia, Pa., for respondent.

[Argument of Counsel from page 243 intentionally omitted]

Page 244

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This is an application for a writ of mandamus requiring the federal District Judge sitting in the United States District Court for the Eastern District of Pennsylvania

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and the court itself to set aside an order denying a petition of the United States attorney for the issue of a bench warrant for the arrest of Joseph V. Wingert (see United States v. Wingert, 55 F.(2d) 960), and directing that such bench warrant be issued. The case is here for decision upon the return of the court and judge to a rule to show cause why the application for the writ should not be granted. The facts follow.

On March 10, 1932, a grand jury for the district, duly impaneled, returned an indictment against Wingert, charging him with violating certain provisions of the banking laws of the United States. No question is raised as to the regularity of the proceedings before the grand jury, or as to the sufficiency of the indictment. On March 22, the United States attorney presented to the court a written petition praying that a bench warrant issue for Wingert's arrest. The District Court, with nothing before it, so far as the record discloses, but the petition and the indictment, denied the petition and refused to issue the warrant. The sole ground alleged in the return for such denial is that the matter was within the judicial discretion of the court, and therefore not subject to mandamus proceedings.

1. It first is necessary to determine whether under these facts we have jurisdiction to issue the writ. Section 716, Rev. Stats. (section 262 of the Judicial Code, U.S.C., title 28, § 377 (28 USCA § 377)), provides that this court and other federal courts 'shall have power 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.' As early as 1831 it was settled that this court had power to issue a mandamus directed to a federal Circuit Court commanding that court to sign a bill of exceptions, such action being in the nature of appellate jurisdiction. In re Crane, 5 Pet. 190, 193, 8 L.Ed. 92. In Marbury v. Madison, 1 Cranch, 137, 175, 2 L.Ed. 60, it was held

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that to warrant the issue of a mandamus by this court, in cases where original jurisdiction had not been conferred by the Constitution (see Commonwealth of Kentucky v. Dennison, Governor, &c., 24 How. 66, 97, 16 L.Ed. 717), it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable the court to exercise its appellate jurisdiction. McClellan v. Carland, 217 U.S. 268, 280, 30 S.Ct. 501, 504, 54 L.Ed. 762, laid down the general rule applicable both to this court and to the Circuit Courts of Appeals, that the power to issue the writ under R.S. § 716 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.' See, also, Delaware, L. & W.R. Co. v. Rellstab, 276 U.S. 1, 5, 48 S.Ct. 203, 72 L.Ed. 439; In re Babcock (C.C.A.) 26 F.(2d) 153, 155; Barber Asphalt Paving Co. v. Morris (C.C.A.) 132 F. 945, 952—956, 67 L.R.A. 761.

Perhaps it would be enough to satisfy the test afforded by these decisions to point to the limited authority of this court under chapter 2564, 34 Stat. 1246, U.S.C., title 18, § 682, 18 USCA § 682 (U.S.C., title 28, § 345, 28 USCA § 345) to exercise direct appellate jurisdiction to review a decision of the District Court in the possible event that some action of that court might give rise to a right of review at the instance of the government. We prefer, however, to put our determination upon the broader ground that, even if the appellate jurisdiction of this court could not in any view be immediately and directly invoked, the issue of the writ may rest upon the ultimate power which we have to review the case itself by certiorari to the Circuit Court of Appeals in which such immediate and direct appellate jurisdiction is lodged.

It is true this court has held that it was without authority to issue a writ of mandamus to the Supreme Court of the District of Columbia, because, since the creation of the Court of Appeals of the District of Columbia, this

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court could not review the judgments and decrees of the Supreme Court of the district directly by appeal or writ of error. In re Massachusetts, 197 U.S. 482, 25 S.Ct. 512, 49 L.Ed. 845. And see, also, Ex parte Glaser, 198 U.S. 171, 25 S.Ct. 653, 49 L.Ed. 1000. Assuming that an application of those decisions to the present case would necessitate a denial of the writ, later cases clearly indicate that the rule as thus limited to longer obtains. In...

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188 practice notes
  • Morrow v. District of Columbia, No. 22126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 18, 1969
    ...288, 65 L.Ed. 631 (1921); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927); Ex parte United States, 287 U.S. 241, 53 S. Ct. 129, 77 L.Ed. 283 (1932); Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311 (1933); Ex parte Republic of Peru, 318 U.S......
  • U.S. v. Christian, No. 81-1323
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 30, 1981
    ...Justice Marshall, issued the writ, directing the district court to reinstate the case. Id. at 649, 8 L.Ed. 810. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932), similarly involved a situation where, at the time the Supreme Court considered the request for mandamus, t......
  • Clark v. United States, Civil No. 15-cv-726-JPG
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • March 3, 2016
    ...to believe the defendant perpetrated the offense alleged. Gerstein v. Pugh, 420 U.S. 103, 117 (1975) (quoting Ex parte United States, 287 U.S. 241, 250 (1932)). And "conclusively" has meant, case in and case out, just that. We have found no "authority for looking into and rev......
  • Clark v. United States, Civil No. 15-cv-726-JPG
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • February 21, 2018
    ...to believe the defendant perpetrated the offense alleged. Gerstein v. Pugh, 420 U.S. 103, 117 (1975) (quoting Ex parte United States, 287 U.S. 241, 250 (1932)). And "conclusively" has meant, case in and case out, just that. We have found no "authority for looking into and rev......
  • Request a trial to view additional results
191 cases
  • United States v. Walker, Crim. A. No. 80-486.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • May 7, 1981
    ...935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Robinson v. United States, 284 F.2d 775, 776 (5th Cir. 1960). Accord Ex parte United States, 287 U.S. 241, 250-51, 53 S.Ct. 129, 132, 77 L.Ed. 283 (1932). The government may also prosecute by an indictment where a prior complaint (or information) h......
  • Morrow v. District of Columbia, No. 22126
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 18, 1969
    ...288, 65 L.Ed. 631 (1921); Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927); Ex parte United States, 287 U.S. 241, 53 S. Ct. 129, 77 L.Ed. 283 (1932); Ex parte La Prade, 289 U.S. 444, 53 S.Ct. 682, 77 L.Ed. 1311 (1933); Ex parte Republic of Peru, 318 U.S......
  • United States v. United States Dist. Ct. for ED of Mich., No. 71-1105.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 21, 1971
    ...review by writ of mandamus any unappealable order." Black v. Boyd, 248 F.2d 156, 159-160 (6th Cir. 1957). See also Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Will v. United States, 3......
  • Mackin, Matter of, Nos. 424
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 23, 1981
    ...in the district court and its order in such a proceeding would be reviewable here under 28 U.S.C. § 2253. Compare Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283 (1932) (Supreme Court has power to grant mandamus requiring a district court to issue a bench warrant for the ar......
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