Howell v. Brown, Civ. No. 50-49.

• Decision Date: 14 September 1949
• Docket Number: Civ. No. 50-49.
• Citation: 85 F. Supp. 537
• Parties: HOWELL v. BROWN.
• Court: U.S. District Court — District of Nebraska

85 F. Supp. 537

HOWELL v. BROWN.

Civ. No. 50-49.

United States District Court D. Nebraska, Lincoln Division.

September 14, 1949.

Chauncey E. Barney, of Lincoln, Neb., for plaintiff, by appointment of court.

Joseph T. Votava, United States Attorney, of Omaha, Neb., and James L. Brown, pro se, for defendant.

DELEHANT, District Judge.

The defendant is one of the Assistant United States Attorneys for the District of Nebraska, and has his official residence and maintains his office for the transaction of the usual and ordinary duties of his position in Lincoln, within the Lincoln division of the court. The plaintiff is an inmate of the Nebraska State Penitentiary, which is located within the division, by virtue of a judgment and sentence of the District Court of Thayer County, Nebraska. He prosecutes this action in forma pauperis under leave of court. Title 28 U.S.C.A. § 1915.

Understood most liberally and favorably to the plaintiff, his complaint (entitled, "Petition for Mandamus") alleges that in the course of the criminal proceedings against him, leading up to his present incarceration, and in furtherance of a conspiracy between "officials in the State of Nebraska, and the State of Tennessee," he was unlawfully seized on one occasion in Tennessee and on another in Texas, and on each such occasion transported from the state of seizure "to the State of Nebraska and held for reward"; that the place of such holding is the Nebraska State Penitentiary; that transportation to Nebraska after his several unlawful seizures, involved, on each occasion, the violation of Title 18 U.S.C.A. § 1201; that the defendant has been fully advised and informed, presumably by the plaintiff, of such unlawful seizure and transportation, and, somewhat inferentially, that though requested so to do, the defendant has failed and refused to institute within the District of Nebraska proceedings for the prosecution of the state officers by whom such transportation was accomplished. The plaintiff prays for an order directing the defendant "to discharge the legal and sworn duties and obligations of his office and proceed to prosecute the offences committed against the laws of the United States which fall within his jurisdiction, as alleged" in the complaint.

The defendant moves to dismiss for (a) want of jurisdiction of the subject matter, and (b) failure of the complaint to state a claim upon which relief can be granted. Counsel has been provided for the plaintiff, upon his written request. Oral argument has been heard and briefs received and examined upon the issues presented by the motion.

Putting aside as requiring no present consideration the defendant's specifications of the failure of the complaint to state a claim supporting relief, the court considers that the motion is well taken upon its jurisdictional ground, and it is, therefore, being granted. Put briefly, no power or jurisdiction is vested in this court to control, whether by writ of mandamus or otherwise, the exercise by the United States Attorney of the discretion and judgment which the law entrusts to him in the prosecution of persons suspected of the violation of the laws of the United States. The defendant does not assert that, and the court does not inquire whether, the United States Attorney, rather than his local deputy, should have been made a defendant, or the sole defendant, in the action. It is assumed, though not decided, that, subject to all other infirmities in his action, the plaintiff may assert his claim against the defendant, rather than against the latter's principal.

The present ruling of the court is not narrowly rested on the fact that by Rule 81(b), Federal Rules of Civil Procedure, 28 U.S.C.A., "The writs of scire facias and mandamus are abolished." The relief available before the operative date of the rules, under writ of mandamus, "may be obtained by appropriate action or by appropriate motion under the practice prescribed in" the rules. Rule 81(b), United States ex rel. Vassel v. Durning, 2 Cir., 152 F.2d 455. It is the substance, not the form of the relief sought, that is primarily unavailable.

The first obstacle to this court's jurisdiction is the nature of the relief solely sought by the plaintiff and for which alone he attempts to invoke such jurisdiction. It has long been recognized that federal district courts have not been clothed with jurisdiction to grant writs of mandamus, and now more properly relief in the nature of that formerly awarded under such writs, except as an incident to the exercise of some independent jurisdiction conferred by statute. And no such independent jurisdiction is asserted or resorted to by the plaintiff, or within the detection of the court from a study of his complaint. In that situation the jurisdiction which he attempts to invoke must be denied. In McIntire v. Wood, 7 Cranch 504, 3 L.Ed. 420, the court stated: "* * * we are of opinion, that the power of the circuit courts to issue the writ of mandamus, is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction." See also McClung v. Silliman, 6 Wheat. 598, 5 L.Ed. 340. Those cases arose before the approval of "An Act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from State courts, and for other purposes", being the Act of March 3, 1875, 18 Statutes at Large, 470.

After the passage of that act, it was suggested that the earlier rule as gathered from McIntire v. Wood, supra, and McClung v. Silliman, supra, was no longer valid. But in Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743, that view was examined and rejected, and the court announced the rule, reflected in the second paragraph of its syllabus, that: "Section 716 of the Revised Statutes 28 U.S.C.A. § 1651 giving power to a Circuit Court to issue all writs not specifically provided for by statute, which may be necessary for the exercise of its jurisdiction, and agreeable to the usages and principles of law, construed in connection with §§ 1 and 2 of the act of 1875 18 Stat. 470, operates to prevent the issuing by the Circuit Court of a writ of mandamus, except in aid of a jurisdiction previously acquired by that court." That rule has been adhered to in Smith v. Bourbon County, 127 U.S. 105, 8 S.Ct. 1043, 32 L.Ed. 73; Knapp v. Lake Shore & M. S. Ry. Co., 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870; and Covington and Cincinnati Bridge Co. v. Hager, 203 U.S. 109, 27 S.Ct. 24, 51 L. Ed. 111, and in many other reported opinions of the Supreme Court. And it has been observed generally in the lower federal courts. United States ex rel. Vassel v. Durning, supra; Stevenson v. Holstein-Friesian Association, 2 Cir., 30 F.2d 625; Amchanitzky v. Sinnott, 2 Cir., 69 F.2d 97; Branham v. Langley, 4 Cir., 139 F.2d 115; Fineran v. Bailey, 5 Cir., 2 F.2d 363; Youngblood v. United States, 6 Cir., 141 F.2d 912; Barber v. Hetfield, 9 Cir., 4 F.2d 245; Dwyer v. Le Flore County, Oklahoma 10 Cir., 97 F.2d 823; including the Court of Appeals, Eighth Circuit. Evans v. Yost, 8 Cir., 255 F. 726, and First National Bank of Woodbine, Iowa, v. Harrison County, 8 Cir., 57 F.2d 56.

Accordingly, since relief in the way of mandamus is the only objective of the plaintiff's complaint, and since that relief is not incidental to any action over which this court by statute has jurisdiction, irrespective of the quest for the mandatory order, jurisdiction does not exist.

An equally insuperable barrier to jurisdiction in the instant action is the nature of the mandatory relief for which the plaintiff prays. Even if the court were mistakenly to claim a general independent jurisdiction to grant relief in the nature of a writ of mandamus, it would be compelled to deny its authority to provide the plaintiff with the particular...