People ex rel. Woll v. Graber

• Decision Date: 18 September 1946
• Docket Number: No. 29425.,29425.
• Citation: 68 N.E.2d 750,394 Ill. 362
• Parties: PEOPLE ex rel. WOLL, U. S. Attorney, v. GRABER, Judge.
• Court: Illinois Supreme Court

394 Ill. 362

68 N.E.2d 750

PEOPLE ex rel. WOLL, U. S. Attorney,

v.GRABER, Judge.

No. 29425.

Supreme Court of Illinois.

Sept. 18, 1946.

Original mandamus proceeding by the People, on the relation of J. Albert Woll, United States Attorney for the Northern District of Illinois, against Joseph A. Graber, Judge of the Superior Court of Cook County, to compel the respondent to expunge from the records of the Superior Court of Cook County, as void for want of jurisdiction to enter it, an order entered by the respondent in a case pending before him, by which order respondent directed the petitioner to withdraw his appearance on behalf of one of the defendants.

Writ awarded.J. Albert Woll, U. S. Atty., of Chicago (John Peter Lulinski, of Chicago, of counsel), for petitioner.

Fischer & Bosgraf, of Chicago (Kellam Foster, of Chicago, of counsel), for respondent.

THOMPSON, Justice.

This is an original proceeding in mandamus. Petitioner, J. Albert Woll, United States Attorney for the Northern District of Illinois, seeks the writ to compel respondent, as judge of the superior court of Cook county, to expunge from the records of that court, as void for want of jurisdiction to enter it, an order entered by him as such judge on May 9, 1945, in the case pending before him of Walter H. Scott, doing business as Walter H. Scott Engineering Service, plaintiff, v. James I. Silvers, Howard Clock Corporation, an Illinois corporation, and Francis R. Johlie, defendants, No. 44-S-13843, by which order respondent directed petitioner to withdraw his appearance on behalf of the defendant Francis R. Johlie, in said cause. The respondent filed an answer to the petition and the petitioner a reply thereto, which we have treated as a demurrer. The issues were thus closed and the cause was submitted upon the pleadings, and the printed briefs and oral argument of the parties. There are no controverted questions of fact. The sole question presented is the legal question whether the Attorney General of the United States has an unqualified right, as a matter of law, to appear in said case No. 44-S-13843 in the superior court on behalf of the defendant Francis R. Johlie.

The facts are as follows: On September 18, 1941, Scott, the plaintiff in the superior court case, entered into a contract with the Navy Department of the United States for the delivery of Mark IX tracer bodies, and on January 31, 1942, a further contract was entered into between them, supplementing the contract of September 18, 1941. Under the terms of these contracts, plaintiff was to deliver to the Navy Department 770,000 tracer bodies manufactured in compliance with the specifications set out in the contract and which were to be subject to the inspection and approval of the Navy Department before acceptance; delivery to be made at the rate of 8000 tracer bodies per week, commencing August 28, 1942. The Navy Department, on March 4, 1943, served notice upon plaintiff of cancellation and termination of the contract because of plaintiff's noncompliance with the terms thereof. The defendant Francis R. Johlie was, during all the time mentioned, an officer and agent of the United States, being the Chief Civilian Naval Inspector in the Ninth Naval District, in general charge of inspection of ordnance material manufactured or produced by war contractors in said district, and as such inspector was assigned by the United States government to inspect and pass upon the material produced by plaintiff pursuant to his contract with the Navy Department. Johlie was not, however, at the time when the complaint was filed in the superior court, nor has he been at any time since, an officer, agent or employee of the United States.

The case No. 44-S-13843 in the superior court of Cook county was an action at law, filed September 28, 1944, seeking recovery in favor of the plaintiff Scott for damages arising out of an alleged conspiracy by and between the defendants to cause the contract between plaintiff and the Navy Department to be terminated and forfeited. The amended complaint was filed March 31, 1945, and contained two counts. The first count made no reference to and contained no charges against Johlie. It asked judgment only against the Howard Clock Corporation. The second count prayed judgment against all the defendants. It charged a conspiracy between Johlie and the other defendants to cause plaintiff's contract with the Navy to be terminated and forfeited, and that in pursuance of the conspiracy, Johlie wilfully and maliciously rejected and refused to approve and accept tracer bodies delivered by plaintiff, although the same complied with the specifications of the contract between plaintiff and the United States Navy. The count alleged that by virtue of said conspiracy and the acts and doings of Johlie and the other defendants, in pursuance thereof, plaintiff's contract with the Navy Department was cancelled and terminated, whereby plaintiff claimed to have sustained damage in the sum of $83,217.72, for which amount he asked judgment.

November 30, 1944, the petitioner, Woll, acting at the request and upon the instructions of the Attorney General of the United States, entered his appearance as the United States Attorney for the Northern District of Illinois, on behalf of the defendant Johlie, in the superior court, and also filed in the cause a motion to dismiss the complaint. Thereupon the plaintiff Scott filed a petition in the cause praying for a rule upon the District Attorney, requiring him to withdraw his appearance as attorney for Johlie. This petition of the plaintiff Scott stated that, in his belief, the proof would show that Johlie had committed at least two distinct crimes against the laws of the United States of America in connection with the transactions described in the complaint, and further alleged that none of the acts or doings of Johlie complained of were committed by him in the performance of any duty as an employee of the United States. To this petition an answer was filed by the United States Attorney, alleging the court had no jurisdiction to order his withdrawal as such attorney, for the reason that he had been directed by the Attorney General of the United States to appear as attorney for Johlie, and under the constitution and laws of the United States exclusive discretion was vested in the Attorney General to determine whether Woll, as United States Attorney, should appear in the proceedings on behalf of the defendant Johlie. After a hearing upon the petition and answer, the order herein sought to be expunged was entered, finding that the alleged acts and doings of Johlie complained of were committed by him in his individual capacity and not in the performance of his duties as an employee of the United States, and that the United States had no interest which would be affected by or jeopardized in the pending suit, and directing the United States Attorney, Woll, to withdraw his appearance as attorney for the defendant Francis R. Johlie.

The Attorney General of the United States is its chief law officer. He is the head of the Department of Justice (5 U.S.C.A. s 291), and all the functions of that department are to be exercised under his supervision and direction. The Department of Justice is one of the great executive departments established by congressional enactment and has charge, among other things, of the assertion and protection of the interests of the United States, when it or its officers are sued by others. McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1. It is true that Congress had made no specific statement enumerating the general duties of the Attorney General, but it is seen from the entire chapter of the United States statutes which establishes and regulates the Department of Justice and from the various provisions of the Judicial Code that he has the authority and it is made his duty to have general control and supervision of all criminal prosecutions and also of all civil suits in which the United States is interested, whether such interest be the subject of attack or defense; and that he is at liberty to call upon the District Attorney in any district, as the official representative of the United States, to appear and protect and defend the interests of the government in any civil suit in which its interests are involved or might be jeopardized.

Respondent does not dispute the right and duty of the Attorney General or that of the District Attorney, at the direction of the Attorney General, to appear and participate in any civil suit between private parties wherein the interests of the United States are involved, but he contends that it is the province of the court in which the action is pending to determine whether or not the interests of the United States are involved. He further contends that it is apparent from the pleadings in the case in his court that the United States had no interest which can be affected or jeopardized by the pending litigation and that the alleged wrongful acts of the defendant Francis R. Johlie, if committed, were committed by him in his individual capacity and not in the performance of his duties as an employee of the United States; that respondent had jurisdiction to enter the order in question, prohibiting the United States Attorney from appearing in the case on behalf of the defendant Johlie; and that any review of such order must be by appeal and cannot be by way of mandamus.

The writ of mandamus is not a writ of right. The exercise of our original jurisdiction in granting the writ is discretionary with this court. The existence of another and adequate remedy, while no bar to the relief, People ex rel. Waber v. Wells, 255 Ill. 450, 99 N.E. 606, may be of importance in determining whether we will assume jurisdiction in a particular case, and, in the exercise of the discretion vested in this court, might be considered as constituting good grounds for refusal to act. An order...