Roche v. Evaporated Milk Ass, No. 584

CourtUnited States Supreme Court
Writing for the CourtSTONE
Citation63 S.Ct. 938,319 U.S. 21,87 L.Ed. 1185
Docket NumberNo. 584
PartiesROCHE, United States District Judge, et al. v. EVAPORATED MILK ASS'N et al

319 U.S. 21
63 S.Ct. 938
87 L.Ed. 1185
ROCHE, United States District Judge, et al.

v.

EVAPORATED MILK ASS'N et al.

No. 584.
Argued April 6, 1943.
Decided May 3, 1943.

Page 22

Mr. Paul A. Freund, of Washington, D.C., for petitioners.

Mr. Francis R. Kirkham, of San Francisco, Cal., for respondents.

Mr. Chief Justice STONE delivered the opinion of the Court.

The question for decision is whether the Circuit Court of Appeals below rightly issued its writ of mandamus to the district court to correct that court's alleged error in striking respondents' pleas in abatement to a criminal indictment.

An indictment returned in June, 1941, by the grand jury sitting in the district court for Southern California, charged respondents and others with conspiracy to fix the price of evaporated milk sold in interstate commerce in violation of §§ 1 and 3 of the Sherman Act, 15 U.S.C. §§ 1, 3, 15 U.S.C.A. §§ 1, 3. The indictment recited that the grand jury which returned it had been impaneled at the November, 1940, term of court; that it had 'begun but not finished during said November 1940 Term of said Court, an investigation of the matters charged in this indictment'; and that by order of the court the grand jury had continued to sit

Page 23

during the March, 1941, term 'for the sole purpose of finishing investigations begun but not completed during said November Term.'

In September, 1941, respondents filed pleas in abatement, asking that the indictment be quashed for want of jurisdiction of the court, on averments that the minutes of the grand jury for its meeting of February 28, 1941, disclosed that no investigation of any matter mentioned in the indictment had been 'begun' by the grand jury within the meaning of § 284 of the Judicial Code, 28 U.S.C. § 421, 28 U.S.C.A. § 421,1 during the November, 1940, term of court, which expired March 2, 1941.2

The Government filed replications denying generally all the allegations of the pleas, and the issues thus raised

Page 24

were set for trial before a jury. Thereafter leave was granted to the Government to withdraw its replications and to file demurrers to the pleas, and motions to strike them because insufficient in law, because they failed to state specific facts with sufficient certainty, and because they alleged facts which could not be within the pleaders' knowledge. After argument the district court sustained the demurrers and granted the motions. Respondents thereupon instituted the present proceeding by their petition to the Circuit Court of Appeals for the Ninth Circuit, praying that a writ of mandamus issue directing petitioners—the Honorable Michael J. Roche, district judge, and the district court—to reinstate the pleas in abatement and the Government's replications, and to set the issues raised by the pleas and replications for jury trial.

On the petition for the writ and the Government's return, the court of appeals ordered the writ to issue. 9 Cir., 126 F.2d 467. Upon rehearing before the full court sitting en banc the court held that it had jurisdiction to issue the writ; that the district court had erred in striking the pleas in abatement; that the case was an appropriate one for intervention by mandamus; and that the writ should issue directing petitioners to reinstate the pleas in abatement and the replications, and to try the issues of fact thus raised. 130 F.2d 843. The court of appeals seems to have regarded the district court's order striking the pleas in abatement as in effect a refusal to act upon the pleas, 130 F.2d 845. We granted certiorari, 318 U.S. 747, 63 S.Ct. 558, 87 L.Ed. —-, on a petition which set up that the circuit court of appeals erred in directing that mandamus issue, and in holding that the district court erred in striking the pleas in abatement.

Petitioners concede that the circuit court of appeals, like this Court, may, as provided by § 262 of the Judicial Code, 28 U.S.C. § 377, 28 U.S.C.A. § 377, 'issue all writs not specifically provided for by statute, which may be necessary for the

Page 25

exercise of their respective jurisdictions, and agreeable to the usages and principles of law'. McClellan v. Carland, 217 U.S. 268, 279, 30 S.Ct. 501, 503, 54 L.Ed. 762; Adams v. United States ex rel. McCann, 317 U.S. 269, 272, 273, 63 S.Ct. 236, 238, 239, 87 L.Ed. —-. They argue that as the district court's order striking the pleas in abatement was an exercise of its jurisdiction, its action is reviewable only on appeal and not by mandamus, and that since by Congressional enactment and policy appellate review of the district court's order may be had only on review of a final judgment of conviction, that legislation and policy are not to be circumvented by resort to mandamus.

We are of opinion that in the circumstances of this case these are valid objections to the exercise by the circuit court of appeals of its discretionary power to issue the writ.

As the jurisdiction of the circuit court of appeals is exclusively appellate, its authority to issue writs of mandamus is restricted by statute to those cases in which the writ is in aid of that jurisdiction. Its authority is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected. Otherwise the appellate jurisdiction could be defeated and the purpose of the statute authorizing the writ thwarted by unauthorized action of the district court obstructing the appeal. Ex parte Bradstreet, 7 Pet. 634, 8 L.Ed. 810; Insurance Company v. Comstock, 16 Wall. 258, 270, 21 L.Ed. 493; McClellan v. Carland, supra, 217 U.S. 280, 30 S.Ct. 504, 54 L.Ed. 762; Ex parte United States, 287 U.S. 241, 246, 53 S.Ct. 129, 130, 77 L.Ed. 283; cf. Ex parte Siebold, 100 U.S. 371, 374, 375, 25 L.Ed. 717; Ex parte Republic of Peru, April 5, 1943, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. —-, and cases cited.

The common-law writs, like equitable remedies, may be granted or withheld in the sound discretion of the court. Ex parte Republic of Peru, supra, 63 S.Ct. 797, and cases cited; Whitney v. Dick, 202 U.S. 132, 136, 140, 26 S.Ct. 584, 586, 587, 50 L.Ed. 963. Hence the question presented on this record is not whether the court below had

Page 26

power to grant the writ but whether in the light of all the circumstances the case was an appropriate one for the exercise of that power. In determining what is appropriate we look to those principles which should guide judicial discretion in the use of an extraordinary remedy rather than to formal rules rigorously controlling judicial action. Considerations of importance to our answer here are that the trial court, in striking the pleas in abatement, acted within its jurisdiction as a district court; that no action or omission on its part has thwarted or tends to thwart appellate review of the ruling; and that while a function of mandamus in aid of appellate jurisdiction is to remove obstacles to appeal, it may not appropriately be used merely as a substitute for the appeal procedure prescribed by the statute.

The traditional use of the writ in aid of appellate jurisdiction both art common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. Ex parte Republic of Peru, supra, 63 S.Ct. 797, and cases cited; Ex parte Newman, 14 Wall. 152, 165, 166, 169, 20 L.Ed. 877; Ex parte Sawyer, 21 Wall. 235, 238, 22 L.Ed. 617; Interstate Commerce Commission v. United States ex rel. Campbell, 289 U.S. 385, 394, 53 S.Ct. 607, 611, 77 L.Ed. 1273. Even in such cases appellate courts are reluctant to interfere with the decision of a lower court on jurisdictional questions which it was competent to decide and which are reviewable in the regular course of appeal. Ex parte Harding, 219 U.S. 363, 369, 31 S.Ct. 324, 325, 55 L.Ed. 252, 37 L.R.A.,N.S., 392; cf. Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104; Treinies v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 80 L.Ed. 85.

But the present case involves no question of the jurisdiction of the district court. Its jurisdiction of the persons of the defendants, and of the subject matter charged by the indictment, is not questioned. This is not a case like Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 787, 30 L.Ed. 849, where the petitioner had been convicted on an indictment which, because it had

Page 27

been amended after it was returned by the grand jury, was thought to be 'no indictment of a grand jury'. Here the indictment was returned by the requisite number of duly qualified grand jurors, acting under order of the court continuing the grand jury in session. The objection that the subject matter of the indictment was not one which the jury had been or could be continued to hear was at most an irregularity which, if the proper subject of a plea in abatement, did not affect the jurisdiction of the court. Cf. Breese v. United States, 226 U.S. 1, 10, 11, 33 S.Ct. 1, 2, 3, 57 L.Ed. 97; Kaizo v. Henry, 211 U.S. 146, 149, 29 S.Ct. 41, 42, 53 L.Ed. 125; Matter of Moran, 203 U.S. 96, 104, 27 S.Ct. 25, 26, 51 L.Ed. 105; Harlan v. McGourin, 218 U.S. 442, 451, 31 S.Ct. 44, 48, 54 L.Ed. 1101, 21 Ann.Cas. 849; Ex parte Ward, 173 U.S. 452, 454, 19 S.Ct. 459, 460, 43 L.Ed. 765.

Nor does this case involve a refusal by the district court to adjudicate issues properly presented to it, such as justified the issuance of the writ in McClellan v. Carland, supra. Compare Ex parte United States, supra. In sustaining the Government's demurrers to the pleas and its motions to strike, the district court did not, as the court below seemed to think, refuse to act on the pleas. Instead, it held that they were insufficient in law to abate the criminal prosecution. In thus ruling on questions of law decisive of the issue presented by the pleas and replications the...

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