United States v. Malmin

• Decision Date: 23 April 1921
• Docket Number: 2693.
• Citation: 272 F. 785
• Parties: UNITED STATES v. MALMIN.
• Court: U.S. Court of Appeals — Third Circuit

272 F. 785

UNITED STATES v. MALMIN.

No. 2693.

United States Court of Appeals, Third Circuit.

April 23, 1921

Rehearing Denied June 13, 1921.

Buffington Circuit Judge, dissenting.

On Petitions for Rehearing.

Webster S. Achey, Asst. U.S. Atty., of Philadelphia, Pa.

Wm Clarke Mason, of Philadelphia, Pa., James Hamilton Lewis, of Chicago, Ill., and Hampton L. Carson, of Philadelphia, Pa for defendant.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

The United States prays for a writ of mandamus directed to a judge of a territorial court absent from his district, commanding him to return and resume the duties of his office.

The averments of the petition, paraphrased and compressed, are as follows:

The Virgin Islands are territory of the United States, subject to the Constitution and such laws of the United States as are applicable thereto. The Congress, by Act of March 3, 1917, Ch. 171, Secs. 1 and 2 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3924 1/4a, 3924 1/4b) provided:

'That * * * all military, civil, and judicial powers necessary to govern the West Indian Islands acquired from Denmark shall be vested in a Governor and in such person or persons as the President may appoint, and shall be exercised in such manner as the President shall direct until Congress shall provide for the Government of such Islands. * * *

'That until Congress shall otherwise provide, * * * local laws, in force and effect in said Islands on the seventeenth day of January, Nineteen hundred and seventeen, shall remain in force and effect in said Islands, and the same shall be administered by the civil officials and through the local judicial tribunals established in said Islands, respectively; and the orders, judgments, and decrees of said judicial tribunals shall be duly enforced. With the approval of the President, or under such rules and regulations as the President may prescribe, any of said laws may be repealed, altered, or amended by the Colonial Council having jurisdiction. The jurisdiction of the judicial tribunals of said Islands shall extend to all judicial proceedings and controversies in said Islands to which the United States or any citizen thereof may be a party. In all cases arising in the said West Indian Islands and now reviewable by the courts of Denmark, writs of error and appeals shall be to the Circuit Court of Appeals for the Third Circuit, and, except as provided in sections two hundred and thirty-nine and two hundred and forty of the Judicial Code, the judgments, orders, and decrees of such court shall be final in all such cases.'

Pursuant to the power thus conferred, the President of the United States, on August 24, 1917, signed an Executive Order prescribing sundry rules, among which was the following:

'Repeals, Alterations, and Amendments of local laws of the Virgin Islands of the United States by Colonial Council having jurisdiction, shall be effective and enforced when, and to the extent, said Repeals, Alterations and Amendments are approved by the Governor of said Islands * * * the President reserves the right to disapprove and set aside any enactments of the Colonial Council.'

Pursuant to the Act of Congress and the Proclamation of the President, the Colonial Council of the Municipality of the Island of St. Croix, in May, 1920, adopted, and the Governor of the Virgin Islands approved, a code of laws. By Section 5(a), Chapter 1 thereof, it was provided:

'Section 5(a). There shall be appointed by the Governor two Judges for the District Court, one to reside in each Municipality, and, each shall hold office, until otherwise directed by Congress or the President, during good behavior and who shall be removed only for cause involving moral turpitude.'

Under authority of this section of local laws, Joseph W. Oman, an officer of the United States Navy, and Governor of the Virgin Islands by appointment of the President, appointed Lucius J. M. Malmin Judge of the District Court of the Virgin Islands of the United States for the Municipality of St. Croix, as of June 12, 1920; formal notice thereof being conveyed to the appointee by the Acting Attorney General of the United States.

First qualifying, Lucius J. M. Malmin, on September 1, 1920, entered into the performance of the duties of his said office.

By Executive Order, dated the twelfth day of November, 1920, the President, in the exercise of the right reserved by the Executive Order previously cited, and under authority of the Act of Congress, approved March 3, 1917, revoked and set aside Section 5(a), Chapter 1 of the Colonial Code for the Municipality of St. Croix, previously quoted. By force of this executive action, the United States asserts that all power to appoint a Judge of the District Court for the Virgin Islands, theretofore vested in the Governor, was rescinded. Continuing, it avers, that on the twentieth day of November, 1920, Lucius J. M. Malmin, Judge as aforesaid, departed from the Virgin Islands for the United States, on business, it is alleged, incident to the welfare of the Islands. When at sea an officer of the steamship handed him a letter from Joseph W. Oman, Governor of the Islands, revoking his appointment as Judge of the District Court for the Municipality of St. Croix and enclosing a check in full payment of his salary. Subsequently, Joseph W. Oman, Governor of the Islands, appointed as Judge of the said court one Frederick T. McKean, who at once assumed the duties of that office.

On these facts, and particularly on the one which concerns the revocation of Section 5(a), Chapter 1 of the Colonial Code, the United States avers that on November 20, 1920, Joseph W. Oman, Governor of the Islands, was without authority in law to revoke the appointment of Lucius J. M. Malmin as Judge of the said District Court, that he was also without authority in law thereafter to appoint Frederick T. McKean as Judge of the said court, and that Frederick T. McKean is without warrant in law to hold the said office except in so far as he may be authorized under appointment by virtue of Section 15 of the Colonial Code to act during the absence of the said Lucius J. M. Malmin.

Further averring it to be the duty of Lucius J. M. Malmin to return forthwith to the Virgin Islands and to resume the duties of his office in order that the purposes of his appointment shall be fulfilled by the completion of cases formally begun before him, and in order also that parties litigant may have their cases heard before the only judge warranted by law to hear and finally dispose of them, to the end that, if aggrieved by final judgments, they may have opportunity, under the laws of the United States, to apply to this appellate court for review of the same, the United States prays this court to issue an alternative writ of mandamus, directed to Lucius J. M. Malmin, Judge of the District Court of the Virgin Islands, commanding him to return forthwith to the Municipality of St. Croix and resume the duties of his office.

Lucius J. M. Malmin, the respondent, appeared gratis, and, waiving the issue of an alternative writ, made answer by admitting all the facts averred in the Government's petition and by submitting himself to the jurisdiction of this court. The United States demurred to the respondent's answer. Thus the cause is pleaded to issue, the issue being, whether a peremptory writ of mandamus shall be awarded or refused.

As we regard the case, it presents three questions: First, whether the facts warrant the extraordinary remedy of mandamus; second, whether this court has jurisdiction in any event to issue such process; and third, if it has, when and to what end may it resort to its exercise.

Before turning to the first question, it is important to note that this is not a case where one, claiming title to an office, comes into court as relator in a petition for mandamus and assails the title of another. There is here no relator. The United States, the sovereign itself, is the petitioner, moving by the Attorney General, at Washington, not merely by the local District Attorney. The District Judge, a servant of the United States, is the respondent. The incumbent appointed to succeed him is not a party; nor in this action, where all essential facts are established and the title to the office is not in contest, and where the command of the court will be directed to the respondent alone, is the incumbent a necessary party. State ex rel. Leeds v. Atlantic City, 52 N.J.Law, 332, 338, 19 A. 780, 8 L.R.A. 697. It is also important to note that the object of the proceedings begun by the United States, is to invoke against the respondent, its servant, the exercise by this court of an extraordinary power, which, though always guarded by courts, is freely employed 'to prevent disorder from a failure of justice. ' Rex v. Baker, 3 Burr. 1265.

In considering whether the facts are such as to invoke the remedy sought, it is to be observed that ordinarily a writ of mandamus is not demandable, as a matter of right, but is awarded in the discretion of the court. People v. Police Com'rs, 107 N.Y. 235, 13 N.E. 920; People v Croton Aqueduct Board, 49 Barb. (N.Y.) 259; Wiedwald v. Dodson, 95 Cal. 450, 30 P. 580; Bedford v. Wingfield, 27 Grat. (Va.) 333. But where a clear legal right is shown, as where one lawfully in office has been ousted therefrom without authority, and where it is in the public interest and conducive to peace and good government that he be speedily restored, mandamus will lie. State v. Baldwin, 77 Ohio St. 532, 83 N.E. 907, 19 L.R.A. (N.S.) 49, 12 Ann.Cas. 10, with extended notes. With this in mind, courts regard their discretion as greatly contracted; indeed, it has been said, that in such case, the court,...