United States v. Rice

Decision Date22 April 1946
Docket NumberNo. 411,411
Citation327 U.S. 742,66 S.Ct. 835,90 L.Ed. 982
PartiesUNITED STATES v. RICE, District Judge
CourtU.S. Supreme Court

[Syllabus from pages 742-744 intentionally omitted] Mr.Marvin J. Sonosky, of Washington, D.C., for the Uni ed states.

Mr. Alfred Stevenson, of Holdenville, Okl., for Rice, Judge.

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

In this case the Court of Appeals for the Tenth Circuit, acting under § 239 of the Judicial Code, 28 U.S.C. § 346, 28 U.S.C.A. § 346, has certified a question of law upon which it desires the instruction of this Court for the proper decision of the cause. The question is whether that court may, by mandamus, review the judgment of the District Court for Eastern Oklahoma ordering the remand of a proceeding to the County Court of Okfuskee County, Oklahoma, from which it had been previously removed to the district court pursuant to § 3 of the Act of April 12, 1926, c. 115, 44 Stat. 239.

The certificate shows that proceedings were begun in the county court by a petition for administration on the estate of Peter Micco, a restricted Indian member of the Five Civilized Tribes in Oklahoma. The county court granted the petition, and appointed administrators. Section 3 of the Act of April 12, 1926, provides that a party to a suit 'in the State courts of Oklahoma to which a re- stricted member of the Five Civilized Tribes in Oklahoma, or the restricted heirs or grantees of such Indian are parties, * * * and claiming or entitled to claim title to or an interest in lands allotted to a citizen of the Five Civilized Tribes or the proceeds, issues, rents, and profits derived from the same, may serve written notice of the pendency of such suit upon the Superintendent for the Five Civilized Tribes.' The United States is afforded a specified time after notice is given to appear in the suit, and after such appearance, or the expiration of the time specified, it is provided that 'the proceedings and judgment in said cause shall bind the United States and the parties thereto to the same extent as though no Indian land or question were involved.' The Act further provides that 'the United States may be, and hereby is, given the right to remove any such suit pending in a State court to the United States district court by filing in such suit in the State court a petition for the removal of such suit into the said United States district court, to be held in the district where such suit is pending, together with the certified copy of the pleadings in such suit * * *. It shall then be the duty of the State court to accept such petition and proceed no further in said suit. The said copy shall be entered in the said district court of the United States * * * and the defendants and intervenors in said suit shall within twenty days thereafter plead, answer, or demur to the declaration or complaint in said cause, and the cause shall then proceed in the same manner as if it has been originally commenced in said district court, and such court is hereby given jurisdiction to hear and determine said suit, and its judgment may be reviewed by certiorari, appeal, or writ of error in like manner as if the suit had been originally brought in said district court.'

Following the service upon the Superintendent of the Five Civilized Tribes of notice of the pendency of the suit in the county court, the United States timely filed its petition in that court for an order of removal, alleging that the proceeding was instituted to obtain the appointment of an administrator for the estate of a three-fourths blood Seminole Indian; that a portion of said estate, comprising real and personal property is restricted under the laws of the United States; that title to and interests in restricted land are involved: that the heirs at law of Micco are restricted Indians and wards of the United States.

Thereupon the county court made its order of removal, and a transcript of the proceedings was filed in the district court. The United States then filed its complaint in intervention in the district court, praying a determination of the heirs of Peter Micco, and of the specific parts of decedent's property which are restricted and subject to the supervision of the Secretary of the In erior. On motion of the administrators appointed by the county court, the district court entered an order dismissing the complaint in intervention without prejudice, and remanding the proceeding to the county court for want of jurisdiction in the district court. In re Micco's Estate, D.C., 59 F.Supp. 434. The United States thereupon instituted this proceeding in the circuit court of appeals by a petition for writ of mandamus, to direct the district court to vacate its judgment dismissing the Government's petition for intervention and remanding the proceeding.

The certificate of the circuit court of appeals, after stating that the court is equally divided on two questions, first, whether the judgment of remand is reviewable by mandamus, and, second, whether the proceeding was removable under the provisions of the Act of 1926, certified a single question for our consideration, as follows: 'May this court, by mandamus, review the judgment of the United States district court for the eastern district of Oklahoma, ordering the remand of the proceeding to the county court of Okfuskee County, Oklahoma?' The certificate further requested this Court to exercise its authority under § 239 of the Judicial Code, 'to require the entire record in the cause to be sent up for its consideration and to decide the whole matter in controversy.' The Government has made a motion to like effect.

In considering these requests, it is to be noted that the only matter pending in the court below to which the certified question relates is the application filed in that court for mandamus, on which the court has not acted. There is consequently no order or judgment in the case which can be brought before this Court by appeal. The practice established by statute, 28 U.S.C. § 346, 28 U.S.C.A. § 346, of answering questions certified to this court, or in some such cases, of deciding the entire controversy on the whole record, is plainly not within our original jurisdiction. As far as it is within our appellate jurisdiction, our authority is defined wholly by the statute, which provides that upon the presentation of the certificate, this Court 'may require that the entire record in the cause be sent up for its consideration, and thereupon shall decide the whole matter in controversy in the the whole matter in controversy in the (here) by writ of error or appeal.' But the only manner in which we, as an appellate court, can decide a controversy brought here by writ of error or appeal is by affirming, reversing or modifying the order or judgment before us for review. It may be doubted whether the statute contemplates our going beyond the certified question, to decide a case or controversy not within our original jurisdiction, and which, since no inferior court has decided it, could not be brought here on appeal. But we need not resolve the doubt as to our power here, for as will presently appear, the answer which we give to the question certified is dispositive of the whole case before the Circuit Court of Appeals, making it unnecessary to express an opinion on any other issue which the record might present, or to order the record to be filed here.

The Act of 1926, under which the cause, In re Micco's Estate, was removed from the Oklahoma county court, contains no provisions respecting remand or any mode of review of an order of remand. But its provisions must be read with those provisions governing removal of suits from state courts to federal district courts, and their remand, appearing in § 2 of the Judiciary Act of March 3, 1887, 24 Stat. 552, reenacted to correct errors in enrollment, August 13, 1888, 25 Stat. 433, and again reenacted and amended March 3, 1911, 36 Stat. 1094, as § 28 of the Judicial Code, 28 U.S.C. § 71, 28 U.S.C.A. § 71, and in § 37 of the Judicial Code, 28 U.S.C. § 80, 28 U.S.C.A. § 80. Section 80 authorizes remand of 'any suit' removed from a state court to a district court where the latter finds that it is without jurisdiction. Section 2 of the Act of 1 87, provided for the removal of diversity suits from state courts to federal circuit courts, now district courts, and, as corrected in 1888, contained a separate paragraph, in terms relating to 'any cause' removed from a state court into a circuit court. This paragraph read:

'Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.'

Before the Judiciary Act of March 3, 1875, 18 Stat. 470, 472, an order of remand was deemed to be not reviewable by appeal or writ of error because the order was not final. Chicago & A.R. Co. v. Wiswall, 23 Wall. 507, 23 L.Ed. 103; Ex parte Pennsylvania Company, 137 U.S. 451, 11 S.Ct. 141, 34 L.Ed. 738. But § 5 of the Act of 1875 expressly authorized the review of an order of remand by appeal or writ of error 'in any suit' removed from a state court. This provision was repealed by § 6 of the Act of 1887, supra, and to make doubly certain, § 2, supra, specifically prohibited appeals, with the added direction that the order of remand should 'be immediately carried into execution.' It thus appears that when the Act of 1926 was passed, the practice in removal cases was, as it had been established from the beginning, save for a brief interval under § 5 of the Act of 1875, that an order of remand was not appealable, and it is also clear that in 1926, as for forty years before, § 2 of the Act of 1887...

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