*1 and its reasons for its I think allocation, that, but if the judge had, this case, exercised the duty lay upon him he would have held that there was no sub- stantial foundation for the Commission’s treatment Mortgage General bondholders and would have been bound, therefore, to disapprove the plan. As he did not perform that I duty, think that, right unless the to come to this Court is we vain, duty have the to correct his ac- tion. I should, therefore, reverse the decree below.
EX PARTE REPUBLIC OF PERU. 13, original. No. Argued March April 1943. Decided 5, 1943. *2 R. Edgar Kraetzer, Mr. with whom Mr. Monte M. Lemann onwas the brief, petitioner.
Mr. Rault, Joseph M. with whom Ter- George Messrs. H. riberry and Walter Carroll were on the brief, for Galban Lobo Co., A., al., et respondents. Justice Stone delivered the
Mr. Chief of opinion Court.
This is a motion for in leave to file peti- this Court the Republic tion of the a Peru for writ of prohibition or The petition mandamus. prohibit aslcs Court to re- spondent, judge a of the District Court for Eastern District of Louisiana, and judges the other and officers court, from jurisdiction further exercise a over rem, in proceeding in pending that court against peti- tioner’s steamship Ucayali, direct judge the district to enter an order proceeding declaring the vessel immune from suit. questions here are decision whether has writ, issue whether such should our be ex- discretion in petitioner’s ercised behalf, and whether petitioner’s appearance and defense of the suit in the district court was, as that court ruled, has a waiver of claim that being the vessel, that of friendly a im- sovereign state, is brought by private mune from suit a court party of the United States.
On March Co., Galban Lobo a A., Cuban corporation, against filed a libel the district Ucayali cargo for its failure to carry sugar from port York, required Peruvian to New as by the terms a charter entered into party libelant with a Peruvian corporation acting agent behalf the Peruvian Peru, April Republic Government. On acting by vessel, the master of the intervened the dis- by filing averring trict court a claim to the vessel, Republic owner, stating: filing of Peru was sole “The general of this claim is not a appearance and is without prejudice objections to or waiver of all defenses and *3 may be respondent available to and claimant, particu- larly, exclusively, sovereign but not immunity.” day, petitioner
On the same procured the release by filing a surety the vessel release bond sum of the $60,000, petitioner on which was principal. The bond, which contained a reservation identical appear- with that ing petitioner’s claim the vessel, to was conditioned upon payment any amount awarded to libelant April final decree the cause. On 11th petitioner pro- . testimony ceeded cause take the master of the merits, spread on the on the record a statement testimony was taken with like “full reservation and objections without waiver of all defenses and may which respondent be available to and claimant, particularly, exclusively, sovereign immunity.” but Petitioner appearance also stated that “the of counsel for the Gov- of Peru and the Steamship Ucayali ernment is for spe- only purpose taking testimony cial of the master reservation under the aforesaid.” 18th, again on April May On 10th and May 29th, on moved for and petitioner obtained an order of dis- extending trict court its time within which answer or otherwise to the libel. Each motion made plead any “with full reservation and without de- waiver of mover, objections may fenses and be available to sovereign particularly, exclusively, immunity.” but not meantime, following accepted In the petitioner, Muir, procedure (see course of Navemar, Compania Espanola v. 68), by recognition representations, sought by the appropriate claim of Department petitioner’s immunity, State General Department Attorney asked that advise immunity Attorney claim and that General Dis Attorney for the Eastern instruct United States appro trict of Louisiana to file the district from suggestion immunity of the vessel suit. priate recognition negotiations These resulted formal This immunity. of the claim of Department the State Attorney General the Under was communicated to requested 1942. The letter Secretary’s May letter of Attorney present him the United States to instruct formal the Ambassador’s copy court a the district with the and to immunity Department, claim of filed State the statements Department accepts as true say that “this steamship Ucayali, concerning the of the Ambassador immunity.” the claim of recognizes and allows the United Attor- to these instructions States Pursuant filed the district court a formal state- 29th, on June ney, *4 proceedings the court of the and communi- advising ment praying the court and mentioned, suggesting to cations immunity made on behalf said claim of of the “that Ucayali recognized and and allowed Steamship Peruvian given full force and effect Department be by the State against proceeded “that the said vessel court”; and by proc- immune from the and be declared herein re- July 1st, petitioner On moved for of this court.” ess be The and that the suit dismissed. of the vessel lease peti- ground motion on the court denied the district 582 immunity by
tioner waived its for applying had exten- answer, by taking sions of time within which to and deposition steps of the which the district master — peti- thought general appearance despite constituted a im- right its to attempted tioner’s reservation of assert its in the 47 F. munity Supp. as a defense suit. question
The first our consideration is that of our jurisdiction. Judiciary Section 13 of the Act of 1789, upon “power conferred this Court Stat. issue writs courts, to the district when prohibition proceeding maritime admiralty jurisdiction, courts of and writs mandamus, cases warranted principles usages law, any appointed, persons holding courts or authority of the office, under the United States.” And this Court and other federal courts provided § writs power facias, “shall have issue of scire habeas corpus, specially provided and all other writs not necessary for the statute, may exercise of their agreeable to jurisdictions, and respective principles usages provisions of law.” 1 Stat. 81. These into §§ been carried over and 262 of the substance (28 377), §§ § Code U. S. C. Judicial (28 451). § U. S. C. Revised Statutes III, jurisdiction of this Court as defined Article “original” is either or “appellate.” of the Constitution 2,§ courts of the brought Suits original jurisdic- character as to be within the not of such Constitution, cognizable under the are tion appellate jurisdiction. of its only the exercise prohibition statutory authority issue writs Hence, its constitutionally courts can be mandamus to district or appel- writs are aid insofar as such exercised Madison, Marbury 1 Cranch jurisdiction. late Siebold, 374-75. 173-80; of this statutory provisions, Under aid of its writs to issue common-law
583 The historic consistently sustained. has been by an mandamus directed and prohibition of writs of use revisory to exert the to court has been an inferior appellate The thus court. writs power over inferior confining the means an effective expeditious afford juris prescribed its lawful exercise of inferior court ato it when authority it to its exercise diction, compelling or the office the writs been duty do Such has so. is courts, both before by this Court to when directed In all 1925, 936,1 43 since.2 Act of Stat. Judiciary 1 not 2), appellate, in notes (cited these-cases was Court invoked jurisdiction of this original, exercised.3 1, 490; York, The West g., parte No. 256 U. S. 1 E. Ex New State of parte parte Simons, 231; Maid, 419; Ex 247 U. S. Ex 257 ern U. S. parte Hudgings, 378; 305; 249 Ex
Peterson,
Ex
U. S.
253 U. S.
488;
435;
Heff,
Ex
Uppercu,
Matter
197 U. S.
239
S.
parte
U.
parte
193;
3 Pet.
Siebold,
371;
Watkins,
Ex
United
parte
100
S.U.
Peters,
121.
v.
States
3 Dall.
2
Maryland
(No. 1),
241;
Soper
parte
States,
v.
United
287 U.
Ex
S.
36; Maryland
Maryland
Soper (No. 2), 270
9, 27-28;
v.
U. S.
S.
270 U.
510;
(No.
Symes,
Soper
3),
44; Colorado v.
286 U. S.
v.
parte
McCullough
Cosgrave,
634;
Kawato,
S.
v.
309 U.
Ex
317 U.
Corp.
Angeles
James,
Los
Brush
v.
case Constitution affecting ambassadors, public ministers and diction cases other (Art. 2). consuls, Party” Ill, and “those in which a be cl. State shall § party No was to Ex state made a United The United States. provision States has been held never a “State” within —and obviously bring any original standing not —nor has it action pro- which does not otherwise come within one III, Texas, visions of Article cl. States U. § upon original juris- view, relied different within the sustain a party And diction because State Texas was the defendant. *6 like writs, equitable remedies, may The common law granted Court, or withheld sound discretion parte Eddy Corp., Skinner & 86, 95-96; Ex 265 U. S. parte City Monterey, Maryland Ex 269 v. 527; U. S. Dern, Soper (No. 1), 270 U. S. United 29; States v. 289 usually adequate U. and are denied other 352, 359, S. where Baldwin, 291 610. remedy parte is available. Ex U. S. in And since the the circuit courts ever statute vested appellate jurisdiction appeal on direct from the appeals in courts, Court, discretion, the exercise of its in circumstances declined to issue the writ appropriate has but without an court, prejudice application to a district Co., appeals (Ex Apex Mfg. to the circuit court of parte 282 parte Daugherty, 809; parte Ex Ex 725; Hinge Co., Krentler-Arnold Last 286 U. 533), S. likewise under 262 of the power § has Judicial Code to Carland, issue the writ. McClellan v. 217 U. S. McCann, Adams U. S. ex rel. 317 U.
After a full review of the traditional use of the common- in Court, issuing law by writs a writ of manda- inmus, appellate compel aid of its dis- jurisdiction, judge conformity trict to issue a bench warrant statutory requirements, this Court in Ex parte declared U. 248-49: “The rule deducible decisions, the later and which affirm, is, from we now that full power this Court has its discretion to issue the writ court, although to a case mandamus federal district of which direct is respect appellate jurisdiction be one suggested necessity, until it has never been great, now however original jurisdiction by warrants the exercise this Court of which the upon Moreover, Congress Constitution it. has not conferred even if appellate jurisdiction had Act, withdrawn this Court’s the 1925 there United States necessity inventing would have been no original withheld, which the Constitution had since a applied writ of mandamus could have been for in the circuit court of appeals. having appeals in the circuit court of
vested —this jurisdiction by certiorari —but discretionary ultimate public question power only such will be exercised where question is of such a involved, is or where the importance action that such peculiarly appropriate nature that words, application In be taken. other this Court should made to the intermediate ordinarily for the writ must be as the court of court, and made to this Court exceptional cases.” ultimate review Judiciary of 1925 was intended suggestion that Act granting jurisdiction previously exercised curtail the *7 support history or finds no in the lan writs to district courts such the by originally prepared a committee guage Act. The Act was of the Congress justices Court, by it to of of whom was submitted this testimony gave Court before Four members of this consideration. purposes and mean Congressional explanation the committees in of detailed statement ing Act, Taft submitted a of the and Chief Justice the disclose changes the Act effect. These that of which would the juris great obligatory curtail the Court’s purpose of Act was to the right, discretionary re appeal as substituting, for the of diction In oral and writ many cases. all the classes of view certiorari reports Court, of the by members this ten submissions of bill, adoption of the Congress recommended which committees of limit single suggestion Act would withdraw or is not a that the there to existing jurisdiction direct the common-law writs to the Court’s discretion, deemed it when, in the exercise of its district courts together Af remedy Résumé, with Citations appropriate. such a See Taft, 3164, fecting Bill submitted Chief Justice of Sections Senate 2d Judiciary, Cong., 67th printed Committee on the for use of Senate of the 2061, a Subcommittee Sess.; Hearing on before 2060 S. Cong., 1st Judiciary, 1924, 68th Feb. Committee on Senate Judi Hearing House Committee on the on H. R. before Sess.; 362, 68th Sess.; Rep. No. Cong., 2d 68th ciary, Dec. Cong., The 1075, 68th 2d Sess. Cong., Sess.; Rep. 1st H. No. were forth by the Act set be made changes existing proposed to law justices hardly conceivable that It is painstaking with detail. unexpressed would have left Court, fully practice, with its this familiar really dras existed —to curtail intention such an intention —had statutory tically jurisdiction had exercised under jurisdiction We conclude that we have to the writ issue im- prayed. sovereign as And we think that —unless the munity has public been waived —the case is one of such importance and call ex- exceptional character to for the ercise our discretion to the writ than to issue rather relegate the Republic ap- of Peru circuit to the from peals, might which it case necessary bring again to this Court The by certiorari. case involves authority beginning history. from the of its supra, and most the other cases cited in note were at decided time responsible when members Court’s committee 1925 Act were still unanimous members the Court. The Court’s jurisdiction concurrence subse existence in the cases quent (cf. practice to the Laird, 1925 Act establishes a Stuart 299, 309) beyond explanation Cranch which would be been if had there any thought any provision placed that of the Act had a restric jurisdiction tion on the Court’s to issue the writs. legislative
Nor it history gives any be said support can that suggestion juris- failure of Act the 1925 to cut off the diction of this Court to issue the common-law writs courts inadverent, Act should therefore be construed as though had done it what failed to The do. writs, grant Court to issue such like its certiorari, discretionary. aim enlarge, definite Act was to destroy, jurisdiction. discretionary Court’s aim That can hardly give unexpressed rise purpose to an inference of an *8 to amend repeal or the jurisdiction statutes the conferring of United States on writs, to issue the Court the an or inference that such would have purpose repeal proposed. been the had been The exercise of that jurisdiction placed sig- has on no undue burden this Court. It that, applications nificant since than less ten the of numerous granted. Only for such writs have in- been in rare opinion dealing their stances has denial the been occasion questions importance. public See, g., with of Angeles e. Los Brush Corp. James, Baldwin, parte 610; v. 272 U. S. Ex Ex Colonna, parte 510; Mooney Holohan, cf. v. U. S. scope Court, And whatever the the of this of in no case does it an application decline examine in order to determine jurisdiction. whether it has
58? claims sovereign state, friendly of a rights dignity in the and settled normally presented which are against President foreign by affairs conduct of course of the Secretary of State. When by Department appears he to have done may and as as he elects, by against diplomatic claims vessel to settle case, than countries rather the two negotiations between courts, public impor- in the it is litigation continued political arm of Govern- the action of tance that promptly sphere be appropriate within its ment taken pro- inconvenience of delay and and that the recognized, termination by prompt be avoided longed litigation If Republic court. the district the proceedings think that there immunity, we not waived Peru has jurisdiction to exercising grounds for our persuasive are requir- without and at this time writ in this case issue the of appeals, the circuit court apply ing petitioner urgent strong at least as grounds are and that those in found sufficient as those Symes, and McCul- in Colorado v. Soper, Maryland v. supra, note 2. We accordingly Cosgrave, lough all waived his petitioner has whether question pass immunity. jurisdiction of of the question no presents
This case juris- a defendant. Such person over the court district process the service of either acquired must be diction or participation appearance by the defendant’s or acquired Here the litigation. vessel, and control rem the seizure or case the vessel constituted against claim
libelant’s In- authority to decide. the court had controversy which petitioner determining whether purpose deed, for court, the district immunity, to the claimed entitled the De- immunity by recognition in the absence itself authority to decide State, had partment immunity existed— for requisites all whether *9 the whether vessel when petitioner’s, seized was and was of entitling character it immunity. to the See Ex Muir, supra; Pesaro, The 216; 255 U. S. Berizzi Bros. Co. Pesaro, v. The Compania Espanola v. The Navemar, supra. Therefore the question which must we is not decide whether there was in the district court, acquired by appearance of petitioner, but whether which the court already had acquired by seizure of the vessel should been relinquished conformity overriding to an principle substantive law. principle
That
may
courts
not so exercise their
jurisdiction,
the seizure and detention of
property
friendly
sovereign,
as to embarrass the
arm
executive
conducting foreign
the Government
“In
relations.
judicial department
such cases the
government
of this
fol
the action of
political
lows
and
branch,
will not em
assuming
antagonistic
barrass the latter by
jurisdic
Lee,
tion.” United States
We cannot its reliance immunity. consistently has declared It its the Department and the both before the immunity, on asserting the immu- method district court. Neither of the of Nor, is with the other. view nity incompatible be immunity the to by permitting to be achieved purpose ground saying any to asserted, perceive are we able disregard claim of the that the district court should to sovereign authorized friendly which a is immunity, merely suit, way pending defense the advance right its sovereign preserve seen fit to because the has consequences The other defenses. evil interpose less any the are not the vessel might follow the seizure for the grounds other friendly the state asserts because release. vessel’s Republic not left the Department
Here has the State Ambassa litigation through to intervene Peru The Navemar. Compania Espanola dor as the case of immunity the claim Department The has allowed district certified to the caused its action be The certification through appropriate the channels. be immune be declared must request the the vessel determination the courts as a conclusive accepted by continued arm the Government political conduct proper interferes with the retention vessel cer foreign Upon relations. the submission of our the court’s court, it became tification to release conformity principles, to established duty, We no cause. further proceed vessel and no occasion sur- to decide whether court should on render vessel and dismiss the suit certification sovereign immunity Secretary, made after friendly sovereign unqualifiedly has once assented to a judicial controversy. determination of the assume granted. motion for to file leave We in view of that, opinion, formal issuance of writ will unnecessary, and we direct that the issue writ application by on petitioner. further *11 in concurs the result. Mr. Justice Roberts Frankfurter, Mr. dissenting: Justice If regard due be had Act of aims, Judiciary 936, 43 Stat. denies in 1925, us, my opinion, power in review action this case of the District Court for the Eastern District Louisiana, though even review in is cast form of a of prohibition writ or of mandamus. But, assuming even discretionary we have power to issue such writs to a district court, we should the circum- stances of this case from exercising power, abstain in view of the any showing equally absence that relief prompt and effective and with consonant the national interest was not, and is not, appropriate available Circuit Court of Appeals. range may cases that brought directly here
from the district courts and rigor with which limit we our discretionary jurisdiction determine the capacity of this Court adequately to discharge its essential functions. I shall therefore briefly state the grounds for believing that this case is improperly here, that the rule should be dis- and charged, the motion for leave file the petition be I put denied. to one side the relation of the Peruvian Ambassador to litigation. is not This a proceeding falling under the affecting rubric “Cases Ambassadors” us thereby giving original jurisdiction. brethren My starting is that point common it, treat and our do so exercising its taking case the Court hold of this jurisdiction. appellate no ap- “can exercise agreed are also that this Court
We
the manner
except
cases,
jurisdiction,
pellate
Amer-
Congress.”
prescribed by
form,
defined
Co.,
Jacksonville,
K.
Ry.
T. & W.
Co. v.
ican Construction
the Evarts
case arisen under
372,
U.
378. Had this
could
826), appeal
(Act
Act
of March
Stat.
jurisdic-
court,
from the district
since its
taken
have been
going to
directly
to this Court without
issue,
tion was
g.,
Re-
See, e. Wilson v.
Appeals.
the Circuit Court
And
Co.,
Iron
since
case would
authorized this Court to issue Crane, appellate power, of its see vent frustration own un- enabled to accelerate its Pet. or have very excep- under reviewing authority where, doubted interests and not undefined circumstances, actual tional *12 Chetwood, In re 165 U. S. Compare justice required. so ex rel. Dick, Adams v. U. S. 132; Whitney v. McCann, U. 269. qualifi- not a auxiliary writs is to issue these power
The limits, of the strict de- loose construction cation or even a within which Congress, and the by fined the Constitution lower in decisions of reviewing must move this Court not devia- occasional, many, but been There have courts. auxiliary these employing doctrine from the true tions Congress right granted incidental to writs as may become of which aid litigation, review Court to writ. The issuance facilitating necessary to issue of a case review anticipatory effect, is, a writ the Act directly. When come here due course can appeals courts of intermediate of 1891 established gave to them part a considerable of the appellate jurisdic- tion formerly exercised the Supreme Court, the phi- losophy of federal practice came scrutiny. under careful This uniformly Court and with- out dissent that it power held was without to issue a writ in case not mandamus which it did otherwise have appellate jurisdiction. Massachusetts, In re Glaser, 482, In In re 198 U. these rules cases, were discharged because, under the Circuit of Ap- Courts peals brought could Act, appeals directly Supreme Court would have go but Circuit Court Appeals, thereafter if they come here, could through at But all, certiorari. could be brought review directly to cases which the was in issue, district court and therefore writs of “prohibition or mandamus or as ancillary certiorari there- Massachusetts, to,” supra, In re at were available. directly, Cases which here prior came to the Judiciary Act February jurisdic- Stat. to review the tion of courts, appeal the district whether on through or the informal procedure auxiliary writs, are therefore not precedents present relevant case. Act of 1925 Judiciary aimed to extend the was
Court’s control over its curtailing business its appel- Relief, jurisdiction drastically. late given by Con- gress discharge to enable this Court to indispensable functions of interpreting preserving Constitution and uniformity among of decision intermediate eleven appeals. Periodically courts of since Civil War— to speak only of recent prodigal scope times —the appellate jurisdiction brought of this cases more competent wisely here than even most tribunal could and promptly adjudicate. Arrears became inevitable un- *13 til, legislative long after a travail, the establishment 1891 of intermediate freed appellate tribunals of large of By 1916, Congress volume business. had liti- against to erect a further dam access to this Court of gation through had lower courts already been two calling the the judgment and was not of a nature of 39 Stat. 726. Supreme Act of September Court. But the increase inevitable aftermath of of business —the legislative activity the Great War and of renewed —soon caught with the relief the Act of up meager afforded reap- old of docket evils an overburdened the peared. Absorption appellate the gone to, or been Supreme Court cases that should unjus- with, appeals left the circuit courts of resulted spe- the tifiable of the national interests subordination was sure, To the keeping cial Court. situation ap- as which called the circuit courts of bad as that years In to four peals being. eighties, into three hearing of a case. elapsed docketing between re- Taft enough. it In Justice But was bad Chief eighteen Congress that took from fifteen ported to argument. to reach months for a case came business clog proper The needless on the Court’s cases dozen classes More than a from two sources. Court, Supreme a second review could have cir- right, appeal matter after unsuccessful ad- all exception, single aWith appeals. cuit courts of were appeals circuit courts of judications by the discretionary only by the of 1925 made reviewable Act of mischief prolific a source But no less writ of certiorari. practical application Act of prior to the Supreme Court from the district directly to bring cases right Congress According figures submitted courts. legislation, one-sixth support of the need directly Court came Supreme the total business before a Subcommit- (Hearing district courts. from the Judiciary, on Sen- tee of Committee United States *14 ate, Cong., 68th 1st on 32- Sess., 2061, pp. S. 2060 44-45.) presented phases Most these cases general question namely, right a dis- us, now before adjudicate. trict for this remedy court to The obvious was unwarranted direct review of courts of first instance off from the shut direct access courts is exactly proposed. Court. That what was In the lan- guage spokesman chief judiciary before the Com- mittees, “Section 238 as amended and reenacted in the bill classes, permit falling would within particular cases four only, those to come from the district directly courts Court. . . . Supreme Apart from within these cases classes, four the bill provides that the immediate review of all decisions shall be cir- district courts cuit appeals. regard courts of course We this as better Ibid., public calculated to promote the interest.” conception 33-34. This of “the interest” public law, translated into except that one additional class direct cases review was allowed from the district courts say to this Court. Suffice excepted it the five categories not in re- derogation are serious of the wise quirement that review of action the district be- courts longs to the in- circuit courts of All appeals. five either litigation volve before a of three composed district court judges, or ordinarily touch matters of national concern. present power of this Court de- directly to review cisions district courts must be determined re- by the Congress strictions imposed the Act 1925. The lan- guage significant: of that is section “A direct review by Supreme Court of an interlocu- tory or judgment final or decree of a bemay district court had where it is so provided parts the following Acts or Acts, and not .” (43 . . Stat. otherwise. 938— italics provided.) remotely any within of these fall even
This case does not jurisdic given appellate no have thus been five Acts.1 We by resort to so-called ancil controversy, but tion over here. exercising we are lary writs to be In re true it was held On still as principle, “in Glaser, In Massachusetts, supra, re supra, *15 nor original appel possess which we neither cases over or manda prohibition grant late we cannot 482, 488. U. This thereto.” 197 S. ancillary mus as ... 1 by Supreme an interlocu of A direct review Court “Sec. 238. may of be had where tory judgment or decree a district court or final following parts Acts, Acts or and not provided in the it is so otherwise: 1903, expedite
(1) February 11, 2 of Act ‘to Section by the United hearing brought suits determination’ certain laws, forth. or commerce and so under the antitrust interstate States 1907, ‘providing for error (2) 2, writs of in cer- Act of March The in criminal the district tain instances cases’where the decision of is adverse to the States. injunctions interlocutory restricting to (3) the issuance of An Act made suspend of an order of State or enforcement of statute by acting under or commission created an administrative board hereby 1913, approved 4, Act State, March of a statute respecting requirement adding thereof, ‘The at the end amended hearing in judges apply final presence three shall also to appeal Supreme court; and a direct such suit in the district granting denying per- may a final or be taken from decree injunction manent suit.’ supply urgent making appropriations
(4) Act to So much ‘An year 1913, other appropriations for fiscal and for deficiencies in- 22, review of purposes,’ approved relates October enforce, terlocutory judgments final and decrees suits sus- pend, Interstate Commission aside orders of the Commerce or set payment money. other than for the regulate foreign com- Act to interstate and
(5) 316 ‘An Section products, dairy products, livestock, poultry, livestock merce in eggs, purposes’ approved Au- products, and and for other poultry gust 15, 43 Stat. 1921.”
596 not imply
does that by indirection Act of 1925 re pealed what were originally §§13 of the Judiciary 1789, which, Act of present on their form the United (28 Code States U. S. C. 342, 377, 451), §§ the Court relies. new of appellate jurisdiction distribution between Supreme Court and the circuit courts of appeals did not repeal provisions. these old does, however, It call for restriction their application with harmony new distribution. Ancillary writs still are available both the circuit courts of appeals and this Court they may when in fact be ancillary a main suit. See parte Kawato, (leave U. S. petition for writ granted file of mandamus after such leave denied the Circuit Court of Appeals); and McCann, Adams ex v. U. S. rel. when 269. But we cannot have in a case appeal, on no proceeding ancillary can be to it.
I am not hearings Judiciary unmindful that the on the *16 Act 1925 of before the of Congress Committees com- are pletely regarding appellate jurisdiction silent of through ancillary use of writs. itBut would be legislation the first time in the history judiciary of jurisdictional draftsmen, eminent authorities and expert major preoccupied with in a for problems large scheme relieving business, this Court of undue forget- have been aspects jurisdiction. ful of minor of For instance, it took six years to with the implications deal overlooked Sen- ator using phrase Evarts “infamous crimes” (See Claasen, Act of 1891. In re 200, 140 U. S. and H. Rep. 666, Sess., No. Cong., 54th 1st of letter Chief 3285-86, Justice Cong. Fuller Senator Hoar 23 Rec. Report Attorney of Olney 1893, xxv, General January 492.) Legislation by Act 1897, of 29 Stat. 20, com- competent hands, even the most like other forms of position, subject imagination. is the frailties reform Act Concentration on the basic aims of a like the
597 ambiguities inevitably lacunae of 1925 overlooks the future must cor which the reveals and which future soon authorship, deft despite The Act of 1925, rect. col of cases ambiguities. revealed such See series Phillips v. 250-51. 312 U. S. lected cen were faithful enforcement They resolved February purpose tral of the Act of docket,” our keep appellate “to within narrow confines century half the de more than a U. S. at 250. For Congress sire to cut down the variety a situations given this Court has been effect adequately express though Congress even did not Roff, 141 U. S. McLish instance, See, v. purpose. Caldwell, Sugar American 661; Robinson v. 359; 165 U. S. Orleans, American Se Refining New Co. v. 277; 181 U. Columbia, Inter- curity Co. District of v. U. Navigation Ward, Island Steam Co. Judiciary urged practice since the
Finally,
it is
Act
jurisdiction.
assumption
present
of 1925
sanctions
Co.,
Ry.
parte
Ex
Northern
like
Cases
Pacific
judges to
three
judge
to summon
142, ordering a
(28 U. S. C.
Code
hear a suit under
the Judicial
§
is one of
ex
one side. This
380),
put
must be
§
review
direct
Act of 1925 which
cepted classes under the
Court, and
Supreme
is
lies from district
ancillary writ,
of an
an orthodox utilization
therefore
Massachusetts,
supra.
In
re
Of all the
within
rule of
writ was au
which,
Act
cases
since the
other
circum
comparable
issued,
thorized to
none
Kawato,
one,
In
case.
present
stances of the
*17
supra, the appellate
was invoked
jurisdiction of this Court
a circuit
by
denied
after
was
States, parte
Ex
United
Another,
appeals.
court of
by
of action
a
in
241, while
form a review
United
by the
independent
suit
was in fact an
court,
refusal of
lay from the
States,
appeal
because no
as such
judge
the district
in
case to issue a bench
in
warrant
justiciable
denial of
If the
duty.
his
suit
contro-
was
versy through
ancillary writ,
jus-
use of the
it
equally
was
regarded
original
if
by
ticiable
suit
an
the United
While,
sure,
States.
to be
it was
formally such,
ordinary
while an
by
suit
the United
to enforce an
States
obligation against one
citizens
properly
of its
cannot
brought
original jurisdiction
within
Court,
of this
Ex
parte United
supra,
quite
different. There
sought
the United States
duty
enforcement of a
public
no
redress
in any
could be had
other court. There-
fore, the considerations which led this
in
Texas,
States v.
U.
allow the United States
original
to initiate
although
suit
Court,
in.
merely
language
literal
precluded
Constitution
insisted),
the dissent in that case
(as
might have been
potent
equally
to allow
assumption of such
But,
any
circumstances of
United States.
event, merely
judicial
because there is no other available
no
taking appellate jurisdiction.
relief is
reason for
For
some
only appropriate remedy
situations the
is corrective
legislation. Of
cases,
the same nature were four other
three
by Maryland
Maryland
suits
and one
Colorado.
Soper
v.
(1),
Maryland
Soper
U. S. 9;
(2),
v.
270 U. S.
36; Maryland
Soper
v.
(3),
Colorado v.
Symes,
U. S.
ancilliary
authority to issue an
refused to invoke
plicitly
the con-
jurisdiction of
writ inasmuch as the
and not
belonged
Appeals
Court
troversy
Circuit
enforcement
concerned “the
Court. The case
power
and the
Equity Rules,” 272 U.
at
duty
part
in that case was
recognized
put
Congress to formulate and
upon
imposed
McCullough
was
The
case
Equity
in force the
Rules.
Angeles
merely
the Los
It
followed
equally restricted.
enforcing
Equity
Rules.
Bi ush case
States,
supra, stated
sure,
parte
Ex
United
To be
In re
In re Massachusetts and
qualified
cases had
later
(Mc-
Glaser, supra. But the
that were avouched
cases
Abdu, 247
Carland,
parte
Ex
Clellan v.
217 U. S.
In re Massachu-
question
called into
27)
no wise
Glaser,
In
the actual decisions left them
re
setts
Massachusetts, supra,
In
re
authority
intact. The
1923, in
Glaser,
unquestioned
In
as late as
supra,
re
is, the cases
Coty,
159, after,
Co. v.
Magnum
supra,
having
referred
In re
In
limited
Massachusetts and
re
Glaser.
essence
of the Act of 1925 was curtailment of our appellate juris-
*19
necessary
diction as a measure
discharge
for the effective
hardly
It
Court’s functions.
is
with this
consonant
enlarge
restrictive
Act
purpose
of 1925
oppor-
beyond
tunities
come to
recognized
the limit
and enforced under the Act of 1891—that there can be no
ancillary jurisdiction
litigation
where the
on the merits
not directly
could
come here for review.
only
In
one
the cases
since
Act of 1925 which
ancillary
writs
were invoked in situations which this Court did not have
appellate
direct
jurisdiction, did counsel call to the atten-
tion
bearing
of this Court the
of the Act of 1925 upon the
power to
ancillary
issue
writs
relevance
cases
Act,
and in no
prior to
case did this Court apparently
problem
itself to the
address
now canvassed. Authority
sub silentio
jurisdiction.
exercised
does not establish
Throughout
history it
has been the firm policy of this
recognize
Court not to
jurisdiction
exercise of
under
precedents
circumstances as
when the question is first
sharply brought
for decision.
More,
United States v.
In deciding give whether to a latitudinarian or re- scope stricted to the appellate jurisdiction of Court, important factor is the number of instances which applications for the jurisdiction exercise the Court’s has may been or made, the number of instances has been exercised. And so it tells little less than ten applications for mandamus granted have been since the ofAct 1925. What far is more important is that merely for the first seven Terms after that Act seventy-two not less than for applications such writs were Every made. time application consumes in consideration, eventually whether granted or denied. no furnish case would jurisdiction, the Court Had basis technical On whatever for its exercise. occasion been may have writs availability of these jurisdiction cir- special very reserved their use has been founded, language justifica- varying the However cumstances. further been issued tion, ancillary these writs case, present In the justice. claim of imperative some in- to circumvent proceedings of these upshot re- normal the natural court as termediate of want for relief from a claim sort
district court. interna- or of national exigency either palpable
No extraor- seeking-this is made manifest import tional litiga- purposes, practical here. For all dinary relief to a sister belonging *20 concern a vessel tion ceased to has the turn on legal issues sure, the While, to be republic. libeled in a vessel Peru sovereign immunity by claim of re- long since been has harbor, ship the in an American bond. controversy is a the actual stake of leased and the disregard of intervention, the case for our Thus than higher put cannot be Appeals, Circuit Court of foreign friendly of a vindicating dignity propriety state. elegancies formal introduce the surely this is to
But rights securing legal business of into the severe diplomacy for the normally adapted machinery judicial through Constitution of the if framers all, After purpose. comport alone to in this Court litigation had deemed for- friendly dignity of a for the regard appropriate with original juris- given this Court would have eign state, they neighbors wished If nearest in cases. our diction bring suit not they could country, in this litigate It Mississippi, 292 U. 313. Monaco v. this See Court. of the United dignity with incompatible not deemed is court, begin itself to suit States only appeals, circuit court litigation proceed See, our leave reach Court. this e. United g., States California, Litigation 297 U. involving in- in ships terests the United States owned twice has gone recently through this normal will process, and it thought not be dignity that the of the United States was thereby compromised. Indeed, arrangements under the by Congress made in 1925, deemed indispen- measures sable for the conduct war could nullified by dis- trict courts and could come ap- here for review until peal duly taken to the circuit To appeals. courts of Congress be sure, wisely has an provided that once such is appeal filed this Court its discretion may bring appeal here. See, g., e. White v. Mechanics Securities
Corp.,
It is therefore imperative the docket of the Court be kept down, that no case be taken which rise does not significance of inescapability responsibility entrusted Every this Court. case allowed come here which, judged by these standards, may well be left either to the state courts or to the circuit courts of appeals, makes inroads upon thought energy properly belong to the limited number of cases which adjudicate. this Court can judge Even a unique gifts experience as Mr. Justice Holmes felt at very height powers, of his as we now know, whip pressure undue his work. One just case is not one case more, and does not with stop being just one more case. who, Chief Justice Taft was not judge the last as he said of himself, “having a kind I heart, am inclined grant probably more [discretionary than is reviews] wise.” (Hearing before the on Committee the Judiciary, House of Representatives, 68th Cong., 2d R. Sess., on H. 8206, p. 27.)
In a case this, like we should deny power our to exercise jurisdiction. But, in any event, we should refuse to ex- By ercise it. such refusal we discourage would future *22 those kind, thereby of a similar enforce applications rigorous judicial in this administration standards Court’s vigor thought give which alone will us the freshness and wise spirit indispensable that are decisions committed to us. causes has opinion Me. Justice is of the Reed grant requested, the writ dissent on 241, 287 U. S. but concurs sought
ground that for the writ should application Appeals. been made first to the Circuit Court HELVERING, OF INTERNAL COMMISSIONER
REVENUE, v. SPROUSE.* Argued Decided April 5, 1943. No. 22. November Sttrassburger Internal * Together v. Commissioner with No. certiorari, Court of Revenue, the Circuit on writ of Appeals Second Circuit. for the