Travis County v. King Iron Bridge & Manufacturing Co.
92 F. 690
5th Cir.
1899
Check Treatment
PAEEiANGE, District Judge,

аfter stating the facts, delivered ‍‌‌‌​‌​‌‌‌​​‌​​‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌​‌‌‌​‌‌​‍the opinion of the court.

The only authority which this court has to issue writs of certiorari is conferred by section 12 оf the act of congress of March 3, 1891, which established the circuit courts of appeals. This section provides that the circuit courts of аppeals “shall have the powers specified in section 716 of the Revised Statutes of the United States”; that is to say, that the circuit courts ‍‌‌‌​‌​‌‌‌​​‌​​‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌​‌‌‌​‌‌​‍of appeals shall “have power to issue all writs not specifically provided for by statute, which may be necessary for the exercisе of their respective jurisdictions and agreeable to (he usages and principles of law.” 26 that. 826. The counsel for the county of Travis, petitioner for a writ of certiorari, admit and show in their brief fhat prior to Ex parte Chetwood, 165 U. S. 443, 17 Sup. Ct. 385, the supreme court issued the writ only as auxiliary prоcess. ‍‌‌‌​‌​‌‌‌​​‌​​‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌​‌‌‌​‌‌​‍The counsel quote from American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 13 Sup. Ct. 758, wherein the supreme court, speaking of the writ of certiorari, said: “It wаs used by this court as an auxiliary process only to supply imperfections in the record of a case already before it, and not, like а writ of error, to review the judgment of an inferior court.” I?ut the petitioner’s counsel contend that Ex parte Chetwood, supra, has virtually operated a complete reversal of the previous jurisprudence on the question of the issuance of the writ of certiorari, and that the language of the supreme court in that case, while not used specifically in construing the power of this court in the matter of (lie issuing of writs of сertiorari, is such as to warrant this court (o issue the writ as an original process for the purpose of reviewing ‍‌‌‌​‌​‌‌‌​​‌​​‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌​‌‌‌​‌‌​‍the judgment rendered by the circuit court in July, 1893. The counsel’s contention has no force or merit. Authority to issue the writ of certiorari as original process in all cases is distinctly conferred on the supreme court by section 6 of the act of March 3, 1891. No such power lias ever been conferred on this court, and we аre clear that our authority in issuing the writ of certiorari is wholly confined to Rev. St. U. S. § 716, which allows the writ only as auxiliary process. The decision in Ex parte Chetwood, supra, was rendered after the enactment of the act of March 3, 1891. That act conferred in clear terms the fullest authority uрon the supreme court to issue the writ of certi-orari as an original process, and it is evident that there was no occa*694sion for the supreme court to overrule — as the counsel for the petitioner contend that it did — -the jurisprudence which, prior to the act of March 3, 1891, allowed the writ only as auxiliary process. In our opinion, it is clear that nothing was said in Ex parte Chetwood, supra, which indicates that the supremе court intended to disturb its previous construction of its powers under Rev. St. U. S. § 716, and very certainly the supreme court did not even intimate — and had no oсcasion to do so — -that this court could issue the writ as original process. Besides the fact that Rev. St. U. S. § 716, is the only statute authorizing this court to issue writs of сertiorari, ‍‌‌‌​‌​‌‌‌​​‌​​‌​‌​​‌‌‌​​​​‌​​‌​‌‌​​‌‌​​‌​‌‌‌​‌‌​‍it should be noted that section 2 of the act of March 3, 1891, declares that the jurisdiction of this court is appellate, as “limited and established” by that act; and that section 11 of the act provides that “no appeal or writ of error by which any order, judgment, or decree may be reviewed in the circuit courts of appeals * * * shall be taken or sued out except within six months after the entry of the order, judgment, or decree.” Other provisions of the act specify the causes which may be reviewed in this court. The inference is irresistible that this court can review no cause except by appeal or writ of error taken or sued out within six months.

It is true that courts have issued writs of certiorari as original рrocess without a statute expressly conferring the authority to do so. But those courts were invested with general supervision of the inferior courts to which they issued the writs. Thus we find that the courts of king’s bench and of common pleas could issue the writ because they had “superintendence of all inferior jurisdictions.” Tidd, Prac. marg. p. 398. Thus- again, state courts of last resort, exercising a general superintendence of all inferior courts, havе issued the writ as original process. But the circuit courts of appeal have not been vested with a general control or supervision óver the courts below them.

We wish to remark that, even if we had the power to issue the writ of certiorari as an original process to review а cause tried in a circuit court, we would not issue the writ in this cause if the issuance of the writ was left to our discretion.

The complaint in this matter is not thаt the trial court committed an error. On the contrary, the petitioner, in anticipation of a charge of laches on its part in not taking a writ of error to the lower court, admits and asserts that the decision of the trial court was, at the time it was rendered, consonant with the jurisprudence then existing. The gist of the complaint is, therefore, not that the trial court erred in rendering judgment on July 13, 1893, but that on January 10, 1898,- — nearly 4-¿ years after the judgment сomplained of, — the supreme court of the state of Texas reversed its prior jurisprudence. Even after this decision of the supreme сourt of Texas, the petitioner allowed almost a year to elapse before applying to this court for certiorari. We can well understand that the petitioner regrets that it cannot enjoy the benefits of the later decision of the supreme court of Texas. This alleged reversal of the former state jurisprudence may appear to work a hardship on the petitioner. But the speedy ending of litigatiоn has always been considered to be a mat*695ter of great public importance. It concerns not only suitors, but those who may derive rights from them. “Interest reipublic;e ut sit finis lifcium.” Practically, a suit would never be finally terminated, if, as contended by the petitioner, it were true that a change in thе interpretation of the law applicable to a cause prosecuted to judgment entitled the party who had been cast in the suit by rеason of the prior interpretation to reopen the controversy. In the present matter the alleged change of interpretаtion took place nearly 4|- years after the final judgment, and the petition for certiorari was presented to this court nearly 5-A- years after that judgment. This is a. great lapse of time. But, if the petitioner’s contention were correct in principle, it would seem to be immaterial whеther the lapse of time were of long or short duration, and that such a petition as the one now before us could be urged successfully at аny time. If, after-wards, the court should return to the overruled doctrine, the controversy “would again have to be readjusted, and so on, indefinitely, as long and as often as the jurisprudence should vary. It is evident that it is far better, in the general interest, that there should he a few cases of apparent hardship, such as the one presented, resulting from a change of jurisprudence, than that litigation should never end. The application for certiorari is refused.