3 F.2d 496 | W.D. Wash. | 1924
(after stating the facts as above). The relator invokes the original jurisdiction and “prays a writ of certiorari,” an order of injunction against persons not parties to this action, and the impounding of papers, etc., seized under a search warrant issued by the respondent, “a United States commissioner,” and alleged to be in possession of the parties who executed the warrant.
Certiorari is a writ having several purposes; one to enable a court of reviewing power to examine the action of an inferior court. Another is to enable the court to get further information in an action then pending before it for adjudication. L. N. A. & C. R. Co. v. L. T. Co. (C. C.) 78 F. 659. It is a proceeding appellate, in the sense that it involves a limited review of the proceedings of an inferior jurisdiction (Basnet v. City of Jacksonville, 18 Fla. 529), and lies only to inferior courts and officers exercising judicial powers, and is directed to the court, magistrate, or board exercising such powers, requiring the certification of the record in a matter already terminated (People v. Walter, 68 N. Y. 403; People v. Livingston County, 43 Barb. [N. Y.] 232). Its function is not to restrain or prohibit, but to annul. Gauld v. City and County of S. F., 122 Cal. 18, 54 P. 272. It is a revisory remedy, for the correction of errors of law apparent upon the record, and will not lie where there is another remedy, except for want of jurisdiction. Farmington River & Waterpower Co. v. Co. Com’rs, 112 Mass. 206; LaMar v. Co. Com’rs, etc., 21 Ala. 772; Thompson v. Reed, 29 Iowa, 117; Memphis & C. R. Co. v. Brannum, 96 Ala. 461, 11 So. 468; McAloon v. License Com’rs, etc., 22 R. I. 191, 46 A. 1047; Saunders v. Sioux City Nursery Co., 6 Utah, 431, 24 P. 532.
The scope of the writ has been enlarged, so as to serve the office of a writ of error. Degge v. Hitchcock, 229 U. S. 162, 33 S. Ct. 639, 57 L. Ed. 1135. If this court has power to issue the writ sought, it obviously could not, in this, an original proceeding against the respondent, “a United States commissioner, * * * ” enjoin strangers to this aetion (U. S. v. Maresca [D. C.] 266 F. 713), or require parties not before the court, even though the warrant was issued to and executed by them, to surrender and deliver up property taken, nor direct an officer of this court to pursue such parties and take from their possession docu
The court, no doubt, has power -to supervise the conduct of its officers (Griffin v. Thompson, 43 U. S. 241, 11 L. Ed. 253), and a United States commissioner, while not strictly an officer of ^the court, may to a degree be subject to its supervisory control. U. S. v. Allred, 155 U. S. 591, 15 S. Ct. 231, 39 L. Ed. 273. His powers grew from authority to take oaths and acknowledgments to that of an examining and committing magistrate (section 1014, Rev. Stats. [Comp. St. § 1674]; U. S. v. Beavers [D. C.] 125 F. 778; Todd v. U. S., 158 U. & 278, 15 S. Ct. 889, 39 L. Ed. 982), and while so acting discharged judicial functions, and had “no divided responsibility with any other officer of the government” (U. S. v. Schumann, Fed. Cas. No. 16,235; U. S. v. Beavers, supra). He performed quasi judicial functions ancl possessed such powers as were especially conferred. U. S. v. Tom Wah (D. C.) 160 F. 207. He has no power to punish for contempt. Ex parte Perkins (C. C.) 29 F. 900; In re Perkins (D. C.) 100 F. 950, at 954. The Espionage Act confers special powers in' providing for the issuance of search warrants and prescribes the procedure with relation thereto :
Section 10496]4a, Comp. St. 1918, Comp. St. Ann. Supp. 1919: “A search warrant * * * may be issued by a judge of a United States District Court, or * * * by a United States commissioner.”
Section 1049634c,: It “cannot be issued but upon probable cause, supported by affidavit. * * *”
Section 10496]4f: “If the * * * commissioner is * * * satisfied of the existence of the grounds, * * * he must issue a search warrant’ * * * stating the * * * probable cause. * * * ”
Section 1049634k: “A search warrant must be executed and returned to the * * * commissioner who issued it within ten days; * * * after * * * this time * * * unless executed [it] is-void.”
Section 1049634o: “If the grounds * * * be controverted * * * the * * * commissioner must proceed to take testimony. * * * ”
Section 1049634p: “If it appears that the property or paper taken is not the same as that prescribed in the warrant or that there is no probable cause,' * * •* the * * * commissioner must cause it to be restored to the person from whom * • • tak- ^ $ * * yy
■ Section 1049634q: “The * * *. commissioner must annex the affidavits, search warrant, return, inventory, and evidence, and * * * at once file the same, togeth- ' er with a copy of the record of his proceedings, with the clerk of the court. * * * ”
It is obvious that a complete procedure is provided. No supervisory power or appellate jurisdiction is given to the District Judge. If the court may review, it must be because of inherent power. The power of the commissioner on the issuance of a search warrant is equal to that of the District Judge. The power of each emanates from a common source. The Congress has the power “to constitute tribunals inferior to the Supreme Court.” Const. U. S. art. 1, § 8, cl. 9; article 3, § 1. The power to create implies the power to limit the jurisdiction. U. S. v. Hudson, 11 U. S. (7 Cranch) 32, 3 L. Ed. 259. The federal court is of limited jurisdiction, and has no power except such as is expressly granted or necessarily, implied. Turner v. Bank of N. A., 4 Dall. 9, 1 L. Ed. 718. Within this limitation it is a court of general jurisdiction. Toledo, S. L. & W. R. Co. v. Perenchio, 205 F. 472, 123 C. C. A. 540. The District Courts have power to issue writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law. Comp. Stats. § 1239; Rev. Stats. § 716.
Can a District Judge, without statutory authority, “agreeable to the usages and principles of law,” by certiorari review “a search warrant” proceeding of a United States commissioner, who is given equal power by the Congress? If so, can one District Judge review the act of another District Judge in like manner? It is plain, however, that the commissioner proceedings have not been concluded, and that the relator has not exhausted his remedy before the commissioner.
The office and history of a United States commissioner is clearly given by Judge Hough in U. S. v. Maresca, supra. While the court has the right to issue the writ (In re Chetwood, 165 U. S. 462, 17 S. Ct. 385, 41 L. Ed. 782), Judge Hough, in U. S. v. Maresca, supra, said:
“It does not follow that a certiorari must issue, and as against a magistrate exercising only the arresting and committing powers, it ought not to issue, and, unless im*499 posed by statute, cannot issue under customary law, as is well and I think conclusively shown by Magie, J., in Farrow v. Springer, 57 N. J. Law, 353, 31 A. 215. There is no statutory imposition of that remedy by Congress, and therefore, in my opinion, it does not exist in this matter.”
He also held that a United States commissioner, under the present law, in issuing a search warrant, exercised the powers of the District Court (section 10496]4a> supra), and while so acting “was sitting in the District Court,” and the law seems to so read. He also said at page 723:
“The view that this entire matter of issuing a search warrant and then directing the return of what was seized thereunder is a District Court proceeding is confirmed by study of the nature and history o£ the ease reported as Veeder v. United States, 252 F. 414, 164 C. C. A. 338” (certiorari refused 246 U. S. 675, 38 S. Ct. 428, 62 L. Ed. 933), and that a writ of error would lie to the Circuit Court of Appeals from the commissioner’s act, and denied the motion to return property taken because the proceeding “ * * * was in the District Court by a judicial officer, subordinate, but independent, sitting as a committing magistrate, having equal power with any judge authorized to hold a District Court.”
Judge Hand, in U. S. v. Casino (D. C.) 286 F. 976, at 979, after referring- to U. S. v. Maresca, supra, held that the United States commissioner, in issuing a search warrant, acted in a ministerial capacity, and the writ would be improper, and at page 981 said:
“It is clear that certiorari, assuming that this court has power in a proper case to issue that writ [citing cases], is not necessary, and indeed, if the action of the commissioner he not judicial, the common-law writ, which is all that could go in any event, would he improper.”
The writ, if this court has power to issue i.t, is not necessary, and in my opinion would he improper. Plaintiff relator has other adequate remedy.
From any viewpoint of approach the petition must be denied.
Note. — See, also, Bates v. Payne, 194 U. S. 106, 24 S. Ct. 595, 48 L. Ed. 894; Marquez v. Frisbie, 101 U. S. 473, 25 L. Ed. 800; In re 1169 Myrtle Ave. (D. C.) 288 F. 384; In re Alpern (D. C.) 280 F. 435; U. S. v. Rauch (D. C.) 253 F. 814; U. S. v. Berry (D. C.) 4 F. 779; The Mary (D. C.) 233 F. 121 (decision by the writer).
