United States ex rel. Harless v. Judges of United States Court of Appeals of Indian Territory

SANBORN, Circuit Judge. On the petition of John G-. Harless, the relator, this court issued to the judges composing the United States court of appeals in the Indian Territory its alternative writ of mandamus, which commanded them to admit the relator to bail during the pendency of his appeal to that court from a judgment of conviction rendered against him, on July 10, 1897, by the United States court in the Indian Territory, or to show cause why they refused to do so. The judges have made their return to the alternative writ, and the relator now moves for a peremptory writ. From the writ and return, it appears that the relator was, convicted on July 10, 1897, in the United States court in the Indian Territory, of the crime of receiving stolen property; that he appealed from that judgment to the United States court of appeals in the Indian Territory; that while this appeal was pending he applied to Hon. John R. Thomas, the judge before whom he had been tried, to be admitted to bail pending his appeal, and his application was denied; that he then filed in the United States court of appeals in the Indian Territory a petition for a writ of habeas corpus, and for admission to bail pending his appeal to that court; that his petition was heard by that court on October 30, 1897, and after argument, and a consideration of the same questions presented by the proceedings in this court, the prayer of his petition was denied, and his petition was dismissed; that the appeal from the judgment of conviction of the crime is still pending and undetermined in the United States court of appeals in the Indian Territory, and is not pending in this court. The United States circuit courts of appeals are the creatures of congressional action. They have the powers vested in them by the acts of congress which created them, and their various amendments and modifications. These acts of congress have given them the same power to issue writs of mandamus which the courts of the United States had under the judiciary act of 1789. Rev. St. § 716. Section 12 of the act of March 3, 1891 (1 Supp. Rev. St. U. S. c. 517, p. 905), which created these courts, provided that: “The circuit courts of appeals shall have the powers specified in section seven hundred and sixteen of the Revised Statutes of the United State?.” [179] Rod ion 716 próvidos that: “The supreme court anil the circuit anil district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not specifically provided for by statute, which may be necessary for tlie exercise of their respective jurisdictions, and agreeable to the usages and principles of law.” Under this provision oí Hie ads of congress (he courts of the United Ríales never had the power to acquire jurisdiction of a case or question by the issue oí a writ of mandamus. Their authority in this regard was limited to the issue of writs of mandamus in aid of their jurisdiction in such cascas as were already pending in those courts, and in which jurisdiction had been obtained on other grounds and by other process. McClung v. Silliman. 6 Wheat. 601; McIntire v. Wood, 7 Cranch, 504; Kendall v. U. S., 12 Pet. 524; Riggs v. Johnson Co., 6 Wall. 166, 197, 198; Bath Co. v. Amy, 13 Wall. 244; Smith v. Jackson, 1 Paine, 453, Fed. Cas. No. 13,064; U. S. v. Williams, 32 U. S. App. 126, 129, 14 C. C. A. 440, and 67 Fed. 384. Tn Bath Co. v. Amy, 33 Wall. 244, 249, Mr. Justice Strong, in discussing the power of the circuit court to issue a writ of mandamus in an original proceeding, said: “This subject: has heretofore been under consideration in this court, and in Mc-Intire v. Wood it was unanimously decided that the power of the circuit courts to issue tiio writ of mandamus is confined exclusively to those cases in which it may be necessary to the exercise of their jurisdiction. The court said: ‘Had the eleventh section of the judiciary act covered the whole ground of the constitution, there would be much reason for exercising this power in many cases wherein some ministerial act is necessary to the completion of an individual right arising under the laws of the United States, and the fourteenth section of the act would sanction the issuing of the writ for such a purpose. But, although the judicial power of the United State.s extends to cases arising- under the laws of the United States, the legislature have not thought proper to delegate the exercise of that power to its circuit courts, except in certain specified cases.’ And in .UcGlung v. Silliman, this court said, when speaking of the power to issue writs of mandamus: ‘The fourteenth section of the act under consideration [the judiciary act] could only have been intended to vest the power * * * in cases where the jurisdiction already exists, and not where it is to be courted or acquired by means of the writ proposed to be sued out.’ In oilier words, the writ cannot be used to confer a jurisdiction which the circuit court would not have without it. It is authorized only when ancillary to a jurisdiction already acquired. The doeirine asserted in both these cases was conceded to be correct by both the majority and the minority of the court in Kendall v. Ü. S. The power to issue a writ of mandamus as an original and independent proceeding does nor, then, belong to the circuit courts.” Since a circuit court of appeals has no greater power to issue a writ of mandamus than the courts of the United States had under section 716, it follows that it has no power to issue such a writ in any case which is not jiending in its court, and in which it has not already acquired jurisdiction by other appropriate proceedings. There was no case pending in this court in which the relator was interested when he applied for this alternalive writ, and for this reason his petition must be dismissed. Moreover, the question whether the relator is entitled to be admitted to bail while his appeal is pending in the United States court of appeals in the Indian Territory is a judicial question which has already been decided by that court after full argument, and the only purpose which the relator seeks to accomplish by this writ is to obtain [180] 3 review of that decision hy this court, and its direction to tire court below to reverse tbe judicial decision it has already rendered. But tbe writ of mandamus may not be made to perform tbe office of an appeal or of a writ of error to review the action of a court in the lawful exercise of its jurisdiction, nor can it issue to command a court or an officer to decide a judicial question in a particular way; much less may it be invoked to direct such a court or officer to reverse a decision of a judicial question which has already been rendered. In re Rice, 185 U. S. 396, 403, 15 Sup. Ct. 149; American Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 379, 13 Sup. Ct. 758; In re Parsons, 150 U. S. 150, 156, 14 Sup. Ct. 50; Ex parte Morgan, 114 U. S. 174, 5 Sup. Ct. 825; Ex parte Whitney, 13 Pet. 404. The motion for the peremptory writ of mandamus in this case is denied, and the petition is dismissed.