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an order suspending, modifying or restoring the injunction` during the pendency of the appeal upon such terms as to bond or otherwise as he may consider proper for the security of the rights of the opposite party.

536. Certiorari.-A writ of certiorari was one of the writs habitually issued by the Court of King's Bench. It is not mentioned among those which the appellate Courts of the United States are authorized to issue, except in tha Act of 1891, establishing the Circuit Courts of Appeals. Nevertheless, for some purpose, it is used by the Supreme Court and also by the Circuit Courts of Appeals. In their practice, it is an auxiliary process only, intended to supply imperfections in the record of the case already before the Court which issued it. It is not used as a writ of error to review a judgment of an inferior Court. It will never be granted where there is a plain and adequate remedy by appeal or writ of error. It goes without saying, that it can never in any case be issued by a Court which has no right to review the action of the lower Court in the matter complained of.

537. Certiorari Granted When Necessary to Protect Appellate Jurisdiction.-There may be peculiar and exceptional circumstances which imperatively demand that the appellate Court shall issue the writ and by so doing put itself in a position to dispose promptly of the entire matter in controversy. It may be impossible otherwise effectively to protect its own jurisdiction.1 In the case cited Chetwood had been carrying on some litigation in the State Courts of California against the officers of a national bank, which at the time was in receivers' hands. Subsequently, and while his litigation was still pending, the receiver having paid all the debts of the bank, its stockholders, in accordance with the provisions of a statute giving them the authority so to do, voted that the receiver should turn over the balance of its assets to an agent. Chetwood had been using its name in his

1American Construction Co. vs. Jacksonville R'way, 148 U. S. 372. 2 Whitney vs. Dick, 202 U. S. 132.

'165 U. S. 443.

In re Chetwood, 165 U. S. 443.

litigation and about $27,000 had been paid into the State Court by some of the defendants in the cases he had instituted. At the instance of the agent of the bank, the United States Circuit Court for the District of California enjoined Chetwood from further using the bank's name in any litigation and required him to turn over the $27,000 to its agent. The highest Court of the State subsequently decided against Chetwood. He, in the name of the bank, sued out a writ of error to the United States Supreme Court. For so doing he was attached and punished for contempt of the injunction of the Circuit Court. On petition for writ of certiorari the Supreme Court held that the question of whether he had a right to use the name of the bank in suing out a writ of error and all like questions were exclusively within its control; that he could not lawfully be enjoined from taking such action as he thought proper to bring his case before it, and that, therefore, it would grant the writ of certiorari to bring up the record if its actual grant should be necessary. It presumed, however, that the intimation of its opinion would be sufficient, and so it doubtless proved.

538. May Circuit Courts of Appeals Issue Writ of Certiorari. The question whether such a writ may be issued by a Circuit Court of Appeals under similar circumstances has never been expressly decided. The reasoning of Supreme Court in a case in which the matter was discussed would seem to indicate that a Circuit Court of Appeals may grant it under circumstances which would, independently of the Act of 1891, justify its issue by the Supreme Court.1

539. Certiorari Will Not Be Issued to Review Administrative Actions.-Neither the Supreme Court nor a Circuit Court of Appeals will grant the writ of certiorari to review the administrative decisions of public officers and boards not acting in a judicial capacity.1

1 Whitney vs. Dick, 202 U. S. 132.

'Degge vs. Hitchcock, 229 U. S. 162.

In the case cited, the Supreme Court of the District of Columbia was asked to issue a writ of certiorari to review the action of the Postmaster General in forbidding the petitioners the use of the mails in furtherance of a scheme which he held to be fraudulent.

540. Certiorari From Supreme Court to the Circuit Courts of Appeals.-The Act of 1891, by a provision which in substance now forms the first sentence of section 251 of the Judicial Code, authorized the Supreme Court in any case in which the judgment or decree of a Circuit Court of Appeals was made final, to require by certiorari or otherwise any such case to be certified to it for its review and determination, with the same power and authority as if it had been carried by writ of error or appeal to the Supreme Court.

The Supreme Court is very often asked to exercise this right. It grants the request perhaps one time in six.

541. Supreme Court Will Grant Certiorari When Circuit Court of Appeals Has Been Improperly Constituted. One of the classes of cases in which it will grant it is when the Court below was improperly constituted. The law provides that no judge before whom the cause or question may have been tried or heard in the District Court shall sit in the trial or hearing of such question in the Circuit Court of appeals.

A district judge felt himself unable from pressure of business to give an important patent case the consideration it deserved. He entered a pro forma decree in favor of the defendants and at the same time set forth in writing that he had given the question no consideration whatever, and that the decree was signed merely for the purpose of expediting an appeal. The case was heard in the Circuit Court of Appeals before two circuit judges and the district judge who had signed the decree. Both parties consented to his serving. The Supreme Court held that no consent could qualify him to sit; that the error was so grave that it would allow the writ of certiorari. Then it pointed out that if it

simply placed the case on its docket for hearing in due course it would do precisely what it would have done had the Circuit Court of Appeals been properly constituted and the writ of cerrtiorari allowed for other reasons, or, to put it in another way, that it would hear the case in the first instance. without any previous hearing having been bad before a properly constituted Circuit Court of Appeals. The judgment of the Circuit Court of Appeals was thereupon at once reversed and the cause remanded to be heard again.1

542. When Writ Dismissed.-The Supreme Court may grant the writ on the assumption that the case involves an issue of importance sufficient to justify it in so doing, and at the hearing it may find that a mistake had been made and that no such question is raised at all. When that happens the writ will be dismissed.1

543. Certiorari is Extraordinary Writ. Circumstances Under Which it Will Issue Are Not All Definable. The Supreme Court has said that the writ is an extraordinary one and that no attempt to define all the circumstances under which it will be granted will be made. It will usually be issued where Circuit Courts of Appeals of different Circuits have reached different conclusions, or where the question involved is one of great importance and difficulty, and upon which there should be an early and authoritative decision by the Court of last resort. Sometimes, but not frequently, it has been granted when there has been a marked difference of opinion between the judges below and the question is of general concern. The Supreme Court is so sharply pressed for time that it is granted very sparingly.

544. Certiorari Not Granted Unless Decision of Circuit Court of Appeals is Final.-It will not be granted in any case in which the decision of the Circuit Court of

1Cramp vs. International Curtiss Marine Turbine Co., 228 U. S

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Appeals is not made final. When an appeal or writ of error lies from such decision certiorari will not be issued. two remedies are not cumulative.1

545. How Certiorari Is Applied For.-The application for the writ is made to the Supreme Court itself. The petition sets forth the ground upon which its issue is asked. It must be accompanied by a certified copy of the entire transcript of record in the case, including the proceedings in the Court to which the writ of certiorari is asked to be directed. The petition should contain only a summary and short statement of the matter involved and the general reasons relied on for the allowance of the writ. The Supreme Court adds the significant reminder that a failure to comply with. this direction to make the statement and summary short will be taken as sufficient reason for denying it. Thirty copies of the petition and transcript and of any brief deemed necessary shall be filed. Notice of the date of submission of the petition, together with a copy of it and the brief, if any, in its support, shall be served on the counsel for the other side at least two weeks before such date if such counsel resides east of the Rocky Mountains, three weeks if he lives west of them. If the respondent wishes to file a brief he must do so at least three days before the date fixed for the submission of the petition. The Supreme Court will not hear oral arguments on such petitions, and no petition will be received within three days next before the day fixed upon for the adjournment of the Court for the term.1

546. Mandamus.-In cases which are within its appellate jurisdiction the Supreme Court may issue writs of mandamus to inferior Courts. For example. if a judge of a Court, in a case in which a writ of error may issue directly from the Supreme Court, refuses to sign a proper bill of exceptions tendered to him, the Supreme Court will grant a mandamus to compel him to do so.1 The dissenting opinion

1 United States vs. Beatty, 232 U. S. 463.

1 Supreme Court Rule 37, par. 3.

Ex parte Crane, 5 Peters, 188.

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