The first question is, of course, one of jurisdiction. Final orders of the Circuit Court of Appeals may of right be brought to this court only where the matter in dispute exceeds in value one thousand dollars. As there is no amount in controversy, the appeal was unauthorized and must be dismissed. Lau Ow Bew v. United States, 144 U.S. 47, 58. But by certiorari the judgment of the Court of Appeals is properly before us. In re Chetwood, Petitioner, 165 U.S. 443, 462.
Had the Court of Appeals jurisdiction to issue separately either a writ of certiorari or one of habeas corpus, or the two jointly? And first, as to the writ of habeas corpus. Undoubtedly that writ is one of high privilege. We are not confronted with the case of a failure by Congress to make any provision for it. Under section 751, Rev. Stat., the Supreme, Circuit and District Courts may issue writs of habeas corpus, and by section 752 like power is given to the several justices and judges of said courts for the purpose of inquiry into the cause of restraint of liberty. Thus adequate provision has been made for securing to everyone entitled thereto the writ of habeas corpus. So when Congress passes an act establishing a new court there is no constraining presumption that it must intend to give to that court jurisdiction in habeas corpus. The Court of Appeals act (26 Stat. 826) does not in terms grant authority to issue the writ. It is silent on the subject, and in order to sustain its jurisdiction we must write something into the statute which Congress itself did not put there. In this we are speaking of the writ of habeas corpus as an original
It will be borne in mind that the Circuit Court of Appeals, which is a court created by statute, Kentucky v. Powers, 201 U.S. 1, 24, is not in terms endowed with any original jurisdiction. It is only a court of appeal. Section 2 of the act says that it "shall be a court of record with appellate jurisdiction, as is hereafter limited and established." Section 6 provides that it "shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in the District Court and the existing Circuit Courts in all cases," etc. By section 10 "whenever on appeal or writ of error or otherwise a case coming from a Circuit Court of Appeals shall be reviewed and determined in the Supreme Court the cause shall be remanded by the Supreme Court to the proper District or Circuit Court for further proceedings in pursuance of such determination." Sections 4, 13 and 15 name the courts whose judgments may be reviewed in the Courts of Appeals. Obviously the Courts of Appeals are simply given appellate jurisdiction over certain specified courts. It follows that they are not authorized to issue original and independent writs of habeas corpus.
Have they jurisdiction to issue writs of certiorari? As we have seen, the procedure prescribed by the statute for bringing
It may be said that the power of this court to issue original and independent writs of certiorari has been upheld under the authority given by section 716. A reference to some of the decisions may be well. See generally Ex parte Vallandigham, 1 Wall. 243, and cases cited in the opinion; Ewing v. City of St. Louis, 5 Wall. 413; Ex parte Lange, 18 Wall. 163.
Fowler v. Lindsey, 3 Dall. 411, was the case of an application before judgment to remove certain actions from the Circuit Court to this court on the ground that a State was the real party in interest, and it was said by Mr. Justice Washington (p. 413):
"But as it is proposed to remove the suits under consideration
In American Construction Company v. Jacksonville Railway, 148 U.S. 372, where an application was made for mandamus and certiorari, Mr. Justice Gray, speaking for the court, after quoting section 716, said (p. 380):
"Under this provision, the court might doubtless issue writs of certiorari, in proper cases. But the writ of certiorari has not been issued as freely by this court as by the Court of Queen's Bench in England. Ex parte Vallandigham, 1 Wall. 243, 249. It was never issued to bring up from an inferior court of the United States for trial a case within the exclusive jurisdiction of a higher court. Fowler v. Lindsey, 3 Dall. 411, 413; Patterson v. United States, 2 Wheat. 221, 225, 226; Ex parte Hitz, 111 U.S. 766. It was used by this court as an auxiliary process only, to supply imperfections in the record of a case already before it; and not, like a writ of error, to review the judgment of an inferior court. Barton v. Petit, 7 Cranch, 288; Ex parte Gordon, 1 Black, 503; United States v. Adams, 9 Wall. 661; United States v. Young, 94 U.S. 258; Luxton v. North River Bridge, 147 U.S. 337, 341."
In In re Chetwood, Petitioner, 165 U.S. 443, Mr. Chief Justice Fuller said (pp. 461, 462):
"By section 14 of the Judiciary Act of September 24, 1789, 1 Stat. 81, c. 20, carried forward as section 716 of the Revised Statutes, this court and the Circuit and District Courts of the United States were empowered by Congress `to issue all writs, not specifically provided for by statute, which may be agreeable to the usages and principles of law;' and under this provision, we can undoubtedly issue writs of certiorari in all proper cases. American Construction Company v. Jacksonville Railway, 148 U.S. 372, 380. And although, as observed
And in In re Tampa Suburban Railroad Company, 168 U.S. 583, it was held that "a writ of certiorari, such as is asked for in this case, will be refused when there is a plain and adequate remedy, by appeal or otherwise."
This court has never decided that certiorari was to be resorted to in place of a writ of error whenever it suited the convenience of parties. There must be "circumstances imperatively demanding" a departure from the ordinary remedy by writ of error or appeal. In the case at bar the indictment charges the introduction of liquor into the Indian country. It is not questioned that this is a criminal offense under the laws of the United States, but it is contended that the place of the alleged offense was not Indian country. The trial court ruled that it was. This ruling was excepted to, a bill of exceptions prepared and signed and the case put in proper condition for review in the Court of Appeals on writ of error. There was no necessity for a certiorari.
Apparently the thought of petitioner was to get rid of the case at once and entirely. It was not a new trial or any mere correction of errors, but a termination of the litigation which induced this proceeding rather than a writ of error. It was a short way of disposing of the entire matter — the same reason that has so often prompted writs of habeas corpus. We have repeatedly held against such procedure. While undoubtedly the power exists, and it may sometimes be proper for a court to put an end to the litigation by some short summary process, yet as a rule the orderly way is to proceed by writ of error. The latest expression of the views of this court is to be found
For these reasons the decision of the Court of Appeals is reversed, and the case is remanded with instructions to quash the writ of certiorari and dismiss the petition.