Disobedience to the writ is punished by attachment for contempt.86 Directions in the writ for the performance of acts not authorized by law are void,87 and disobedience thereto is consequently not punishable.88 But an error in granting the writ cannot be reviewed in contempt proceedings.89 The decision should be reviewed by writ of error, not by appeal.90 Where the petition was dismissed without prejudice because more relief was requested than the law permitted, the order was affirmed by the Supreme Court which refused to issue a mandate of reversal granting the relief to which the applicant was entitled.91 § 460. Writs of Certiorari. The writ of certiorari is a writ issued from a superior to an inferior court, ordering the latter to certify to the former certain proceedings before it. At common law, the writ was issued for two purposes: as an appellate proceeding for the re-examination of some action of an inferior tribunal; and as auxiliary process to enable a court to obtain further information in respect to some matter already before it for adjudication.2 It seems that the writ can be issued from a Federal court other than the Supreme Court and the Circuit Court of Appeals, only for the latter purpose.3 The Supreme Court may grant the writ of certiorari, when A., 164 Fed. 688. In which the author was counsel, where the adverse parties were relieved from costs because they merely appeared and moved to dismiss upon the ground that the order complained of had been vacated subsequent to the application and the writ had become unnecessary. 86 Commissioners v. Sellew, 99 U. S. 624, 25 L. ed. 333; U. S. v. Lee County, 2 Biss. 77. 87 U. S. v. Sup'rs of Labette County, 7 Fed. 318; President v. Mayor, etc. of Elizabeth, 40 Fed. 799; People v. Colorado Cent. R. Co., 42 Fed. 638, 644. 88 U. S. v. Sup'rs of Labette County, 7 Fed. 318; President v. Mayor, etc., of Elizabeth, 40 Fed. 799; People v. Colorado Cent. R. Co., 42 Fed. 638, 644. 89 Evans v. Yost, C. C. A., 255 Fed. 726. 90 Muhlenberg County v. Dyer, C. C. A., 65 Fed. 634; Evans v. Yost, C. C. A., 255 Fed. 726. 91 U. S. v. Louisville & N. R. R., 236 U. S. 318. § 460. 1 U. S. v. Young, 94 U. S. 258, 259, 24 L. ed. 153. See Harris v. Barber, 129 U. S. 366, 369, 32 L. ed. 697, 699. 2 U. S. v. Young, 94 U. S. 258, 259, 24 L. ed. 153. 3 U. S. R. S., § 716; U. S. v. Young, 94 U. S. 258, 260, 24 L. ed. 153; Ex parte Van Orden, 3 Blatchf. the circumstances imperatively demand that form of interposition at common law to correct excesses of jurisdiction and in furtherance of justice. The power of the Supreme Court to issue writs of certiorari addressed to the Circuit Courts of Appeals is not limited to the provisions of the Evarts Act as subsequently re-enacted in the Judicial Code.5 The Supreme Court may order by certiorari or otherwise any case in which the decision of the Circuit Court of Appeals is made final "to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court."6 Such a certiorari has been granted after the decision of the Circuit Court of Appeals. In an extraordinary case, it may issue to review the decision of the lower court upon an appeal from an interlocutory order. This was done where one of the judges below was disqualified from sitting in the case. "This branch of our jurisdiction should be exercised sparingly, and with great caution." 10 The inquiry upon such an application is "whether the matter is of sufficient importance in itself and sufficiently open to controversy" to justify the writ.11 The Supreme Court has the same power to review decisions of the Court of Customs Appeals, 12 Court of Appeals of the District of Columbia,18 the Supreme Court of 166; Re Martin, 5 Blatchf. 303; Fowler v. Lindsey, 3 Dall. 411, 1 L. ed. 658. 4 Am. Construction Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 380, 37 L. ed. 486, 489; Re Chetwood, 165 U. S. 443, 461, 462, 41 L. ed. 782, 788; Re Tampa Suburban R. R. Co., 168 U. S. 583, 42 L. ed. 589; Whitney v. Dick, 202 U. S. 132, 140, 50 L. ed. 963, 966; McClellan v. Carland, 217 U. S. 268; U. S. v. Beatty, 232 U. S. 463. 5 Ibid, see U. S. R. S., § 716, Jud. Code, § 262, 36 St. at L. 1087. 6 Jud. Code, § 240, 36 St. at L. 1087, re-enacting 26 St. at L., § 6, p. 828. See infra, Chapter on Error and Appeals, § 689. 7 Lau Ow Bew, Petitioner, 141 U. S. 583, 35 L. ed. 868, per Fuller, C. J. 8 Amer. Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 387, 388, 37 L. ed. 486, 492. But see Re Tampa Suburban R. Co., 168 U. S. 583, 42 L. ed. 589. 9 Amer. Const. Co. v. Jacksonville, T. & K. W. Ry. Co., 148 U. S. 372, 37 L. ed. 486. 10 Lau Ow Bew, Petitioner, 141 U. S. 583, 589, 35 L. ed. 868, 870, per Fuller, C. J. 11 Lau Ow Bew, Petitioner, 141 U. S. 583, 587, 35 L. ed. 868, 869, per Fuller, C. J. 12 36 St. at L. 115-9. 13 Code Dec. 234; 29 St. at L. Porto Rico, 14 the Supreme Court of Hawaii,15 and the Supreme Court of the Philippines.16 "It shall be competent for the Supreme Court, by certiorari or otherwise, to require that there be certified to it for review and determination with the same power and authority and with like effect as if brought up by writ of error, any cause where in a final judgment or decree has been rendered or passed by the highest court of a State in which a decision could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is in favor of their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is against their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the decision is either in favor of or against the title, right, privilege, or immunity especially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority." 17 If the record sent up on appeal or writ of error is incomplete, it may be corrected by certiorari.18 It has been said that proceedings that have taken place since the appeal or writ of error cannot be thus removed; 19 but the Supreme Court has thus reviewed proceedings to punish a person for contempt in suing out a writ of error and also an order forbidding the further prosecution of the writ of error.20 Perhaps, other contempt proceedings may be thus reviewed.21 An omission to make a 692; Winston v. U. S., 171 U. S. 690; s. c., 172 U. S. 303, 43 L. ed. 456; Sinclair v. District of Columbia, 192 U. S. 16, 21, 48 L. ed. 322, 325, infra, § 691. 14 38 St. at L. 804, infra, § 691. 15 Ibid. 16 39 St. at L. 727, Comp. St., § 1225b, supra, § 72, infra, § 691. 17 Act of Sept. 6, 1916, ch. 448, § 2, 39 St. at L. 726; Comp. St., § 1214; See infra, § 692. 18 U. S. v. Gomez, 1 Wall. 690, 17 L. ed. 677; The Rio Grande, 19 Wall. 178, 22 L. ed. 60; Field v. Milton, 3 Cranch, 514, 2 L. ed. 516. 19 U. S. v. Young, 94 U. S. 258, 24 L. ed. 153; U. S. v. Adams, 9 Wall. 661, 19 L. ed. 808. 20 Re Chetwood, 165 U. S. 443, 453, 462, 41 L. ed. 782, 785, 788. 21 Ibid. finding cannot be thus corrected.22 The Supreme Court may by order require the Court of Claims to find a specific fact.23 An error in a bill of exceptions cannot be thus corrected; 24 although the judge who settled the same may himself do so.2 25 The Supreme Court has no original jurisdiction to issue a writ of certiorari to examine the proceedings of a military commission.26 It has been said that the Supreme Court has no power to review by certiorari the proceedings of an inferior tribunal which has been abolished.27 The Circuit Courts of Appeals may grant the writ of certiorari when necessary for the exercise of their appellate jurisdiction.28 A Circuit Court of Appeals cannot issue the writ to review an order of the Circuit Court of Appeals which is not appealable; 29 nor, except in an extraordinary case where the order sought to be reviewed was ultimately reviewable by repeal.30 The writ was denied when requested to compel the amendment of a bill of exceptions after the statutory time had expired.31 Any court of the United States may issue a writ of certiorari as ancillary to a writ of habeas corpus,32 but its refusal so to do is not the subject of review.33 22 U. S. v. Adams, 9 Wall. 661, 19 L. ed. 808. 23 U. S. v. Adams, 9 Wall. 661, 19 L. ed. 808. 24 Stimpson v. Westchester R. Co., 3 How. 553, 11 L. ed. 722. But see Morgan v. Curtenius, 19 How. 8, 15 L. ed. 576. 25 Stimpson v. Westchester R. Co., 3 How. 553, 11 L. ed. 722, infra, $ 479. 26 Ex parte Vallandigham, 1 Wall. 243, 17 L. ed. 589; Re Videl, 179 U. S. 126, 45 L. ed. 118. In a proper case the writ might possibly issue for that purpose by the Supreme Court of the District of Columbia. See Garling v. Van Al len, 55 N. Y. 31; People ex rel. Smith v. Hoffman, 166 N. Y. 462; People ex rel. Higgins v. Stotesbury, 182 App. Div. N. Y. 691. 27 Re Vidal, 179 U. S. 126, 45 L. ed. 118. 28 Jud. Code, § 262. 29 U. S. ex rel. Montana O. P. Co. v. Circuit Court, C. C. A., 126 Fed. 169. 30 Lovell McConnell Mfg. Co. v. Bindrim, C. C. A., 219 Fed. 533; Re Garrosi, C. C. A., 229 Fed. 363. See Re Cogan, C. C. A., 228 Fed. 192. 31 Kerreh v. U. S., C. C. A., 171 Fed. 365. 32 Ex parte Burford, 3 Cranch, 448, 2 L. ed. 495; Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 554; Re Martin, 5 Blatchf. 303; Ex parte Stupp, 12 Blatchf. 501. See infra, $ 466. 33 Hyde v. Shine, 199 U. S. 62, 80, 50 L. ed. 90, 97. A District Court of the United States has statutory power to issue the writ to a State court requiring the latter to make return of the record in a suit which has been removed.34 In case of the removal of a civil suit or criminal prosecution against an officer of the United States the clerk of the District Court 35 or in his absence a deputy 36 must issue the writ for the same purpose. It has been said that a District Court may review by certiorari proceedings pending before a United States commissioner without the writ of habeas corpus.37 Such a court cannot thus review the findings of steamboat inspectors; 38 nor the classification by a local board of a registrant under the Selective Service Act; 39 nor the findings of a commissioner which it has no power to correct.40 The power of a District Court to issue the writ when it is not used in aid of its jurisdiction is doubtful.41 It may be that the Supreme Court of the District of Columbia. has power to review by certiorari in a proper case, a decision of a quasi judicial nature made by an officer of the United States at Washington, 42 such as the assessment of an income tax.43 The decision of the Postmaster General that an order should issue excluding matter from the mails for fraud cannot be thus reviewed.44 It seems that certiorari and mandamus cannot be joined in one writ,45 but the petition may pray for these writs in the 34 18 St. at L. 470; 25 St. at L. 433; infra, § 551. 35 State v. Sullivan, 50 Fed. 593. 36 It has been held that its address to the United States marshal directing him to make known to the clerk of the State court the removal of the cause, and that such court is required to send a transcript of its record to the Circuit Court, does not invalidate the writ. Ibid. 37 U. S. v. Berry, 4 Fed. 779. 38 Fredenberg v. Whitney et al., 240 Fed. 819. 39 Angelus v. Sullivan, C. C. A., 246 Fed. 54. Re Kitzerow, 252 Fed. 865; Ex parte Platt, 253 Fed. 413. U. S. ex rel. Roman v. Rauch, 253 Fed. 814; Brown v. Spelman, 255 40 Ex parte Van Orden, 3 Blatchf. 166. See Patterson v. U. S., 2 Wheat. 221, 4 L. ed. 224. 41 U. S. ex rel. Roman v. Rauch, 253 Fed. 814. 42 Alexandria C. R. & Br. Co. v. District of Columbia, 5 Mackey (D. C.), 376; Wood v. District of Columbia, 6 Mackey (D. C.), 142. 43 Degge v. Hitchcock, Postmaster General, 229 U. S. 162. See supra, § 101. See supra, §§ 68, 103 Foster's Income Tax, § 118. 44 Fairbanks v. Amoskeag Nat. Bank, 30 Fed. 602. 45 Amer. Const. Co. v. Jackson |