Statement of the Case.

4th. That, if the order of July 23, 1892, was valid, the Circuit Judge who made it could not sit in the Circuit Court of Appeals at the hearing of the cause, and was expressly prohibited from so doing by the following provision in the act creating that court: "Provided that no justice or judge, before whom a cause or question may have been tried or heard in the District Court or existing Circuit Court, shall sit on the trial or hearing of such cause or question in the Circuit Court of Appeals." Act of March 3, 1891, c. 517, § 3, 26 Stat. 827.

5th. That it should be left open to the Circuit Court to inquire whether the suit was collusive, and thereupon either to appoint a receiver or to dismiss the bill.

On January 30, the Circuit Court of Appeals denied a rehearing, and sent down a mandate in accordance with its decree; and on February 1, this mandate was filed in the Circuit Court.

On February 2, the construction company moved this court for leave to file a petition for a writ of mandamus to the Circuit Court of Appeals to dismiss so much of the appeal of the Pennsylvania Company as undertook to bring before that court the action of the Circuit Court in vacating and setting aside the order for the appointment of a receiver; or, in the alternative, for a writ of certiorari to the Circuit Court of Appeals to bring up its decree for review by this court.

This court gave leave to file both petitions of the American Construction Company, stayed proceedings under the mandates of the Circuit Court of Appeals, and ordered notice to the railway company and to the Pennsylvania Company of a renewal of the motions for writs of mandamus or writs of certiorari, returnable March 6.

The petitioner gave notice to those companies that on that day it would move accordingly for writs of mandamus or certiorari to the Circuit Court of Appeals, as prayed for in the petitions; and would also, in the alternative, move for a writ of mandamus to the Circuit Court to disregard the mandates of the Circuit Court of Appeals, except so far as they affirmed, modified or reversed the injunction orders of the Circuit Court,

Opinion of the Court.

and especially to disregard the parts of those mandates which undertook to modify or reverse any order appointing or refusing to appoint a receiver.

At the time so appointed, the parties appeared, and the motions were argued.

Mr. William B. Hornblower and Mr. Eugene Stevenson, (with whom was Mr. William Pennington on the brief,) for the petitioner in both cases.

Mr. John G. Johnson and Mr. Thomas Thacher opposing in No. 14.

Mr. C. M. Cooper, (with whom was Mr. J. C. Cooper on the brief,) opposing in No. 15.

MR. JUSTICE GRAY, after stating the facts, delivered the opinion of the court.

By the Constitution of the United States, in cases to which the judicial power of the United States extends, and of which original jurisdiction is not conferred on this court, "the Supreme Court shall have appellate jurisdiction, with such exceptions and under such regulations as the Congress shall make." Constitution, art. 3, sec. 2. This court, therefore, as it has always held, can exercise no appellate jurisdiction, except in the cases, and in the manner and form, defined and prescribed by Congress. Wiscart v. Dauchy, 3 Dall. 321, 227; Durousseau v. United States, 6 Cranch, 307, 314; Barry v. Mercein, 5 How. 103, 119; United States v. Young, 94 U. S. 258; The Francis Wright, 105 U. S. 381; National Exchange Bank v. Peters, 144 U. S. 570, 572.

Under the Judiciary Act of 1879 and other acts embodied in the Revised Statutes, the appellate jurisdiction of this court from the Circuit Court of the United States was limited to final judgments at law, and final decrees in equity or admiralty. Acts of September 24, 1789, c. 20, §§ 13, 22, 1 Stat. 81, 84; March 3, 1803, c. 40, 2 Stat. 244; Rev. Stat. §§ 691, 692. No appeal, therefore, lay to this court from an order of the Circuit Court, granting or refusing an injunction, or appoint

Opinion of the Court.

ing or declining to appoint a receiver pendente lite, or other interlocutory order, until after final decree. Ientig v. Page, 102 U. S. 219; Keystone Co. v. Martin, 132 U. S. 91; Lodge V. Twell, 135 U. S. 232.

By the same statutes, this court is empowered to issue writs of mandamus, "in cases warranted by the principles and usages of law, to any courts appointed under the authority of the United States." Act of September 24, 1789, c. 20, § 13, 1 Stat. 81; Rev. Stat. § 688.

But a writ of mandamus cannot be used to perform the office of an appeal or writ of error, to review the judicial action of an inferior court. Ex parte Whitney, 13 Pet. 404; Ex parte Schwab, 98 U. S. 240; Ex parte Perry, 102 U. S. 183; Ex parte Morgan, 114 U. S. 174. It does not, therefore, lie to review a final judgment or decree of the Circuit Court, sustaining a plea to the jurisdiction, even if no appeal or writ of error is given by law. Ex parte Newman, 14 Wall. 152; Ex parte Baltimore & Ohio Railroad, 108 U. S. 566; In re Burdett, 127 U. S. 771; In re Pennsylvania Co., 137 U. S. 451, 453.

Least of all, can a writ of mandamus be granted to review a ruling or interlocutory order made in the progress of a cause for, as observed by Chief Justice Marshall, to do this "would be a plain evasion of the provision of the act of Congress that final judgments only should be brought before this court for reexamination;" would "introduce the supervising power of this court into a cause while depending in an inferior court, and prematurely to decide it;" would allow an appeal or writ of error upon the same question to be "repeated, to the great oppression of the parties;" and "would subvert our whole system of jurisprudence." Bank of Columbia v. Sweeny, 1 Pet. 567, 509; Life & Fire Ins. Co. v. Adams, 9 Pet. 573, 602. This court, and the Circuit and District Courts of the United States, have also been empowered by Congress "to issue all writs, not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law." Act of September 24, 1789, c. 20, § 14, 1 Stat. 81; Rev. Stat. § 716.

Opinion of the Court.

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.

There is, therefore, no ground for issuing either a writ of mandamus, or a writ of certiorari, as prayed for in these petitions, unless it be found in the act of March 3, 1891, c. 517, entitled "An act to establish Circuit Courts of Appeals, and to define and regulate in certain cases the jurisdiction of the courts of the United States, and for other purposes." Stat. 826.

26

By section 4 of this act, "the review, by appeal, by writ of error or otherwise, from the existing Circuit Courts shall be had only in the Supreme Court of the United States, or in the Circuit Courts of Appeals hereby established, according to the provisions of this act, regulating the same;" and by section 14, "all acts and parts of acts, relating to appeals or writs of error, inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act, are hereby repealed."

By section 5, appeals or writs of error may be taken from the Circuit Court directly to this court in cases where the jurisdiction of the court below is in issue, (the question of jurisdiction alone being brought up,) in prize causes, in cases of convictions of capital or otherwise infamous crimes, and in cases involving the construction or application of the Constitution of the United States, or the constitutionality of a law

Opinion of the Court.

of the United States, or the validity or construction of a treaty, or where the constitution or law of a State is claimed to be in contravention of the Constitution of the United States.

By section 6, the appellate jurisdiction from final decisions of the Circuit Court, in all cases other than those provided for in section 6, is conferred upon the Circuit Court of Appeals, "unless otherwise provided by law;" and its judgments or decrees "shall be final" in all cases in which the jurisdiction. depends entirely on the citizenship of the parties, as well as in cases arising under the patent laws, the revenue laws, or the criminal laws, and in admiralty cases.

By the same section, however, the Circuit Court of Appeals "in any such subject within its appellate jurisdiction" may, at any time, certify to this court questions or propositions of law, and this court may thereupon either instruct it on such questions, or may require the whole case to be sent up for decision; and any case "made final in the Circuit Court of Appeals" may be required by this court, by certiorari or otherwise, to be certified" for its review and determination, with the same power and authority in the case" as if it had been brought up by appeal or writ of error.

By a further provision in the same section, (which has no special bearing on these cases,) an appeal or writ of error or review by this court is given as of right in all cases not made final in the Circuit Court of Appeals, wherein the matter in controversy exceeds $1000.

The only provision in the act, authorizing appeals from interlocutory orders or decrees of the Circuit Courts, is in section 7, which provides that where, upon a hearing in equity, "an injunction shall be granted or continued by an interlocu tory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the Circuit Court of Appeals;" "and the proceedings in other respects in the court below shall not be stayed, unless otherwise ordered by that court, during the pendency of such appeal."