270 U.S. 9
STATE OF MARYLAND
SOPER, District Judge, et al.
Argued on Return to Rules to Show Cause Dec. 7, 1925.
Decided Feb. 1, 1926.
[270 U.S. 9, 11] Messrs. Herbert Levy and Thomas H. Robinson, both of Baltimore, Md., for the State of Maryland.
[270 U.S. 9, 16] Mr. Assistant Attorney General Donovan, for respondents.
Mr. Chief Justice TAFT delivered the opinion of the Court.
This is a petition by the state of Maryland for a writ of mandamus against Morris A. Soper, the United States District Judge for Maryland, directing him to remand an indictment for murder, found in the circuit court for [270 U.S. 9, 21] Harford county, Maryland, against four prohibition agents and their chauffeur, which was removed to the United States District Court under section 33 of the Judicial Code, as amended August 23, 1916, 39 Stat. 532, c. 399 (Comp. St. s 1015). The text of the amended section, in so far as it is material here, is set out in the margin. 1
The indictment, found February 10, 1925, charged as follows:
A motion to quash the amended petition. April 11, 1925, was based on the ground, among others, that the allegations of the amended petition did not disclose a state of facts entitling the defendants to have the writ issue, or to have the charge against them removed. On May 5, 1925, Judge Soper denied the motion to quash, and directed that the order of court removing the indictment be ratified and confirmed. On the same day the following stipulation was entered into by the parties:
The state of Maryland applied to this court for leave to file its petition for mandamus, in which it set forth fully the facts as above stated, including, as exhibits, the petition for removal, the amended petition for removal, its motion to quash, the stipulation, and the orders of the District Court. This court, granting leave, issued a rule against Judge Soper to show cause why the writ of mandamus should not issue in accordance with the prayer of the state.
Judge Soper, in his answer to the rule, recited the facts of the record as already given, said that the District Court was of opinion that the petitioners were entitled to removal under section 33 of the Code as revenue officers, and that, if not as revenue officers, as agents of the Commissioner by virtue of section 28 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, s 10138 1/2 o); that a prosecution had been commenced against the [270 U.S. 9, 28] petitioners on account of acts done under color of their office and of the revenue and prohibition laws of the United States, notwithstanding that the petitioners did not admit having caused the death of Wenger, and that it had adjudged that it possessed ample jurisdiction to order the removal and to try the case; and he therefore asked that the rule be discharged and that the petition of the state be dismissed.
It is objected on behalf of the respondent that this is not a proper case for mandamus, that whether the facts averred in the amended petition come within the requirement of section 33 of the Judicial Code is a question within the regular judicial function of the District Court to decide, and that this court should not interfere thus prematurely with its exercise.
Virginia v. Rives, 100 U.S. 313 , Virginia v. Paul, 148 U.S. 107 , 13 S. Ct. 536, and Kentucky v. Powers, 201 U.S. 1 , 26 S. Ct. 387, 5 Ann. Cas. 692, were cases in which criminal prosecutions by a state, removed to a federal court under asserted compliance with federal statutes, were ordered remanded by writ of mandamus. The Attorney General of Maryland relies on them to show that the writ may issue to test the legality of the removal in all criminal cases. On behalf of the United States, it is pointed out that these cases differ from the one before us, in that in the former the state prosecution had not reached a stage, or was not of a character in which, under the language of the statute, removal could be had at all, and so the federal court was wholly without jurisdiction. The writ in those cases was justified by the court because of the gross abuse of discretion of the lower court, its clear lack of jurisdiction, and the absence of any other remedy. Ex parte Harding, 219 U.S. 363 , at page 373, 31 S. Ct. 324, 37 L. R. A. (N. S.) 392. In this case the facts averred show the prosecution to be of the class and character in which removal is permitted by section 33, and there is no lack of jurisdiction or abuse of discretion, and the only issue made is on the interpreta- [270 U.S. 9, 29] tion of the facts and the application of the section, an issue clearly within the judicial jurisdiction of a district court.
Mandamus is an extraordinary remedy which is issued by this court under Rev. Stats. s 688, now Judicial Code, s 234 (Comp. St. s 1211), to courts of the United States in the exercise of its appellate jurisdiction, and in civil cases does not lie to compel a reversal of a decision, either interlocutory or final, made in the exercise of a lawful jurisdiction, especially where in regular course the decision may be reviewed upon a writ of error or appeal. Ex parte Roe, 234 U.S. 70, 73 , 34 S. Ct. 722; Ex parte Tiffany, 252 U.S. 32, 37 , 40 S. Ct. 239; Ex parte Park Square Automobile Station, 244 U.S. 412 , 37 S. Ct. 732; Ex parte Slater, 246 U.S. 128, 134 , 38 S. Ct. 265; Ex parte Oklahoma, 220 U.S. 191, 209 , 31 S. Ct. 426; Ex parte Harding, 219 U.S. 363 , 31 S. Ct. 324, 37 L. R. A. (N. S.) 392; Ex parte Nebraska, 209 U.S. 436 , 28 S. Ct. 581; Ex parte Hoard, 105 U.S. 578
It may be conceded that there are substantial differences between Virginia v. Paul, Virginia v. Rives, and Kentucky v. Powers, and this case. But we do not think that those differences should prevent the issue of the mandamus here. In respect of the removal of state prosecutions, there should be a more liberal use of mandamus than in removal of civil cases. We exercise a sound judicial discretion in granting or withholding the writ. It may be 'in cases warranted by the principles and usages of law.' Rev. Stats. s 688; Ex parte Bardley, 7 Wall. 364, 376; Virginia v. Rives, supra, at page 323, separate opinion of Mr. Justice Field, at page 329. It is granted in analogy to the intervention of equity to secure justice in the absence of any other adequate remedy. Duncan Townsite v. Lane, 245 U.S. 308, 312 , 38 S. Ct. 99. In the case before us, and in all state prosecutions removed under section 33, the jurisdiction of the courts of a state to try offenses against its own laws and in violation of its own peace and dignity is wrested from it by the order of an inferior federal court. The state by its petition for man- [270 U.S. 9, 30] damus becomes a suitor at the bar of this court to challenge the legality of the inferior court's action. Conceding the validity of the exceptional use of the national supremacy in a proper case, it seeks by this writ to test its propriety here. Except by the issue of mandamus, it is without an opportunity to invoke the decision of this court upon the issue it would raise.
The order of the United States District Judge refusing to remand is not open to review on a writ of error, and a judgment of acquittal in that court is final. United States v. Sanges, 144 U.S. 310 , 12 S. Ct. 609; Virginia v. Paul, supra, at page 122 (13 S. Ct. 536). The fact that the United States District Court may be proceeding in the exercise of a lawful jurisdiction should not, under such exceptional circumstances, prevent this court from extending to the state the extraordinary remedy.
We come, then, to the sufficiency of the amended petition for removal under section 33 of the Judicial Code to justify the District Court in denying the motion to remand.
The first objection made by the state to the removal is that prohibition agents cannot have the benefit of section 33, because they are not officers 'appointed under or acting by authority of any revenue law of the United States,' as provided in the section. The four defendants are admitted to have been acting under commissions issued by the Commissioner of Internal Revenue, 'empowering them to enforce the National Prohibition Acts and acts supplemental thereto, and all internal revenue laws, relating to the manufacture, sale, transportation, control, and taxation of intoxicating liquors.' The fifth defendant, Trabing, it is admitted, was acting as a chauffeur and helper to the four officers under their orders and by direction of the prohibition director for the state. It is not denied on behalf of the state that he has the same right to the benefit of section 33 as they. Davis v. South Carolina, 107 U.S. 597 , 2 S. Ct. 636. [270 U.S. 9, 31] The Act of November 23, 1921, 42 Stat. 223, c. 134, s 5 (Comp. St. Ann. Supp. 1923, s 10138 4/5 c), known as the Willis-Campbell Law, amending the National Prohibition Act (41 Stat. 307, c. 85), provides that:
Rev. Stats. s 3282 (Comp. St. s 6022), forbidding fermenting of mash or wort, or the making of spirits therefrom in any other than a distillery authorized by law, or by a duly authorized distiller, and punishing its violation by fine and imprisonment, is not in conflict with anything in the Prohibition Act. The Willis-Campbell Act thus makes clear the criminality of such an act under the revenue laws. United States v. Stafoff, 260 U.S. 477 , 43 S. Ct. 197. In searching for the still for the purpose of preventing the violation of law, the prohibition agents in this case were therefore acting under the authority of the revenue laws.
More than this, they were brought within the application of section 33 by the provision of section 28, title 2, of the National Prohibition Act, providing that the commissioner, his assistants, agents and inspectors and all other officers of the United States whose duty it is to enforce criminal laws, shall have all the power and protection in the enforcement of the act, or any provisions thereof, which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquor under the law of the United States. We have no doubt that the word 'protection' was inserted for the purpose of giving to officers and persons acting under the authority of the National Prohibition Act in enforcement of its provisions, the same protection of a trial in a federal [270 U.S. 9, 32] court of state prosecutions as is accorded to revenue officers under section 33.
Section 33 was derived from section 643 of the Revised Statutes, which in turn was derived from the Act of July 13, 1866, 14 Stat. 171, c. 184, s 67, and the Act of June 30, 1864, 13 Stat. 241, c. 173, s 50. These acts extend the Act of March 2, 1833, 4 Stat. 633, c. 57, s 3, applying to officers engaged in collection of customs duties to those engaged in the collection of internal revenue. People's United States Bank v. Goodwin (C. C.) 162 F. 937, 939; Tennessee v. Davis, 100 U.S. 257 , 267. The act of 1833 was enacted in the days of attempted nullification of national customs revenue laws in South Carolina, and was during the Civil War extended to those charged with collecting the internal revenue. Congress not without reason assumed that the enforcement of the National Prohibition Act was likely to encounter in some quarters a lack of sympathy and even obstruction, and sought by making section 33 applicable to defeat the use of local courts to embarrass those who must execute it. The constitutional validity of the section rests on the right and power of the United States to secure the efficient execution of its laws and to prevent interference therewith, due to possible local prejudice, by state prosecutions instituted against federal officers in enforcing such laws, by removal of the prosecutions to a federal court to avoid the effect of such prejudice. Tennessee v. Davis, supra.
Do the facts disclosed by the amended petition for removal bring the defendants within section 33? The state insists that they are insufficient because they do not show that the defendants committed the act of homicide upon which the indictment is founded. The case of Illinois v. Fletcher (C. C.) 22 F. 776, seems to hold that a revenue officer can take advantage of the statute and secure a trial in a federal court only by admitting that he did the act for which he is prosecuted. We think this too [270 U.S. 9, 33] narrow a construction of the section. Cleveland, Columbus, etc., Railroad v. McClung, 119 U.S. 454, 461 , 7 S. Ct. 262.
The prosecution to be removed under the section must have been instituted 'on account of' acts done by the defendant as a federal officer under color of his office or of the revenue or prohibition law. There must be causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his, not justified by his federal duty. But the statute does not require that the prosecution must be for the very acts which the officer admits to have been done by him under federal authority. It is enough that his acts or his presence at the place in performance of his official duty constitute the basis, though mistaken or false, of the state prosecution.
Suppose that the prosecution of the officer for murder was commenced merely on account of the presence of the officer in discharge of his duties in enforcing the law, at or near the place of the killing under circumstances casting suspicion of guilt on him. He may not even know who did the killing, and yet his being there and his official activities may have led to the indictment. He may certainly claim the protection of the statute on the ground that the prosecution was commenced against him 'on account of' his doing his duty as an officer under color of such a law without being able to allege that he committed the very act for which he is indicted. It is enough if the prosecution for murder is based on or arises out of the acts he did under authority of federal law in the discharge of his duty and only by reason thereof. [270 U.S. 9, 34] In invoking the protection of a trial of a state offense in a federal court under section 33, a federal officer abandons his right to refuse to testify because accused of crime, at least to the extent of disclosing in his application for removal all the circumstances known to him out of which the prosecution arose. The defense he is to make is that of his immunity from punishment by the state, because what he did was justified by his duty under the federal law, and because he did nothing else on which the prosecution could be based. He must establish fully and fairly this defense by the allegations of his petition for removal before the federal court can properly grant it. It is incumbent on him, conformably to the rules of good pleading, to make the case on which he relies, so that the court may be fully advised and the state may take issue on a motion to remand. Chesapeake & Ohio Railway Co. v. Cockrell, 232 U.S. 146, 151 , 152 S.,1 and cases cited. See, also, concurring opinion of Mr. Justice Field in Virginia v. Rives, supra, at page 332, and Hanford v. Davies, 163 U.S. 273, 279 , 16 S. Ct. 1051.
We think that the averments of the amended petition in this case are not sufficiently informing and specific to make a case for removal under section 33. We have set forth the account the defendants gave in their amended petition of what they saw and did, but the only averments important in directly connecting the prosecution with their acts are at the opening and close of their petition. They refer to the death of Wenger only by incorporating the indictment in the petition, and then say that 'the acts (i. e. the killing of Wenger) alleged to have been done by petitioners Robert D. Ford, John M. Barton, Wilton L. Stevens, and E. Franklin Ely are alleged to have been at a time when they were engaged in the discharge of their official duties as federal prohibition officers, and in making and attempting to make an investigation concerning a violation of the National Prohibition Act and other internal [270 U.S. 9, 35] revenue laws and in reporting the results of said investigation, and in protecting themselves in the discharge of their duty.' The amended petition closes with the statement that the indictment 'is a criminal prosecution on account of acts alleged to have been done by your petitioners at a time when they were engaged in the performance of their duties as federal prohibition officers and chauffeur for federal prohibition officers as set forth in the foregoing paragraphs.'
These averments amount to hardly more than to say that the homicide on account of which they are charged with murder was at a time when they were engaged in performing their official duties. They do not negative the possibility that they were doing other acts than official acts at the time and on this occasion, or make it clear and specific that whatever was done by them leading to the prosecution was done under color of their federal official duty. They do not allege what was the nature of Wenger's fatal wound, whether gunshot or otherwise, whether they had seen him among those who brought the still and fled, or whether they heard, or took part in any shooting. They do not say what they did, if anything, in pursuit of the fugitives. It is true that in their narration of the facts, their nearness to the place of Wenger's killing and their effort to arrest the persons about to engage in alleged distilling are circumstances possibly suggesting the reason and occasion for the criminal charge and the prosecution against them. But they should do more than this in order to satisfy the statute. In order to justify so exceptional a procedure, the person seeking the benefit of it should be candid, specific and positive in explaining his relation to the transaction growing out of which he has been indicated, and in showing that his relation to it was confined to his acts as an officer. As the defendants in their statement have not clearly fulfilled this requirement, we must grant the writ of mandamus, [270 U.S. 9, 36] directing the District Judge to remand the indictment and prosecution. Should the District Judge deem it proper to allow another amendment to the petition for removal, by which the averments necessary to bring the case within section 33 are supplied, he will be at liberty to do so. Otherwise the prosecution is to be remanded as upon a peremptory writ.
[ Footnote 1 ] 'Sec. 33. That when any civil suit or criminal prosecution is commenced in any court of a state against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claimed by such officer or other person under any such law, or is commenced against any person holding property or estate by title derived from any such officer and affects the validity of any such revenue law, or against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer, or when any civil suit or criminal prosecution is commenced against any person for or on account of anything done by him while an officer of either house of Congress in the discharge of his official duty in executing any order of such house, the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the District Court next to be holden in the district where the same is pending upon the petition of such defendant to said District Court and in the following manner.'
[ Footnote 1 ] 34 S. Ct. 278.