Opinion of the Court.

247 U. S.

reviewing court adverse to the accused upon any preliminary matter, and without trial upon the merits, followed by a remittitur to the court below, necessitates further proceedings before that court from the point at which they were interrupted by the allowance of the writ; and that a judgment quashing the writ of certiorari simply removes the obstacle that the writ interposed in the way of further proceedings in the court of first instance, so that a procedendo follows as a matter of course. And so are the authorities. "If an indictment be removed after issue joined and remanded, the inferior court shall proceed as if no certiorari had been granted.

(It is true, that while it continues on the file, the court cannot award a procedendo. But it may be taken off the file, if it have issued improvide; and when that is done, a procedendo will be granted.)" Bac. Abr., tit. Certiorari (K), citing Rex v. Wakefield, 1 Burr. 485, 488; Rex v. Clace, 4 Burr. 2456, 2459; Rex v. Micklethwayte, 4 Burr. 2522. And see Com. Dig., tit. Certiorari (G), citing Anonymous, 1 Salk. 144, to the effect that if a certiorari be granted to remove an indictment and the cause suggested should afterwards appear false, a procedendo should be awarded. See, also, Kennedy v. Gorman, 4 Cranch C. C. 347, 348; Fed. Cas. No. 7702.

The record in the present case shows that from beginning to end it was recognized that the writ of certiorari was a mere method of removing the information and the proceedings thereon from the police court into the supreme court, for purposes of review; that it was not a new or independent cause, but a mere step in the pending criminal case; so that when the supreme court reached the conclusion that the writ ought be quashed, the result was merely to remove this obstacle in the way of the exercise by the police court of its jurisdiction, and that the record ought to be remanded for further proceedings in that court. The prayer of the petitioner was "that

the writ of certiorari may issue from this court to the respondent, commanding him to certify to this court the record and proceedings in the said cause so as aforesaid instituted and pending against the petitioner, to the end that the same may be considered by this court, and that there may be done in behalf thereof what of law and right ought to be done in the premises." The writ issued in pursuance of this petition and addressed to the judge of the police court, after reciting that there was "now pending before you a suit between the United States and the above-named petitioner, William A. Hartranft," commanded the judge to send to the supreme court "the record and proceedings in the said cause, so that the said Supreme Court may act therein as of right and according to the laws and customs of the United States should be done." And the judgment of the supreme court was that the writ of certiorari be quashed and the petition dismissed, and that the record be "remanded to the Police Court of the District of Columbia whence it came." Clearly, this was an implied mandate for further proceedings in the police court. The judgment for costs was but incidental.

The contention that the certiorari case in the supreme court was independent of the proceeding in the police court because the two cases bore different titles is without weight. The writ ran from the President of the United States to the judge by name, not in his personal but in his official capacity, as being in contemplation of law the custodian of the record (see State v. Howell, 24 N. J. L. 519; Kirkpatrick v. Commissioners, 42 N. J. L. 510; Hutchinson v. Rowan, 57 N. J. L. 530); but the substance of it was a command that the record of the cause pending in the police court be removed into the supreme court for its consideration; and the execution of the writ did not change the nature of the cause but merely transferred it to a different court.

There is a singular and fatal inconsistency between the

grounds on which plaintiff in error invokes our jurisdiction and the ground on which he endeavors to maintain it. He comes saying, in order to bring himself within § 250, Judicial Code, that in this case (a) the jurisdiction of the trial court is in issue, and (b) the construction of a law of the United States was drawn in question by himself as defendant. But, in resisting the objection that the case is one arising under the criminal laws and the judgment is not final, he is obliged to take refuge in the theory that the certiorari proceeding was separate and independent from the police court proceeding. This, if granted, would leave him without a footing here, because in the certiorari proceeding the supreme court was the "trial court," and its jurisdiction was not and is not in issue; and in that proceeding he was prosecutor or plaintiff, not defendant, and it does not appear that the construction of any law of the United States was there drawn in question by defendant in error, who was defendant if the proceeding was an independent one. There is no escape from the dilemma.

From what has been said it results that the decision of the supreme court was a decision in a case arising under the criminal laws; and, since it required further proceedings in the police court before the merits of the case could be determined, it was not a final judgment within the meaning of the opening words of § 250, Judicial Code. By § 226 of the District of Columbia Code, the court of appeals may review interlocutory orders of the supreme court, as well as final judgments; but it is unnecessary to say that if the judgment reviewed was interlocutory, so is the judgment affirming it. Were we to review and affirm the latter judgment, a trial upon the merits in the police court would still be necessary. The bearing of this is manifest. Macfarland v. Brown, 187 U. S. 239, 246.

Two cases very much in point are to be found in the reports of New Jersey; both being decisions of the court

of last resort. To show their pertinency, it should be premised that in that State the jurisdiction and practice of the supreme court are modeled after those of the king's bench, and there is a review of its decisions by the court of errors and appeals (as in the house of lords), but only after final judgment. The practice of employing the writ of certiorari for the removal of an indictment or presentment before trial from the court of first instance into the supreme court has been recognized from the beginning, and regulated by statutes not departing essentially from the common-law practice. Act of February 6, 1799, Paterson's Laws, p. 350; Rev. Stats. 1847, p. 983; Gen. Stats. 1895, p. 367; P. L. 1903, p. 343; 1 Comp. Stats. (1910), p. 402. Upon the removal of an indictment into the supreme court by this process, if that court determines that the indictment is not sufficient in law, the person indicted is discharged; but if it is found sufficient, the court may in its discretion retain it to be carried down for trial before the proper circuit court, or may order it returned to the court from which it was removed, there to be proceeded with in the same manner as if the writ had not been allowed. It is a common practice to use this writ in order to obtain the judgment of the supreme court upon the validity of an indictment, before trial. Sailer v. State, 16 N. J. L. 357; State v. Powder Mfg. Co., 50 N. J. L. 75; State v. New Jersey Jockey Club, 52 N. J. L. 493; State v. Nugent, 77 N. J. L. 157; State v. Kelsey, 80 N. J. L. 641. Such being the practice, in Parks y. State, 62 N. J. L. 664, the return to a writ of error issued out of the court of errors and appeals to the supreme court disclosed that the latter court, by certiorari to the sessions, had removed an indictment and entertained and denied a motion to quash it, and ordered the record to be remitted to the sessions to be proceeded in according to law. A motion having been made to dismiss the writ of error, the court, speaking by

Chief Justice Magie, said: "When the Supreme Court, by virtue of its superintending power over inferior courts, brings, by certiorari, into it the proceedings of an inferior court upon an indictment, it has the option, at its discretion, to retain the cause and proceed to a final disposition of the issues presented, or to remit the proceedings to the inferior court. Gen. Stat. 368. Had the Supreme Court retained the cause now before us, it is obvious that no final judgment could have been reached until the accused had been convicted and sentenced or acquitted and discharged by that court. It is equally plain that, after the exercise of its option of remitting the proceedings to the sessions, no final judgment in the cause could have been reached until a similar result had been reached in that court. A certiorari in such cases is not the institution of a new suit, nor does it bring in question any final judgment. The result is that this writ was prematurely issued and must be dismissed." To the same effect is State v. Kelsey, 82 N. J. L. 542.

For both reasons, that the case is one arising under the criminal laws and that the judgment is not final, we have no jurisdiction under § 250, Judicial Code, and the writ of error must be and is

Dismissed.

MR. JUSTICE MCREYNOLDS took no part in the consideration or decision of this case.