Mookini v. United States, 303 U.S. 201 (1938)

MOOKINI et al. v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 319. Argued February 2, 1938.—Decided February 28, 1938.

1. The Act of March 8, 1934, (28 U. S. C. 723a) empowering this Court to prescribe rules of practice with respect to proceedings after détermination of guilt in criminal cases in “District Courts of the United States, including the District Courts of Alaska, Hawaii, Puerto Rico, Canal Zone and Virgin Islands,” and in the other courts named, does not require that rules when prescribed shall be identical for ail the courts mentioned or that rules for ail shall be prescribed at the same time. P. 203.

2. In the rules heretofore promulgated by this Court (May 7, 1934, 292 U. S. 661) limited to proceedings in criminal cases in “District Courts of the United States” and in the Suprême Court of the District of Columbia and subséquent appellate proceedings, the term “District Courts of the United States” means constitutional courts created under Art. III of the Constitution; it does not embrace legislative courts such as the District Court for the Territory of Hawaii. P. 205.

3. As the Criminal Appeals Rules were not made applicable to the District Court of the Territory of Hawaii, they did not change the time for appeals from that court to the Circuit Court of Appeals as allowed by the Act of February 13, 1925. '28 U. S. C. 225, 230. P. 205. 4. The provision in the organic Act of Hawaii (48 U. S. C. 645) that appeals from the District Court of that Territory to the Circuit Court of Appeals for the Ninth Circuit shall be had “in the same manner as appeals are allowed from district courts to circuit courts of appeal as provided by law,” does not require that the Criminal Appeals Rules prescribed by this Court for District Courts of the United States shall be held applicable to the District Court of Hawaii. P. 205. ’ 92 F. (2d) 126, reversed.

Certiorari, 302 U. S. 674, to review a judgment dismissing an appeal.

Mr. O. P. Soares submitted on brief for petitioners.

Mr. Bâtes Booth, with whom Soliciter General Reed, Assistant Solicitor General Bell, Assistant Attorney General McMahon, and Messrs. William W. Barron and W. Marvin Smith were on the brief, for the United States.

Mr. Chief Justice Hughes delivered the opinion of the Court.

Petitioners were convicted in the District Court of the Territory of Hawaii of violating § 35 of the Criminal Code relating to fraudulent claims. 18 U. S. C. 80. The verdict was rendered on May 28, 1935; motions for a new trial were overruled on June 19, 1935; and petitioners were sentenced on June 29, 1935. Appeal was allowed by the District Court on September 27, 1935.

It is not questioned that the appeal to the Circuit Court of Appeals was allowed within the three months’ period specified in § 8 (c) of the Act of February 13, 1925, c. 229, 43 Stat. 936, 940; 28 U. S. C. 225, 230; 48 U. S. C. 645.

The Criminal Appeals Rules were promulgated pursuant to the Act of March 8, 1934, amending the Act of February 24, 1933. 28 U. S. C. 723a. The Act authorized this Court—“to prescribe, from time to time, rules of practice and procedure with respect to any and ail proceedings after verdict, or finding of guilt by the court if a jury has been waived, or plea of guilty, in criminal cases in district courts of the United States, including the District Courts of Alaska, Hawaii, Puerto Rico, Canal Zone, and Virgin Islands, in the Suprême Courts of the District of Columbia, Hawaii, and Puerto Rico, in the United States Court for China, in the United States Circuit Courts of Appeals, in the Court of Appeals of the District of Columbia, and in the Suprême Court of the United States.”

In order to aid the Court in exercising its authority under the statute, the Attorney General of the United States at the request of the Court submitted on May 26, 1933, a draft of proposed rules. These were expressly limited to proceedings in cases brought in the District Courts of the United States and in the Suprême Court of the District of Columbia. The reason for this limitation was thus stated by the Attorney General:

In considering and revising the draft thus submitted, we approved this suggestion. The rules were accordingly limited to proceedings—“in criminal cases in District Courts of the United States and in the Suprême Court of the District of Columbia, and in ail subséquent proceedings in such cases in the United States Circuit Courts of Appeals, in the Court of Appeals of the District of Columbia, and in the Suprême Court of the United States.” Order of May 7, 1934, 292 U. S. 661.

The term “District Courts of the United States,” as used in the rules, without an addition expressing a wider connotation, has its historié significance. It describes the constitutional courts created under Article III of the Constitution. Courts of the Territories are legislative courts, properly speaking, and are not District Courts of the United States. We hâve often held that vesting a territorial court with jurisdiction similar to that vested in the District Courts of the United States does not make it a “District Court of the United States.” Reynolds v. United States, 98 U. S. 145, 154; The City oj Panama, 101 U. S. 453, 460; In re Mills, 135 U. S. 263, 268; McAllister v. United States, 141 U. S. 174, 182, 183; Stephens v. Cherokee Nation, 174 U. S. 445, 476, 477; Summers N. United States, 231 U. S. 92, 101, 102; United States v. Burroughs, 289 U. S. 159, 163. Not only did the promulgating order use the term District Courts of the United States in its historié and proper sense, but the omission of provision for the application of the rules to the territorial courts and other courts mentioned in the authorizing act clearly shows the limitation that was intended.

As the Criminal Appeals Rules were not made applicable to the District Court of the Territory of Hawaii, they did not supersede or alter the provisions of the Act of February 13, 1925, as to appeals from that court to the Circuit Court of Appeals. 28 U. S. C. 225, 230. The provision of the Organic Act of Hawaii (48 U. S. C. 645) to which the court below refers, that appeals from the District Court of the Territory to the Circuit Court of Appeals should be taken in the same manner as appeals from district courts, was always subject to modification in the discrétion of the Congress which in its future législation could make or authorize such distinctions in ap-

Syllabus. 303 U. S.

pellate procedure as appeared to be wise. The Act authorizing this Court to promulgate rules for criminal appeals, which should hâve the effect of législation necessarily modified the former statutory provisions so as to give the Court full authority to prescribe the time and manner of taking appeals and to leave the Court free to détermine to what courts, within the range of the authorization, its rules should apply. Pursuant to this authority, the Court has limited its rules so that theÿ do not govern appeals from the District Court of the Territory of Hawaii and there is nothing in the earlier législation which compels the extension of the rules beyond their intended and expressed application.

The judgment of the Circuit Court of Appeals is reversed and the cause is remanded to that court for further proceedings in conformity with this opinion.

Mr. Justice Cardozo took no part in the considération and decision of this case.

SOUTHWESTERN BELL TELEPHONE CO. v.

OKLAHOMA et al.

APPEAL FROM THE SUPREME COURT OF OKLAHOMA.

jNo. 560. Argued February 7, 1938.—Decided February 28, 1938.

Upon appeal from the State Corporation Commission, the Suprême Court of Oklahoma affirmed an order fixing the rates of a téléphoné company, such afïirmance being, under the state constitution, a legislative act, and therefore not reviewable by appeal to this Court. The company then filed a pétition for rehearing asking for a judicial review, which pétition was denied without statement of reason. Upon appeal to this Court, the company contended that the déniai of the pétition was a judicial review, while the State’s Attorney General insisted that the whole proceeding was legislative in character and that adéquate judicial

review could be obtained under the power of the state court to issue writs of mandamus and prohibition to the Commission. Held:

1. That, in the absence of a definite decision to that effect by the state court, this Court can not conclude that the state law provides no judicial review of such order. P. 212.

2. Assuming that the State affords a judicial remedy, there is no means of knowing whether the state court denied the pétition because an application for rehearing, after the legislative détermination, was not the proper way under the state practice to invoke the judicial power, or whether it entertained the application and by its ruling passed upon the controversy in a judicial capacity. Id.

3. This Court is therefore without jurisdiction to review the

déniai of the pétition. Id. Appeal dismissed.

Appeal from a judgment denying a pétition for rehearing in the nature of a judicial review after a decision, 181 Okla. 246, affirming an order of the Corporation Commission of the State fixing rates for téléphoné service.

Mr. Mac Q. Williamson, Attorney General of Oklahoma, with whom Messrs. J. B. A. Robertson and S. J. Gordon were on the brief, for appellees.

Mr Erwin W. Clausen, with whom Messrs. J. R. Spielman, C. M. Bracelen and John H. Cantrell were on the brief, for appellant.

Per Curiam.

The constitution of Oklahoma authorizes the Corporation Commission to prescribe rates “for transportation and transmission companies.” Art. IX, § 18. Appellant, operating téléphoné lines, is a “transmission company.” Art. IX, § 34. Appeals from the Commission, may be taken only to the Suprême Court of the State. Art. IX, §20. No court of the State, other than the Suprême Court by way of appeal, has jurisdiction “to review, reverse, correct, or annul” any action of the Commission within the scope of its authority, save that writs of mandamus and prohibition will lie from the Suprême Court to the Commission “in ail cases where such writs, respectively, would lie to any inferior court or officer.” Id. In case of appeal, no new or additional evidence may be introduced in the Suprême Court, but the Suprême Court has jurisdiction to consider and détermine “the reasonableness and justness of the action of the Commission appealed from, as well as any other matter arising under such appeal.” The action of the Commission is to be regarded “as prima Jade just, reasonable, and correct,” but the court may, when it deems necessary in the interests of justice, remand to the Commission aïiy case pending on appeal “and require the same to be further investigated by the Commission, and reported upon to the court (together with a certificate of such additional evidence as may be tendered before the Commission by any party in interest), before the appeal is finally decided.” Art. IX. § 22.

Section 23 of Article IX provides:

In the instant case, the Corporation Commission on March 18, 1935, after hearing, made its order fixing appellant’s rates (Okla. Corp. Com. Rep., 1935, p. 558), and on appeal the Suprême Court of the State, on July 13, 1937, affirmed the order. 181 Okla. 246; 71 P. 2d 747.

Appellant concédés that this decision was legislative in character, in view of the authority conferred by the above-quoted provision of § 23 of Article IX and its construction by the state court. See Pioneer Téléphoné & Telegraph Co. N. State, 40 Okla. 417, 425, 426; 138 Pac. 1033; Swain v. Oklahoma Railway Co., 168 Okla. 133, 134-136; 32 P. 2d. 51; Oklahoma Cotton Ginners’ Assn. v. State, 174 Okla. 243, 248, 251; 51 P. 2d 327. Compare Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 226, 227; Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 291. But appellant contends that the Suprême Court of the State “completed its legislative review and function by the filing of its opinion of July 13, 1937,” and that appellant was then free to invoke the jurisdiction of the court to exercise its judicial power and function by an application for “a judicial review.” This, appellant States, was the purpose of its pétition for rehearing.

In support of that pétition, appellant urged upon the Suprême Court of the State the considération of the provisions of the state constitution with respect to the vesting of judicial power and the appellate jurisdiction of the court (Art. VII, §§ 1 and 2); of the bill of rights guaranteeing a judicial remedy for every injury (Art. II, § 6) ; of § 22 of Article IX providing that, on appeals to the

Suprême Court from the Corporation Commission, that court should hâve jurisdiction to détermine “the reasonableness and justness” of the action of the Commission “as well as any other matter” arising on the appeal; and of § 34 of Article IX that the provisions of that Article should “always be so restricted in their application as not to conflict with any of the provisions of the Constitution of the United States, and as if the necessary limitations upon their interprétation had been herein expressed in each case.” In concluding the submission of its pétition for rehearing appellant insisted that the Suprême Court of the State “not only has the power, right, jurisdiction and authority, now to review this case judicially, which right, power, jurisdiction and authority it has not heretofore possessed, but that it is the duty of this court to do so at this stage of the proceeding, in order that appellant may hâve the legislative order or enactment fixing its rates for future application at Tulsa reviewed by an appropriate fédéral court with the least possible delay and cost, if such should later be found necessary, resulting from an adverse decision by this [the state] court.”

The ruling of the state court was expressed in the following journal entry:

“Now on this 14th day of September 1937, the Court having considered appellant’s Pétition for Rehearing in the Nature of Judicial Review, doth overrule and deny same, to which appellant is allowed exception.”

At appellant’s request, the state court granted supersedeas and stayed its mandate pending appellant’s application for the allowance of an appeal to this Court and the détermination of the appeal if taken. An appeal was then allowed by the Chief Justice of the state court and the case is thus brought here.

“This Pétition for Rehearing . . . was not sufîicient to confer, upon the Suprême Court of Oklahoma, jurisdiction and power to treat the record then before it as a new cause involving a judicial review, and no record was before said court warranting said court to treat same as a judicial appeal, nor was the said record, nor its contents, treated as such by appellant, nor the court, and no judicial issues were raised in said legislative review. It is not the rule to permit the character of controversies to be completely changed, either in form or substance, after the opinion of a court has been handed down, and this is especially true when the same is sought to be accomplished, for the first time by a so-called pétition for rehearing in which the only subject mentioned was the request for a judicial review for the first time in the history of the case.”

The Attorney General, however, does not concédé that the State of Oklahoma “does not furnish an adéquate judicial review of questions such as are involved in this proposed appeal.” On the contrary, “the State asserts that appellant has, and has had, an adéquate method of relief.” When pressed upon the argument at bar to state what judicial remedy was open to appellant under the state constitution, the Attorney General referred to the power conferred upon the Suprême Court by the proviso in § 20 of Article IX to issue writs of mandamus and prohibition to the Commission. No decision of the state court as to the questions which would be open upon an application for such a writ has been brought to our attention.

The novelty of the procedure, and the lack of exposition in the brief ruling, leave us in doubt as to the true import of the déniai of the pétition for rehearing. In view of the serious questions which would be raised if it were determined that the State provides no means of obtaining a judicial review of an order of the Commission fixing rates, alleged to be confiscatory, in the case of a transportation or transmission company, we should not reach such a conclusion in the absence of a definite decision by the state court to that effect. Neither party before us advances a contention that there is such a lack of judicial remedy. Appellant says that judicial review is available through the procedure appellant has chosen and that the déniai of its pétition for rehearing was judicial action. The Attorney General asserts the contrary, contending that judicial remedy exists but must be sought in another manner. But—assuming that the State affords a judicial remedy—whether the state court has denied appellant’s pétition because an application for rehearing after what is conceded by both parties to be a legislative détermination was not the proper way under the state practice to invoke the judicial power, or has entertained the application and by its ruling has passed upon the controversy in a judicial capacity, we hâve no means of knowing.

We hâve repeatedly held that it is essential to the jurisdiction of this Court in reviewing a decision of a court of a State that it must appear affîrmatively from the record, not only that a fédéral question was presented for decision to the highest court of the State having jurisdiction but that its decision of the fédéral question was necessary to the détermination of the cause; that the fédéral question was actually decided or that the

206 Counsel for Parties.

judgment as rendered could not hâve been given without deciding it. De Saussure v. Gaillard, 127 U. S. 216, 234; Johnson n. Risk, 137 U. S. 300, 306, 307; Wood Mowing & Reaping Machine Co. v. Skinner, 139 U. S. 293, 295, 297; Whitney v. California, 274 U. S. 357, 360, 361; Lynch v. New York, 293 U. S. 52, 54.

Applying this rule, the motion to dismiss must be granted.

Mr. Justice Cardozo took no part in the considération and decision of this case.