Opposition Brief — Illinois ex rel. Woods v. Tuohy

| MAY 15 1950

jcHaRtes ELMORE CROPLEY

CLERK

IN THE

Supreme Court of the United States

Ocroser TERM, 1949.

THE PEOPLE OF THE STATE OF ILLINOIS ON

RELATION OF WILLIAM EDWARD WOODS,

Petitioner,

vs.

JOHN M. TUOHY, PRESIDING JUSTICE, GROVER C.

NIEMEYER AND MICHAEL FEINBERG, JUS-

TICES, CONSTITUTING THE FIRST DIVISION OF

THE APPELLATE COURT OF ILLINOIS FOR THE

FIRST DISTRICT.

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARL

Haroitp A. Smira,

Gerorce B. CHRISTENSEN,

Epwarp J. WEenpDRow,

Counsel for Respondents,

38 South Dearborn Street,

Chicago 3, Illinois.

INDEX.

Suspsect Inpex.

PAGE

UNITY II a wn wh wine ap alee a Ben 1-3

| er ort ey ae 4-6

pipe a ES gee gS ei engeg Oy a ies ae a ees 7-17

Summary of Argument:

I. The order of the Supreme Court of Illinois deny-

ing, without opinion, petitioner’s motion for leave

to file an original petition for mandamus against

the Justices of the Appellate Court of Illinois

is sustainable upon the basis of Illinois law, in-

dependent of any asserted federal questions, and

this honorable Court is therefore without juris-

Se SE bc eh cack oh vasecpiahbnesesrs 4,7

A. Even when mandamus is a proper remedy

under Illinois law the exercise of the Su-

preme Court’s original jurisdiction in man-

| damus is discretionary with that Court .... 4,9

B. Under Illinois law original mandamus action

in the Illinois Supreme Court cannot be used

to correct alleged erroneous judgments of

entereee. SRRREES hi ab as nen 4,10

While the Supreme Court of Illinois has

entertained original mandamus actions to

compel inferior tribunals to expunge orders

void for want of jurisdiction, the judgment

of the Appellate Court, even if erroneous,

was not void for lack of jurisdiction ...... 5,11

Under Illinois law the Illinois Supreme

Court did not have jurisdiction to review

the judgment of the Appellate Court on an

appeal from that Court since its judgment

SI I EE 0 ck POS oC CENTER Cone b Sa 5, 12

ii

E. Whether original mandamus in the Illinois

Supreme Court was an available remedy to

correct the alleged erroneous judgment of

the Appellate Court is solely a question of

EE BOE ac san ovo eben eencegess tha sida 6, 14

F. The refusal of the Supreme Court of Illinois

to entertain the original mandamus action

rests on adequate non-federal grounds and

this honorable Court is therefore without

jurisdiction to review it ..............+--- 6, 14

TABLE oF CASEs.

Allen v. Arguimbau, 198 U.S. 149, 154 ............-- 6, 15

Baker vi Brown, 378: 10. B06 2... oiic csc cecscevs... HY

Buck v. County of Hamilton, 99 Ill. 507 ............-- 6, 13

Coreoran v. City of Chicago, 373 Ill. 567, 569 ........ 6, 13

Cowen v. Harding Hotel Co., 396 Ill. 477, 479 ........ 5, 13

Cuyahoga Power Co. v. Northern Realty Co., 244 U.S.

pO ee eee eet ee eee ee ee ol eee 6, 1)

Dowdall v. Hutchens, 347 Ill. 326, 327 .............. 5, 12

Fanning v. Rogerson, 142 Ill. 478 ............00 000s 5, 13

John v. Paullin, 231 U. S. 583, 585 ...... 0... eee eee 6, 14

Knapp, Stout & Co. v. Ross, 181 Ill. 392, 895 ........ 6, 18

Lynch v. New York, 293 U. S. 52, 54 ......-0 eee ees 6, 15

McClung v. Silliman, 6 Wheat. 598, 603 ...........55. 6

Monroe v. Collins, 393 Ill. 553, 557 «0.6... eee eee ee 4, 10

Morris v. Beatty, 390 Ill. 568, 574 .. 0.6... eee eee eee 5, 18

Murch v. Epley, 385 Ill. 138, 145 ...............05. 5, 12

O’Brien v. People, 216 Ill. 354, 364 ...........6.05. 5, 12

People v. Board of Education, 275 Ill. 195, 196 ...... 5, 18

People v. Board of Education, 275 Ill. 195, 196 ...... 6, 13

SEE EPS SNP, SP ae ee

Betsy »

Tey EMER ee ena g. STM WIAA PRETO reese ——

can

iii

People v. Board of Education, 197 Ill. 43 .......... 4,10

People v. City of Chicago, 193 Ill. 507 .............. 4, 10

pee We Ce, BA BD on onc in seve av vancccan 5, 10

People v. Donoghue, 377 Ill. 122 ..............0000. 4,10

ee We Meee, GOP Took vec ce cc ic eccuanss 4,10

weegee V,. Peet, Cre OM. 2G... ec ave ncedecs 5, 10

People v. Graber, 394 Til. 362 .....................5,11

People v. Graber, 394 Ill. 351, 368 ................. 4,9

ee a ee 5, 11

ee 4,10

oe ae ee 4,9

oo ee 5,12

Peepee v. Holmes, 312 Til. 964 ..........-...cecuce 4, 10

People v. Keeney, 399 Ill. 611 .................... 5,11

People v. Leavens, 288 Ill. 447, 448 ................ 5, 12

People v. Lewe, 383 Il. 549 .............cccccccece. 5, 10

People v. Shurtleff, 353 Ill. 248, 259 ................ 5, 10

Riley v. Lamson, 268 Til. 258 .............0.0cc0cecee 6, 13

Streeter v. Humrichouse, 357 Ill. 234, 288 .......... 6, 13

co 6,15

Wolkau v. Wolkau, 280 Tl. 298, 299 ................ 6, 13

Woods v. Nierstheimer, 328 U. S. 211 .............. 6, 16

ConstiTuTIONAL CITATION.

Re ee ee 4,9

Statutes anp Court Rutes Crrep.

Rule 46, Supreme Court of Illinois (Ch. 110, § 254.46

a oi ss a alubcd 5 dc mae én aie'es 4,9

Ee ee

IN THE

Supreme Court of the United States

Ocroser TERM, 1949.

No. 738.

THE PEOPLE OF THE STATE OF ILLINOIS ON

RELATION OF WILLIAM EDWARD WOODS,

Petitioner,

vs.

JOHN M. TUOHY, PRESIDING JUSTICE, GROVER C.

NIEMEYER AND MICHAEL FEINBERG, JUS-

TICES, CONSTITUTING THE FIRST DIVISION

OF THE APPELLATE COURT OF ILLINOIS FOR

THE FIRST DISTRICT,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI.

_ May Ir Piease tHe Court:

Petitioner seeks to have this Court review the refusal

of the Supreme Court of Illinois to entertain an original

_ mandamus action against the Justices of the Appellate

‘ Court of Illinois to compel them to reverse their action of

_ awarding a railroad company a new trial in an action by

_ petitioner under the Federal Employers’ Liability Act,

the Boiler Inspection Act, and the Safety Appliance Act.

AP IT PARI TERR Mf i reer Sr ywosar tots

2

Under the law of Illinois the order of the Appellate Court

awarding a new trial was not a final appealable order and

petitioner therefore had no appeal to the Supreme Court

of Illinois. In an effort to avoid a new trial and to cir-

cumvent the non-appealable character of the Appellate

Court new trial order, petitioner attempted to utilize

mandamus as a means of indirect appeal. The Supreme

Court of Illinois denied his motion for leave to file a man-

damus petition without opinion. That order is plainly

sustainable on the basis of Illinois law independent of the ©

federal questions asserted.

The present petition for certiorari is not based on the

record which was before the Appellate Court on the

original appeal but consists of allegations of counsel in

the attempted mandamus proceeding. These allegations

set up only part of the Appellate Court record and the

petition contains numerous incorrect and unsupportable fF

assertions of both fact and law. For example, it is asserted |

that the railroad ‘‘in effect admitted’’ that a car drifted |

because of an ‘‘inefficient handbrake’’ (Pet. p. 4; to the

same effect, pp. 8, 12, 13, 27); that, although petitioner |

was awarded another trial, he has ‘‘finally and irrevocably |

been deprived of the benefit of the Boiler Inspection Act” >

(Pet. pp. 4, 20) and that the Appellate Court has ‘‘for all |

time’’ deprived him of his rights under the Safety Appli- |

ance Act (Pet. p. 13). Each and all of these we deny to}

be correct.

However, regardless of the merit or lack of merit,

either in petitioner’s factual assertions or in his conten- ©

tions as to alleged errors by the Appellate Court of Illinois, |

this honorable Court lacks jurisdiction to review the action

of the Supreme Court in denying leave to file an original |

mandamus action against the Justices of the Appellate

Court. Under Illinois law original mandamus in the

3

Supreme Court cannot be used as a means of indirect

appeal from a non-appealable order of the Appellate

Court. Therefore, while the attempted mandamus action

in the Supreme Court of Illinois presented asserted federal

questions, the refusal of that Court to entertain the action

is sustainable on grounds independent of a determination

of the federal questions.

POINTS AND AUTHORITIES.

__————

5.

THE ORDER OF THE SUPREME COURT OF ILLINOIS DENYING

WITHOUT OPINION, PETITIONER’S MOTION FOR LEAVE T

FILE AN ORIGINAL PETITION FOR MANDAMUS AGAINS

THE JUSTICES OF THE APPELLATE COURT OF ILLINOIS |

SUSTAINABLE UPON THE BASIS OF ILLINOIS LAW, IND!

PENDENT OF ANY ASSERTED FEDERAL QUESTIONS, AN.

THIS HONORABLE COURT IS THEREFORE WITHOUT JURII

DICTION TO REVIEW IT.

A.

Even When Mandamus Is a Proper Remedy Under Illino

Law the Exercise of the Supreme Court’s Original Juri:

diction in Mandamus Is Discretionary With That Cour

Article VI § 2, Ill. Const. 1870.

Rule 46, Supreme Court of Illinois (Ch. 11

§ 254.46, Ill. Rev. Stats., 1949).

People v. Haas, 239 Il. 320.

People v. Graber, 394 Ill. 351, 368.

People v. Board of Education, 197 Ill. 43.

People v. City of Chicago, 193 Ml. 507.

Monroe v. Collins, 393 Ill. 553, 557.

B.

Under Illinois Law Original Mandamus Actions In the I

nois Supreme Court Cannot Be Used to Correct Alleg

Erroneous Judgments of Inferior Tribunals.

People v. Holmes, 312 Ill. 284.

People v. Ehler, 353 Il. 599.

People v. Donoghue,.377 Ill. 122.

People v. Green, 355 Ill. 468.

ERG AI2 OES RRR SIO Si meee ea Rea ascents

ER ITER Aa Me yo nae Orornnts al

RE ABI ACH RUS AC ea e8 nt mest ney 5

SCN nO IR ma ET

5

People v. Lewe, 383 Ill. 549.

People v. Fisher, 372 Ill. 146.

People v. Cook, 311 Ill. 429.

People v. Shurtleff, 353 Ill. 248, 259.

People v. Graber, 394 Ill. 362.

People v. Graber, 397 Ill. 518.

People v. Keeney, 399 Ill. 611.

C.

While the Supreme Court of Illinois Has Entertained Orig-

inal Mandamus Actions to Compel Inferior Tribunals to

Expunge Orders Void for Want of Jurisdiction, the

Judgment of the Appellate Court, Even if Erroneous, Was

Not Void for Lack of Jurisdiction.

Ch. 37 § 32, Ill. Rev. Stats., 1949.

People v. ‘Leavens, 288 Ill. 447, 448.

People v. Hill, 344 Ill. 246.

O’Brien v. People, 216 Ill. 354, 364.

Baker v. Brown, 372 Ill. 336.

Murch v. Epley, 385 Ill. 138, 149.

D.

Under Illinois Law the Illinois Supreme Court Did Not

Have Jurisdiction to Review the Judgment of the Ap-

pellate Court on an Appeal From That Court Since Its

Judgment Was Not Final.

Ch. 110 § 199 (2) (b), Ill. Rev. Stats., 1949.

Dowdall v. Hutchens, 347 Ill. 326, 327.

Cowen v. Harding Hotel Co., 396 Ill. 477, 479.

Fanning v. Rogerson, 142 Ill. 478.

Morris v. Beatty, 390 Ill. 568, 574.

Cowen v. Harding Hotel Co., 396 Ill. 477, 479.

People v. Board of Education, 275 Ill. 195, 196.

6

Buck v. County of Hamilton, 99 Il. 507.

Knapp, Stout ¢ Co. v. Ross, 181 Ill. 392, 399.

Wolkau v. Wolkau, 280 Ill. 298, 299.

Streeter v. Humrichouse, 357 Ill. 234, 238.

People v. Board of Education, 275 Ill. 195, 196.

Riley v. Lamson, 253 Ill. 258.

Corcoran v. City of Chicago, 373 Ill. 567, 569.

E.

Whether Original Mandamus in the Illinois Supreme Court

Was an Available Remedy to Correct the Alleged Er.

roneous Judgment of the Appellate Court Is Solely a

Question of State Law.

McClung v. Silliman, 6 Wheat. 598, 603.

John v. Paullin, 231 U. S. 583, 585.

F.

The Refusal of the Supreme Court of Illinois to Entertain

the Original Mandamus Action Rests on Adequate Non-

Federal Grounds and This Honorable Court Is There-

fore Without Jurisdiction to Review It.

Lynch v. New York, 293 U.S. 52, 54.

Allen v. Arguimbau, 198 U. S. 149, 154.

Cuyahoga Power Co. v. Northern Realty Co., 24

U. S. 300, 304.

White v. Ragen, 324 U. S. 760.

Woods v. Nierstheimer, 328 U.S. 211.

at POR, |

. . Te

> x ts COD ee, Es eS , may . .

- sa on ee

ARGUMENT.

I.

THE ORDER OF THE SUPREME COURT OF ILLINOIS DENYING,

WITHOUT OPINION, PETITIONER’S MOTION FOR LEAVE TO

FILE AN ORIGINAL PETITION FOR MANDAMUS AGAINST

THE JUSTICES OF THE APPELLATE COURT OF ILLINOIS IS

SUSTAINABLE UPON THE BASIS OF ILLINOIS LAW, INDE-

PENDENT OF ANY ASSERTED FEDERAL QUESTIONS, AND

THIS HONORABLE COURT IS THEREFORE WITHOUT JURIS-

DICTION TO REVIEW IT.

Petitioner’s motion in the Supreme Court of Illinois for

leave to file a petition for writ of mandamus against the

Justices of the Appellate Court was accompanied by the

proposed petition itself (R. 3-103). The proposed petition

consisted of: (1) allegations of counsel setting forth

selected portions of the trial record carried on appeal in

the Appellate Court of Illinois in an action entitled,

“William Edward Woods, Appellee, v. The New York,

Chicago and St. Louis Railroad Company, a corporation’’;

and (2) a record of the Appellate Court proceedings in-

cluding therein the opinion rendered by respondent Appel-

late Court judges (R. 11-15) and their order of reversal

of a judgment in the original plaintiff’s favor and remand-

ment of the case to the Superior Court of Cook County,

Illinois, for a new trial (R. 26).

The opinion shows that the petitioner as the original

plaintiff had recovered a judgment for $40,000 against

The New York, Chicago and St. Louis Railroad Company

in the Superior Court of Cook County on a jury verdict

in an action brought under the Federal Employers’ Lia-

bility Act (45 U. S. C. §§ 51-59), Federal Safety Appliance

Act (45 U. S. C. $11) and the Federal Boiler Inspection

8

Act (45 U. S. C. § 23). On appeal the railroad assigned a

number of errors, the principal contentions being that the

Trial Court ‘‘erred in giving instructions permitting re-

covery under the Safety Appliance and Boiler Inspection

Acts because there is no evidence of a violation of either,

and, that the damages awarded are excessive’” (R. 12).

Respondents, as Justices of the Appellate Court, found it

necessary to pass only on the first mentioned contention.

They concluded that there was no evidence tending to

prove a violation of the two safety acts mentioned; that

the Trial Court accordingly erred in giving instructions

permitting recovery under them; that under these acts

contributory negligence cannot be asserted either as 4

defense or in mitigation of damages, but that it must be

considered in reduction of damages under the Federal

Employers’ Liability Act; that ‘‘the damages awarded

[$40,000] are large afd it may be that the jury, relying on

the instructions relating to the Safety Appliance and

Boiler Inspection Acts, failed to consider the question of

contributory negligence in making the award’”’ (R. 14).

The opinion of respondents as Justices of the Appellate

Court of Illinois reflects respondents’ interpretation of

the law applicable to the record that was before it, and

we submit that it is eminently correct. But it would serve

no useful purpose to write a brief justifying that opinion

or undertaking to answer counsel’s intemperate criti:

cism of it (Pet. p. 28) since the judgment of new trial

pursuant thereto is not reviewable by this Court in the

manner attempted. The action of the Supreme Court 0

Illinois in denying petitioner’s motion for leave to file 4

mandamus petition against respondents and thus by it

direction secure a review of respondents’ interlocutor

order on a partial and incomplete record is sustainablt

on the basis of well settled Illinois law.

9

A.

Even When Mandamus Is a Proper Remedy Under Illinois

Law the Exercise of the Supreme Court’s Original Juris-

diction in Mandamus Is Discretionary With That Court.

The original mandamus jurisdiction of the Supreme

Court of Illinois is derived from Article VI §2 of the

Illinois Constitution of 1870, which provides:

‘‘The Supreme Court shall consist of seven judges,

and shall have original jurisdiction in cases relating

to the revenue, in mandamus and habeas corpus and

appellate jurisdiction in all other cases.’’

The institution of original mandamus proceedings in

the Supreme Court is regulated by Rule 46 of that Court

which provides:

‘‘Mandamus proceedings in the Supreme Court

shall be instituted by filing a motion, supported by

suggestions for leave to file a petition seeking a writ

of mandamus. Such motion shali be heard ex parte,

and if it be allowed, summons shall issue, returnable

within such time as the Court shall direct in the order

permitting the filing of the petition.’’ (Ill. Bev.

Stats., 1949, ch. 110 § 254.46.) See, also, People v.

Haas, 239 Ill. 320.

Even where mandamus is an available remedy it is firmly

settled in Illinois that the exercise by the Supreme Court

of its original jurisdiction in mandamus is discretionary.

People v. Graber, 394 Ill. 362, 368. That Court has held

that the constitutional provision above quoted only requires

_ the Court to take original jurisdiction in such matters as

~ pertain to the public interest, either on behalf of the State

or some officer of the State, or in such cases of emergency

as the Court, exercising a sound legal discretion deems

proper to entertain; that it will not grant leave to file a

petition where the matter is of local interest only. People

St ge a

ve

10

v. Board of Education, 197 Ill. 48; People v. City of Chi-

cago, 193 Ill. 507. In Monroe v. Collins, 393 Ill. 553, 557,

the Court expounded at some length on some of the fac-

tors which induce it to deny leave to file an original action

in mandamus, but refused ‘‘to specify all the grounds on

which a leave to file may be denied.’’ (p. 557.)

B.

Under Illinois Law Original Mandamus Actions In the IIli-

nois Supreme Court Cannot Be Used to Correct Alleged

Erroneous Judgments of Inferior Tribunals.

In the instant case the Court gave no reasons for deny-

ing leave to file the petition. But whatever the reason or

reasons that induced the Court to deny leave, its refusal

is sustainable on the basis of Illinois law, independent of

any asserted federal questions. The procedure attempted

by petitioner to secure an indirect review of the Appellate

Court’s interlocutory judgment is not permissible under

Illinois law.

It has been held repeatedly that mandamus cannot be

used to control judicial discretion or to review the action

of a tribunal in any matter involving the examination of

evidence and the decision of questions of law and fact;

People v. Holmes, 312 Ill. 284; that it does not lie to direct

or modify the exercise of judicial discretion by a Court.

People v. Ehler, 353 Ill. 595; People v. Donoghue, 377 Ill.

122; that, where a Court has jurisdiction of the proceed-

ings and of the parties, its judgment is not void, and

whether it was right or wrong cannot be inquired into by

mandamus. People v. Green, 355 Ill. 468; People v. Lewe,

383 Ill. 549; People v. Fisher, 372 Ill. 146; People v. Cook,

311 Ill. 429. As said by that Court in People v. Shurtleff,

353 Ill. 248, 259:

‘*It is not the office of the writ of mandamus to re-

STR Vee STORET TC ae STORMS TAM eR PRIN: -

Lid one aN A RES ESE AE

og

11

view the orders, judgments or decrees of courts for

error in their rendition or to correct, direct or control

the action of a judge in any manner which he had

jurisdiction to decide.’’

As part of the record in this Court petitioner has in-

cluded his Illinois Supreme Court brief in support of the

petition for leave to file a mandamus action (R. 51-92). It

appears therefrom that his first proposition was:

‘This [Illinois Supreme] Court has power to order

the judgment of the Appellate Court expunged and

the judgment of the Superior Court of Cook County

affirmed by writ of mandamus.’

In support of that contention a number of decisions were

cited, but examination of them reveals that they were all

cases where the Illinois Supreme Court entertained an

original petition for mandamus to compel a judge of an

inferior court to expunge an order which was void for

want of jurisdiction to enter it. (People v. Graber, 394

Ill. 362; People v. Graber, 397 Ill. 518: People v. Keeney,

399 Ill. 611.)

The legal conclusion in the petition in the Illinois Su-

preme Court that the judgment of the Appellate Court

was ‘‘void’’ (R. 28) and the same assertion made in the

brief is so utterly frivolous as to raise doubts as to whether

it was made in good faith.

C.

While the Supreme Court of Illinois Has Entertained Orig-

inal Mandamus Actions to Compel Inferior Tribunals to

Expunge Orders Void for Want of J urisdiction, the

Judgment of the Appellate Court, Even if Erroneous, Was

Not Void for Lack of Jurisdiction.

That the original appeal was properly taken from the

Superior Court of Cook County to the Appellate Court and

that that Court properly had jurisdiction of the case is

SOS my RES MUR PASSES ETN Py IRE HIE MBO ROE en r

12

not contested. Indeed, no contention was made in the mo-

tion to the Illinois Supreme Court that the appeal was

not properly taken to the Appellate Court; the assertion

was that the judgment of the Appellate Court was so er-

roneous as to be ‘‘void’’ (Ill. Sup. Ct. br., pp. 9-11).

However, it is settled law in Illinois that ‘‘jurisdiction

of the subject matter is authority to hear and decide a

cause and does not depend on the correctness of the deci-

sion entered.’’ People v. Leavens, 288 Ill. 447, 448; People

v. Hill, 344 Ill. 246. As said by the Court in O’Brien v.

People, 216 Ill. 354, 364; and Baker v. Brown, 372 Ill. 336:

‘‘ Jurisdiction does not depend upon the rightfulness of

the decision. It is not lost because of an erroneous de-

cision, however erroneous that decision may be.’’ Or, as

put in Murch v. Epley, 385 Ill. 138, 145, ‘‘jurisdiction to

hear and decide a cause necessarily includes the right to

render an erroneous decision.’’ The fact that the Ap-

pellate Court actually had jurisdiction is recognized by the

prayer of the petition which was that respondents should

be commanded to affirm the judgment of the Superior

Court (R. 30).

D.

Under Illinois Law the Illinois Supreme Court Did Not

Have Jurisdiction to Review the Judgment of the Ap-

pellate Court on an Appeal From That Court Since Its

Judgment Was Not Final.

The Supreme Court of Illinois did not have jurisdiction

to review the judgment of the Appellate Court on a direct

appeal since the Appellate Court judgment was not final.

Under the law of Illinois a review of the judgments, orders

and decrees of the Appellate Court by the Supreme Court

can only be had where any such judgment, order or de-

cree of the Appellate Court is a final order. (Ch. 110,

§ 199 (2)(b), Ill. Rev. Stats., 1949); Dowdall v. Hutchens,

OMEN REO RNLACIE aac nase Min IRS E MIRE Egat oe

Pe IS ee.

ee

13

347 Ill. 326, 327; Cowen v. Harding Hotel Co., 396 Ill. 477,

479. Judgments, orders and decrees of the Appellate Court

are final only when they are such as to put an end to the

litigation by determining the rights of the parties therein.

Fanning v. Rogerson, 142 Ill. 478; Morris v. Beatty, 390

Ill. 568, 574; Cowen v. Harding Hotel Co., 396 Il. 477, 479.

In other words, the judgment, order or decree must finally

dispose of the merits of the case in such manner that no

further proceedings can be had in the lower court except

to carry into effect the mandate of the Appellate Court.

People v. Board of Education, 275 Til. 195, 196. Accord-

ingly, it has been held in numerous cases that a judgment

of the Appellate Court reversing the judgment of the

Trial Court, and remanding the cause for such other and

further proceedings as to law and justice shall appertain,

is not a final judgment from which an appeal will lie to

the Supreme Court. Buck v. County of Hamilion, 99 Ill.

507; Knapp, Stout & Co. v. Ross, 181 Ill. 392, 395; Wolkau

v. Wolkau, 280 Ill. 298, 299; Streeter v. Humrichhouse, 357

Ill. 234, 238; People v. Board of Education, 275 Il. 195, 196.

Similarly, a judgment of the Appellate Court reversing

and remanding a cause for a new trial is not appealable

from the Appellate Court to the Supreme Court. Riley v.

Lamson, 253 Ill. 258; Corcoran v. City of Chicago, 373 Ml.

567, 569.

It is obvious that if the Supreme Court of Illinois should

permit original mandamus actions to be instituted in that

Court against the Justices of the various Appellate Courts

to compel them to expunge alleged erroneous interlocutory

and non-appealable orders, it would be flooded with such

petitions and the statutory limitation that its power of

review be exercised only as to final orders would be evaded.

The mere fact that the judgment rendered by the Appel-

late Court was in a case in which petitioner asserted fed-

Sa cola ie te ee

~~

Bittowiseens re MR ee Seaebent ee

Daday ate?

mas res |

;

: q

eral rights could not serve to enlarge the jurisdiction of

the Illinois Supreme Court. And that Court is the final

arbiter of the extent of its jurisdiction and the availability

of original inandamus as a remedy.

EK.

Whether Original Mandamus in the Illinois Supreme Court

Was an Available Remedy to Correct the Alleged Er-

roneous Judgment of the Appellate Court Is Solely a

Question of State Law.

It follows from what has been said above that the order

of the Supreme Court of Illinois is sustainable on purely

State grounds. This Court said in John v. Paullin, 231

U. S. 583, 585:

‘‘Without any doubt it rests with each State to

prescribe the jurisdiction of its Appellate Courts, the

mode and time of invoking that jurisdiction, and the

rules of practice to be applied in its exercise; and the

state law and practice in this regard are no less ap-

plicable when Federal rights are in controversy than

when the case turns entirely upon questions of local

and general law.’’

F.

The Refusal of the Supreme Court of Illinois to Entertain

the Original Mandamus Action Rests on Adequate Non-

Federal Grounds and This Honorable Court Is There-

fore Without Jurisdiction to Review It.

The present petition for certiorari does not call for any

extended review of the authorities holding that a petitioner

must show that a decision of a State Court could not have

been made without deciding a federal question. This Court

has held that where the Supreme Court of Illinois has re-

fused, without opinion, to entertain an original action

15

(habeas corpus) and this Court was unable to say that

the refusal did not rest on an adequate non-federal ground,

the writ of certiorari must be denied. White v. Ragen, 324

U. 8S. 760. In the case at bar Supreme Court has refused,

without opinion, to entertain an original mandamus action

and numerous and adequate non-federal grounds for such

refusal exist. White v. Ragen, of course, merely follows

the general rule of Lynch v. New York, 293 U. S. 52, 54.

In that case this Court said (p. 54):

“It is essential to the jurisdiction of this Court in

reviewing a decision of a Court of a State that it must

appear affirmatively from the record, not only that a

federal question was presented for decision to the

highest Court of the State having jurisdiction but that

its decision of the federal question was necessary to

the determination of the cause, and that it was actually

decided or that the judgment as rendered could not

have been given without deciding it. * * * Where

the judgment of a state court rests on two grounds,

one involving a federal question and the other not,

or if it does not appear upon which of two grounds

the judgment was based, and the ground independent

of a federal question is sufficient in itself to sustain

it, this Court will not take jurisdiction. * * *”

In Allen v. Arguimbau, 198 U. S. 149, 154, cited in the

foregoing case, this Court said:

‘‘The Supreme Court of Florida gave no opinion,

and, therefore, we are left to conjecture as to the

grounds on which the pleas were held to be bad, but if

the judgment rested on two grounds, one involving

a federal question and the other not, or if it does not

appear on which of two grounds the judgment was

based, and the ground independent of a federal ques-

tion is sufficient in itself to sustain it, this Court will

not take jurisdiction.’’

In Cuyahoga Power Co. v. Northern Realty Co., 244

U.S. 300, 304, also cited in the Lynch case, this Court said:

‘“* * * the case presents the single question of

ek oe

Sans el;

“

ae DSL UC

16

what principle is to be applied where from an ab-

sence of an opinion expressed by the Court below it

is impossible to say whether its judgment was rested

upon State questions adequate to sustain it inde-

pendent of the federal questions or upon such federal

questions, both being in the case. But the rule which

controls such a situation has long prevailed and was

clearly expressed in Allen v. Arguimbau, 198 U. S. 149,

iliac iat

And in Woods v. Nierstheimer, 328 U. 8. 211, this Court

held it was without power to review a judgment of an IIli-

nois nisi Prius court denying a petition for habeas corpus

where the denial of the petition could have rested, and

probably did rest, on the grounds that habeas corpus was

not a proper remedy in the ease under Illinois law.

Petitioner’s Authorities Distinguished.

Petitioner has cited the following cases as sustaining the

jurisdiction of this Court: Brown v. Western Railway

of Alabama, 338 U. S. 294; Urie v. Thompson, 337 U. S.

163; United States Alkali Export Association v. United

States, 325 U. S. 196; House v. Mayo, 324 U. S. 42; Ex

Parte Republic of Peru, 318 U. S. 578 (Pet. p. 7). None

of the cases has the remotest relevancy.

The Urie and Brown cases are cases where this Court

reviewed on certiorari final judgments of State Courts in

denying recovery under the Boiler Inspection Act in one

case (Urie) and the Federal Employers’ Liability Act in

the other (Brown). Neither case presented the question

as to whether the judgment of the State Court was sus-

tainable on an independent State ground.

The other three cases cited concern this Court’s power

to issue various writs to lower Federal Courts under for-

17

mer Section 262 (now Title 28 § 1651) of the Judicial Code

and have nothing to do with Courts outside the federal

system.

Because the order of the Supreme Court of Illinois is

sustainable on adequate and independent non-federal

grounds, the petition for certiorari should be dismissed.

Respectfully submitted,

Haroitp A. Smits,

Grorce B. CHRISTENSEN,

Epwarp J. WENprRow,

| Counsel for John M. Tuohy,

Grover C. Niemeyer and Mi-

chael Feinberg, Justices of the

First Division of the Appel-

late Court of Illinois for the

First District.

May 3, 1950.

—— WEP ie gree

™ OPEL ETS OL LOE LES ORNS Poy PSE NBD Kg PEE