# Opposition Brief — Illinois ex rel. Woods v. Tuohy

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1950
- **Citation:** 340 U.S. 830

## Text

| 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-

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~~

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;

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0309%3A2. Public record. Not legal advice.