A direction in the mandate that the court below proceed in
accordance with the opinion operates to make the opinion a part of
the mandate as completely as though set out at length.
On appeal from a mere interlocutory order, the circuit court of
appeals may direct the bill to be dismissed if it appears that the
complainant is not entitled to maintain his suit.
Where the circuit court of appeals has authority to make a
ruling which finally disposes of the case, and the defeated party
does not successfully prosecute either the certification of the
question of jurisdiction to this Court or writ of certiorari from
this Court, the judgment of the circuit court of appeals remains
conclusive upon the parties and binding upon the circuit court and
any other court to which the case can be taken.
Brown v. Alton
Water Company, 222 U. S. 325.
The Metropolitan Water Company, a corporation of the State of
West Virginia, owned land which the Kaw Valley Drainage District, a
corporation of the State of Kansas, desired to acquire for public
purposes.
Under the provisions of the act regulating the condemnation of
land, the defendant in error presented to the
Page 223 U. S. 520
judge of the District Court of Wyandotte County a petition for
the appointment of commissioners to value the property of the
complainant, necessary to be condemned for drainage purposes. The
water company immediately filed with the judge a petition to remove
the case to the United States circuit court. After argument this
petition was denied and commissioners were appointed. The
complainant at once filed, in the United States circuit court, its
bill in aid of the removal proceeding, praying that the defendant
and the commissioners be enjoined from further prosecuting the
condemnation proceedings. Among other things it alleged that the
act violated the Fourteenth Amendment because it deprived the
complainant of his property before judicial ascertainment of its
value and before payment in that, when the report of the
commissioners was filed with the register of deeds, the defendant,
on paying the amount of the award, could take possession of the
property, and, though an appeal to the district court was
permitted, the defendant could retain possession in the meantime on
giving bond to pay the amount of the verdict.
To this bill the defendant demurred, and, after hearing, a
temporary injunction was granted restraining the defendant from
proceeding further to condemn the property of the complainant. This
order was reversed by the circuit court of appeals, which, in an
elaborate opinion, held that the statute was valid and that, until
an appeal was taken from the award of the commissioners, the
proceeding was in the nature of an inquest to determine damages,
and not a "suit" within the meaning of the removal statute, and
therefore not removable into the federal court thereunder (186 F.
315).
The mandate directed
"that the order granting the injunction be reversed, and that
the cause be, and the same is hereby, remanded to the said circuit
court, with directions for proceeding in accordance with the
opinion
Page 223 U. S. 521
of this Court."
On the return of the mandate, the circuit court sustained the
demurrer, and, in allowing the appeal to this Court, certified that
it dismissed the bill solely on the ground of the want of
jurisdiction.
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court.
While in form this is an appeal from the decree of the Circuit
Court for the District of Kansas, it is really an effort to review
a decision of the Circuit Court of Appeals of the Eighth Circuit.
From the statement of facts, it is manifest that, in dismissing the
bill, the circuit court merely applied the ruling that the petition
for the appointment of commissioners was not the institution of a
"suit" within the meaning of the removal act. If there was no suit
which could be removed, it was not possible to maintain a bill in
aid of removal proceedings thus decided to be void. When,
therefore, the circuit court followed the opinion to its logical
conclusion and dismissed the bill, it did only what it was bound to
do. In obeying these directions, it committed no error, and its
decree cannot be reversed even if it should appear that the court
of appeals erred in holding that the condemnation proceedings did
not amount to a suit within the meaning of the removal acts. The
complainant had another remedy to test the correctness of that
decision. It was open to it to ask the circuit court of appeals to
certify the question of jurisdiction to this Court. If that motion
had been overruled, the complainant had the further right to apply
for a writ of certiorari. If the writ
Page 223 U. S. 522
had been granted, the question of jurisdiction could have been
tested here. If the writ of certiorari had been then denied, the
complainant would have remained bound by the decision of the
circuit court of appeals as the law of the case, which could be
changed neither by the circuit court directly nor indirectly by the
reversal of a decree properly entered in pursuance of the mandate
of the appellate court.
Aspen Min. & S. Co. v.
Billings, 150 U. S.
37.
The case here is not like
Globe Newspaper Co. v.
Walker, 210 U. S. 361,
where the judgment of the circuit court that the declaration was
"insufficient in law" (130 F. 593) was reversed by the circuit
court of appeals, and remanded "for further proceedings according
to law" (140 F. 305). At the trial, there was a verdict for the
plaintiff. But during that hearing, the defendant moved that the
action be dismissed because the court was without jurisdiction. It
was held that from this decision, an appeal could be taken under
§ 5 of the Act of 1891.
The case is ruled by
Brown v. Alton Water Co.,
222 U. S. 325,
although the facts there were the converse of those shown by the
present record. There, the circuit court dismissed the bill for
want of jurisdiction. That decree was reversed by the court of
appeals. After the filing of the mandate in the circuit court, a
final decree was entered in favor of the complainant. Thereupon the
case was brought here, the judge certifying that the defendants had
challenged the jurisdiction of the court as a federal court to hear
and determine the cause. That appeal was dismissed on the ground
that the circuit court was bound to follow the decision of the
circuit court of appeals, it being said that
"if error was committed in so doing, it is not for the circuit
court to pass upon that question. The circuit court could not do
otherwise than carry out the mandate from the court of appeals, and
could
Page 223 U. S. 523
not refuse to do so on the ground of want of jurisdiction, in
itself, or in the appellate court."
It is urged that the decision in the
Alton case does
not apply, because in it there had been a final decree dismissing
the bill for want of jurisdiction, while in the present case the
ruling of the circuit court of appeals was made on a review of an
interlocutory order, from which, it is said, no writ of certiorari
could issue. It is argued that the complainant was obliged to wait
until a final decree was entered, and then, for the first time its
right of appeal became perfect, under § 5 of the Act of 1891
(26 Stat. 827), permitting cases to be brought to this Court on
questions of jurisdiction.
We need not consider when a writ of certiorari may issue to
review decisions on interlocutory orders by the circuit court of
appeals, for, in any event, its judgment in the present case must
be treated as equivalent to a direction to enter a final decree
against the complainant for want of jurisdiction. It is true that
the mandate did not in terms make such an order, yet its direction
that the circuit court "should proceed in accordance with the
opinion" operated to make the opinion a part of the mandate as
completely as though it had been set out at length. Under such a
mandate, nothing was left for the circuit court to do except to
dismiss the bill. It was within the power of the circuit court of
appeals to make such an order on an appeal from an interlocutory
order. For while at one time there was some difference in the
rulings on that subject, it was finally settled by
Smith v.
Vulcan Iron Works, 165 U. S. 518,
that, on appeal from a mere interlocutory order, the circuit court
of appeals might direct the bill to be dismissed if it appeared
that the complainant was not entitled to maintain its suit.
In
re Tampa Suburban R. Co., 168 U. S. 583;
Ex Parte National Enameling Co., 201
U. S. 162;
Bissell Co. v. Goshen Sweeper Co.,
72 F. 545 556-560.
Page 223 U. S. 524
It follows, therefore, that the circuit court of appeals had
authority to make a ruling which finally disposed of the case, that
the complainant then had the right to ask it to certify the
question of jurisdiction, and, if that was refused, might have
applied to this Court for a writ of certiorari. Having failed
successfully to prosecute these remedies, the judgment of the
circuit court of appeals remained conclusive upon the parties, and
binding upon the circuit court and every other court to which the
case could by any possibility be taken. For these reasons, the
question as to whether there was a suit which was removable cannot
be considered, and the appeal must be dismissed.
