The question for decision is whether the Circuit Court of Appeals below rightly issued its writ of mandamus to the district court to correct that court's alleged error in striking respondents' pleas in abatement to a criminal indictment.
An indictment returned in June, 1941, by the grand jury sitting in the district court for Southern California, charged respondents and others with conspiracy to fix the price of evaporated milk sold in interstate commerce in violation of §§ 1 and 3 of the Sherman Act, 15 U.S.C. §§ 1, 3, 15 U.S.C.A. §§ 1, 3. The indictment recited that the grand jury which returned it had been impaneled at the November, 1940, term of court; that it had 'begun but not finished during said November 1940 Term of said Court, an investigation of the matters charged in this indictment'; and that by order of the court the grand jury had continued to sit during the March, 1941, term 'for the sole purpose of finishing investigations begun but not completed during said November Term.'
In September, 1941, respondents filed pleas in abatement, asking that the indictment be quashed for want of jurisdiction of the court, on averments that the minutes of the grand jury for its meeting of February 28, 1941, disclosed that no investigation of any matter mentioned in the indictment had been 'begun' by the grand jury within the meaning of § 284 of the Judicial Code, 28 U.S.C. § 421, 28 U.S.C.A. § 421, during the November, 1940, term of court, which expired March 2, 1941.
The Government filed replications denying generally all the allegations of the pleas, and the issues thus raised were set for trial before a jury. Thereafter leave was granted to the Government to withdraw its replications and to file demurrers to the pleas, and motions to strike them because insufficient in law, because they failed to state specific facts with sufficient certainty, and because they alleged facts which could not be within the pleaders' knowledge. After argument the district court sustained the demurrers and granted the motions. Respondents thereupon instituted the present proceeding by their petition to the Circuit Court of Appeals for the Ninth Circuit, praying that a writ of mandamus issue directing petitioners-the Honorable Michael J. Roche, district judge, and the district court-to reinstate the pleas in abatement and the Government's replications, and to set the issues raised by the pleas and replications for jury trial.
On the petition for the writ and the Government's return, the court of appeals ordered the writ to issue. 9 Cir., 126 F.2d 467. Upon rehearing before the full court sitting en banc the court held that it had jurisdiction to issue the writ; that the district court had erred in striking the pleas in abatement; that the case was an appropriate one for intervention by mandamus; and that the writ should issue directing petitioners to reinstate the pleas in abatement and the replications, and to try the issues of fact thus raised. 130 F.2d 843. The court of appeals seems to have regarded the district court's order striking the pleas in abatement as in effect a refusal to act upon the pleas, 130 F.2d 845. We granted certiorari, 318 U.S. 747, 63 S.Ct. 558, 87 L.Ed. --, on a petition which set up that the circuit court of appeals erred in directing that mandamus issue, and in holding that the district court erred in striking the pleas in abatement.
Petitioners concede that the circuit court of appeals, like this Court, may, as provided by § 262 of the Judicial Code, 28 U.S.C. § 377, 28 U.S.C.A. § 377, 'issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law'. McClellan v. Carland, 217 U.S. 268, 279, 30 S.Ct. 501, 503, 54 L.Ed. 762; Adams v. United States ex rel. McCann, 317 U.S. 269, 272, 273, 63 S.Ct. 236, 238, 239, 87 L.Ed. --. They argue that as the district court's order striking the pleas in abatement was an exercise of its jurisdiction, its action is reviewable only on appeal and not by mandamus, and that since by Congressional enactment and policy appellate review of the district court's order may be had only on review of a final judgment of conviction, that legislation and policy are not to be circumvented by resort to mandamus.
We are of opinion that in the circumstances of this case these are valid objections to the exercise by the circuit court of appeals of its discretionary power to issue the writ.