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(46 S.Ct.)

ton, Robert D. Ford, E. Franklin Ely, and Wil-vestigation concerning a violation of the Naliam Trabing, late of Harford county aforesaid, tional Prohibition Act and other internal reveon the nineteenth day of November, in the year nue laws, and in reporting the results of said of our Lord nineteen hundred and twenty-four, investigation, and in protecting themselves in at the county aforesaid, feloniously, willfully, the discharge of their duty as follows: and of their deliberately premeditated malice "That on November nineteenth, nineteen hunaforethought did kill and murder Lawrence dred and twenty-four, your petitioners were diWenger, contrary to the form of the act of rected by Maryland Federal Prohibition Direcassembly in such case made and provided, and tor Edmund Budnitz to investigate the alagainst the peace, government, and dignity of leged unlawful distillation of intoxicating liqthe state." uor on a farm known as the Harry Carver farm situated approximately three miles from *The defendants were arrested, and on Feb- the village of Madonna, about twelve miles ruary 11, 1925, filed a petition in the United northwest from Bel Air, Maryland, which said property was then unoccupied. Your petitionStates District Court for the District of ers reached the said farm premises shortly aftMaryland, in which they averred that they er midday on November nineteenth, nineteen were federal prohibition agents, except Trab- hundred and twenty-four, and discovered there ing, who was their chauffeur, and was assist- in a secluded wooded valley and swamp mateing them and was acting under the authority rials for an illicit distilling operation, to wit, of the prohibition director, and that the act nine empty mash boxes, three fifty-gallon metal or acts done by Trabing, as chauffeur and thousand pounds of rye meal in bags, a lighted drums, a fifty-gallon condenser, about one helper, as well as by the other defendants, at fire, and men's working clothes. Your petithe time when they were alleged to have been tioners thereupon concealed themselves in guilty of the murder of Lawrence Wenger, woods and shrubbery nearby the still site and which charge they all denied, were done in the shortly thereafter became aware of the apdischarge of their official duties as prohibition proach of a number of men bringing with them agents, and as officers of the internal revenue a still. Your petitioners thereupon made their in the discharge of their duty. Thereupon an presence known to the men who were approachorder of removal, together with a writ of cer-ing, and the men immediately dropped *the still tiorari, and habeas corpus cum causa, pursu- and fled; and though your petitioners pursued ant to section 33, was made by Judge Soper of the District Court. On March 12th, the state of Maryland, by its Attorney General and the state's attorney for Harford county, appeared specially and made a motion to quash the writ and rescind the order. On the 17th of May, the cause came on for hearing on the motion to quash, and, the defendants having applied for leave of court to amend the petition, it was granted, and an amended petition was filed. After setting out the indictment, the third, fourth, and fifth paragraphs of the amended petition were as fol

lows:

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them across the fields, no one of the fleeing men was overtaken or arrested. Thereupon your petitioners returned to the still site, destroyed the materials before mentioned which constituted the unlawful distilling plant, and started to return to their car, which had been left some distance from the still site, for the purpose of returning to Baltimore to report to the office of the Maryland federal prohibition director concerning the results of their investigation, when they discovered a man, whom they afterwards learned to be one Lawrence the path along which they were walking, some Wenger, mortally wounded and lying beside 400 or 500 yards from the still site and in a

direction opposite to that from which the un"3. That the acts alleged to have been done known men had approached and towards which by the petitioner William Trabing are alleged to they fled. Whereupon your petitioners carried have been done at a time when he was engaged the wounded man to their car and took him to in the discharge of his duties while acting un- Jarrettsville, Maryland, for medical treatment, der and by authority of Federal Prohibition but, finding none there available, proceeded Director Edmund Budnitz and Federal Prohi- with all speed to Bel Air, where they sought bition Officers Robert D. Ford, John M. Bar-out in turn Drs. Richardson, Sappington and ton, Wilson L. Stevens, and E. Franklin Ely, as aforesaid, while the said officers were engaged in the discharge of their official duties as prohibition officers in making and attempting to make an investigation concerning a violation *of the National Prohibition Act and other internal revenue laws and while reporting and preparing to report the results of said investigation and in protecting himself and the said officers of the internal revenue in the discharge

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of his and their duty as set out in paragraph 4

below.

"4. That the acts alleged to have been done by the petitioners Robert D. Ford, John M. Barton, Wilton L. Stevens, and E. Franklin Ely are alleged to have been done at a time when they were engaged in the discharge of their official duties as federal prohibition officers, and in making and attempting to make an in

Archer, without success, and finally placed the said Lawrence Wenger in charge of Dr. Van Bibber, who pronounced him dead. Your petitioners then, acting under the advice of the said Dr. Van Bibber, removed the body of the said Lawrence Wenger to the undertaking establishment of Dean & Foster in Bel Air. Your petitioners then proceeded to the state's attorney's office in Bel Air and related the facts aforesaid to the state's attorney, whereupon, on being informed by them that your petitioners Robert D. Ford, John M. Barton, Wilton L. Stevens, and E. Franklin Ely were prohibition officers, and that your petitioner William Trabing was employed by the federal prohibition director as their chauffeur, they were placed under arrest by the sheriff of Harford county at the instance of the state's attorney and were confined in the Harford county jail until the

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facts entitling the defendants to have the following morning, Novem*ber twentieth, nine-writ issue, or to have the charge against them teen hundred and twenty-four. On the morn

nied the motion to quash, and directed that removed. On May 5, 1925, Judge Soper dethe order of court removing the indictment be ratified and confirmed. On the same day the following stipulation was entered into by the parties:

"It is stipulated by and between the parties hereto that Robert D. Ford, John M. Barton, Wilton L. Stevens, and E. Franklin Ely, during the month of November in the year 1924, and prior to said time, and at the time of the matters and facts charged in the indictment in the *circuit court for Harford county, were federal

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der the Commissioner of Internal Revenue, and countersigned by the federal prohibition commissioner, in the form following, that is to

ing of November twentieth, nineteen hundred and twenty-four, your petitioners were taken by the sheriff and state's attorney, in company with a number of men who that afternoon served upon the coroner's jury mentioned in the indictment, and in company with two Baltimore city police headquarters detectives, to the scene of their investigation of the previous day. They related the facts concerning their investigation of the unlawful distilling operation and their finding of the said Lawrence Wenger on November nineteenth, and then and there went over the scene of the said occurrences, relating freely and without reservation the events which took place November nine-prohibition officers, holding a commission unteenth, in accordance with their duty as investigating and reporting officers of the federal government and in compliance with their duties as federal prohibition officers. Likewise on the afternoon of November twentieth your petitioners were called before the coroner's inquest heretofore described in the indictment, and freely and without reservation in accordance with their duty as investigating and reporting officers of the federal government and acting under the direction of the Maryland fed-taxation of intoxicating liquors, and he is hereeral prohibition director, related the facts aforementioned. And thereupon they were again placed in the Harford county jail and held for action of the Harford county grand jury until their release on bail upon the evening of November twentieth, nineteen hundred and twenty-four, at the instance of the United States attorney for the district of Maryland acting on their behalf.

"5. That the said criminal prosecution was commenced in the manner following:

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say:

""This certifies that is hereby employed as a federal prohibition officer to act under the authority of and to enforce the National Prohibition Act and acts supplemental thereto and all internal revenue laws, relating to the manufacture, sale, transportation, control, and

by authorized to execute and perform all the duties delegated to such officers by law.'

"And that William Trabing was, at the time of the acts alleged in the indictment in the circuit court for Harford county, a chauffeur of the Reliable Transfer Company, engaged and employed by Edmund Budnitz, federal prohibition director of the state of Maryland, in the capacity of chauffeur for the prohibition agents above named."

The state of Maryland applied to this court for leave to file its petition for mandamus, in which it set forth fully the facts as above stated, including, as exhibits, the petition for removal, the amended petition for removal, its motion to quash, the stipulation, and the orders of the District Court. This court, granting leave, issued a rule against Judge Soper to show cause why the writ of mandamus should not issue in accordance with the prayer of the state.

"The said indictment is now pending in the Judge Soper, in his answer to the rule, recircuit court for Harford county and is a crim-cited the facts of the record as already given, inal prosecution on account of acts alleged to have been done by your petitioners at a time when they were engaged in the performance of their duties as federal prohibition officers and chauffeur for federal prohibition officers as set forth in the aforegoing paragraphs.

"Wherefore your petitioners pray that the said suit may be removed from the circuit court for Harford county, aforesaid, to this honorable court, and that writs of certiorari and habeas corpus cum causa may issue for that purpose pursuant to the statute of the United States in such case made and provided. U. S. Compiled Statutes. § 1015, being Judicial Code, § 33, as amended Act Aug. 23, 1916, c. 399; Prohibition Act, tit. 2, § 23."

A motion to quash the amended petition. April 11, 1925, was based on the ground, among others, that the allegations of the amended petition did not disclose a state of

said that the District Court was of opinion that the petitioners were entitled to removal under section 33 of the Code as revenue officers, and that, if not as revenue officers, as agents of the Commissioner by virtue of section 28 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101381⁄20); that a prosecution had been commenced

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(46 S.Ct.)

[1] It is objected on behalf of the respondent that this is not a proper case for mandamus, that whether the facts averred in the amended petition come within the require ment of section 33 of the Judicial Code is a question within the regular judicial function of the District Court to decide, and that this court should not interfere thus prematurely with its exercise.

Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667, Virginia v. Paul, 148 U. S. 107, 13 S. Ct. 536, 37 L. Ed. 386, and Kentucky v. Powers, 201 U. S. 1, 26 S. Ct. 387, 50 L. Ed. 633, 5 Ann. Cas. 692, were cases in which criminal prosecutions by a state, removed to a federal court under asserted compliance with federal statutes, were ordered remanded by writ of mandamus. The Attorney General of Maryland relies on them to show that the writ may issue to test the legality of the removal in all criminal cases. On behalf of the United States, it is pointed out that these cases differ from the one before us, in that in the former the state prosecution had not reached a stage, or was not of a character in which, under the language of the statute, removal could be had at all, and so the federal court was wholly without jurisdiction. The writ in those cases was justified by the court because of the gross abuse of discretion of the lower court, its clear lack of jurisdiction, and the absence of any other remedy. Ex parte Harding, 219 U. S. 363, at page 373, 31 S. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392. In this case the facts averred show the prosecution to be of the class and character in which removal is permitted by section 33, and there is no lack of Jurisdiction or abuse of discretion, and the

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only issue made is on the interpreta*tion of the facts and the application of the section, an issue clearly within the judicial jurisdiction of a district court.

[3, 4] It may be conceded that there are substantial differences between Virginia v. Paul, Virginia v. Rives, and Kentucky v. Powers, and this case. But we do not think that those differences should prevent the issue of the mandamus here. In respect of the removal of state prosecutions, there should be a more liberal use of mandamus than in removal of civil cases. We exercise a sound judicial discretion in granting or withholding the writ. It may be "in cases warranted by the principles and usages of law." Rev. Stats. § 688; Ex parte Bradley, 7 Wall. 364, 376, 19 L. Ed. 214; Virginia v. Rives, supra, at page 323, separate opinion of Mr. Justice Field, at page 329. It is granted in analogy to the intervention of equity to secure justice in the absence of any other adequate remedy. Duncan Townsite v. Lane, 245 U. S. 308, 312, 38 S. Ct. 99, 62 L. Ed. 309. In the case before us, and in all state prosecutions removed under section 33, the jurisdiction of the courts of a state to try offenses against its own laws and in violation of its own peace and dignity is wrested from it by the order of an inferior federal court. *30 The state by its petition for man*damus be

comes a suitor at the bar of this court to challenge the legality of the inferior court's action. Conceding the validity of the exceptional use of the national supremacy in a proper case, it seeks by this writ to test its propriety here. Except by the issue of mandamus, it is without an opportunity to inVoke the decision of this court upon the issue it would raise.

[5] The order of the United States District Judge refusing to remand is not open to review on a writ of error, and a judgment of acquittal in that court is final. United States v. Sanges, 144 U. S. 310, 12 S. Ct. 609, 36 L. Ed. 445; Virginia v. Paul, supra, at page 122 (13 S. Ct. 536). The fact that the United States District Court may be proceeding in the exercise of a lawful jurisdiction should not, under such exceptional circumstances, prevent this court from extending to the state the extraordinary remedy.

33 of the Judicial Code to justify the District Court in denying the motion to remand.

[2] Mandamus is an extraordinary remedy which is issued by this court under Rev. Stats. § 688, now Judicial Code, § 234 (Comp. St. § 1211), to courts of the United States in the exercise of its appellate jurisdiction, and in civil cases does not lie to compel a re- We come, then, to the sufficiency of the versal of a decision, either interlocutory or amended petition for removal under section final, made in the exercise of a lawful juris- | diction, especially where in regular course the decision may be reviewed upon a writ of error or appeal. Ex parte Roe, 234 U. S. 70, 73, 34 S. Ct. 722, 58 L. Ed. 1217; Ex parte Tiffany, 252 U. S. 32, 37, 40 S. Ct. 239, 64 L. Ed. 443; Ex parte Park Square Automobile Station, 244 U. S. 412, 37 S. Ct. 732, 61 L. Ed. 1231; Ex parte Slater, 246 U. S. 128, 134, 38 S. Ct. 265, 62 L. Ed. 621; Ex parte Oklahoma, 220 U. S. 191, 209, 31 S. Ct. 426, 55 L. Ed. 431; Ex parte Harding, 219 U. S. 363, 31 S. Ct. 324, 55 L. Ed. 252, 37 L. R. A. (N. S.) 392; Ex parte Nebraska, 209 U. S. 436, 28 S. Ct. 581, 52 L. Ed. 876; Ex parte Hoard, 105 U. S. 578, 26 L. Ed. 1176.

[6] The first objection made by the state to the removal is that prohibition agents cannot have the benefit of section 33, because they are not officers "appointed under or acting by authority of any revenue law of the United States," as provided in the section. The four defendants are admitted to have been acting under commissions issued by the Commissioner of Internal Revenue, "empowering them to enforce the National Prohibition Acts and acts supplemental thereto, and all internal revenue laws, relating to the manufacture, sale, transportation, control, and taxation of intoxicating liquors." The

fifth defendant, Trabing, it is admitted, was | United States Bank v. Goodwin (C. C.) 162 F. acting as a chauffeur and helper to the four 937, 939; Tennessee v. Davis, 100 U. S. 257, officers under their orders and by direction | 267, 25 L. Ed. 648. The act of 1833 was

of the prohibition director for the state. It is not denied on behalf of the state that he has the same right to the benefit of section 33 as they. Davis v. South Carolina, 107 U. S. 597, 2 S. Ct. 636, 27 L. Ed. 574.

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*The Act of November 23, 1921, 42 Stat. 223, c. 134, § 5 (Comp. St. Ann. Supp. 1923, § 10138c), known as the Willis-Campbell Law, amending the National Prohibition Act (41 Stat. 307, c. 85), provides that:

"All laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition Act was enacted, shall be and continue in force, as to both beverage and nonbeverage liquor, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition Act or of this act."

Rev. Stats. § 3282 (Comp. St. § 6022), forbidding fermenting of mash or wort, or the making of spirits therefrom in any other than a distillery authorized by law, or by a duly authorized distiller, and punishing its violation by fine and imprisonment, is not in conflict with anything in the Prohibition The Willis-Campbell Act thus makes clear the criminality of such an act under the revenue laws. United States v. Stafoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358. In searching for the still for the purpose of preventing the violation of law, the prohibition agents in this case were therefore acting under the authority of the revenue laws

Act.

More than this, they were brought within the application of section 33 by the provision of section 28, title 2, of the National Prohibition Act, providing that the commissioner, his assistants, agents and inspectors and all other officers of the United States whose duty it is to enforce criminal laws, shall have all the power and protection in the enforcement of the act, or any provisions thereof, which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquor under the law of the United States. We have no doubt that the word "protection" was inserted for the purpose of giving to officers and persons acting under the authority of the National Prohibition Act in enforcement of its provisions, the same protection of a trial in a federal *court of state prosecutions as is accorded to revenue officers under section 33.

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Section 33 was derived from section 643 of the Revised Statutes, which in turn was derived from the Act of July 13, 1866, 14 Stat. 171, c. 184, § 67, and the Act of June 30, 1864, 13 Stat. 241, c. 173, § 50. These acts extend the Act of March 2, 1833, 4 Stat. 633, c. 57, § 3, applying to officers engaged in collection of customs duties to those engaged in the collection of internal revenue. People's

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enacted in the days of attempted nullification of national customs revenue laws in South Carolina, and was during the Civil War extended to those charged with collecting the internal revenue. Congress not without reason assumed that the enforcement of the National Prohibition Act was likely to encounter in some quarters a lack of sympathy and even obstruction, and sought by making section 33 applicable to defeat the use of local

courts to embarrass those who must execute it. The constitutional validity of the section rests on the right and power of the United States to secure the efficient execution of its laws and to prevent interference therewith, due to possible local prejudice, by state prosecutions instituted against federal officers in enforcing such laws, by removal of the prosecutions to a federal court to avoid the effect of such prejudice. Tennessee v. Davis, supra.

[7] Do the facts disclosed by the amended petition for removal bring the defendants within section 33? The state insists that they are insufficient because they do not show that the defendants committed the act of homicide upon which the indictment is founded. The case of Illinois v. Fletcher (C. C.) 22 F. 776, seems to hold that a revenue officer can take advantage of the statute and secure a trial in a federal court only by admitting that he did the act for which he is

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prosecuted. We think this too *narrow a construction of the section. Cleveland, Columbus, etc., Railroad v. McClung, 119 U. S. 454, 461, 7 S. Ct. 262, 30 L. Ed. 465.

The prosecution to be removed under the section must have been instituted "on account of" acts done by the defendant as a federal officer under color of his office or of the revenue or prohibition law. There must be causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his, not justified by his federal duty. But the statute does not require that the prosecution must be for the very acts which the officer admits to have been done by him under federal authority. It is enough that his acts or his presence at the place in performance of his official duty constitute the basis, though mistaken or false, of the state pros ecution.

Suppose that the prosecution of the officer for murder was commenced merely on account of the presence of the officer in discharge of his duties in enforcing the law, at

(46 S.Ct.)

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or near the place of the killing under cir- | official duties as federal prohibition officers, cumstances casting suspicion of guilt on him. and in making and attempting to make an He may not even know who did the killing, | investigation concerning a violation of the and yet his being there and his official ac- National Prohibition Act and other internal tivities may have led to the indictment. He may certainly claim the protection of the statute on the ground that the prosecution was commenced against him "on account of" his doing his duty as an officer under color of such a law without being able to allege that he committed the very act for which he is indicted. It is enough if the prosecution for murder is based on or arises out of the

acts he did under authority of federal law in the discharge of his duty and only by reason thereof.

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*revenue laws and in reporting the results of said investigation, and in protecting themselves in the discharge of their duty." The amended petition closes with the statement that the indictment "is a criminal prosecution on account of acts alleged to have been done by your petitioners at a time when they were engaged in the performance of their duties as federal prohibition officers and chauffeur for federal prohibition officers as set forth in the foregoing paragraphs.”

These averments amount to hardly more [8] *In invoking the protection of a trial than to say that the homicide on account of of a state offense in a federal court under which they are charged with murder was at section 33, a federal officer abandons his a time when they were engaged in performing right to refuse to testify because accused of their official duties. They do not negative crime, at least to the extent of disclosing in the possibility that they were doing other his application for removal all the circum- acts than official acts at the time and on this stances known to him out of which the pros- occasion, or make it clear and specific that ecution arose. The defense he is to make whatever was done by them leading to the is that of his immunity from punishment by prosecution was done under color of their the state, because what he did was justified federal official duty. They do not allege by his duty under the federal law, and be- what was the nature of Wenger's fatal cause he did nothing else on which the pros- wound, whether gunshot or otherwise, whethecution could be based. He must establish er they had seen him among those who fully and fairly this defense by the allega- brought the still and fled, or whether they tions of his petition for removal before the heard, or took part in any shooting. They do federal court can properly grant it. It is not say what they did, if anything, in purincumbent on him, conformably to the rules suit of the fugitives. It is true that in their of good pleading, to make the case on which narration of the facts, their nearness to the he relies, so that the court may be fully ad- place of Wenger's killing and their effort to vised and the state may take issue on a mo- arrest the persons about to engage in alleged tion to remand. Chesapeake & Ohio Railway distilling are circumstances possibly sugCo. v. Cockrell, 232 U. S. 146, 151, 152,1 and gesting the reason and occasion for the crimcases cited. See, also, concurring opinion of inal charge and the prosecution against Mr. Justice Field in Virginia v. Rives, su- them. But they should do more than this pra, at page 332, and Hanford v. Davies, 163 in order to satisfy the statute. In order to U. S. 273, 279, 16 S. Ct. 1051, 41 L. Ed. 157. justify so exceptional a procedure, the person [9] We think that the averments of the seeking the benefit of it should be candid, amended petition in this case are not suffi- specific and positive in explaining his relaciently informing and specific to make a case tion to the transaction growing out of which for removal under section 33. We have set he has been indicted, and in showing that forth the account the defendants gave in his relation to it was confined to his acts their amended petition of what they saw and as an officer. As the defendants in their did, but the only averments important in di- statement have not clearly fulfilled this rerectly connecting the prosecution with their quirement, we must grant the writ of manda*36 acts are at the opening and close of their mus, *directing the District Judge to remand petition. They refer to the death of Wenger the indictment and prosecution. Should the only by incorporating the indictment in the District Judge deem it proper to allow anpetition, and then say that "the acts [i. e. the other amendment to the petition for removal, killing of Wenger] alleged to have been done by which the averments necessary to bring by petitioners Robert D. Ford, John M. Bar- the case within section 33 are supplied, he ton, Wilton L. Stevens, and E. Franklin will be at liberty to do so. Otherwise the Ely are alleged to have been at a time when prosecution is to be remanded as upon a perthey were engaged in the discharge of their emptory writ.

134 S. Ct. 278, 58 L. Ed. 544.

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