327 U.S.

742
66 S.Ct. 835
90 L.Ed. 982

UNITED STATES
v.
RICE, District Judge.
No. 411.
Argued Feb. 5, 1946.
Decided April 22, 1946.

[Syllabus from pages 742-744 intentionally omitted]

Mr.Marvin J. Sonosky, of Washington, D.C., for the Uni ed states.
Mr. Alfred Stevenson, of Holdenville, Okl., for Rice, Judge.
Mr. Chief Justice STONE delivered the opinion of the Court.

In this case the Court of Appeals for the Tenth Circuit, acting under 239 of
the Judicial Code, 28 U.S.C. 346, 28 U.S.C.A. 346, has certified a question
of law upon which it desires the instruction of this Court for the proper decision
of the cause. The question is whether that court may, by mandamus, review the
judgment of the District Court for Eastern Oklahoma ordering the remand of a
proceeding to the County Court of Okfuskee County, Oklahoma, from which it
had been previously removed to the district court pursuant to 3 of the Act of
April 12, 1926, c. 115, 44 Stat. 239.

The certificate shows that proceedings were begun in the county court by a
petition for administration on the estate of Peter Micco, a restricted Indian
member of the Five Civilized Tribes in Oklahoma. The county court granted
the petition, and appointed administrators. Section 3 of the Act of April 12,
1926, provides that a party to a suit 'in the State courts of Oklahoma to which a
restricted member of the Five Civilized Tribes in Oklahoma, or the restricted
heirs or grantees of such Indian are parties, * * * and claiming or entitled to
claim title to or an interest in lands allotted to a citizen of the Five Civilized
Tribes or the proceeds, issues, rents, and profits derived from the same, may

serve written notice of the pendency of such suit upon the Superintendent for
the Five Civilized Tribes.' The United States is afforded a specified time after
notice is given to appear in the suit, and after such appearance, or the expiration
of the time specified, it is provided that 'the proceedings and judgment in said
cause shall bind the United States and the parties thereto to the same extent as
though no Indian land or question were involved.' The Act further provides that
'the United States may be, and hereby is, given the right to remove any such
suit pending in a State court to the United States district court by filing in such
suit in the State court a petition for the removal of such suit into the said United
States district court, to be held in the district where such suit is pending,
together with the certified copy of the pleadings in such suit * * *. It shall then
be the duty of the State court to accept such petition and proceed no further in
said suit. The said copy shall be entered in the said district court of the United
States * * * and the defendants and intervenors in said suit shall within twenty
days thereafter plead, answer, or demur to the declaration or complaint in said
cause, and the cause shall then proceed in the same manner as if it has been
originally commenced in said district court, and such court is hereby given
jurisdiction to hear and determine said suit, and its judgment may be reviewed
by certiorari, appeal, or writ of error in like manner as if the suit had been
originally brought in said district court.'
3

Following the service upon the Superintendent of the Five Civilized Tribes of
notice of the pendency of the suit in the county court, the United States timely
filed its petition in that court for an order of removal, alleging that the
proceeding was instituted to obtain the appointment of an administrator for the
estate of a three-fourths blood Seminole Indian; that a portion of said estate,
comprising real and personal property is restricted under the laws of the United
States; that title to and interests in restricted land are involved: that the heirs at
law of Micco are restricted Indians and wards of the United States.

Thereupon the county court made its order of removal, and a transcript of the
proceedings was filed in the district court. The United States then filed its
complaint in intervention in the district court, praying a determination of the
heirs of Peter Micco, and of the specific parts of decedent's property which are
restricted and subject to the supervision of the Secretary of the In erior. On
motion of the administrators appointed by the county court, the district court
entered an order dismissing the complaint in intervention without prejudice, and
remanding the proceeding to the county court for want of jurisdiction in the
district court. In re Micco's Estate, D.C., 59 F.Supp. 434. The United States
thereupon instituted this proceeding in the circuit court of appeals by a petition
for writ of mandamus, to direct the district court to vacate its judgment
dismissing the Government's petition for intervention and remanding the

proceeding.
5

The certificate of the circuit court of appeals, after stating that the court is
equally divided on two questions, first, whether the judgment of remand is
reviewable by mandamus, and, second, whether the proceeding was removable
under the provisions of the Act of 1926, certified a single question for our
consideration, as follows: 'May this court, by mandamus, review the judgment
of the United States district court for the eastern district of Oklahoma, ordering
the remand of the proceeding to the county court of Okfuskee County,
Oklahoma?' The certificate further requested this Court to exercise its authority
under 239 of the Judicial Code, 'to require the entire record in the cause to be
sent up for its consideration and to decide the whole matter in controversy.' The
Government has made a motion to like effect.

In considering these requests, it is to be noted that the only matter pending in

the court below to which the certified question relates is the application filed in
that court for mandamus, on which the court has not acted. There is
consequently no order or judgment in the case which can be brought before this
Court by appeal. The practice established by statute, 28 U.S.C. 346, 28
U.S.C.A. 346, of answering questions certified to this court, or in some such
cases, of deciding the entire controversy on the whole record, is plainly not
within our original jurisdiction. As far as it is within our appellate jurisdiction,
our authority is defined wholly by the statute, which provides that upon the
presentation of the certificate, this Court 'may require that the entire record in
the cause be sent up for its consideration, and thereupon shall decide the whole
matter in controversy in the the whole matter in controversy in the (here) by
writ of error or appeal.' But the only manner in which we, as an appellate court,
can decide a controversy brought here by writ of error or appeal is by
affirming, reversing or modifying the order or judgment before us for review. It
may be doubted whether the statute contemplates our going beyond the
certified question, to decide a case or controversy not within our original
jurisdiction, and which, since no inferior court has decided it, could not be
brought here on appeal. But we need not resolve the doubt as to our power here,
for as will presently appear, the answer which we give to the question certified
is dispositive of the whole case before the Circuit Court of Appeals, making it
unnecessary to express an opinion on any other issue which the record might
present, or to order the record to be filed here.

The Act of 1926, under which the cause, In re Micco's Estate, was removed
from the Oklahoma county court, contains no provisions respecting remand or
any mode of review of an order of remand. But its provisions must be read with
those provisions governing removal of suits from state courts to federal district

courts, and their remand, appearing in 2 of the Judiciary Act of March 3,

1887, 24 Stat. 552, reenacted to correct errors in enrollment, August 13, 1888,
25 Stat. 433, and again reenacted and amended March 3, 1911, 36 Stat. 1094,
as 28 of the Judicial Code, 28 U.S.C. 71, 28 U.S.C.A. 71, and in 37 of
the Judicial Code, 28 U.S.C. 80, 28 U.S.C.A. 80. Section 80 authorizes
remand of 'any suit' removed from a state court to a district court where the
latter finds that it is without jurisdiction. Section 2 of the Act of 1 87, provided
for the removal of diversity suits from state courts to federal circuit courts, now
district courts, and, as corrected in 1888, contained a separate paragraph, in
terms relating to 'any cause' removed from a state court into a circuit court. This
paragraph read:
8

'Whenever any cause shall be removed from any State court into any circuit
court of the United States, and the circuit court shall decide that the cause was
improperly removed, and order the same to be remanded to the State court from
whence it came, such remand shall be immediately carried into execution, and
no appeal or writ of error from the decision of the circuit court so remanding
such cause shall be allowed.'

Before the Judiciary Act of March 3, 1875, 18 Stat. 470, 472, an order of
remand was deemed to be not reviewable by appeal or writ of error because the
order was not final. Chicago & A.R. Co. v. Wiswall, 23 Wall. 507, 23 L.Ed.
103; Ex parte Pennsylvania Company, 137 U.S. 451, 11 S.Ct. 141, 34 L.Ed.
738. But 5 of the Act of 1875 expressly authorized the review of an order of
remand by appeal or writ of error 'in any suit' removed from a state court. This
provision was repealed by 6 of the Act of 1887, supra, and to make doubly
certain, 2, supra, specifically prohibited appeals, with the added direction that
the order of remand should 'be immediately carried into execution.' It thus
appears that when the Act of 1926 was passed, the practice in removal cases
was, as it had been established from the beginning, save for a brief interval
under 5 of the Act of 1875, that an order of remand was not appealable, and it
is also clear that in 1926, as for forty years before, 2 of the Act of 1887
required the remand of 'any' removed cause to 'be immediately carried into
execution.'

10

The enactment of 3 of the 1926 Act, without more, did not confer upon the
Government any right of appeal from an order remanding a cause removed
under that Act. We cannot say that under the Act of 1926, standing alone, the
right of appeal from an order of remand stands on any different footing than it
did under any other statute authorizing removal before the enactment of the
1875 Act, or that the order of remand is any less final in the case of the
Government than in the case of an individual. Each loses, by the order, such

right as there may be to litigate the case in the federal courts on removal, but
both retain such rights as they may have to continue the litigation in the state
court or to bring an independent suit in the federal courts. To whatever extent
the Government may be excluded from the operation of a statute in which it is
not named, cf. United States v. Stevenson, 215 U.S. 190, 197, 30 S.Ct. 35, 36,
54 L.Ed. 153 with United States v. State of California, 297 U.S. 175, 186, 56
S.Ct. 421, 425, 80 L.Ed. 567, it is clear that the United States can not assert, by
virtue of its sovereignty, a right of appeal which no statute has conferred, or
which, if conferred, has been abolished. Not only was no such right of appeal
conferred by the Act of 1926, but, we think, as will presently appear, that the
provisions of 2 of the Act of 1887 denying an appeal from an order
remanding a case removed under the Act of 1926, denied the right to review by
mandamus as well.
11

Before the enactment of the Act of 1875 it had been suggested that although
orders of remand were not appealable, because non-final, they might be
reviewed by mandamus. Chicago & A.R. Co. v. Wiswall, 23 Wall. 507, 23
L.Ed. 103; see also Ex parte Pennsylvania Co., 137 U.S. 451, 453, 11 S.Ct. 141,
142, 34 L.Ed. 738; Employers Reinsurance Corporation v. Bryant, 299 U.S.
374, 378, 57 S.Ct. 273, 275, 81 L.Ed. 289. After the right of appeal from such
an order was conferred in all removal cases by 5 of the Act of 1875, the
question arose whether there could be review by mandamus of an order
denying a motion to remand. This was answered in the negative on the ground
that the right to appeal given by the 1875 Act was l mited to orders of remand.
Hence resort could not be had to mandamus to perform the office of a writ of
error which Congress had withheld in the case of an order denying remand. Ex
parte Hoard, 105 U.S. 578, 26 L.Ed. 1176; Ex parte Harding, 219 U.S. 363,
364, 31 S.Ct. 324, 55 L.Ed. 252, 37 L.R.A.,N.S., 392; Ex parte Roe, 234 U.S.
70, 34 S.Ct. 722, 58 L.Ed. 1217. In all these cases it was pointed out that the
mode of review of an order denying remand is by appeal from the final
judgment in the suit in which the remand is denied.

12

But it is urged that the mere failure of the 1926 Act to confer on the
Government a right of appeal from an order of remand should not preclude
review by mandamus, since, unlike the case where the district court refuses to
remand, an order denying the right to have the removed cause tried in the
district court could not otherwise be reviewed in the federal courts. But this
argument presupposes that the provisions of the 1887 Act, prohibiting appeals
from orders of remand, and directing the immediate execution of such order, do
not apply to causes removed from the state courts under the Act of 1926, a
supposition which disregards the plain purport of the words of the 1887 statute,
and its legislative history.

13

Section 5 of the Judiciary Act of 1875, which, for the first time, authorized
review of an order of remand by writ of error or appeal, was, by its terms, made
applicable generally to 'any suit' removed from a state court to a federal circuit
(now district) court. It authorized the circuit court to remand the cause for want
of jurisdiction, and provided that the order of remand should be reviewable by
appeal. This section was repealed by 6 of the 1887 Act, and 2 of that Act
substituted for the repealed provision governing appeals, a new provision,
which was in terms likewise extended to orders of remand 'whenever any cause
shall be removed from any State court.' Section 6, together with this substituted
provision, explicitly withdrew the right of appeal and writ of error in all cases in
which it had been previously allowed by Section 5, that is, in all cases removed
from state courts under any statute authorizing removal. See Employers
Reinsurance Corporation v. Bryant, supra, 299 U.S. 380, 381, 57 S.Ct. 276,
277, 81 L.Ed. 289.

14

Section 2 of the Act of 1887 thus expressly denied review by appeal or writ of
error from orders of remand which had previously been allowed by 5 of the
Act of 1875 in all cases removed from state courts, but which before that Act
had been deemed not to be appealable because not final orders. But 2 also
coupled with this prohibiting the direction, made applicable in every case
removed from a state court, that 'such remand shall be immediately carried into
execution.' Reading and construing these provisions together, this Court has
consistently held, and it is no longer open to doubt, that an order remanding a
cause which is subject to the prohibition against appeals of 2 cannot be
reviewed by mandamus. Ex parte Pennsylvania Co., supra, Employers
Reinsurance Corporation v. Bryant, supra.

15

Congress, by the adoption of these provisions, as thus construed, established

the policy of not permitting interrupting of the litigation of the merits of a
removed cause by prolonged litigation of questions of jurisdiction of the district
court to which the cause is removed. This was accomplished by denying any
form of review of an order of remand, and, before final judgment, of an order
denying remand. In the former case, Congress has directed that upon the
remand the litigation should proceed in the state court from which the cause
was removed. It may be arguable, as a matter of policy, that in giving the
Government the right to intervene and remove a cause from a state court, it
should also have been given the right, not allowed to private litigants, to have
orders of remand reviewed in the appellate courts. But the Congressional policy
of avoiding interruption of the litigation of the m rits of removed causes,
properly begun in state courts, is as pertinent to those removed by the United
States as by any other suitor, see United States v. State of California, supra, 297
U.S. 186, 56 S.Ct. 425, 80 L.Ed. 567, and we think it plain that the Act of 1926

did not confer any such right of review, and that the Act of 1887 intended to
withhold it in all cases of removal from state courts.
16

As we have already indicated, and as the legislative history shows, these

provisions of the Act of 1887 were intended to be applicable not only to remand
orders made in suits removed under the Act of 1887, but to orders of remand
made in cases removed under any other statutes, as well. Cole v. Garland, 7
Cir., 107 F. 759, dismissed on appeal 183 U.S. 693, 22 S.Ct. 933, 46 L.Ed. 393,
approved in Gay v. Ruff, 292 U.S. 25, 29, note 5, 54 S.Ct. 608, 78 L.Ed. 1099,
92 A.L.R. 970; see also Employers Reinsurance Corporation v. Bryant, supra,
299 U.S. 380, 381, 57 S.Ct. 276, 277, 81 L.Ed. 289. It was so held with respect
to the Act of 1926 in United States v. Fixico, 10 Cir., 115 F.2d 389.

17

Nothing in the Act of 1926 purports to impair or restrict the application of 2

of the 1887 Act, thus construed, to orders of remand made under 28 U.S.C.
80, 28 U.S.C.A. 80, in cases removed under the 1926 Act. Congress, in
enacting the 1926 Act, not only failed to include in it any provision modifying
what had been for forty years the established practice of denying review of
orders remanding causes removed from state courts, but it must be taken to
have been aware of the universality of that practice, and to have been content
that, as established by the 1887 Act, it should apply to cases removed under the
1926 Act. Statutory language and objective, thus appearing with reasonable
clarity, are not to be overcome by resort to a mechanical rule of construction,
whose function is not to create doubts, but to resolve them when the real issue
or statutory purpose is otherwise obscure. United States v. State of California,
supra, 297 U.S. 186, 56 S.Ct. 425, 80 L.Ed. 567.

18

The certified question will be answered 'No', and the Government's motion that
we order up the entire record may accordingly be denied.

19

So ordered.

20

Question answered and motion denied.

21

Mr. Justice JACKSON took no part in the consideration or decision of this

case.

22

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice
RUTLEDGE concur, dissenting.

23

The Act of April 10, 1926, 44 Stat. 239, has two main purposes. It provides the

23

The Act of April 10, 1926, 44 Stat. 239, has two main purposes. It provides the
machinery for bringing in the United States where the property interests of a
restricted Indian of the Five Civilized Tribes are being litigated in either the
federal or the state courts. This was done so that all interested parties might be
concluded by one proceeding and titles to these Indian lands stabilized.1
H.Rep.No.322, 69th Cong., 1st Sess., p. 2. In case the proceeding is brought in
a state court, the United States is given 'the right to remove' the suit to the
federal court by filing in the state court a petition for removal. The Act provides
that when such petition is filed it shall be 'the duty of the State court to accept
such petition and proceed no further in said suit.' The right to remove is
unqualified. It rests in the sole discretion of the United States, which is given
the choice of the forum. As stated in the House Report, supra, p. 2:

24

'Section 3 provides only where the interest of a restricted Indian of the Five
Civilized Tribes is being litigated in the State courts that service may be had
upon the Government, and the Government is given the right to chose the
forum in which the suit may be tried and may transfer such case to the United
States district court upon motion in the event that the Government chooses to
do so.'

25

But it is said that this special Act, passed in 1926, is governed by the general
removal Act of March 3, 1887, 24 Stat. 552, Judicial Code 28, 28 U.S.C.
71, 28 U.S.C.A. 71, which disallows appeals from orders remanding causes
removed from state courts. I do not agree.

26

(1) The 1926 Act contains none of the qualifications written into the general
removal acts.

27

(2) The 1926 Act is an independent statute dealing with a highly specialized
problem and limited as to parties and subject matter. The mischief at which the
general removal acts were aimed is not present here. They were concerned with
eliminating litigious interruptions of private litigation by prolonged disputes
over the jurisdiction of the court to which the cause was removed. But the
United States is not in a position of a private litigant. The United States has a
special function to perform in these Indian cases. It represents the public
interest. Heckman v. United States, 224 U.S. 413, 437444, 32 S.Ct. 424, 431
434, 56 L.Ed. 820. It alone is given the 'right to remove.' If the cause is
remanded, it alone can seek review. It should be remembered that the 1926 Act
provides a procedure whereby the United States can be bound by a suit
instituted by another. It is fair to infer that when the United States was
subjected to that risk, Congress intended that it should have a right, if it so
elected, to have the cause heard and determined by its own courts. The 'right to

chose the forum in which the suit may be tried' (H.Rep., supra) can hardly have
any other meaning.
28

(3) The 1887 Act in its operation was not applicable to the United States. It
provided for removal by defendants. They alone could remove. The right of
removal was therefore not available to the United States. It could not be a
defendant in a state court, since it had not consented to be sued there. That was
well settled at the time. For in 1896 the Court stated, 'The United States, by
various acts of congress, have consented to be sued in their own courts in
certain classes of cases, but they have never consented to be sued in the court of
a state in any case.' Stanley v. Schwalby, 162 U.S. 255, 270, 16 S.Ct. 754, 760,
761, 40 L.Ed. 960. It seems clear then that the prohibition against review of
orders of remand contained in the 1887 Act was not aimed at the United States.
I think, therefore, that it should require an explicit provision in the 1926 Act to
conclude that the United States was now to be bound by an Act heretofore
inapplicable to it. It has long been held that if the United States is to be
deprived of a right or a remedy by the general terms of a statute, 'the language
must be clear and specific to that effect.' United States v. Stevenson, 215 U.S.
190, 197, 30 S.Ct. 35, 36, 54 L.Ed. 153; United States v. American Bell Tel.
Co., 159 U.S. 548, 554, 16 S.Ct. 69, 72, 40 L.Ed. 255; United States v. Herron,
20 Wall. 251, 263, 22 L.Ed. 275; Dollar Savings Bank v. United States, 19
Wall. 227, 239, 22 L.Ed. 80. This seems to me to be a clear case for the
application of that rule.

29

If Congress had said that orders of remand under the 1926 Act should not be
reviewed, mandamus of course would not lie. But since there is no such
prohibition, mandamus is available to compel the District Court to preform its
duty. Chicago & A. Railroad Co. v. Wiswall, 23 Wall. 507, 23 L.Ed. 103; Ex
parte Pennsylvania Co., 137 U.S. 451, 453, 11 S.Ct. 141, 142, 34 L.Ed. 738.

Prior to the 1926 Act the United States could not be bound by a proceeding
affecting restricted Indian lands. After the matter had been litigated, the United
States could still institute an independent suit and annul the prior decree
entered in the suit to which it was not a party. Sunderland v. United States, 266
U.S. 226, 45 S.Ct. 64, 69 L.Ed. 259.