Mr. Justice FRANKFURTER, with whom Mr. Justice RUTLEDGE joins, concurring in part and dissenting in part.
As to No. 52, I join the Court's opinion.
As to No. 474, I would leave the appeal now pending in the Court of Appeals for the Ninth Circuit to its adjudication there and not grant the petition for certiorari. The power which Congress has given to this Court to short-circuit the Courts of Appeals should not be exercised except for some compelling reason of wise judicial administration. No reason is here present that would not be equally available in almost every case which, even though a constitutional issue may be involved, cannot come here directly, but must first go to a Court of Appeals. Congress decided not to provide for such direct appeals here and we should not exercise our discretionary power to grant what Congress has withheld. This discretionary power should come into play only for those exceptional circumstances for which Congress designed it.
After finding that we are without jurisdiction to review directly the decree of the District Court of Hawaii, the Court in effect allows such direct review by not requiring the appeal now pending in the Court of Appeals to run its normal course of adjudication in that court. This is justified on the ground that the case has been fully presented in the District Court and here. But if we would not have brought here an appeal undecided in the Court of Appeals merely because it had been adjudicated on its merits in the District Court, there is no more reason for doing so when a direct appeal from the District Court has been improvidently sought here. Moreover, the Court is not disposing of the case on its merits. By lifting the case out of the Court of Appeals the Court is assuming the burden of canvassing issues not dealt with below. This entails the study of new questions and the task of opinion writing. These are precisely the burdens from which the Court asked to be saved and from which Congress saved the Court by the Judiciary Act of 1925. If the regular course of proceeding were followed and the matter were to be disposed of by the Court of Appeals, as it is now being disposed of here, the necessity for future consideration here might never arise beyond that involved in finding no reason for granting a petition for certiorari were one to be applied for. Drains on the Court's time through jurisdictional misconceptions should be strongly discouraged. We should follow the honored practice of this Court in dismissing a proceeding that should not be here ab initio, even though the Court's time and effort had been expended after full argument in concluding that a case should never have been brought here. [1]
If the attempt had been made to bring No. 474 here prematurely it would surely have failed. It should not succeed because No. 52 was improperly brought here. Accordingly I agree with the Court in dismissing No. 52 for want of jurisdiction, and in No. 474 I would deny the petition for certiorari.
Notes edit
- ↑ Writs of certiorari granted because of an apparent conflict between courts of appeals have been dismissed because the existence of such conflict did not survive argument. And for these reasons: 'If it be suggested that as much effort and time as we have given to the consideration of the alleged conflict would have enabled us to dispose of the case before us on the merits, the answer is that it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the Circuit Courts of Appeals. The present case certainly comes under neither head.' Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712.
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