Maryland v. Super (No. 1), 270 U.S. 9 (1926)
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Maryland v. Super (No. 1)
No. 23, Original
Argued December 7, 1925
Decided February 1, 1926
270 U.S. 9
PETITION FOR A WRIT OF MANDAMUS
Syllabus
1. The remedy of mandamus is grantable by this Court, in its sound discretion, on petition of a state to determine the legality of a removal of a criminal case from a state to a federal court under Jud.Code § 33. P. 28.
2. The propriety of the writ in such cases results from the exceptional character of the proceeding sought to be reviewed and the absence of any other provision for reviewing it; it does not depend on lack of jurisdiction or abuse of discretion in the district court. Id.
3. Section 33 of the Judicial Code, which authorizes removal to the district court of any criminal prosecution commenced in any court of a state against
any officer appointed under or acting under or by authority of any revenue law of the United States, or against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, . . .
applies to prohibition agents (and their chauffeur) engaged in a quest for an illicit still, under commissions from the Commissioner of Internal Revenue empowering them to enforce the prohibition acts and internal revenue acts relating to manufacture, sale, taxation, etc., of intoxicating liquors. So held in view of § 5 of the Act of November 23, 1921 (amending the Prohibition Act), which kept in force earlier laws and penalties regarding manufacture, etc., of intoxicating liquors; of Rev.Stats. § 3282, forbidding and punishing unauthorized distilling, etc.; and of § 28, Title II, of the Prohibition Act, extending to officers enforcing that Act the "protection" conferred by law for the enforcement of then existing laws relating to the manufacture, etc., of intoxicating liquors. P. 30.
4. In authorizing removal of a prosecution commenced "on account of" any act done by the defendant under color of his office, etc., § 33 of the Judicial Code, supra, does not mean that the very act charged, e.g., a homicide, must have been done by him; it is enough if the prosecution is based on, or arises out of, acts which he did, or his presence at the place, under authority of federal law, in the discharge of his official duty. P. 32.
5. In his petition to remove a prosecution, under § 33, supra, the defendant must set forth all the circumstances known to him out of which the prosecution arose, candidly, specifically, and positively explaining his relation to the matter and showing that it was confined to his acts as such officer. P. 34.
6. The petition must aptly plead the case upon which the defendant relies so that the court may be fully advised and the state may take issue by a motion to remand. Id.
7. A removal petition setting forth acts done by the petitioners in performance of their duty as prohibition officers and alleging that their indictment in a state court is a criminal prosecution on account of acts alleged to have been done by them at a time when they were engaged in the performance of their duties as such officers as so set forth, is insufficient. P. 35.
Mandamus awarded.
Petition by the State of Maryland for a writ of mandamus directing the United States District Judge of the District of Maryland to remand to the proper state court an indictment for murder which had been removed to the District Court under the provisions of § 33 of the Judicial Code. See also the next two cases.