Bankers Life Casualty Company v. Holland/Concurrence Douglas

Mr. Justice DOUGLAS concurs in the result.

Mr. Justice FRANKFURTER, whom Mr. Justice JACKSON and Mr. Justice MINTON join, dissenting.

This case presents one of those clear situations where due regard for the canons governing the exercise of the Court's certiorari jurisdiction calls for dismissal of the writ as improvidently granted.

1. Whatever view one may take of the scope of the venue requirement of § 4 of the Clayton Act, 15 U.S.C. § 15, 15 U.S.C.A. § 15, it cannot be doubted that that section precludes the Georgia Commissioner of Insurance from being made a defendant in this suit unless he 'resides or is found or has an agent' in the Southern District of Florida, or has consented, by formal appearance or by some other form of waiver, to be sued there.

He has neither consented nor made such a waiver. On the contrary, he has stood on the right Congress gave him and has resisted his amenability to suit in the Southern District of Florida.

2. The only basis, on the record before us, for the claim that § 4 subjected the Georgia Commissioner to suit is the suggestion that since the complaint charges a conspiracy between him and co-conspirators who reside in the Southern District of Florida, the latter thereby became his 'agents' within the meaning of § 4 of the Clayton Act. The Court now characterizes this contention as 'frivolous.' Presumably that is why this issue was not brought here and the grant of the writ was restricted to question 1. 345 U.S. 933, 73 S.Ct. 796.

3. If we now had to decide whether a co-conspirator as such is an 'agent' for purposes of venue under 15 U.S.C. § 15, 15 U.S.C.A. § 15, it cannot be doubted that we would have to conclude that the district judge was right in finding that the Georgia Commissioner could not be kept in the suit. Once it is clear that the Georgia defendant has the right to be let out, all discussion of the limits of mandamus becomes irrelevant and gratuitous. Obviously a judge cannot be mandamused to put a proposed defendant into a litigation when as a matter of unquestioned law he should be let out.

4. Since the mandamus question would not have been brought here had the volume of business that confronts the Court permitted the record to be examined in passing on the petition for certiorari as it now has been, we should not feel ourselves bound to discuss that question after we have had the kind of careful consideration that is given a case after argument.

5. It is a too easy view that now that the case is here we might as well dispose of it on the assumption on which it was brought here. The short but important answer is that which was made by Chief Justice Taft on behalf of the whole Court in Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 43 S.Ct. 422, 423, 67 L.Ed. 712.

'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 Appeal. The present case certainly comes under neither head.'

The case before us is more compelling for dismissal, since the question on which we granted certiorari does not here arise.

6. Discussion of mandamus in this case is not even useful as dicta for future guidance on an important issue.

The Court's opinion does not help decision when a party is dismissed from a litigation for reasons not as obviously compelling as those in this case. It necessarily leaves open the question whether such a ruling by a district judge may be reviewed by mandamus, without awaiting the completion of the entire litigation, in circumstances where postponement of review would involve a protracted trial, entailing heavy costs and great inconvenience. Compare Ex parte Skinner & Eddy Corp., 265 U.S. 86, 95-96, 44 S.Ct. 446, 448, 68 L.Ed. 912, with Ex parte Chicago, R.I. & P.R. Co., 255 U.S. 273, 41 S.Ct. 288, 65 L.Ed. 631. This Court ought not to be called upon to hold that where a district judge refused to entertain a 'frivolous' claim, mandamus will not issue to compel him to entertain it. But that is the only holding of the Court's decision today.