CERTIORARI to review a judgment of the Circuit Court of Appeals affirming a conviction of conspiracy to violate the National Prohibition Act. The writ of certiorari, at first denied, post, p. 669, was granted on a petition for rehearing, post, p. 655.

Mr. Edward F. Colladay, with whom Mr. William A. McClellan was on the brief, for petitioner.

Solicitor General Biggs, with whom Mr. W. Marvin Smith was on the brief, for the United States.

PER CURIAM.

It appeared, on rehearing, that the petitioner and others were indicted on March 4, 1932, in the District Court of the United States for the Southern District of Indiana for conspiring to violate the National Prohibition Act; that the petitioner was found guilty by a jury on May 20, 1932, and, with others, was sentenced to fine and imprisonment by a judgment entered in that court on June 3, 1932; that, on appeal, the judgment, as to the petitioner, was affirmed by the United States Circuit Court of Appeals for the Seventh Circuit on August 7, 1933, and that a petition for rehearing duly filed by him in that court was denied on October 10, 1933. It further appeared that on October 11, 1933, the Circuit Court of Appeals, upon consideration of a motion by the petitioner for a stay of mandate pending a petition to this Court for writ of certiorari, stayed its mandate until its further order, and ordered that the petitioner proceed with diligence and promptly file the petition for writ of certiorari in this Court. Petition for writ of certiorari was filed in this Court on January 6, 1934 and within the time provided by law.

The Solicitor General appeared on behalf of the Government upon the rehearing and stated his view to be that this case is controlled by the decision in United States

46305°-34- -39

v. Chambers, ante, p. 217, and that the judgment of the court below should be reversed.

The Court is of the opinion that it appears from the record that no final judgment was rendered herein against the petitioner prior to the ratification of the Twenty-first Amendment. The judgment of the Circuit Court of Appeals, as entered in the cause of this petitioner, is accordingly reversed, and the cause is remanded to the District Court with direction to vacate that part of its judgment which sentences this petitioner, and to dismiss the indictment as to him. United States v. Chambers, ante, p. 217. Reversed.

EX PARTE BALDWIN ET AL.

PETITION FOR WRIT OF MANDAMUS.

No. 19, original. Argued February 12, 1934.-Decided March 19,

1934.

1. The writ of mandamus will not be issued by this Court at the instance of a trustee in bankruptcy to compel the District Court to accept jurisdiction on removal of a suit in a state court, brought against him as such trustee and affecting the title and possession of property of which he has taken possession as part of the bankrupt estate. There is an adequate remedy by application to the court of bankruptcy to enjoin the prosecution of the suit. P. 614.

2. All property in the possession of a bankrupt of which he claims the ownership passes, upon the filing of the petition in bankruptcy, into the custody of the court of bankruptcy. P. 615.

3. Where a court of competent jurisdiction has, through its officers, taken property into its possession, the property is thereby withdrawn from the jurisdiction of other courts, and the court having possession may not only issue all writs necessary to protect its possession from physical interference, but is entitled to determine all questions respecting the same. P. 615.

4. The jurisdiction in such cases is exclusive of the jurisdiction of other courts although otherwise the controversy would be cognizable by them. P. 615.

610

Statement of the Case.

5. In bankruptcy, this rule applies regardless of whether the property is located in the district in which the bankruptcy jurisdiction originated; and an injunction to protect its possession may issue either from the federal court of original jurisdiction, or from the federal court of the district in which the state court suit is brought or in which the plaintiff in that suit resides. P. 615.

6. The exclusive jurisdiction acquired by a court of bankruptcy through taking possession of land as part of the bankrupt's estate is not limited to prevention of interference with use of the land but extends also to the adjudication of questions respecting the title. P. 616.

7. The inherent power of a bankruptcy court to protect its jurisdiction over property of which it has taken possession from interference by suit against the trustee thereafter begun in a state court, is expressly reserved in § 265, Jud. Code, and is not abridged by § 23 (a) of the Bankruptcy Act, relating to suits over property brought by trustees in bankruptcy against adverse claimants, nor by § 66, Jud. Code, which provides that every receiver or manager of any property appointed by any court of the United States, may be sued without previous leave of that court, in respect of any act or transaction of his in carrying on the business connected with such property, subject, however, to the equity jurisdiction of the appointing court so far as may be necessary to the ends of justice. P. 616.

8. A suit brought in a state court against trustees in bankruptcy to forfeit to the plaintiffs a railroad right of way in the trustees' possession, upon the ground that the bankrupt railway company broke an agreement requiring it to maintain train service,—held subject to the jurisdiction of the bankruptcy court, notwithstanding that, as a mere incident, damages also were prayed against the trustees because of their failure to maintain the service after they took over the railway. P. 618.

9. Non-feasance of the trustees in bankruptcy in not reviving train service which the bankrupt wholly ceased to maintain before they took possession, was not an act or transaction" of the trustees, within the meaning of § 66, Jud. Code. Id.

Rule discharged.

UPON the return of the District Court for the Southern District of Texas, and of Thomas M. Kennerly, judge thereof, to a rule to show cause why a writ of mandamus

Opinion of the Court.

291 U.S.

should not issue commanding that jurisdiction be taken of a petition for the removal to that court of a suit pending in a court of Texas against the petitioners, Baldwin and Thompson, trustees in bankruptcy, the Beaumont, Sour Lake & Western Railway Company, and the Houston North Shore Railway Co.

Messrs. Robert H. Kelley and Harry R. Jones, with whom Messrs. Edward J. White and Frank Andrews were on the brief, for petitioners.

Mr. Lon E. Blankenbecker for Tyrrell & Garth Investment Co., plaintiff in the state court.

MR. JUSTICE BRANDEIS delivered the opinion of the Court.

This petition for a writ of mandamus, filed in this Court by leave, prays that the federal court for southern Texas and Thomas M. Kennerly, judge thereof, be commanded to take jurisdiction, on a petition for removal, of a suit instituted in a state court of Texas by Tyrrell-Garth Investment Company. The petitioners are the defendants in that suit. Two of them, Baldwin and Thompson, are the trustees in bankruptcy of the Missouri Pacific Railroad system and are operating it. They were appointed by orders of the federal court for eastern Missouri entered in proceedings for reorganization under § 77 of the Bankruptcy Act as amended March 3, 1933, c. 204, § 1, 47 Stat. 1474. The other two petitioners are Texas corporations-Houston North Shore Railway Company and Beaumont, Sour Lake & Western Railway Companyand are parts of the Missouri Pacific system.2

1

There is another defendant in the state court suit (Johnson) who did not join in the petition for removal. The allegations concerning him are not here material.

All the stock of these corporations is owned by New Orleans, Texas & Mexico Railway Company; and nearly all of the latter's voting stock is owned by the Missouri Pacific.

610

Opinion of the Court.

The federal court entered an order denying the petition for removal and returned the papers to the petitioners, on the ground that it appears from the petition for removal that the suit is not one in which it is sought to hold the trustees "responsible in their own person and/or property but only in their representative capacity. See Ruff v. Gay, 3 F.Supp. 264; 67 F. (2d) 684." The Trustees claim that they are entitled to a writ of mandamus, because the suit in the state court is removable under § 33 of the Judicial Code as amended by Act of August 23, 1916, c. 399, 39 Stat. 532, being an action against officers of a court "of the United States on account of acts done under color of their office and in performance of their duties as such officers." 3

The petition for mandamus alleges that among the properties of which the Trustees took possession is an interurban railway in Texas, owned by the Houston North Shore Railway and leased to the Beaumont, Sour Lake & Western Railway; that they had taken possession of this property prior to the institution of the suit in the state court; and that the necessary effect of the institution and prosecution of the suit in the state court "is and will be to materially interfere with and obstruct the jurisdiction and powers of the federal court for eastern Missouri, with respect to the properties and assets of said debtors, the Beaumont, Sour Lake & Western Railway Company and Houston North Shore Railway Company, and each of them."

The petition for mandamus shows further, by reference to the complaint of the Investment Company, that a part

3

Judicial Code, § 33 as amended, provides: "When any civil suit is commenced in any court of a State . . . against any officer of the courts of the United States for or on account of any act done under color of his office or in the performance of his duties as such officer... the said suit . . . may, at any time before the trial or final hearing thereof be removed for trial into the district court . in the district where the same is pending."