R. R. Co. v. Wiswall, 23 Wall. 507; Ex parte Loring, 94 U. S. 418; Virginia v. Rives, 100 U. S. 313; In re Rice, 155 U. S. 396; In re Atlantic City R. R., 164 U. S. 693. Ex parte Wisner distinguished.

The proper and adequate remedy is by appeal after entry of final judgment or decree.

The writ of mandamus cannot be used to perform the functions of an appeal or writ of error, and is only granted when there is no other adequate remedy available. In this case the petitioner has an adequate remedy by way of an appeal or writ of error.

The whole issue upon the motion to remand is, whether a complete determination of a separable controversy can be had without the presence of the defendants other than the Wabash Railroad Company, and this question has been judicially determined by the proper tribunal, to which it was regularly presented. To issue a writ of mandamus to that tribunal, directing the remand of the action, would constitute a premature review and reversal of this judicial determination in a manner not permitted by law.

Whether or not the other defendants were indispensable parties; whether or not a separable controversy existed, are judicial questions which have been decided by the proper tribunal, whose decision thereon is final until reversed in the regular manner.

The correctness or incorrectness of the judicial action taken by the court below in deciding these questions cannot be reviewed by this court at this time and in the manner sought. The petitioner must await the entry of a final judgment before attempting to review by appeal the action of the court below. Graves v. Corbin, 132 U. S. 571; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556; The Removal Cases, 100 U. S. 457.

MR. CHIEF JUSTICE FULLER, after making the foregoing statement, delivered the opinion of the court.

The suit was commenced in the state court by a citizen

and resident of the city, county and State of New York against a corporation, a citizen of the State of Ohio, and other defendants, many of whom were residents and citizens of the State of New York, the value of the matter in dispute, exclusive of interest and costs, exceeding the jurisdictional sum.

The defendant, the Wabash Railroad Company, a citizen of Ohio, filed its petition and bond in proper form for the removal of the suit into the United States Circuit Court for the Southern District of New York, on the ground of separable controversy so far as it was concerned, and it was removed accordingly. A motion to remand was made and denied by the Circuit Court, which held that the controversy was separable, and that the other defendants were not indispensable or necessary parties to the complete determination of that separable controversy.

The issue on the motion to remand was whether such determination could be had without the presence of defendants other than the Wabash Railroad Company, and this was judicially determined by the Circuit Court, to which the decision was by law committed.

The application to this court is for the issue of the writ of mandamus directing the Circuit Court to reverse its decision, although in its nature a judicial act and within the scope of its jurisdiction and discretion.

But mandamus cannot be issued to compel the court below to decide a matter before it in a particular way or to review its judicial action had in the exercise of legitimate jurisdiction, nor can the writ be used to perform the office of an appeal or writ of error.

Where the court refuses to take jurisdiction of a case and proceed to judgment therein, when it is its duty to do so and there is no other remedy, mandamus will lie unless the authority to issue it has been taken away by statute. In re Grossmayer, Petitioner, 177 U. S. 48; In re Hohorst, Petitioner, 150 U. S. 653. And so where the court assumes to exercise jurisdiction on removal when on the face of the record abso

lutely no jurisdiction has attached. Virginia v. Paul, 148 U. S. 107; Ex parte Wisner, 203 U. S. 449.

"In In re Hohorst, Petitioner, 150 U. S. 653, the bill was filed in the Circuit Court of the United States for the Southern District of New York against a corporation and certain other defendants, and was dismissed against the corporation for want of jurisdiction. From that order complainant took an appeal to this court, which was dismissed for want of jurisdiction because the order, not disposing of the case as to all the defendants, was not a final decree from which an appeal would lie. 148 U. S. 262. Thereupon an application was made to this court for leave to file a petition for a writ of mandamus to the judges of the Circuit Court to take jurisdiction and to proceed against the company in the suit. Leave was granted and a rule to show cause entered thereon, upon the return to which the writ of mandamus was awarded." In re Atlantic City Railroad, 164 U. S. 633.

In Ex parte Wisner, Wisner, a citizen of the State of Michigan, commenced an action at law in the Circuit Court for the city of St. Louis, State of Missouri, against Beardsley, a citizen of the State of Louisiana. After service of summons on Beardsley, he filed his petition to remove the action from the state court into the Circuit Court of the United States for the Eastern District of Missouri, on the ground of diversity of citizenship, with the proper bond, and an order of removal was made by the state court, and the transcript of record was filed in the Circuit Court. Wisner (who had had no choice but to sue in the state court) at once moved to remand the case, on the ground that the suit did not raise a controversy within the jurisdiction of the Circuit Court, and that as it appeared on the face of the record that plaintiff was a citizen and resident of Michigan, and defendant a citizen and resident of Louisiana, the case was not one within the original jurisdiction of the Circuit Court, in accordance with the statute providing that where jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall be brought

only in the district of the residence of either the plaintiff or the defendant. The motion to remand was denied, and Wisner applied to this court for a writ of mandamus which was subsequently awarded.

In the present case the removal was granted and sustained on the ground that there was a controversy between the removing defendant and plaintiff, which could be fully determined as between them without the presence of the other defendants. That being so, the suit might have been brought originally in the Circuit Court against the railroad company as sole defendant.

If the ruling of the Circuit Court was erroneous, as is contended, but which we do not intimate, it may be reviewed after final decree on appeal or error. Missouri Pacific Railway Company v. Fitzgerald, 160 U. S. 556, 582.

Rule discharged; petition dismissed.

HOMER E. GRAFTON, PLAINTIFF IN ERROR v. THE UNITED STATES.

IN ERROR TO THE SUPREME COURT OF THE PHILIPPINE ISLANDS.

No. 358. Argued March 18, 19, 1907.-Decided May 27, 1907.

The prohibition of double jeopardy is applicable to all criminal prosecutions in the Philippine Islands.

A person is not put in second jeopardy unless his prior acquittal or conviction was by a court having jurisdiction to try him for the offense charged.

The judgment of a court-martial having jurisdiction to try an officer or soldier for a crime is entitled to the same finality and conclusiveness as to the issues involved as the judgment of a civil court in cases within its jurisdiction is entitled to.

General courts-martial may take cognizance, under the 62d article of war, of all crimes, not capital, committed against public law by an officer or soldier of the Army within the limits of the territory within which he is serving; and, while this jurisdiction is not exclusive, but only concur

Argument for Plaintiff in Error.

206 U.S.

rent with that of the civil courts, if a court-martial first acquires jurisdiction its judgment cannot be disregarded by the civil courts for mere error, or for any reason not affecting the jurisdiction of the court rendering it.

The same acts constituting a crime against the United States cannot, after the acquittal or conviction of the accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same govern

ment.

Although the same act when committed in a State might constitute two

distinct offenses, one against the United States and the other against the State, for both of which the accused might be tried, that rule does not apply to acts committed in the Philippine Islands. The government of a State does not derive its powers from the United States, while that of the Philippine Islands does owe its existence wholly to the United States.

A soldier in the army, having been acquitted of the crime of homicide, alleged to have been committed by him in the Philippine Islands, by a military court-martial of competent jurisdiction proceeding under authority of the United States, cannot be subsequently tried for the same offense in a civil court exercising authority in that Territory.

THE facts are stated in the opinion.

Mr. Clarence S. Nettles and Mr. John H. Atwood, with whom Mr. Frederic D. McKenney was on the brief, for plaintiff in

error:

The plaintiff in error, having been tried and acquitted of the alleged homicide by a lawfully constituted court, having jurisdiction of his person and the subject matter of the offense, his second trial unlawfully put him in jeopardy of punishment a second time for the same offense, in direct violation of the Fifth Amendment, and sec. 5 of the Act of July 1, 1902 (32 Stat. at L. 691, chap. 1369).

Our courts have always guarded, with jealous care, the constitutional right of accused persons not to be twice placed in jeopardy for the same offense. Ex Parte Lange, 18 Wall. 205; 1 Bishop on Criminal Law, § 979; The Abbottsford, 92 U. S. 440; Coleman v. Tennessee, 97 U. S. 509; People v. Minor, 144 Illinois, 308; State v. Bowen, 45 Minnesota, 145; State v. Lange, 96 Tennessee, 668.