Comfort Equipment Co. v. Steckler. Burch Mfg. Co., Inc. v. Steckler

LINDLEY, Circuit Judge

(concurring) .

I agree with my brethren that the petition for a writ of mandamus must be denied. In view, however, of the doubt and uncertainty which frequently arises as to the use of mandamus in aid of our appellate jurisdiction and which inherently requires clarity as to what is decided in each case, I feel constrained to say something as to the limitations which I feel attach to our decision.

The issue which is determinative of this cause is the narrow one of appropriateness of the remedy, i. e., our power to review by mandamus the specific order entered. Section 12 of the Clayton Act, 15 U.S.C. § 22, limits venue in antitrust litigation against a corporation to the district whereof it is an inhabitant or to “any district wherein it may be found or transacts business”. If none of these conditions exists, the court wherein such an action is brought lacks venue; 28 U.S.C. § 1406(a) is applicable and the court must either dismiss the cause or transfer to a district where venue lies. The section is mandatory. Thus, we are faced with the narrow issue of whether mandamus is appropriate to review a trial court’s determination that such an action is properly before it.

In Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 74 S.Ct. 145, the Supreme Court treated the issue of venue as a question of law from a decision as to which an aggrieved party may obtain adequate relief by appeal after final adjudication on the merits. It is urged before us that the remedy by way of appeal is inadequate, inasmuch as the venue question depends, in the first instance, on factual determinations of the trial court which come before us fortified by a presumption of validity, the propriety of which should not be delayed until the case is finally disposed of. Conceding the speculative character of the adequacy of this remedy, we are aware of no authority which would permit us, under the guise of any remedy, to assume the stature of a super trial court, prior to decision on the merits, to second guess the district court on the exercise of its granted powers, giving no weight to findings of fact on which its decision depends. If such power of review is to exist it must be provided by the Congress. However, further pursuit of this argument would serve no useful purpose. The Bankers Life decision is controlling on the question before us; the remedy of mandamus is inappropriate.

We can reconcile this result with our decisions in C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F.2d 410, affirmed Cardox Corp. v. C-O-Two Fire Equip. Co., 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668, and Dairy Industries Supply Ass’n v. La Buy, 7 Cir., 207 F.2d 554, insofar as those cases considered the merits of a like petition, on the single ground that the question of the appropriateness of the remedy of mandamus was not raised in either of those cases.