trains made up and sent north. The evidence does not show that any of the cars in the train coming in were destined for other points."

In our opinion the evidence does not admit of any other view than that the case made by it was within the Federal statute. The train from Oklahoma was not only an interstate train but was engaged in the movement of interstate freight, and the duty which the deceased was performing was connected with that movement, not indirectly or remotely, but directly and immediately. The interstate transportation was not ended merely because that yard was a terminal for that train, nor even if the cars were not going to points beyond. Whether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains or for unloading or delivering freight, and this was as much a part of the interstate transportation as was the movement across the state line. McNeill v. Southern Railway Co., 202 U. S. 543, 559. See also Johnson v. Southern Pacific Company, 196 U. S. 1, 21.

It comes then to this: The plaintiffs' petition, as ruled by the state court, stated a case under the state statute. The defendant by its special exceptions called attention to the Federal statute and suggested that the state statute might not be the applicable one. But the plaintiffs, with the sanction of the court, stood by their petition. It was to the case therein stated that the defendant was called upon to make defense. A plea in abatement would have been unavailing, because the plaintiffs were the proper parties to prosecute that case. When the evidence was adduced it developed that the real case was not controlled by the state statute but by the Federal statute. In short, the case pleaded was not proved and the case proved was not pleaded. In that situation the defendant interposed the objection, grounded on the Federal statute, VOL. CCXXIX-11

that the plaintiffs were not entitled to recover on the case proved. We think the objection was interposed in due time and that the state courts erred in overruling it. Two of the plaintiffs, the father and mother, in whose favor there was a separate recovery, are not even beneficiaries under the Federal statute, there being a surviving widow; and she was not entitled to recover in her own name, but only through the deceased's personal representative, as is shown by the terms of the statute and the decisions before cited. See also Tiffany on Death by Wrongful Act, 2d ed., §§ 80, 109, 116.

The judgment is accordingly reversed and the case is remanded for further proceedings not inconsistent with this opinion, but without prejudice to such rights as a personal representative of the deceased may have. Reversed.

MR. JUSTICE LAMAR dissents.

DEGGE v. HITCHCOCK, POSTMASTER GENERAL.

MAURY v. SAME.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Nos. 157, 158. Argued January 31, 1913.-Decided May 26, 1913.

This is apparently the first case in which a Federal court has been asked to issue a writ of certiorari to review a ruling by an executive officer of the United States Government.

Constant failure to apply for a particular remedy suggests that it is due to conceded want of power in the courts to grant it.

The scope of the writ of certiorari as it exists at common law has not been enlarged by any statute in the Federal jurisdiction, and cases

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Statement of the Case.

in which it has issued under statute from state courts to state officers are not controlling in the Federal courts.

While the original scope of the writ of certiorari has been enlarged so as to serve the office of a writ of error, it has always run from court to court or to such boards, tribunals and inferior jurisdictions whose findings and decisions had the quality of a final decision and from which there was no appeal or other method of review.

The decision of the Postmaster General that a fraud order shall issue is not the exercise of a judicial function, and if the decision is beyond his jurisdiction the party injured may obtain relief in equity; the order cannot be reviewed by certiorari.

So long as proceedings before an executive officer are in fieri the courts will not interfere with them. Plested v. Abbey, 228 U. S. 42. The writ of certiorari is an extraordinary remedy, and in deciding that it will not issue in a particular case this court does not anticipate in what cases exceptional facts may call for its use.

35 App. D. C. 218, 228, affirmed.

IN 1909 complaint was made to the postal authorities that W. W. Degge and the Wellington corporations, of which he was president, were using the mails in furtherance of a fraudulent scheme. Notice was given to Degge and the corporations and a hearing was had before the officer to whom, under the Postal Regulations, the disposition of this class of cases was committed. He found that the charges were true and to his finding he attached a copy of all the evidence which had been taken. The report was confirmed by the Postmaster General, who issued an order directing the postmaster at Boulder, Colorado, not to deliver mail addressed to Degge or to these corporations, but to return all such letters to the sender with the word "Fraudulent" plainly stamped on the envelope. Rev. Stat., §§ 3929, 4041.

Degge, the corporations, and some of the stockholders, thereafter filed petitions in the Supreme Court of the District of Columbia alleging that the officer before whom the hearing had been had was without power to make the report on which the Postmaster General had acted; that there was no testimony to show the existence of a fraud

Argument for Plaintiffs in Error.

229 U.S.

ulent scheme, and no evidence whatever to support the finding. It was alleged that the order was arbitrary, in excess of the power of the Postmaster General, and void. The petitioners prayed that the court would issue writs of certiorari directing the Postmaster General to certify the record to the court and that upon hearing and review thereof the court would set aside the order. A rule to show cause was granted. The Postmaster General demurred on the ground that the court was without jurisdiction to issue the writ, and subject thereto answered, attaching the record and the evidence on the hearing before the officer of the Post-Office Department having charge of the Fraud Orders investigations.

The case was heard by the Supreme Court of the District of Columbia on petition, demurrer and answer. After a hearing the court dismissed the case. The Court of Appeals of the District, without passing on the right to issue the writ, affirmed the judgment upon the ground that the evidence supported the order. The petitioners appealed and on the argument in this court, the Government renews the contention that the District Court was without jurisdiction to issue the writ of certiorari to the Postmaster General.

Mr. O. A. Erdman, with whom Mr. Walter B. Guy was on the brief, for plaintiffs in error:

The rights of petitioner Degge and the corporations are based upon the common right of citizens to receive mail unless that right has been forfeited by a use of the mails for purposes which are condemned by the acts of Congress as criminal, such as lotteries and similar schemes for perpetrating fraud. Petitioners' business consists in making investments in lands, irrigation ditches, reservoirs, mining property, stocks and securities, and they are not engaged in any business or practice prohibited by any law of the United States. The facts shown by the evidence

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Argument for Plaintiffs in Error.

and reported to the Postmaster General are not only insufficient in law to sustain the supposed "findings," but do not constitute any scheme or device condemned by §§ 3929, 4041, Rev. Stat., or any other law authorizing the Postmaster General to issue a fraud order.

The petitioning stockholders based their case on the common right of citizens to have their mail forwarded and delivered, unless such mail contained matter vicious, corrupting, immoral or dangerous in violation of the laws of Congress.

Inasmuch as the Postmaster General has rested his defense in this proceeding entirely upon the findings and conclusions of his subordinate, and has relied upon such findings and conclusions as being conclusive and not subject to review by the courts, suppressing and omitting from this record the papers on which such findings and conclusions are based, it becomes necessary to bring up the omitted papers by means of the writ of certiorari, and this will show how many more "false and misleading" statements there are and who made them.

The answer of the Postmaster General declaring that whether he is right or wrong, or whether he has misconstrued the law or not, is not for the courts to say, and that the courts have no business to interfere, is in the face of the fact that the findings do not support any fraud order against any of the corporations, according to which Degge is the only offender.

Decisions of the Postmaster General in fraud order cases are by no means final and conclusive. Bank v. Gilson, 161 Fed. Rep. 290; American School v. McAnulty, 187 U. S. 94, 108-110; Marbury v. Madison, 1 Cranch, 137, 171.

The writ of certiorari at common law is considered as an extraordinary remedy resorted to for the purpose of supplying a defect of justice in cases obviously entitled to redress, and yet unprovided for by the ordinary forms